CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … can be seen as ensuring the correct and uniform interpretation of the law and improving the quality of the work of law enforcement authorities. 9 First, the exceptions to the right of appeal in criminal cases will be discussed in detail (Part 2). Afterwards, the ECtHR jurisprudence on appeal proceedings and the right to be present at the hearing of an appeal will be presented and also the right to a statement of reasons in the case-law of the ECtHR (Part 3). Afterwards, we will focus on the possibilities of changing an acquittal into a conviction by the Court of Appeal with a focus on the Czech legislation (Part 4). In this context, it is also worth recalling the factual and legal conclusions of the ECtHR judgment in Tempel v Czech Republic (Part 5). Finally, I would like to present the issue of the relationship between the Court of First Instance and the Court of Appeal in criminal cases from the perspective of the Constitutional Court of the Czech Republic on the basis of two recent decisions. 2. Exceptions to the right of appeal in criminal matters Article 2(2) of Protocol 7 to the ECHR provides for three exceptions to the right of appeal in criminal matters. 10 These are cases of minor offences which are classified as such by law or where the person concerned has been tried at first instance by the highest court or has been found guilty and convicted on appeal against an acquittal. 11 The first exception concerns crimes of a less serious nature. 12 In practice, it will not always be clear where the dividing line between serious and less serious offences should be drawn. The Explanatory Report to Article 2 of Protocol No. 7 mentions as an important criterion the question of whether or not a prison sentence can be imposed for the offence. Although this criterion is clear, it is unlikely to lead to a common scope or autonomous meaning of the term “ minor offences ”. Given that the issue of imprisonment is entirely regulated by national law, there is considerable variation between ECHR Contracting States. However, it may be noted that an offence for which a custodial sentence may be imposed as the main penalty under national law cannot be considered ‘minor’ within the meaning of paragraph 2 of this provision, even if the maximum sentence is relatively minor (e.g., in the order of days). The particular circumstances of each case must be examined. In order to constitute an offence that does not fall within the exception, the sanction imposed must be of a certain minimum severity. The co-determinant is the sanction threatened, not the sanction actually imposed, although there are exceptions to this approach. It is also significant that in some States a large number of minor offences, such as traffic offences, may be punishable by imprisonment, although in practice such penalties are never imposed. It is unlikely that the drafters of the Protocol intended to make a right of review by a higher court mandatory even in these cases. 13 9 JELÍNEK, J. et al. Trestní právo procesní (Criminal Procedural Law). Prague: Leges, 2022, pp. 658–659. 10 CAIANIELLO, M. Criminal Appeals in Europe. The Perspective of the Defence. European Journal of Crime, Criminal Law and Criminal Justice , 2016 (Vol. 24), No. 4, pp. 274–290. 11 MULÁK, J. The Exceptions of the right to appeal in criminal matters under Article 2 of Protocol No. 7 to the ECHR. Czech Yearbook of Public & Private International Law . Prague 2022, pp. 177–190. 12 SCHABAS, W. A. The European Convention on Human Rights. A Commentary . Oxford: Oxford University Press, 2017, pp. 1138–1139. 13 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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