CYIL vol. 14 (2023)

CYIL 14 (2023) CONVICTION FOLLOWING AN APPEAL AGAINST AN ACQUITTAL IN CRIMINAL … (the right to a fair trial) does not consist only in the instruction of the Court of Appeal by which it explicitly orders the Court of First Instance to determine the result of the evaluation of evidence that was carried out only by the Court of First Instance or to draw a specific factual finding from it, but also in such an instruction by which the Court of Appeal pursues such a goal in a disguised manner. If such an instruction is intended to lead to the conviction of the accused, such an instruction also constitutes a violation of the presumption of innocence under Article 40(2) of the Charter. 87 According to the Constitutional Court of the Czech Republic, from a constitutional point of view, nothing prevents the Court of Appeal from repeating the evidence or evidence from which the Court of First Instance made its findings of fact and from changing the relevant findings of fact during the public hearing on the appeal, while maintaining all the guarantees of adversarial proceedings 88 and the right to defence. In the event that, after such a change of facts, the Court of Appeal concludes that the possibilities of proof have been exhausted, the facts have been established beyond reasonable doubt to the extent necessary for the decision and it is appropriate to issue a decision that it cannot issue itself because of a statutory obstacle pursuant to Article 259(5) of the Code of Criminal Procedure, 89 constitutional order does not prevent it from returning the case to the Court of First Instance and ordering it to find the defendant guilty of a particular offence. In such a case, the Court of First Instance is obliged to proceed on the basis of the facts as established by the Court of Appeal, unless the procedural developments require additional evidence. Such a need may arise, for example, as a result of newly discovered, previously unforeseen findings, but the Court of First Instance may not repeat or supplement the evidence on purpose merely to formally justify a departure from the findings of fact reached by the Court of Appeal on the basis of its own evidence. 90 6.3 Supreme Court of the Czech Republic (Case No. 7 Tdo 850/2022) For the sake of completeness, I would like to mention in this context one decision of the Supreme Court of the Czech Republic . In its opinion, the Court of Appeal’s reasoning that the evaluation of evidence is the domain or prerogative of the Court of First Instance, which the Court of Appeal is not entitled to interfere with and is bound by, or that the Court of Appeal did not find an extreme contradiction between the evidence and the findings of fact, so that it may not interfere with the findings of fact of the Court of First Instance, is contrary to the concept of the appeal procedure, the rules of which, on the contrary, expressly provide that both the assessment of the evidence and the findings of fact of the Court of First Instance are subject to review by the Court of Appeal [see, e.g., § Article 258(1)(b) and (c) of the Code of Criminal Procedure]. For this reason, the binding nature of the trial court’s assessment of the evidence pursuant to Article 263(7) of the Code of Criminal Procedure is only applicable in the context of the amendment or supplementation of the findings of fact by the appellate 87 For more details see REPÍK, B. Evropská úmluva o lidských právech a trestní právo (European Convention on Human Rights and criminal law). Prague: Orac, 2002, pp. 175–192. 88 MULÁK, J. The contradictory principle in the Czech criminal process and its manifestations before court. The Lawyer Quarterly, 2021, No. 1, pp. 104–125; MULÁK, J. The contradictory principle of criminal proceedings in case law ECHR. Czech Yearbook of Public & Private International Law . Prague 2020, pp. 41–58. 89 MULÁK, Jiří. 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. 177–190. 90 Decision No. IV. ÚS 2980/22, §§ 82–84.

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