CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … since the sanction that could have been imposed on him included imprisonment. He further alleged a violation of the principle of equality of arms under Article 6 ECHR, since, unlike the applicant, the authority which imposed the penalty on him had the legal possibility of lodging a cassation complaint with the Supreme Administrative Court. The Constitutional Court rejected his complaint and referred to its previous case-law. What is important in this case is the assessment of the seriousness of the applicant’s conduct which was the subject of the administrative penalty. We therefore consider it relevant whether the situation falls within the area in which the exception under Article 2(2) of Protocol No. 7 to the European Convention on Human Rights can be applied, i.e., whether it is of a minor character . Ultimately, the ECtHR considered the complaint to mean that the absence of a prison sentence, although an important factor in assessing the less serious nature of the offence, was not in itself decisive. The ECtHR assessed and compared the national sanctions and their severity and concluded that the offence was a less serious offence (in view of the sanctions imposed). The ECtHR further assessed the effect of the existence of the conversion of the administrative fine into a custodial sentence. In particular, whether this could have an impact on the classification of the case under the exceptions to Article 2 of Protocol No. 7 to the ECHR. He considered as decisive how likely it was that a custodial sentence would actually be imposed and enforced if the fine was not paid. The Austrian Constitutional Court explained these processes in its case-law and stated that the enforcement of a custodial sentence is not automatic but must be preceded by a comprehensive investigation and an attempt to recover the fine administratively. The ECtHR concluded that the conversion of a monetary penalty into a prison sentence is subject to a number of procedural safeguards, i.e., first a warning, and enforcement by an administrative authority. In view of the amount of the fine imposed, the ECtHR concluded that it was a minor offence for which the exception to Article 2 of Protocol No. 7 to the ECHR applied. 52 5. Summary and conclusion The purpose of this Article was to discuss one of the exceptions to the right to appeal in criminal cases. Although there is very little case-law on the topic of the right of appeal in criminal cases under Article 2 of Protocol No. 7 to the ECHR (e.g., in comparison with Article 6(1) ECHR), generalised conclusions can be drawn from the above-mentioned ECtHR case-law. It should be reiterated that the right of appeal in criminal cases (Article 2 of Protocol No. 7 to the ECHR) sets only a minimum standard (in practice, it requires a devolutive effect of the appeal – a hearing by a higher court), otherwise it is left to national regulation. At the same time, the right of appeal in criminal cases provides for three exceptions (Article 2(2) of Protocol No. 7 to the ECHR). The first category of exceptions to the right to appeal in criminal cases are minor offences . It is particularly noteworthy that Article 2 of Protocol No. 7 to the ECHR indicates two categories of offences (“criminal offences” in paragraph 1 and “offences of a minor character” in paragraph 2). Leaving aside the fact that it is very difficult to distinguish between less serious crimes and (more) serious crimes, as each crime should without exception reach a certain social gravity.

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52 ECtHR decision in Kindlhofer v. Austria , of 26 October 2021, application no. 20962/15, §§ 36–45.