The annulment of the acquittal of the first instance court and the adoption of a guilty verdict by the appellate court, without an oral hearing, does not in itself constitute a violation of the right to a fair trial (ECHR, Article 6), regardless of the category of crime in question. What is decisive is the observance of procedural guarantees, not the category of crime.
The difference may exist only in the assessment of individual procedural forms, but it cannot diminish the effect of the fundamental guarantees of the right to a fair trial, which apply equally to all criminal cases.
Such guarantees include:
• The principle of immediacy;
• The principle of equality and competition between the parties;
• The right to an oral hearing when the court decides on the facts or reassesses the evidence;
• The right to defense, including the right of the accused to effectively defend his or her position.
However, when an appeal court quashes a first-instance acquittal, it must take positive measures to ensure that the accused has the opportunity to be heard. See (Botten v. Norway, 1996, § 53; Dănilă v. Romania, 2007, § 41; Gómez Olmeda v. Spain, 2016, § 32).
Where the facts and legal interpretation are so intertwined that it is difficult to separate them: for example, where an appellate court attaches a different legal meaning to the “facts already established” by the lower court and, in doing so, has to make its own assessment of whether the facts were not in dispute and whether such facts constituted a sufficient basis for the defendant’s conviction (Suuripää v. Finland, 2010, § 44);
Also, when the appellate court reaches conclusions that differ from those reached by the court of first instance, after a re-evaluation of the factual circumstances of the case and the applicable law (including the subjective element of the crime (intention of the person)), when the assessment of the defendant’s guilt and the evidence presented is carried out without the defendant’s personal participation, and when the defendant claims not to have committed the crime (Gómez Olmeda v. Spain, 2016, § 35);
In the cases listed in the aforementioned document, the European Court of Human Rights considered that the presence of the accused in the appeal court was necessary after the first instance court had rendered an acquittal;
In the event of an interpretation contrary to the definitions reflected in the document, there is a high risk of the European Court of Human Rights finding a violation of the “right to a fair trial”.
