How to apply for provisional release during the proceedings of the Court of Appeal or a regional court of appeal?
After the court of the first instance has pronounced the judgment, no matter the sentence is death penalty, imprisonment, confinement, or detention for training in the training institution, or dismiss the charge but detain defendant during the proceedings in appeal level or confinement in lieu of fine, these kinds of detentions render the right to file an application for provisional release.
The eligible persons to apply for provisional release during appeal are:
- the defendant;
- any interested person (e.g. parents, descendant, husband, wife, relatives, person of superior rank, employer, related person by way of marriage, person to whom the court deems as proximate relationship as relatives or having any other relationship which the court deems expedient to apply for bail) or juristic person (e.g. company, limited registered partnership) in case the accused or defendant is a director, representative, agent, partner, staff or employee of such juristic person.
Where to lodge an application for provisional release during the appeal?
In case where the court of the first instance has pronounced the judgment, no matter an appeal has not been lodged or an appeal has already been lodged but the case file has not been sent to the Court of Appeal or a regional court of appeal, the application for provisional release shall be lodged at the court of the first instance where judgment is given. In this case, if the court of the first instance deems expedient to grant a provisional release during an appeal, the court of the first instance shall have the power to grant a provisional release. In contrast, if the court of the first instance deems it is not appropriate to grant a provisional release, the court shall, without delay, send the application with the case file to the Court of Appeal or a regional court of appeal for consideration. The court of the first instance cannot deny a provisional release during an appeal by itself.
If the court of the first instance has already sent the case file to the Court of Appeal or a regional court of appeal, the application may be lodged at such court of the first instance or directly to the Court of Appeal or the regional court of appeal. If it is lodged at the court of the first instance, the court shall send the application to the Court of Appeal or the regional court of appeal for further consideration.
When to lodge and how many times shall the application be lodged?
As long as the Court of Appeal or a regional court of appeal has not pronounced the judgment, the application can be lodged at any time. In addition, if the Court of Appeal or a regional court of appeal does not grant provisional release, the application may be reapplied without limit. It should, however, contain reasonable grounds to amend the previous Court of Appeal or the regional court of appeal order.
The pronouncement of the Court of Appeal or regional court of appeal order
When the Court of Appeal or a regional court of appeal issues an order, such order shall be forwarded to the court of the first instance for the pronouncement to the appellant. In this case, the court of the first instance shall notify the accused or the defendant and the applicant without delay.
If the Court of Appeal or a regional court of appeal does not grant application for provisional release, what to do next?
In the case where the Court of Appeal or a regional court of appeal denies the application for provisional release during the proceedings of the Court of Appeal or a regional court of appeal, the applicant has the right to file appeal motion against such order to the Supreme Court.
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