CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … law, the ECtHR 22 does not require the accused to be heard or to give evidence. 23 It is not always necessary to hear the accused in person even if the Court of Appeal is reviewing both questions of law and fact. 24 However, the ECtHR considers it to be a violation of the right to a fair trial under Article 6(1) ECHR for a superior court itself to change an initial acquittal judgment into a conviction judgment solely on the basis of the evidence adduced by the trial court which led to the original acquittal, without the superior court supplementing the evidence or carrying it out itself, 25 on the one hand, on the grounds of the absence of the accused, 26 and, on the other, on the grounds of a violation of the principle of immediacy. 27 Here, the ECtHR has consistently distinguished between whether the appellate court merely disagrees with the legal opinion of the trial court or whether it reassesses the evidence itself, 28 with the caveat that the legal assessment may sometimes be inextricably linked to the findings of fact, i.e., it may be the case that the appellate court reassesses the findings of fact even when it quashes the contested decision of the Court of First Instance on the ground of a different legal assessment. 29 For the sake of completeness, it may be added that nothing should, of course, prevent the Court of Appeal from reversing the decision of the Court of First Instance in favour of the accused if it finds circumstances in their favour; it is not necessary to refer the case back to the Court of First Instance in such circumstances. 30 If the appellate court itself is to answer the question of guilt or innocence in fact and in law, it cannot do so without a direct assessment of the evidence provided by the defence, 31 even if it cannot itself increase the sentence compared to the original sentence. 32 The alternative is to refer the case back to the Court of First Instance (application of the principle of cassation), 33 in which the accused is further able to exercise their rights of defence to the same extent as in the original proceedings before the Court of First Instance. In this context, then, the key principle of immediacy (directness) requires that the evidence should be evaluated only by the judge before whom it was taken, 34 as the observations of such a judge as to the demeanour and credibility of the witness may play a key role in the assessment of the case. 35 Any change in the judge must therefore, in principle, lead to a repetition of the evidence, if that judge is to base their decision on it, 36 including where the Court of Appeal wishes to 22 This case-law is summarised in the decision of the Constitutional Court of the Czech Republic, Case No. I. ÚS 1365/21 of 22 February 2022, §§ 50–56. 23 ECtHR decision in Igual Coll v Spain of 10 March 2009, Application No. 37496/04, § 26. 24 ECtHR decision in Sinichkin v Russia of 8 April 2010, Application No. 20508/03, § 31. 25 ECtHR decision in Dondarini v San Marino of 6 July 2004, Application No. 50545/99, § 28. 26 ECtHR decision in Popa and Tănăsescu v Romania of 10 April 2012, Application No. 19946/04, § 51. 27 ECtHR decision in Hanu v Romania of 4 June 2013, Application No. 10890/04, § 40. 28 ECtHR decision in Júlíus Þór Sigurþórsson v Iceland of 16 July 2019, Application No. 38797/17, § 36. 29 ECtHR decision in Suuripää v Finland of 12 January 2012, Application No. 43151/02, § 44. 30 ECtHR decision in Previti v Italy of 8 December 2009, Application No. 45291/06, § 315. 31 ECtHR decision in Constantinescu v Romania of 27 June 2000, Application No. 28871/95, § 55; ECtHR decision in Zirnīte v Latvia of 11 June 2020, Application No. 69019/11, § 47. 32 ECtHR decision of the Grand Chamber in Hermi v Italy of the of 15 July 2003, Application No. 18114/02, § 65. 33 ECtHR decision in Ignat v Romania of 9 November 2021, Application No. 17325/16, § 46. 34 ECtHR decision in Svanidze v Georgia of 25 July 2019, Application No. 37809/08, § 32. 35 ECtHR Decision in Beraru v Romania of 18 March 2014, Application No. 40107/04, § 64. 36 ECtHR decision in Chernika v Ukraine of 12 March 2020, Application No. 53791/11, § 47.

247