CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … such an offence reviewed by an appellate court might then be called for, not by the severity of the threatened sanction, but by the “stigma effect” that is usually attached to a conviction for a criminal offence. 30 However, this is a task for legislators to precisely delimit crimes and other offenses (eg misdemeanors) in terms of their type seriousness. This is the correct application of the principle of subsidiarity of criminal repression ( ultima ratio principle) at the legislative level. In any event, the term “ minor character offense ” is a very vague provision (expression), lacks the attributes of a certain degree of certainty, and ultimately depends on how the present case (case-by-case) is ultimately assessed by the ECtHR. At the same time, I dare say that this expression is in a way a contradiction, because every crime is, resp. should be serious. 5. Conviction at first instance by the highest-instance court The right to appeal guaranteed in Article 2 of Protocol No. 7 to the ECHR may be excluded in situations in which a person “ was tried in the first instance by the highest tribunal ”. This situation had already been addressed prior to the entry into force of Protocol No. 7. In this regard, the ECHR has found no violation in respect of a first instance trial involving high ranking officials and non-dignitaries before the highest domestic court without the possibility of appeal, since Article 6(1) of ECHR does not guarantee such a right. 31 Subsequently, an exception was expressly included in Article 2(2) of Protocol No. 7 to the ECHR, although this provision has not been applied directly ECtHR case law. 32 This point appears to suggest that the hearing and the evidence at a higher court is already, in itself, sufficient guarantee that the rights of the convicted person have been satisfied. These situations may occur in different national legal systems when, because of the nature of the offence or the status of the accused (such as person protected by parliamentary privilege or some immunity 33 ), the hearing takes place in a single (“ one and only ”) instance before the higher tribunal. In Fanego opinion, the provision is not entirely justifiable because the restriction on the right does not appear to be proportional in relation to a guarantee which it is supposed to justify and legitimate. Her opinion is simple “ If there are serious risks with a single instance in criminal proceedings, whatever the judicial body it is entrusted to, those same risks become actual damage here as any possibility of ordinary or extraordinary appeal has been vetoed” , 34 but the ECtHR does not share her opinion. Fanego explains that even before the Protocol No. 7 to the ECHR was drafted the former ECmHR (predecessor the ECtHR) refused to find breach of the right to appeal in criminal matters in cases of privilege even when under joiner rules non-privileged person were also tried by higher tribunal, and the 30 Ibidem. 31 ECmHR decision in Crociani et al. v. Italy of 18 December 1980, application no. 8603/79. 32 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. 33 VNENK, V. Systematika odpovědnosti prezidenta České republiky a prezidenta Slovenské republiky (The Concept of Responsibility of the President of the Czech Republic and the Slovak Republik). Studia Iuridica Cassoviensia , 2018, no. 2, pp. 20–21. 34 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, p. 171.

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