CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … as a guarantee of the possibility for a party to effectively pursue remedies. It follows from the case-law of the ECtHR, first of all, that the courts are required to deal with the parties’ submissions, their arguments, and the evidence adduced, which they must also deal with convincingly, but this, on the other hand, cannot be understood as a right of such a party to receive a detailed reply to each of its own. 47 The need for and extent of the Court’s expression also depends on the nature of the decision, taking into account the circumstances of the case, the law, and practice of the country concerned, the views of theory, etc. 48 The ECtHR also takes into account whether the argument put forward by the applicant, which the domestic courts failed to take into account, is relevant to the case and could have affected the outcome of the proceedings. 49 However, if it is a clear and central argument of a party, the domestic courts, even the Court of Appeal, cannot remain silent on it, since it is then not clear whether they took note of it but wished to reject it on the grounds that it was unfounded or irrelevant (it is then not clear why), i.e., merely omitted to comment on it. 50 The ECtHR concerning 51 the reasoning of the courts’ decisions on ordinary appeals; although a brief statement of reasons is permitted, which may take passages from or refer to the contested decision, it must, as has been pointed out above, show how the court has dealt with the arguments contained therein. That it has actually dealt with it and not merely been satisfied with the conclusions of the lower court. 52 Reference to the reasoning of the contested decision would be admissible only if the Court of First Instance had dealt with all the arguments in full, 53 typically if a party in an appeal merely repeats the arguments already put forward before the Court of First Instance, which that court has dealt with in full. 54 A mere reference appears to be insufficient where a party has put forward new arguments on appeal 55 or even new facts or new evidence 56 which merited a clear answer as to how the Court of Second Instance dealt with them. Reference is also made to the Court’s own previous case-law. 57 The ECtHR places even lower demands on the decisions of the higher courts. However, that is a different issue which need not be dealt with further (it may be noted here, however, that that is precisely why the Supreme Court may only give brief reasons for its decision to reject an appeal, as it did in the decision relied on by the Court of Appeal).

47 ECtHR decision in Van de Hurk v the Netherlands of 19 April 1994, Application no. 16034/90, § 61. 48 ECtHR decision in Helle v Finland of 19 December 1997, Application no. 20772/92, § 55. 49 ECtHR decision in Luka v Romania of 21 June 2009, Application no. 34197/02, § 56. 50 ECtHR decision in Velted-98 AD v Bulgaria of 11 December 2008, Application no. 15239/02, § 48. 51 TRECHSEL, S. Human Rights in Criminal Proceedings . Oxford: Oxford University Press, 2006, p. 259. 52 ECtHR decision in Helle v Finland of 19 December 1997, Application no. 20772/92, § 60. 53 ECtHR decision in Boldea v Romania of 15 February 2007, Application no. 19997/02, § 33. 54 ECtHR decision in Meltex Ltd and Mesrop Movsesyan v Armenia of 17 June 2008, Application no. 32283/04, § 88. 55 ECtHR decision in Laranjeira Marques da Silva v Portugal of 19 January 2010, Application no. 16983/06, § 24. 56 ECtHR decision in H. A.L . v Finland of 27 January 2004, Application no. 38267/97, § 50. 57 ECtHR decision in Het Financieele Dagblad B. V. v the Netherlands of 28 June 2011, Application no. 577/11, § 49.

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