CYIL vol. 13 (2022)

JIŘÍ MULÁK CYIL 13 ȍ2022Ȏ errors which may be committed by the ordinary courts, except in situations where such errors are of constitutional quality, the ECtHR has concluded, in the light of those factors, that the Constitutional Court cannot be regarded as a higher court within the meaning of Article 2 of Protocol No. 7 to the ECHR. 53 Another situation consists of constitutional offences of the President of the Czech Republic in the form of treason or gross violation of the Constitution or another part of the constitutional order under Article 65(2) of the Constitution of the Czech Republic. 54 The details of this procedure are regulated by Sections 97–108 of the Act No. 182/1993 Coll. I would like to point out that under § 108 of this Act: “ Unless otherwise provided by this Act, the provisions of the Criminal Procedure Code on proceedings before a court shall apply mutatis mutandis to proceedings on a constitutional action .” 6. Conviction on the basis of an appeal against a judgement of acquittal The Article 2(2) of Protocol No. 7 to the ECHR sets forth that the right to appeal may be subject to an exception “ in cases in which the person concerned […] was convicted following an appeal against acquittal ”. This “third exception” of the right to appeal in criminal matters removes this right from an accused person who was found not guilty at first instance (acquitted) but was later found guilty by the court of appeal – on the basis of an appeal lodged by the prosecutor. This is actually an abandonment of the idea that “ two instances must agree for a finding of guilt ” (and that the centre of gravity of the evidence lies before the court of first instance) in favour of the idea of “ the higher court/tribunal takes .” The restrictions of the right of appeal under Article 2 of Protocol No. 7 to the ECHR are permissible in so far as that the determination of questions of fact and law by the tribunal of second instance does not have to be subject to review. 55 There is necessary to state that there is more justification for this exception, as it materialises the basic component of the right which is none other than allowing review by higher tribunal, although in this case what has been reviewed is not conviction but a prior acquittal. In this regard, it is important to be aware of this point connects ECtHR requirements on conviction at second instance based on direct evidence. 56 Very important is that the evidence must be heard again before the appeal court (higher tribunal) as it would otherwise be unable to vary a prior acquittal based on witness statements or other direct evidence, that is, on evidence whore very nature requires direct assessment of the applicant and the complainant. 57 53 ECtHR decision in Saquetti Iglesias v. Spain of 30 June 2020, application no. 50514/13. 54 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, p. 20. 55 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. 974–975. 56 See ECtHR decision in Ekbatani v. Sweden of 26 May 1998, application no. 10563/83; ECtHR decision in Cooke v. Austria of 8 February 2000, application no. 25878/94; ECtHR decision in Marin v. Romania of 3 February 2009, application no. 30699/02, ECtHR decision in Danila v. Romania of 8 March 2007, application no. 53897/00. 57 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. 172.

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