17
under Article 8 of the Convention to resolve grievances raised by the appellant, which does
not necessarily imply a new trial […].”84
55.
The higher court or judge in charge of deciding the remedy filed against a criminal
judgment has a special duty to protect the judicial guarantees and due process to which all
parties to the criminal proceeding are entitled, in accordance with the principles governing
that proceeding.85 Thus, this Court has indicated that the “possibility of ‘appealing the
judgment’ must be accessible; the kind of complex formalities that would render this right
illusory must not be required.”86
56.
“Regardless of the label [that is] given to the existing remedy to appeal a judgment,
what matters is that the remedy guarantees a full review of the decision being
challenged.”87 “In this respect, while States have a margin of discretion in regulating the
exercise of that remedy, they may not establish restrictions or requirements that infringe
upon the very essence of the right to appeal a judgment.” 88 In the case of Barreto Leiva,
the Inter-American Court established that even in the context of special judicial privileges
for the prosecution of high-ranking government authorities, the State must allow the
accused the possibility of appealing a condemnatory judgment.89
57.
In the case of Velez Loor, the Inter-American Tribunal also considered that a
situation of factual impediment to ensure a real access to the right to appeal, as well a
situation of lack of guarantees and judicial insecurity, may violate Article 8(2)(h).90
58.
Moreover, the Inter-American Court has further determined that the State Parties to
the American Convention are obligated to, in terms of Articles 1(1) and 2 thereof, to adapt
their domestic law in accordance with the parameters established in conjunction to Article
8(2)(h) of such international instrument. The same holds true even where judges exercise
control for conformity with the Convention in order to ensure the right to appeal a judgment
pursuant to Article 8(2)(h) of the American Convention and this Court’s jurisprudence.91
B) The differences between the rights provided in Articles 8(2)(h) (right to appeal the
judgment to a higher court) and 25 (judicial protection)
84
Case of Mohamed V. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of
November 23, 2012. Series C No. 255, para. 101.
85
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment
of July 2, 2004. Series C No. 107, para. 163.
86
Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of
July 2, 2004. Series C No. 107, para. 164.
87
Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of
July 2, 2004. Series C No. 107, para. 165.
88
Case of Vélez Loor V. Panamá. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 3, 2010. Series C No. 218, para. 179.
89
Case of Barreto Leiva V. Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009.
Series C No. 206, para. 90.
90
Case of Vélez Loor V. Panamá. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 3, 2010. Series C No. 218, para. 180.
91
Case of Mendoza et al. V. Argentina. Preliminary Objections, Merits and Reparations. Judgment of May 14,
2013 Series C No. 260, para. 332.