CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … his right to appeal. In contrast, the Government argued that the absence of suspensive effect in respect of an appeal against a conviction in relation to a sentence of administrative detention did not raise any issue, as the law provided for the possibility of appeal and the applicant was not prevented from doing so. After reviewing the case, the ECtHR concluded that the essential facts and legal circumstances of the present case and the submissions of the parties were sufficiently similar to those already examined in Tsvetkova and Others and therefore found a violation of Article 2(1) of Protocol No. 7 to the ECHR. 35 In case of Y. B. v. Russia , 36 the objection was to the refusal of the courts to accept and review the appeal. The facts were that photographs depicting sexual intercourse between the applicant and his wife and also his minor daughter were posted on a website. A criminal prosecution was initiated in the case on suspicion of having committed the offence of production and distribution of child pornography. The applicant was subsequently arrested and remanded in custody. Subsequently, an indictment was filed for the offences of production and distribution of child pornography and child molestation. The main trial was opened, the applicant fled, and the main trial continued in absentia, where the applicant was found guilty (sentence: 15 years’ imprisonment). The applicant appealed after the time limit for appeal had expired - he asked for the time limit to be restored. The President of the Court sent a non-procedural letter to the applicant explaining the impossibility of an appeal but the possibility of an appellate review. Subsequently, an application for cassation review was made but refused by the County Court. The ECtHR reiterated that, in principle, Contracting States have a wide margin of appreciation in determining how the right secured by Article 2 of Protocol No. 7 to the ECHR is to be exercised (but they must, by analogy with the right of access to a court enshrined in Article 6(1) ECHR, pursue a legitimate aim and not violate the very essence of that right). The ECtHR recalled that the national legislation clearly provides for the right to apply for a renewal of the time limit for appealing against a conviction in absentia and does not require the physical presence of the applicant to consider such an application, notwithstanding the defendant’s obligation to be physically present at the main trial after all. The ECtHR found that the denial of the application for a remand deprived the defendant of the opportunity to exercise his rights effectively. There had therefore been a violation of Article 2 of Protocol No. 7 ECHR. 37 4.4 Case-law ECtHR against Bulgaria The applicant in Zhelyazkov v. Bulgaria 38 argued that he could not appeal against his conviction for a public order offence contrary to Article 2 of Protocol No. 7 to the ECHR. In his case, the applicant went to the district prosecutor’s office in order to obtain a copy of a certain document, but the official refused to give it to him, whereupon an argument and a fight ensued between him and the applicant. Subsequently, a warrant was issued for the applicant’s arrest, the applicant was brought before the District Court, and he was found guilty of insulting and assaulting the prosecutor. He was subsequently sentenced to 15 days’ detention and community service. The applicant served the sentence and was subsequently 35 ECtHR decision in Martynyuk v. Russia , of 8 October 2019, application no. 13764/15, §§ 37–43. 36 ECtHR decision in Y. B. v. Russia , of 20 July 2021, application no. 71155/17. 37 ECtHR decision in Y. B. v. Russia , of 20 July 2021, application no. 71155/17, §§ 40–46. 38 ECtHR decision in Zhelyazkov v. Bulgaria , of 9 October 2012, application no. 11332/04.

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