Condensed: A right to appeal is the right to seek the quashing of a conviction or variation of a sentence by a higher court. The right to appeal is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court.
When dealing with an appeal, a higher tribunal is expected to at least evaluate the evidence presented in the lower court and inquire into how the trial was generally conducted. Therefore, it does not necessitate a full factual retrial or even the hearing of evidence not introduced at first instance. Special remedies which are dependent on the discretion of an authoritative body do not fit in the definition of appeal.
Comprehensive: A right to appeal is the right to seek the quashing of a conviction or variation of a sentence by a higher court. The right is recognized in article 14(5) ICCPR which provides that ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’[1] ‘According to law’ does not accord a state discretion as to whether an appeal process exists.[2] Article 2(2) of Protocol 7 to the ECHR provides an exception to the right to appeal for minor offences. It is not clear whether this also applies to the ICCPR.[3] According to the HRC there is no right to appeal with regard to civil proceedings implied in article 14(1) of the ICCPR.[4]
The appeal proceedings should take place before a higher tribunal. In Salgar de Montejo v Colombia, the HRC found that confirmation of a judgment by the original trial judge violated the right to appeal.[5] One is not entitled to more than one appeal under article 14(5) unless the local jurisdiction provides for successive appeals.[6]
The right to appeal 'is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law,cannot be reviewed by a higher court'.[7] The right to appeal is violated where a person is tried at first instance in a State’s highest court without any subsequent right of appeal.[8]
A higher tribunal is expected to at leastsubstantively evaluate the evidence presented in the lower court and inquire into how the trial was generally conducted.[9] In Gómez Vázquez v Spain, appeal proceedings that were limited to 'formal and legal aspects' with no possibility for a 'full evaluation of evidence and the conduct of the trial' was deemed by the HRC to fall short of the requirements of an appeal.[10]
The appeal or review proceedings do not need to adopt the nature of a hearing as long as 'a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal.’[11] Therefore, it does not necessitate a full factual retrial[12] or even the hearing of evidence not introduced at first instance.[13] There is need of a 'duly reasoned, written judgment of the trial Court', and also access to 'other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal'.[14] (See *public hearing*; *reasoned judgment*; *adequate time and facilities to prepare the defence*).
Denial of leave to appeal in jurisdictions where such is sought before appealing is not a violation of the right to appeal or review. Refusal to grant leave to appeal must be reasoned and, in the determination of leave, the evidence and law in the lower court must be fully reviewed.[15]
Undue delays in dealing with an appeal violate article 14(5) of the ICCPR.[16] (See*trial within reasonable time*). Legal aid must be provided in death penalty appeal cases if needed to fund the appeal.[17] (See *right to legal aid*).
Special or extra-ordinary remedies which are dependent on the discretion of an authoritative body do not fit in the definition of appeal. Accordingly, in Gelazauskas v Lithuania, where the complainant was convicted for murder and the only possible review procedure was lodging a 'supervisory protest' to a special authority, the HRC held that such a procedure was exceptional hence did not qualify as a remedy for review.[18]
[1] See also ACHR art 8(2)(h), art 2 of Protocol 7 to the ECHR. See also ACHPR art 7(1)(a) as interpreted by the AComHPR in Constitutional Rights Project (in respect of Akamu and Others) v Nigeria communication 60/91 (ACHPR 1995) para 11.
[2] See Salgar de Montejo v Colombia communication 64/1979 (HRC 1982) para 10(4) where the HRC stated that ‘the expression “according to law” in article 14(5) of the Covenant is not intended to leave the very existence of the right of review to the discretion of the states parties, since the rights are those recognised by the Covenant, and not merely those recognised by domestic law. Rather, what is to be determined “according to law” is the modalities by which the review by a higher tribunal is to be carried out.’
[3] Cf HRC General Comment 32 para 45. See S Trechsel Humam rights in criminal proceedings (2005) 370.
[4] HRC General Comment 32 para 46; IP v Finland communication 450/1991 (HRC 1993) para 6.2.
[5] Salgar de Montejo v Colombia communication 64 /1979 (HRC 1982) paras 9.1, 11.
[6] Henry v Jamaica communication 230/1987 (HRC 1991).
[7] HRC General Comment 32 para 47. In contrast art 2(2) of Protocol 7 to the ECHR provides an exception to the right to appeal ‘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.’
[8] See Khalilov v Tajikistan communication 973/2001 (HRC 2005) para 7.5; Gelazauskas v Lithuania communication 836/1998 (HRC 2003) paras 7.1-7.6. Waiver is possible in certain instances. In Estevill v Spain, communication 1004/2001 (HRC 2003), the HRC held (para 6.2) that ‘[b]earing in mind that the author is a former judge with a great deal of experience, the Committee considers that, by insisting on being tried only by the Supreme Court, the author has renounced his right of appeal’.
[10] Gómez Vázquez v Spain communication 701/1996 (HRC 2000) para 11.1.
[11] HRC General Comment 32 para 48. See also Donskov v Russia communication 1149/2002 (HRC 2008) para 10.2. See in contrast Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 64.
[12] Perera v Australia communication 536/1993 (HRC 1995) para 6.4.
[13] HTB v Canada communication 534/1993 (HRC 1993) para 4.3.
[18] Gelazauskas v Lithuania communication 836/1998 (HRC 2003) paras 7.1-7.6. See further Ratiani v Georgia communication 975/2001 (HRC 2005). See also Constitutional Rights Project (in respect of Akamu and Others) v Nigeria (ACHPR 1995).
A right to appeal is the right to seek the quashing of a conviction or variation of a sentence by a higher court. The right to appeal is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court.
When dealing with an appeal, a higher tribunal is expected to at least evaluate the evidence presented in the lower court and inquire into how the trial was generally conducted. Therefore, it does not necessitate a full factual retrial or even the hearing of evidence not introduced at first instance. Special remedies which are dependent on the discretion of an authoritative body do not fit in the definition of appeal.
Comprehensive:
A right to appeal is the right to seek the quashing of a conviction or variation of a sentence by a higher court. The right is recognized in article 14(5) ICCPR which provides that ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’[1] ‘According to law’ does not accord a state discretion as to whether an appeal process exists.[2] Article 2(2) of Protocol 7 to the ECHR provides an exception to the right to appeal for minor offences. It is not clear whether this also applies to the ICCPR.[3] According to the HRC there is no right to appeal with regard to civil proceedings implied in article 14(1) of the ICCPR.[4]
The appeal proceedings should take place before a higher tribunal. In Salgar de Montejo v Colombia, the HRC found that confirmation of a judgment by the original trial judge violated the right to appeal.[5] One is not entitled to more than one appeal under article 14(5) unless the local jurisdiction provides for successive appeals.[6]
The right to appeal 'is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court'.[7] The right to appeal is violated where a person is tried at first instance in a State’s highest court without any subsequent right of appeal.[8]
A higher tribunal is expected to at least substantively evaluate the evidence presented in the lower court and inquire into how the trial was generally conducted.[9] In Gómez Vázquez v Spain, appeal proceedings that were limited to 'formal and legal aspects' with no possibility for a 'full evaluation of evidence and the conduct of the trial' was deemed by the HRC to fall short of the requirements of an appeal.[10]
The appeal or review proceedings do not need to adopt the nature of a hearing as long as 'a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal.’[11] Therefore, it does not necessitate a full factual retrial[12] or even the hearing of evidence not introduced at first instance.[13] There is need of a 'duly reasoned, written judgment of the trial Court', and also access to 'other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal'.[14] (See *public hearing*; *reasoned judgment*; *adequate time and facilities to prepare the defence*).
Denial of leave to appeal in jurisdictions where such is sought before appealing is not a violation of the right to appeal or review. Refusal to grant leave to appeal must be reasoned and, in the determination of leave, the evidence and law in the lower court must be fully reviewed.[15]
Undue delays in dealing with an appeal violate article 14(5) of the ICCPR.[16] (See*trial within reasonable time*). Legal aid must be provided in death penalty appeal cases if needed to fund the appeal.[17] (See *right to legal aid*).
Special or extra-ordinary remedies which are dependent on the discretion of an authoritative body do not fit in the definition of appeal. Accordingly, in Gelazauskas v Lithuania, where the complainant was convicted for murder and the only possible review procedure was lodging a 'supervisory protest' to a special authority, the HRC held that such a procedure was exceptional hence did not qualify as a remedy for review.[18]
[1] See also ACHR art 8(2)(h), art 2 of Protocol 7 to the ECHR. See also ACHPR art 7(1)(a) as interpreted by the AComHPR in Constitutional Rights Project (in respect of Akamu and Others) v Nigeria communication 60/91 (ACHPR 1995) para 11.
[2] See Salgar de Montejo v Colombia communication 64/1979 (HRC 1982) para 10(4) where the HRC stated that ‘the expression “according to law” in article 14(5) of the Covenant is not intended to leave the very existence of the right of review to the discretion of the states parties, since the rights are those recognised by the Covenant, and not merely those recognised by domestic law. Rather, what is to be determined “according to law” is the modalities by which the review by a higher tribunal is to be carried out.’
[3] Cf HRC General Comment 32 para 45. See S Trechsel Humam rights in criminal proceedings (2005) 370.
[4] HRC General Comment 32 para 46; IP v Finland communication 450/1991 (HRC 1993) para 6.2.
[5] Salgar de Montejo v Colombia communication 64 /1979 (HRC 1982) paras 9.1, 11.
[6] Henry v Jamaica communication 230/1987 (HRC 1991).
[7] HRC General Comment 32 para 47. In contrast art 2(2) of Protocol 7 to the ECHR provides an exception to the right to appeal ‘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.’
[8] See Khalilov v Tajikistan communication 973/2001 (HRC 2005) para 7.5; Gelazauskas v Lithuania communication 836/1998 (HRC 2003) paras 7.1-7.6. Waiver is possible in certain instances. In Estevill v Spain, communication 1004/2001 (HRC 2003), the HRC held (para 6.2) that ‘[b]earing in mind that the author is a former judge with a great deal of experience, the Committee considers that, by insisting on being tried only by the Supreme Court, the author has renounced his right of appeal’.
[9] HRC General Comment 32 para 48.
[10] Gómez Vázquez v Spain communication 701/1996 (HRC 2000) para 11.1.
[11] HRC General Comment 32 para 48. See also Donskov v Russia communication 1149/2002 (HRC 2008) para 10.2. See in contrast Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 64.
[12] Perera v Australia communication 536/1993 (HRC 1995) para 6.4.
[13] HTB v Canada communication 534/1993 (HRC 1993) para 4.3.
[14] HRC General Comment 32 para 49.
[15] Lumley v Jamaica communication 662/1995 (HRC 1999) para 7.4.
[16] HRC General Comment 32 para 49.
[17] HRC General Comment 32 para 10.
[18] Gelazauskas v Lithuania communication 836/1998 (HRC 2003) paras 7.1-7.6. See further Ratiani v Georgia communication 975/2001 (HRC 2005). See also Constitutional Rights Project (in respect of Akamu and Others) v Nigeria (ACHPR 1995).