CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … reasonable time for the duration of criminal proceedings. Furthermore, the applicant alleged a violation of Article 2 of Protocol No. 7 to the ECHR as he had to serve a longer sentence due to the delay in the appeal proceedings. The applicant was being held in a Greek prison on charges of illegally transporting illegal migrants. He was sentenced to 10 years and 6 months’ imprisonment for that offence. He appealed against the decision, but his appeal had no suspensive effect. The Court of Appeal then, after several adjournments, imposed a prison sentence of 7 years and 2 months. His imprisonment was duly included in his sentence. When the statutory conditions were met, the applicant applied for parole and was released on parole. The applicant argued that the holding of the delayed appeal proceedings had resulted in him spending a longer period of time in custody than he would have spent in custody had the proceedings taken place earlier. He stated that at the date of the appeal he had been detained and had spent approximately 6 years in custody, which was more than 3/5 of his sentence. He stated that he eventually served 6/7 of his prison sentence and insisted that if the appeal had taken place earlier, he would have been released at least 1 year and 6 months earlier. The Government of Greece commented on the complaint and argued that it did not constitute any interference with Article 2 of Protocol No. 7 to the ECHR, i.e., that the applicant had never been deprived of his right to apply for review. It also submitted that the decision to release the applicant from prison had been taken only after a belated appeal procedure had taken place. She stressed that the right to be released on parole was not automatic. In examining the complaint, the ECtHR noted that Article 2 of Protocol No. 7 to the ECHR essentially regulates institutional aspects such as the availability of a court of appeal or the scope of review by such a court. The purpose of the ECHR is to protect rights that are not theoretical or illusory but practical and effective, as the ECtHR has stated. In the ECtHR’s view, the exercise of the applicant’s rights on appeal was not carried out at the expense of his personal liberty. The ECtHR considered that the applicant had misapplied Article 2 of Protocol No. 7 to the ECHR and that the facts of his legal case could only be subsumed under Articles 6 and 13 of the ECHR. The ECtHR concluded that Article 2 of Protocol No. 7 to the ECHR was not affected, despite the fact that the appeal was not granted suspensive effect. It should be noted here that in other cases (see below) the ECtHR has recognised that the absence of suspensive effect would establish a violation of Article 2 of Protocol No. 7 to the ECHR. 48 An interesting and very practical decision of the ECtHR is the decision in Saquetti Iglesias v. Spain . 49 T he facts were that the applicant had been seized at an airport checkpoint with the sum of 154,800 EUR from the sale of a property. Although the applicant had duly declared that amount in his customs declaration on arrival, he was unaware that he was required to do so on export. The customs authority subsequently imposed a fine of 153,800 EUR on the applicant. The administrative action brought by the applicant was dismissed. The appeal was found inadmissible by the national court on grounds of ratione valoris – that is to say, the amount for the appeal was set at 600,000 EUR. The applicant’s constitutional complaint was also unsuccessful. In his complaint to the ECtHR, the applicant therefore argued that contrary to his right of appeal, he had no remedy available to him to seek review

48 ECtHR decision in Firat v. Greece , of 9 November 2018, application no. 46005/11, §§ 35–46. 49 ECtHR decision in Saquetti Iglesias v. Spain , of 30 June 2020, application no. 50514/13.

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