CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … be found guilty, even if he was acquitted by the court of first instance (the accused will have to be alerted). 5 The appellate court will have to re-establish the evidence to the extent necessary, in particular the evidence decisive for the conviction. There will also be an obligation for the court of appeal to draw attention to a different (not only stricter) legal qualification. First, I will turn to the issue of criminal law and the ECHR (Part II.), Then in general, I will mention the exceptions to the right of appeal (part III.). I will gradually proceed to a thorough analysis of individual exceptions (minor offence - part IV.; decision in a single instance by the Supreme Court - part V; direct change by the appellate court of a acquittal judgment to a judgment condemning - part VI.). Subsequently, I will try to summarize the findings (Czech reflection - part VII. and Final summary – part VIII.). 2. Criminal procedural law and ECHR (Article 6 and Protocol No. 7) From the point of view of criminal procedure, Article 6 (1) of the ECHR, which sets out the principles of due process (independence, impartiality, the court established by law, the right to a legal judge, the public, etc.), Article 6 (2) of the ECHR on the presumption of innocence 6 and Article 6 (3) of the ECHR on the minimum rights of the accused (right of defense, adversarial proceedings - contradictory principle, 7 etc.). Also the right to liberty and security (Article 5 ECHR). The Protocol No. 7 8 to the ECHR provides for a right to fair procedures for lawfully resident foreigners facing expulsion (Article 1), the right to appeal in criminal matters (Article 2), compensation for the victims of miscarriages of justice (Article 3), equality between spouses (Article 5). The Protocol No. 7 to the ECHR also prohibits the re-trial of anyone who has already been finally acquitted or convicted of a particular offence (double jeopardy – ne bis in idem principle; Article 4). Article 2 of Protocol No. 7 provides: “ Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law” (§ 1). “ This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal ” (§ 2). Article 2 of Protocol No. 7 provides for the right to seek review of conviction and sentence by a higher tribunal. This right, 9 known as “ the right to a double degree of jurisdiction in criminal 5 See more part VI. of this study. 6 MULÁK, J. The principle of the presumption of innocence in the European and international context. Czech Yearbook of Public and Private International Law , 2018, Volume 9, p. 199–202. 7 For example the contradictory principle in criminal matters – MULÁK, J. The contradictory principle in the Czech criminal process and its manifestations before court. The Lawyer Quarterly , 2021, no. 1, pp. 104–125; MULÁK, J. The contradictory principle of criminal proceedings in case law of the ECHR. Czech Yearbook of Public & Private International Law . Prague 2020, pp. 41–58. 8 The Protocol No. 7 to ECHR (22 November 1984) entered into force on 1 November 1998. 9 See more GRABENWARTER, Ch. The European Convention on Human Rights. Commentary. Oxford: Clearway East Book, 2014, pp. 428-431; RAINEY, B., McCORMICK, P., OVEY, C. The European Convention on Human Rights . Oxford: Oxford University Press, 2014, pp. 304–306; FINGAS, M. The Appellate Court’s Reformatory Powers in ECtHR Case Law – between the Efficiency of the Procedure and the Guarantees of the Fair Trial in Criminal Proceedings. European Journal of Crime, Criminal Law and Criminal Justice , 2021, No. 29, pp. 154–174.

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