CYIL vol. 14 (2023)

JIŘÍ MULÁK CYIL 14 (2023) court, and applies to a limited range of cases in which the appellate court itself decides the case in a judgment (Article 259(3) of the Code of Criminal Procedure). Section 263(7) of the Code of Criminal Procedure applies when the judgment of the Court of First Instance is set aside on the grounds referred to in Section 258(1)(b) and (c) of the Code of Criminal Procedure, i.e., when the appellate court reviews the assessment of the evidence by the Court of First Instance and finds it defective and decides the case itself. 91 7. Conclusion The right of appeal in criminal matters within the meaning of Article 2 of Protocol No 7 to the ECHR is a fundamental right in criminal proceedings, but it is a right which, due to its reference to the national law of the Member States (paragraph 1) and the many exceptions to this right (paragraph 2), falls outside the ambition of the ECHR to create a mechanism for a high level of protection of fundamental rights. 92 In this post, I have attempted to focus on one of the exceptions to the right to appeal in criminal cases, namely a conviction on appeal from an acquittal. In general terms, this issue concerns the relationship between the Court of First Instance and the Court of Appeal in criminal proceedings, or the application and balance of the appellate (reformative) and cassation (reversal) principles, since the legislation cannot, in the author’s view, be built on a dominant principle, the latter being rather symbolic (rarely used). Under the current Czech legislation, the Court of Appeal cannot itself change an acquittal of a Court of First Instance into a conviction. Under such a legal regulation and a certain constellation, where the Court of First Instance and the Court of Appeal have a different view of the criminal case, unconstitutional judicial ping-pong may arise between the courts or the right to a lawful judge may be unconstitutionally deprived in accordance with Article 262 of the Code of Criminal Procedure. Both of these issues are touched upon in the ECtHR decision in Tempel v Czech Republic , 93 which is analysed in more detail in the paper, as well as in two key decisions of the Constitutional Court of the Czech Republic on the relationship between the Court of First Instance and the Court of Appeal, where it tries to set out the boundaries of the coexistence of the two factual instances. According to the forthcoming recodification of the Criminal Procedure Code, it is to be possible for an appeals court itself to change an acquittal into a conviction. In a situation where an acquittal is converted into a conviction, the ECHR requires that the aspects of the rights of the defence and adversarial proceedings be respected. It is also common practice that in such a setting, the accused is allowed to appeal in order to ensure that the newly imposed sentence (sentence or damages sentence) or, where appropriate, the amendment procedure is reviewed (with regard to the right to a fair trial). Although the possibility of changing an acquittal into a conviction is one of the exceptions to the right of appeal in criminal cases within the meaning of Article 2 of Protocol No. 7, it is a solution that has certain shortcomings.

91 The order of the Supreme Court of 12 October 2022, Case No. 7 Tdo 850/2022. 92 See REPÍK, B. Evropská úmluva o lidských právech a trestní právo (European Convention on Human Rights and criminal law). Prague: Orac, 2002, pp. 153–154. 93 See ECtHR decision in Tempel v Czech Republic , §§ 68–72.

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