CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … question of whether the offence is punishable by imprisonment or not. 14 The amount of a fine assessed in the context of the system of sanction and the purchasing power in a particular Member State. The same amount of a fine may hint at an offence of a minor character in one Member State, whereas in another State it is not minor anymore. I agree with Fanego 15 and others 16 that concept of “ minor character ” raises the problem of what should be understood as such, given the vague outlines and also, of course, requires consideration of the fact that categories of misdemeanours and minor offences could be excepted form the right of an appeal in criminal matters. However, given that there is no such category in many legal systems, it is feasible that the limit could be established for less serious offences taking into amount the corresponding punishment. As regards the question of a “ offence of a minor character ”, the ECtHR has clearly stated that, 17 in view of the purpose of Article 2 of Protocol No. 7 to the ECHR and the nature of the guarantees enshrined therein, a criminal offence for which a custodial sentence may be imposed as the main penalty under national law cannot be considered as “ of a minor character ” within the meaning of paragraph 2 of that provision, 18 even if its maximum length were relatively minor (e.g., in the magnitude of days or weeks). 19 It is worth noting that while Article 2(1) of Protocol No. 7 to the ECHR refers to a “ criminal offence ”, Article 2(2) of Protocol No. 7 to the ECHR refers to an “ offence of a minor character ”, which would suggest a certain hierarchy. In any case, this is not a categorisation of “criminal offences” in terms of the type of seriousness within the meaning of Section 14 of the Czech Criminal Code, 20 but again, these are concepts subject to autonomous interpretation by the ECtHR and including also misdemeanours, other administrative offences or disciplinary offences, although here the ECtHR indicates at least partial respect for the classification made by national legal systems. 21 14 Van DIJK, P., Van HOOF, F., Van RIJN, A., ZWAAK, L. (eds.) Theory and Practice of the European Convention on Human Rights . Cambridge: Intersentia, 2018, pp. 973–975. 15 ARANGUENA FANEGO, C. The Right to a Double Degree of Jurisdiction in Criminal Offences. In: GARCÍA ROCA, J., SANTOLAYA, P. (eds.). Europe of Rights: A Compendium on the European Convention of Human Rights. Leiden/Boston: Brill | Nijhoff, 2012, pp. 170–171. 16 Van DIJK, P., Van HOOF, F., Van RIJN, A., ZWAAK, L. (eds.) Theory and Practice of the European Convention on Human Rights . Cambridge: Intersentia, 2018, p. 974. 17 See THAMAN, S. C. Appeal and Cassation in Continental European Criminal Justice Systems: Guarantees of Factual Accuracy, or Vehicles for Administrative Control? In: BROWN, D., K., IONTOCHEVA TURNER, J., WEISSER, B. (eds.) The Oxford Handbook of Criminal Process . Oxford: Oxford University Press, 2019 (online). 18 ECtHR decision in Gurepka v. Ukraine (no. 2) of 8 April 2010, application no. 38789/04, ECtHR decision in Grecu v. Romania of 30 November 2006, application no. 75101/01. 19 ECtHR decision in Zaicevs v. Latvia of 31 July 2007, application no. 65022/01 (14 days); ECtHR decision in Galstyan v. Armenia of 15 November 2007, application no. 26986/03 (15 days); ECtHR decision in Kamburov v. Bulgaria of 23 April 2009, application no. 31001/02 (15 days). 20 Under Section 14 of the Czech Criminal Code, criminal offences are divided into misdemeanours (“přečin”) and felonies (“zločin”). Misdemeanours are all negligent offences and those intentional offences for which the Criminal Code provides for a maximum sentence of imprisonment of up to five years (Section 14(2)). Felonies are all criminal offences which are not misdemeanours under the Criminal Code; especially serious felonies (“zvlášť závažný zločin”) are those intentional criminal offences for which the Criminal Code prescribes a sentence of imprisonment with the upper limit of at least ten years (Section 14(3)) 21 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. 1401.

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