CYIL vol. 13 (2022)

JIŘÍ MULÁK CYIL 13 ȍ2022Ȏ offences ”, also basically corresponds 10 to the one under Article 14 (5) International Covenant on Civil and Political Rights (ICCPR) and continues an entirely new ECHR guarantee. Article 6 (1) of the ECHR provides for a right of access to court, but it is not stipulate a right of access to court of second instance. 11 The right to an effective remedy (Article 13 of ECHR) for its part does not reguire that a decision must be issued by a tribunal. 12 In criminal cases before the ECtHR, there are often violations of several provisions [a combination of Article 6 (1) of the ECHR with (2) or (3), or also with Article 2 or Article 4 of Protocol No. 7 to the ECHR]. If the ECtHR finds that there has been a violation of Article 6 § 1 of the ECHR, it generally no longer deals with a violation of the other articles. This is one of the reasons why there are also a long series of judgments on Article 6 (1) of the ECHR and very little on Article 2 of Protocol No. 7 to the ECHR and even less on exceptions to the right of appeal (paragraph 2 of Article 2 of Protocol No. 7 to the ECHR). 3. Exceptions to the right of appeal in criminal matters - Article 2(2) of Protocol No. 7 The Article 2 of Protocol No. 7 to the ECHR is the subject to two exceptions. The ECtHR, by analogy with the right of access to court embodied in Article 6(1) of ECHR, found that any restriction contained in domestic legislation (national law) must pursue a legitimate aim and must not infringe the very essence of that right. Member States have a wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the ECHR| is to be exercised. However, to be effective, a remedy must be directly available to those concerned. We can say that, it is in the line with Article 2 of Protocol No. 7 to the ECHR if the review of a criminal case depends on a prior decision on the application for leave of appeal. In these cases, a right to apply for leave to appeal to a higher court, as well as the decision by higher court to decline to deal with or to reject an appeal can in itself be regarded as a review within the meaning of Article 2 of Protocol No. 7 to the ECHR. As it has already been mentioned, there are three exceptions to the right of appeal in criminal matters, which are provided for in Article 2(2) of Protocol No. 7 to the ECHR. 13 Firstly, the matter concerns an offence of a minor character (part IV.); secondly, the situation where the first-instance decision was issued by the highest-instance court (“ highest tribunal ”, part V.); and finally, the matter consists in conviction on the basis of an appeal against a judgement of acquittal (part VI.). 4. Offence of a minor character – What does it mean? The question of whether an offence is of a “ minor character ” must be defined in the abstract and not on case-to-case. In this context, it is not sentence which imposed on a person that is decisive but rather the sentence liable to be imposed. An important criterion it the 10 See more DRAŽAN, D. The Right to Appeal in International Criminal Law: human rights benchmarks, practice, and appraisal. Leiden/Boston : Brill/Nijhoff, 2019, pp. 24, 47–68. 11 The ECtHR decision in Nedzela v. France of 27 July 2006, appliacation no. 73695/01. 12 The ECtHR decision in Lalmahomed v. the Netherlands of 22 February 2011, appliacation no. 26036/08. The ECtHR decision in Dorado Baúlde v. Spain (dec.) of 1 September 2015, appliacation no. 23486/12. 13 KMEC, J., KOSAŘ, D., KRATOCHVÍL, J., BOBEK, M. Evropská úmluva o lidských právech. Komentář. (European Convention on Human Rights. Commentary). Prague: C. H. Beck, 2012, p. 1402.

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