CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … The aim of this Article is to highlight the recent ECtHR case-law on the interpretation of one of the exceptions to the right of appeal in criminal cases. I first address the issue of the broad discretion that individual ECHR Contracting States have in organising criminal appeals (Chapter 2), and then briefly address the issue of appeals against conviction and sentence (Chapter 3). Twenty decisions of the ECtHR that this Court has decided in previous years are analysed (Chapter 4). Both decisions where the court found a violation of Article 2 of Protocol No. 7 to the ECHR and decisions where the national procedure was found to be in conformity with this provision were selected. In view of the context of the respondent state, individual cases from a given country, if more than one, have been discussed together in a subchapter. The decisions against Ukraine (4.1.), Armenia (4.2.), Russia (4.3.), Bulgaria (4.4.), Georgia (4.5.) and against other states (4.6. – Greece, Spain, Austria) are analysed in the paper. Other countries were not included in the selection because there are not many/no ECtHR decisions on them or on this issue. The aim of the paper is to test the hypothesis that some states have been repeatedly criticised for legislation that failed to satisfy one of the exceptions to the right of appeal in criminal cases, namely the exception: ‘offences of a minor character, as prescribed by law’ within the meaning of Article 2(2) of Protocol No. 7 to the ECHR. 2. Wide discretion in organising the appeals system The ECtHR has reiterated in a number of its decisions that states have in principle a wide margin of appreciation in determining how to exercise the right guaranteed by Article 2 of Protocol No. 7 to the ECHR. 4 In other words, Article 2 of Protocol No. 7 leaves the means of exercising this right and the grounds on which it may be exercised to national law. Thus, states may, on the one hand, provide that the scope of review of a conviction or sentence by a higher court shall include both questions of fact and law, or be limited to questions of law only. 5 In addition, an accused who wishes to appeal may sometimes be required to apply for leave to appeal, and in some cases the application for leave to appeal itself may be considered an appropriate form of review within the scope of Article 2 of Protocol No. 7 to the ECHR. However, any restrictions contained in national legislation on the exercise of the right enshrined in Article 2 of Protocol No. 7 to the ECHR must, like the right of access to a court guaranteed by Article 6(1), pursue a legitimate aim and must not infringe the very essence of that right. 6 Thus, for example, in Saquetti Iglesias v. Spain , 7 the Court found that limiting the applicant’s ability to challenge his conviction only before the Constitutional Court (which could not be regarded as a higher court within the meaning of Article 2 of Protocol No. 7) prevented the applicant from having the decision against him reviewed by a higher court and 4 ECtHR decision in Shvydka v. Ukraine , of 30 October 2014, application no. 17888/12, § 48; ECtHR decision in Ruslan Yakovenko v. Ukraine , of 4 June 2015, application no. 5425/11, § 76; ECtHR decision in Rostovtsev v. Ukraine , of 25 July 2017, application no. 2728/16, § 27; ECtHR decision in Y. B. v. Russia , of 20 July 2021, application No. 71155/17, § 40). 5 ECtHR decision in Shvydka v. Ukraine , of 30 October 2014, application no. 17888/12, § 49; ECtHR decision in Rostovtsev v. Ukraine , of 25 July 2017, application no. 2728/16, § 27; ECtHR decision in Y. B. v. Russia , of 20 July 2021, application No. 71155/17, § 40). 6 ECtHR decision in Shvydka v. Ukraine , of 30 October 2014, application no. 17888/12, § 49. 7 ECtHR decision in Saquetti Iglesias v. Spain , of 30 June 2020, application no. 50514/13, §§ 60–61.

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