CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) The second exception relates to cases where a person has been tried in the first instance by the Supreme Court. 14 This exception concerns situations where national law has designated the Supreme Court as the Court of First Instance because of the accused’s status as a minister, judge, or other high official or because of the nature of the offence. It is clear that in such cases review by a higher court is not even possible. In connection with this exception, reference may be made to the recent decision of the Grand Chamber of the ECtHR in Grosam v Czech Republic , 15 in which it confirmed that disciplinary proceedings are not criminal charges within the meaning of Article 6(1) ECHR, or that Article 2 of Protocol No. 7 to the ECHR does not apply to such proceedings. 16 The third exception relates to cases where the conviction is based on an appeal against an acquittal. This exception may be very unsatisfactory for the person concerned, 17 in particular if they consider that the second instance court made an error of fact or law. However, in most Council of Europe Member States, the convicted person usually has the right to appeal to a third instance. In such a case, it is at least possible to correct any error of law. It should be understood that this third exception does not apply where the acquittal was handed down by a non-judicial authority. Since Article 6(1) ECHR requires that an independent tribunal must decide on criminal charges, no consequences should follow from the decision of a non judicial body in this respect. The right of appeal is limited in consensual methods of settling criminal cases (plea bargaining; plea of guilty). 18 3.1 General on the appeal procedure The case-law of the ECtHR 19 does not lay down general requirements for the evidence or the presence of the accused in the appeal proceedings, as these depend in principle on the specific nature of the appeal proceedings and the scope of the review of the contested decision. 20 Thus, for example, where the Court of Appeal 21 is considering only questions of 14 MOLEK, P. Právo na spravedlivý proces (The right to a fair trial). Prague: Wolters Kluwer, 2011, pp. 425–435. 15 ECtHR Decision of the Grand Chamber in Grosam v Czech Republic of the of 1 June 2023, Application No. 19750/13. 16 ECtHR Decision of the Grand Chamber in Grosam v Czech Republic , §§ 138–141. 17 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 , 2023, pp. 13–14; See also: 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. 18 MOICEANU, N. A. The Compliance with the Right to a double degree of jurisdiction in the matter of plea agreement. International Journal of Legal and Social Order . 2021, No., pp. 352–369. 19 TYMOFEYEVA, A. (ed.) European Court of Human Rights in Action . Prague: Charles University, Faculty of law, 2021, pp. 110–111. 20 ECtHR decision in Lacadena Calero v Spain of 22 November 2011, Application No. 23002/07, § 36. 21 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. 547–552. 3. ECtHR case-law on appeal and the right to be present at the hearing of an appeal

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