CYIL vol. 14 (2023)

JIŘÍ MULÁK

CYIL 14 (2023)

4. Conversion of an acquittal by a court of appeal into a conviction in the light of existing and proposed Czech legislation In terms of the topic under discussion, the third exception 58 is certainly the most interesting, i.e., the situation where a person has been found guilty and convicted on appeal against an acquittal. 59 From the perspective of the Czech Republic, it is important to note that the current Criminal Procedure Code prohibits the Court of Appeal from finding the defendant guilty of the offence for which they were acquitted by the contested judgment. 60 This principle is expressed in Section 259(5)(a) of the Code of Criminal Procedure. The Court of Appeal cannot itself find the defendant guilty of the act for which they were acquitted by the judgment under appeal. This is an exception to the generally applicable and determinative appellate (reformative) principle. The Court of Appeal is therefore left with no option but to set aside the judgment under appeal and refer the case back to the Court of First Instance for a fresh hearing and decision. This may result in a judicial ping-pong, thereby prolonging the proceedings and the case may end up in the ultimate situation whereby the Court of Appeal decides, pursuant to Article 262 of the Code of Criminal Procedure, that the case should be heard by a different panel (another single judge) or that, for important reasons, it should be decided by another court of the same type and level. In both cases, however, there is an interference with the right to a lawful judge. The right to a lawful judge is an important element of legal certainty, the violation of which must be regarded as a non standard and exceptional procedure, albeit one which is permissible in justified cases. If the Court of Appeal applies Section 262 of the Code of Criminal Procedure on the grounds of repeated failure by the Court of First Instance to comply with its binding instructions for a different assessment of the facts, that procedure can be regarded as justified only if the instructions were sufficiently specific and reasonably clear and if it is clear from them that the Court of First Instance failed to comply with the principle of free assessment. The proposed recodification of the Criminal Procedure Code brings the opposite approach. The appellate court will be able to decide the case itself by the judgment if a new decision can be made on the basis of the facts which were correctly established in the contested judgment or supplemented or amended on the basis of the evidence adduced in the appeal hearing. The Court of Appeal may depart from the findings of fact of the Court of First Instance only if, on appeal, it has re-examined evidence relevant to the findings of fact already taken at the main trial or if it has taken evidence which was not taken at the main trial. The Court of Appeal may only amend the judgment under appeal against the accused on the basis of an appeal by the public prosecutor against the accused. The Court of Appeal may itself find the accused guilty of the offence for which they were acquitted by the judgment under appeal. The Court of Appeal may do so only if it has informed the accused of the possibility of proposing supplementary evidence. If the accused has not been given the 58 DRAŽAN, D. The Right to Appeal in International Criminal Law: human rights benchmarks, practice, and appraisal. Leiden/Boston: Brill/Nijhoff, 2019, pp. 24, 47–68. 59 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, p. 171. 60 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. 187–188.

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