CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) the grounds on which it may be exercised, shall be governed by law (§ 1). This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. 3 Article 14(5) of the ICCPR provides that “ Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law .” If we look at the legislation 4 of the Member States of the European Union or the Council of Europe, we find that each of these Member States regulates the appeal procedure or the right of appeal in very different ways and it is very difficult to find any common elements. 5 This is primarily because Article 2 of Protocol No. 7 to the ECHR itself entrusts legislation to national law and some Member States have expressed reservations about Article 2 of Protocol 7 to the ECHR. 6 The only exception in this respect is perhaps that there must be a so-called devolutionary effect (a higher court 7 deciding which must meet the attributes of Article 6(1) ECHR). 8 This is a right that belongs to anyone who has been found guilty or on whom a sentence has been imposed. It follows, therefore, that the right of appeal does not belong to the person who was acquitted at first instance (unless they seek acquittal on a more favourable ground) or to another person who is not the accused (e.g., the prosecutor, the victim, an interested party). It is therefore conceivable that a statutory construction could be envisaged which would provide that a judgment acquitting a defendant is not subject to appeal. In this context, it should be recalled that the theory recognises a threefold purpose of the appeal procedure. The immediate purpose of the appeal procedure is to correct a specific erroneous decision. The general purpose increases the guarantees for the application of the objective of criminal proceedings, which is to establish the facts beyond reasonable doubt (the so-called principle of substantive truth). It is therefore a protection against the possible consequences of erroneous (unlawful) decisions. The broader purpose of the appeal procedure 3 On this issue, cf. the key literature: TRECHSEL, S. Human Rights in Criminal Proceedings . Oxford: Oxford University Press, 2006, pp. 360-371; VAN DIJK, P., VAN HOOF, F., VAN RIJN, A., ZWAAK, L. (eds.) Theory and Practice of the European Convention on Human Rights. Cambridge: Intersensia, 2018, pp. 971–976. 4 See NAN, J.; HOLVAST, N.; LESTRADE, S. A European Approach to Revision in Criminal Matters? Erasmus Law Review , 2020, 13(4), pp. 104–106. 5 WASEK-WIADEREK, M. A New Model of Appeal Proceedings in Criminal Cases: Acceleration v. Fairness? A Few Remarks from the Perspective of the Standards of Protecting Human Rights. Studia Iuridica Lublinensia vol. XXX, 4, 2021, pp. 187–207. 6 GRABENWARTER, Ch. The European Convention on Human Rights . Commentary. Oxford: Clearway East Book, 2014, pp. 428–431; RAINEY, B., McCORMICK, P., OVEY, C. The European Convention on Human Rights . Oxford: Oxford University Press, 2014, pp. 304–306; FINGAS, M. The Appellate Court’s Reformatory Powers in ECtHR Case Law – between the Efficiency of the Procedure and the Guarantees of the Fair Trial in Criminal Proceedings. European Journal of Crime, Criminal Law and Criminal Justice , 2021, No. 29, pp. 154– 174; THAMAN, S. C. Appeal and Cassation in Continental European Criminal Justice Systems: Guarantees of Factual Accuracy, or Vehicles for Administrative Control? In: BROWN, D., K., IONTOCHEVA TURNER, J., WEISSER, B. (eds.) The Oxford Handbook of Criminal Process . Oxford: Oxford University Press, 2019 (online). 7 ZBICIAK, A., MARKIEWICZ, T. A new extraordinary means of appeal in the Polish criminal procedure: the basic principles of a fair trial and a complaint against a cassatory judgment. Access to Justice in Eastern Europe , 6(2):1-18, 2023, pp. 13–14. 8 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, pp. 168–170.

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