CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … First Instance omitted or refused to take, although it was necessary to establish the facts, or which is absolutely necessary for the clarification of the case and has yet to be sought. The same situation that is repeated evidence which had already been taken and from which not all the necessary information had been obtained, or which had been taken in an unlawful manner and that defect could be remedied; disregarded evidence which, having due regard to the formal and material nature of the evidence, was ineffective or inadmissible and that defect could no longer be remedied, or which was wholly inapplicable; or assessed the evidence in all the relevant respects and in the context of all the relevant circumstances. Another example supplement the statement of reasons where it is not clear from some of the findings of fact that the Court of First Instance made them, where they are contradictory, where they do not follow from the evidence adduced, where the Court of First Instance did not deal with some of the findings of fact at all, or where it is not clear how the Court of First Instance evaluated some of the evidence, what it concluded from it and why, or how it dealt with the contradictions between the evidence. 80 On the other hand, the Court of Appeal may not impose on the Court of First Instance in particular: to make a particular finding of fact or even to reach a particular finding of fact, or, on the contrary, not to make a particular finding of fact or not to clarify a particular circumstance; to evaluate evidence in a particular way or to evaluate it only from certain aspects, or to take unlawful evidence; to evaluate the weight or truth of a particular piece of evidence in a particular way; to evaluate the reliability of the evidence in a particular way, in particular, the credibility of a witness’s testimony; to clarify a particular circumstance only by a particular means of evidence, except where such a requirement arises directly from the law or where it is not possible to clarify a given circumstance in any other way (e.g., in some situations, an investigative trial); or to refrain from further evidence after carrying out the tasks ordered by the Court of Appeal, although it is necessary in view of further evidentiary developments. 81 The above two lists certainly cannot be considered definitive, but they are intended to provide the general courts with reference criteria in relation to similar situations. According to the Constitutional Court, an appellate court contravenes these constitutional requirements not only when it directly imposes an explicit instruction on the trial court that is inconsistent with them, but also when it imposes an instruction that, although formally consistent with them, is the result of an impermissible reassessment of the facts or individual evidence by the appellate court with the aim of inducing the trial court to adopt such a distorted factual situation or method of assessing individual evidence. The trial court must refuse to comply with such an unconstitutional instruction. 82 As a basic rule, the Court of First Instance must respect Section 264(1) of the Criminal Procedure Code and comply with the Court of Appeal’s instruction. It may refuse to do so only in exceptional circumstances, namely if such an instruction is explicitly formulated as unconstitutional in the sense outlined above (e.g. if the Court of Appeal expressly ordered the Court of First Instance to make certain findings of fact) or if its disguised unconstitutionality is quite obvious. In principle, the Court of First Instance can make such a finding only if its judgments are repeatedly overturned by the Court of Appeal and the fact that it does so in order to force the Court of First Instance to adopt its own conclusions of fact or assessment of

80 Decision No. I. ÚS 1365/21, § 69. 81 Decision No. I. ÚS 1365/21, § 70. 82 Decision No. I. ÚS 1365/21, § 71.

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