CYIL vol. 15 (2024)

JIŘÍ MULÁK the ECHR. The reasons are essentially twofold. The first is that in many cases before the ECtHR, a violation of Article 6(1) ECHR is simultaneously alleged, and if the ECtHR finds a violation of a right arising directly or indirectly from Article 6(1) ECHR, it no longer addresses the substantive issue of a violation of Article 2 of Protocol No. 7 ECHR in any detail or at all. The second reason is that Contracting States have a wide margin of appreciation at the national level (see paragraph 1) and the right of appeal contains three sets of exceptions (see paragraph 2). A closer look at Article 2 of Protocol No. 7 to the ECHR reveals that the right of appeal is entrusted to national regulation. The consequence of this approach, then, is the diversity of the legal arrangements for criminal appeals, since this provision in fact only requires that the devolutionary principle (effect) be reflected, i.e., the conviction or sentence be reviewed by a higher court. To this must be added the three (let us add rather disparate) exceptions to the right of appeal, 2 which are “lesser included offences”, “decision at a single instance by the highest court”, and “conversion of an acquittal to a conviction by a court of appeal”, 3 which make the search for a minimum standard even more difficult. From a Czech perspective, an appeal is the only proper remedy against a judgment handed down by a court of first instance which has not yet become final. The legal regulation of appeals is more or less concentrated in the provisions of §§ 245 to 265 of the Czech Code of Criminal Procedure (the CCCP), which regulate the objective admissibility and effect (§ 245 of the CCCP), the subjective admissibility (§§ 246 and 247 of the CCCP), the time limit and place of filing (§ 248 of the CCCP), and the time limit and place of filing (§ 248 of the CCCP). The content of the appeal (§ 249 of the CCCP), whereby the appeal may be based on new facts and evidence (paragraph 3), the waiver and withdrawal of the appeal (§ 250 of the CCCP), the procedure - the proceedings before the court of first instance (§ 251 of the CCCP), the definition of the court of appeal (§ 252 of the CCCP). Furthermore, the earliest decisions of the Court of Appeal, i.e., rejection or dismissal of the appeal on formal grounds (§ 253 of the CCCP), scope of review (§ 254 of the CCCP), discontinuance of the criminal prosecution (§ 255 of the CCCP), dismissal on substantive grounds / for lack of merit (§ 256 CCCP), further procedure/decision after revocation (§§ 257 to 260 of the CCCP), including the possibility of ordering that the case be heard by a different panel or a different court after remand, and the expression of the principle of beneficium cohaesionis (§ 261 of the CCCP). This part is followed by the proceedings before the Court of Appeal (§ 263 of the CCCP), the proceedings before the Court of First Instance after the judgment has been quashed, including the principle of the prohibition of reformatio in peius (§ 264 of the CCCP) and the consequences of quashing the adhesion judgment (§ 265 of the CCCP). In terms of the exceptions indicated, Czech legislation does not provide for the regulation of offences of a minor character (exception to Article 2(2) of Protocol No.7 to the ECHR), the Supreme Court does not rule on any crime in the first instance on the merits and expressly prohibits the direct change of an acquittal into a conviction [§ 259(5)(a) of the CCCP]. 2 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. 177–190. 3 I have analysed this issue in detail in another Article – MULÁK, J. Conviction following an appeal against an acquittal in criminal proceedings - wider context, advantages, risks and limits. Czech Yearbook of Public & Private International Law . Prague. 2023, pp. 243–260.

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