NGOs under European Convention on Human Rights / Tymofeyeva

2.14 Right of appeal in criminal matters (Article 2 of Protocol No. 7) Article 2 – Right of appeal in criminal matters 1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. According to the Explanatory Report to Protocol No. 7 1254 (hereinafter also referred to as ‘the Explanatory Report’), Article 2 does not require that in every case a person should be entitled to have both his or her conviction and sentence so reviewed. Accordingly, for example, if the person convicted pleaded guilty to the offence charged, the right may be restricted to a review of his or her sentence. Pieter van Dijk considers that such a line of reasoning is not convincing and concludes that it would be better to use the word ‘and’ instead of ‘or’ between ‘conviction’ and ‘sentence’, because in some cases it may be necessary to review the way of the confession was obtained, which is the basis of the conviction, not only the sentence itself. 1255 Some member states of the Council of Europe have a system according to which a person wishing to appeal to a higher tribunal must, in certain cases, request leave to appeal. 1256 The Explanatory Report makes it clear that the right to apply to a tribunal or an administrative authority for leave to appeal has to be regarded as a form of review within the meaning of Article 2 of Protocol No. 7. The second paragraph of Article 2 contains three exceptions to the rights laid down in the first paragraph. These are: 1) for offences of a minor character, as prescribed by law; 2) in cases in which the person concerned has been tried in the first instance by the highest tribunal, for example by virtue of his or her status as a minister, a judge or other holder of high office, or because of the nature of the offence; and 3) where the person concerned was convicted following an appeal against acquittal. Having discussed the main principles of the right under Article 2, let us move to the practice of the Court. The fist case in an analysis will be the case of Siglfirðingur ehf v. Iceland. 1257 The applicant here was a company operating Icelandic fishing vessels. By its judgment, the Labour Court found that the applicant company had violated provisions of the Labour Relations Act. Pursuant to Section 67 of this act, no possibility existed to challenge this decision by applying to the Supreme Court. For this reason, the company complained of a violation of its right to have its conviction or sentence reviewed by a higher tribunal as it has not been able to obtain a review 1254 Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November1984. URL: accessed 7 December 2015.

1255 VAN DIJK, 2006, cited above, p. 973. 1256 HARRIS, 2009, cited above, p. 749. 1257 Siglfirðingur ehf, cited above.

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