CYIL vol. 13 (2022)

JIŘÍ MULÁK CYIL 13 ȍ2022Ȏ With regard to the first exception, the ECtHR has clarified that a crime punishable by imprisonment can never be considered as an offence of a minor character . 22 In the Czech Republic, however, imprisonment is a universal type of punishment, as it can be imposed without exception for any criminal offence listed in a specific part of the Criminal Code. However, this is not a defining or sole criterion. In each individual case, specific circumstances need to be examined. In order for an act not to fall within that exception, the sanction imposed must be of a certain minimum gravity. In accordance with the principle of subsidiarity, it is for the national authorities to assess its adequacy and the consequences it has for the personal situation of the individual concerned. In the present case, the applicant was confiscated a large amount, 23 which represented almost all of his savings. 24 The question is whether a subjective aspect 25 should be applied to assess the applicability of the exception to less serious offenses, i.e. the assessment of the specific circumstances of the case, including the proportionality and consequences of the sanction imposed on the complainant’s personal situation. If it has serious consequences, then it has the right to appeal, while not. However, the requirements of legal certainty and the prohibition of arbitrariness require that the possibility of lodging an appeal be determined on an objective basis. The legislation must clearly state in advance whether an appeal is possible. The decisive factor must be the gravity of the most severe sanction that threatens, not the sanction actually imposed and its consequences for the complainant’s situation. In the Saquetti Iglesias case, 26 the legislation itself described the offense as serious. In addition, it allowed a fine of up to twice the undeclared amount. The conclusion that it is not a less serious offense therefore follows directly from the legislation and not from its application to the specific circumstances of the case. The ECtHR in this case unanimously ruled that the applicant’s right to appeal under Article 2 of Protocol No. 7 to the ECHR had been violated, as the customs offense for which the applicant was fined undeclared cash was criminal in nature and the complainant still did not have access to a higher court. degrees. The Constitutional Court, whose review power is limited to questions of constitutionality, cannot be considered as such. Unfortunately, it is not very clear from the case law of the ECtHR 27 what meaning should to be attributed to the phrase “ as prescribed by law ”, as the ECtHR has not addressed this issue at all. One of the interpretation that is naturally offered is that the criminal offences in question must be considered as “ of a minor character ” not only within the meaning of the ECHR, but that they must also be considered as such by national law. 28 I agree with Kmec, that the problem could perhaps arise if national law allowed only a mild sanction to be imposed for a particular offence (or even a milder sanction than for a misdemeanour), but still formally qualified it as a criminal offence. 29 The possibility of having a conviction for 22 ECtHR decision in Gurepka v. Ukraine (no. 2) of 8 April 2010, application no. 38789/04. 23 ECtHR decision in Luchaninova v. Ukraine of 9 June 2011, application no. 14347/02. 24 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. 1400–1401. 25 ECtHR decision in Saquetti Iglesias v. Spain of 30 June 2020, application no. 50514/13. 26 Ibidem. 27 Van DIIJK, P., Van HOOF, F., Van RIJN, A., ZWAAK, L. (eds.). Theory and Practice of The European Convention on Human Rights . 5th Edition. Cambridge: Intersensia, 2018, pp. 971–976. 28 ECtHR decision in Kindlhofer v. Austria of 26 October 2021, application no. 20962/15. 29 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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