9
Review of the final judgment, i.e., the one delivered by the court of second instance,
is also a possibility; in some cases there is a legal time frame in which review may
be requested, in some cases not; the request for review is in the form of a challenge
to review the judgment to test whether it was delivered in accordance with the law
that was to be applied, the case being error in judicando and error in procedendo. In
criminal law, there is another possibility, which is the extraordinary appeal, which
authorizes, in a limited number of circumstances, reconsideration and eventual
nullification of a conviction and sentence currently being served: proof that the
person that the convicted person is said to have murdered is still alive; a finding that
the public document that was the sole evidence upon which the conviction was based
was false; conviction of two persons, in separate cases, when it was impossible that
both committed the crime, and so on. Obviously, this exceptional remedy is not one
of the ordinary remedies for challenging a definitive criminal conviction. Neither is
the remedy by which one challenges the constitutionality of a law.
30.
Here, we ought to ask ourselves what can be required of the appeal
mentioned in Article 8(2)(h), from the standpoint of the mamimum protection of the
individual’s rights and, therefore, in keeping with the principle of presumption of
innocence to which the accused is entitled until a final judgment is handed down, and
of the right to formal and material access to justice, which demands issuance of a
“just” verdict (even if it is for conviction, although with a punitive content different
from what the appropriate one seemed to be at first glance). Is this a limited review
that could disregard factors that were truly relevant to determine the accused’
criminal responsibility? Ought we to content ourselves with a limited review, that
examines only cerrtain aspects of the conviction, but must relegate others into some
dark territory that cannot be entered, even though one might find there the motives
and reasons that could prove the accused’ innocence?
31.
The answer is obvious from the way in which the question is posed. The goal
here is to protect the human rights of the individual, one of which is not to be
convicted unless and until the commission of an offense punishable under criminal
law has been proved and the accused’ guilt under the law has been proved. It is not
merely a question of preserving the integrity of the process or the verdict.
Therefore, recourse to a higher court or judge –which would have to outrank, in the
area of competence and jurisdiction, the court whose decision is being challengedmust allow that higher court or judge to get into the merits of the case, examine the
facts alleged, the defense’s counter-arguments, the evidence taken, the weighing of
that evidence, the laws invoked and their application, even for such matters as
identifying the punishment or measure (which includes the pertinent substitution),
and whether that punishment is just given the severity of the crime, the legally
protected interest affected, the culpability of the agent and other facts that go into
determining what the punishment should be (extenuating or aggravating
circumstances or other information that steers the court to a reasoned conclusion).
32.
Obviously, those needs are not met with a narrow, “phantom” remedy, much
less when the system offers no remedy at all, which some legal systems do not in
the case of crimes regarded to be of much less importance and in regard to which
court proceedings are very abbreviated. Affording the accused all the benefits of a
substantive defense is the best way to ensure a just outcome, rather than rely on
technicalities, which are hardly the best way to achieve justice. Therefore, to fully
satisfy these needs, the system for appealing grievances to a higher court has to be
adopted and expanded. The errors and shortcomings of an incompetent defense
would be sorted out by the court, and justice will have been well served.
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