CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … same notice, they must be given the same notice before the judgment is delivered, they must be informed of the consequences thereof, they must be given the opportunity to comment on the change of legal assessment, and, if they so request, they must be given a further period in which to prepare their defence and the appeal hearing must be adjourned for that purpose. If the Court of Appeal finds the accused guilty of the offence for which the Court of First Instance acquitted them and imposes an unconditional prison sentence, the execution of the sentence shall be suspended until the expiry of the time-limit for appeal to the persons entitled to appeal in favour of the accused or until the Supreme Court has decided on the appeal in their favour, unless the accused themselves request that the sentence be executed without delay. The accused shall be so informed. The grounds of appeal will also be extended and an appeal may also be brought if the accused has been found guilty by the Court of Appeal of an offence for which they were acquitted by the judgment of the Court of First Instance. This would therefore constitute a special, separate ground of appeal. Although the possibility of changing an acquittal into a conviction on the basis of an appeal against an acquittal constitutes an implied exception to the right of appeal in criminal cases (Part 2; Article 2(2) of Protocol No 7) and the proposed legislation reflects the ECtHR’s jurisprudence on the rights of the defence, adversarial proceedings, and the immediacy of proceedings (see Part 3), it is, however, problematic in my view for four reasons . 61 The first is the fact that it proposes to abandon the concept that has been traditional up to now and to move away from the concept that in order to conclude guilt ‘ two factual instances must agree ’ in favour of the concept of ‘ higher takes ’. The proposed approach thus strongly favours the appellate principle. In effect, we are saying that the Court of First Instance and its decision are superfluous (‘ as if they were not ’), if the Court of Appeal can decide in any way it likes on the initiative of the public prosecutor. The second objection is that suspension of execution, as a kind of balancing element, is only possible for unconditional prison sentences and does not take into account the fact that the Court of Appeal may impose other and sensitive types of punishment (e.g., forfeiture of property, a heavy fine, or, in the case of legal persons, the penalty of dissolution of the legal person). The third objection is that there may be two categories of criminal proceedings. One category will be the situation where the Court of First Instance convicts the accused (passes a judgment of conviction) and an appeal is lodged against the judgment of conviction, which will be decided by the Court of Appeal. In this situation, the accused is guaranteed the right to review in two factual instances that provide a high standard of protection (it is in full jurisdiction). The second category is the situation where the Court of First Instance acquits the accused (gives a judgment of acquittal) and the Court of Appeal – following an appeal by the public prosecutor against the conviction – convicts them, i.e., finds them guilty and, as a rule, imposes a sentence. In such a situation, the accused may appeal to the Supreme Court (a separate special ground), but in a situation where the Supreme Court may also decide in closed session and the appeal procedure is a highly formalised procedure, this is extremely problematic. Finally, my fourth objection is that, although a separate (special) ground of appeal is constructed, the Supreme Court may tend to limit its review to whether the conditions for amending the decision have been met and no longer review the substantive review of the newly imposed sentences (i.e., the 61 See also ŽIVANOVIĆ, K. S. The Possibility of Limiting the Exercise of the Right to Appeal in Criminal Matters According to the European Convention on Human Rights, Strani Pravni Život , 2023 (Vol. 66), No. 4., pp. 499–500.

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