CYIL vol. 15 (2024)

JIŘÍ MULÁK However, in the light of the case-law of the ECtHR set out above, an offence for which a custodial sentence may be imposed as the main penalty under national law cannot be regarded as less serious within the meaning of paragraph 2 of that provision, even if the maximum sentence is relatively minor. Understandably, it is necessary to examine the particular circumstances. In order to constitute an offence which does not fall under this exception, the sanction imposed must be of a certain minimum severity. What is meant by this minimum gravity is not stated in Protocol No. 7 (or in the Explanatory Report thereto), but in the light of the ECtHR’s case-law it may be stated that the co-determinant is the sanction threatened, not the sanction actually imposed, although there are exceptions to this majority approach. It should be noted at this point that in some states a large number of minor offences, such as traffic offences, may be punishable by imprisonment, although in practice such penalties are never imposed. As far as the Czech Republic is concerned, imprisonment is a universal type of punishment, since this (most severe) type of punishment can be imposed without exception for any offence listed in the special part of the Czech Criminal Code. It is not very clear from the ECtHR’s case-law what meaning should be attributed to the phrase “ qualified as such by law ”, as the ECtHR has not specifically addressed this issue. The interpretation that is naturally offered is that the offences in question must be considered less serious not only within the meaning of the ECHR, but also that national law must consider them as such, especially if a wide margin of appreciation is left to national legislation. In this context, it is a subject for further research. Perhaps a problem could arise if national law allowed only a mild sanction (or even a milder sanction than for an offence) for a particular offence, but still formally qualified it as a classic (not a lesser ) offence. The possibility of having a conviction for such an offence reviewed by an appellate court might then be called for, not by the severity of the threatened sanction, but by the stigmatising effect that is usually attached to a conviction for a criminal offence (and not, say, just a misdemeanour). It can be considered as crucial that if an of fence which has been so designated in the national legislation and for which an appeal has thus been excluded, does not pass the test of being a “less serious offence” according to the ECtHR case-law (the so-called “Engel test”), i.e., in short: if something which is materially more serious is designated as an of fence or a less serious offence plus an appeal is excluded, there is a violation of Article 2 of Protocol No. 7. Systemic problems were then identified in some countries which later led to changes in national legislation.

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