CYIL vol. 13 (2022)

JIŘÍ MULÁK CYIL 13 ȍ2022Ȏ instance only if, during the appeal proceedings, it has re-examined evidence relevant to the findings of facts already taken at the main trial or if it has taken evidence which was not taken at the main trial. The court of appeal may only amend the judgment under appeal against the accused person on the basis of an appeal by the public prosecutor which was lodged against the accused person. The court of appeal may itself find the accused person guilty of the offence for which they were acquitted by the judgment under appeal. The court of appeal may do so only if it has informed the accused person of the possibility of proposing supplementary evidence. If the accused person has not been given a prior notice in accordance, they must be given the same notice still before the judgment is delivered, they must be informed about the consequences thereof, they must be given an opportunity to comment on the change of legal assessment and, if they so request, they must be given a further period in which to prepare their defence, and the appeal hearing must be adjourned for that purpose. If the court of appeal finds the accused person guilty of the offence for which the court of first instance acquitted them and imposes an unconditional prison sentence, the execution of the sentence shall be suspended until the expiry of the time-limit for appeal to the persons entitled to appeal in favour of the accused person or until the Supreme Court has decided on the extraordinary appeal in their favour, unless the accused person themselves requests that the sentence be executed without any postponement. It is necessary to instruct the accused person accordingly. I think that the current legislation is rather better. The grounds of extraordinary appeal will also be extended and it will be possible to bring an extraordinary appeal also if the accused person has been found guilty by the court of appeal of an offence for which they were acquitted by the judgment of the court of first instance. This would therefore constitute a special, separate ground of extraordinary appeal. Under the third exception, a person who has been acquitted by the court of first instance but found guilty by the court of appeal does not have a right of appeal either. It may be concluded a fortiori that Article 2 of Protocol No. 7 does not even guarantee a right of appeal against a judgment of conviction of an appellate court which has reversed the original judgment of conviction issued by the court of first instance to the detriment of the accused person. 65 7. Czech reflection of the exceptions to the right of appeal - summary In the previous chapters of this study (part I., IV. - VI.), I tried to exempt from the right of appeal on the basis of the available literature and relevant case-law of the ECtHR. At some points, I also drew attention to the Czech context. In summary form, I would like to state the following with regard to the three exceptions to the right of appeal examined: The concept of a less serious crime – “ minor character ” (first exception; part IV.) is out of the question in the Czech Republic, as it is possible to impose a custodial sentence for each crime. At the same time, the right to appeal is also ensured in proceedings on misdemeanors under the Misdemeanor Act (Act No. 250/2016 Coll.). Conviction in a single instance by the Supreme Court (second exception; part V.) is out of the question, as the Supreme Court of the Czech Republic never decides as a court of first instance. Certain indications of a single proceeding can be seen in proceedings against judges, public prosecutors and executors (here the disciplinary senate of the Supreme Administrative 65 Cited by 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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