SOME GUARANTEES REGARDING CRIMINAL PROCEEDINGS APPLICABLE …
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
43
(hereinafter referred as
“the Explanatory Report”) Article 2 does not require that a person should be entitled
to have both his or her conviction and sentence so reviewed in every case. 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 the confession was obtained, that is the basis of
the conviction, not only the sentence itself.
44
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 apply for leave to
appeal. 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 applicant in the case of
Siglfirðingur ehf v. Iceland
45
was a company operating Icelandic fishing vessels. By its judgment the Labor Court
found that the applicant company had violated provisions of the Labor Relations Act.
Pursuant to Section 67 of this Act there did not exist any possibility 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 by a superior court of the fine imposed,
invoking Article 2 of § 1 of Protocol No. 7 to the Convention in this respect.
The Court was not able to declare an infringement of the Convention in the
instant case, because the parties reached a friendly settlement agreement and the case
was struck out of the Court’s list. Nevertheless, in its decision
46
of 7 September 1999,
the Court declared the application of this NGO admissible and rejected objections of
43
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms
(ETS No. 117), para. 17. Available at
http://conventions.coe.int/Treaty/EN/Reports/Html/117.htm.
44
Van Dijk, P., Van Hoof, F., Van Rijn, A., Zwaak, L. eds.
Theory and practice of the European Convention
on Human Rights
. – 4th ed. – Antwerpen ; Oxford : Intersentia, 2006, p. 973.
45
Siglfirðingur ehf v. Iceland
(friendly settlement), No. 34142/96, 30 May 2000.
46
Siglfirðingur ehf v. Iceland
(dec), No. 34142/96, 7 September 1999.