43.
In that respect, for international human rights law, the denomination or name given to this
appeal is irrelevant;35 what is important is that it should meet certain standards. First of all, it must take place
before the judgment becomes res judicata36 and it must be settled within a reasonable period of time, that is,
it must be timely. It must also be an effective remedy, that is, it must yield results or responses in terms of the
purpose for which it was conceived,37 that is, it must prevent consolidating a situation of injustice. In addition,
it must be accessible, without requiring further formalities that might render the right illusory.38
44.
The Commission underscores that the appeal’s effectiveness is closely linked to the scope of
possibilities for appealing a judgment.39 Because it is possible that judicial authorities will make mistakes
leading to a situation of injustice, this cannot be confined to enforcement of the law, but rather it includes
other aspects such as the determination of the facts or the criteria for appraising evidence. Thus, the appeal
shall be effective in achieving the purpose for which it was conceived, if it allows a review of such matters
without confining its admissibility a priori to given points of law in the proceedings of the court authority.40
45.
Regarding this, in the case of Abella versus Argentina, the Inter-American Commission
indicated the following:
Article 8(2)(h) refers to the minimum characteristics of a remedy that serves as a check to
ensure a proper ruling in both substantive and formal terms. From the formal standpoint the
right to appeal the judgment to a higher court to which the American Convention refers should,
in the first place, apply to […] the purpose of examining the unlawful application, the lack of
application, or the erroneous interpretation of rules of law based on the operative part of the
judgment. The Commission also considers that to guarantee the full right of defense, this
remedy should include a material review of the interpretation of procedural rules that may
have influenced the decision in the case when there has been an incurable nullity or where the
right to defense was rendered ineffective, and also with respect to the interpretation of the
rules on the weighing of evidence, whenever they have led to an erroneous application or nonapplication of those rules.
[…]
The remedy should also allow the higher court a relatively simple means to examine the
validity of the judgment appealed in general, as well as to monitor the respect for fundamental
rights of the accused, especially the right of defense and the right to due process.41
35 Inter-American Court. Case of Herrera Ulloa v. Costa Rica. Judgment of Preliminary Objections, Merits, Reparations and Costs.
July 2, 2004. Series C No. 107, para. 165; United Nations Human Rights Committee. Gómez Vázquez v. Spain. Communication No.
701/1996. Decision of 11 August 2000, para. 11.1.
36 United Nations Human Rights Committee. Bandajevsky v. Belarus. Communication No. 1100/202, Decision of 18 April 2006,
para. 11.13. Inter-American Court. Case of Herrera Ulloa v. Costa Rica. Judgment of Preliminary Objections, Merits, Reparations and Costs.
July 2, 2004. Series C No. 107, para. 158; and Case of Mendoza et al. v. Argentina. Judgment of Preliminary Exceptions, Merits and
Reparations. May 14, 2013. Series C No. 260, para. 244.
37 Inter-American Court. Case of Herrera Ulloa v. Costa Rica. Judgment of Preliminary Objections, Merits, Reparations and Costs.
July 2, 2004. Series C No. 107, para. 161; and Case of Mendoza et al. v. Argentina. Judgment of Preliminary Exceptions, Merits and
Reparations. May 14, 2013. Series C No. 260, para. 244.
38 Inter-American Court. Case of Herrera Ulloa v. Costa Rica. Judgment of Preliminary Objections, Merits, Reparations and Costs.
July 2, 2004. Series C No. 107, para. 164; and Case of Mendoza et al. v. Argentina. Judgment of Preliminary Exceptions, Merits and
Reparations. May 14, 2013. Series C No. 260, para. 244.
39
IACHR, Report No. 33/14, Case 12.820, Merits, Manfred Amrhein et al., Costa Rica, April 4, 2014, para. 188.
40 IACHR, Report No. 172/10, Case 12.561, Merits, César Alberto Mendoza et al. (Juveniles sentenced to life time
imprisonment), Argentina, November 2, 2010, para. 186.
41
IACHR, Report No. 55/97, Case 11.137, Merits, Juan Carlos Abella, Argentina, November 18, 1997, paras. 261-262.
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