CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE EXCEPTIONS OF RIGHT TO APPEAL IN CRIMINAL MATTERS … Court of the Czech Republic decides) and also in proceedings on a constitutional action before the Constitutional Court of the Czech Republic against the President of the Czech Republic. In both of these proceedings, the Czech Criminal Procedure Code applies mutatis mutandis, but in the first case it is not a criminal charge within the meaning of Article 6 (1) of the ECHR, and the second case would probably be the same, because high treason and gross violation of the constitutional order are constitutional (not criminal) offenses. A direct change of a acquittal to a conviction by a court of appeal (third exception; part VI.) is now not possible in the Czech Republic, as the Criminal Procedure Code prohibits this. However, the proposed and forthcoming legislation (recodification of the Criminal Procedure Code) changes this paradigm and provides certain guarantees for this change. It is mainly the filing of an appeal by the public prosecutor to the detriment of the accused; warning the accused of the change; only in the appeal proceedings; evidence - taking incriminating evidence; determination of a specific reason for an extraordinary appeal to the Supreme Court). 8. Conclusion The right of appeal in criminal matters under Article 2 of Protocol No. 7 to the ECHR, which in one way completes Article 6(1) of the ECHR, is limited in several respects and ways. Firstly, by the very wording of the provision of paragraph (1) ( “Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law” ). On the one hand, there is a limitation that the question of the actual enforcement is left up to national regulation, thus considerably devaluing the European (supranational) guarantee; on the other hand, the contracting states have the possibility to limit the review of the verdict (when it can be limited only to the sentence part of the verdict). It is clear from the text of Article 2(1) of Protocol No. 7 to the ECHR that the ECHR leaves considerable discretion to the states (national law). Another limitation is the § 2 through the additional exceptions listed in Article 2(2) of Protocol No. 7 to the ECHR (in the case of “less serious”/” minor character ” offences which are qualified as such by national law, or where the person concerned has been tried at first instance by the Supreme/High Court or has been found guilty and convicted on the basis of an appeal lodged against a judgement of acquittal). So it is clear that, contracting member States have in principle a very wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the ECHR is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law, or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation (national law) on the right to a review mentioned in that provision must, by analogy with “ the right of access to a court ” embodied in Article 6(1) of the ECHR, pursue a legitimate aim and not infringe the very essence of that right. I my opinion, Czech criminal procedural law de lege lata regarding right to an appeal in criminal matters includes all the attributes required by Article 2 of Protocol No. 7 to the ECHR. My conclusion is that the provision of Article 2 of Protocol No. 7 to the ECHR is

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