24
90.
The Commission notes that the Supreme Court’s scope for review of the
extraordinary appeal is limited to questions concerning the validity of a law, treaty, or
constitutional provision, or arbitrariness of a judgment, and not to a review of the facts and the
law considered in the judgment. It is an exceptional remedy “with a total lack of legal basis that
prevents consideration of the ruling of regular judges as a judgment based on law (…).”61
Moreover, Article 280 of the Civil Procedure Code gives the Court broad power to reject it
without examining the merits of the case, so the review that the Supreme Court makes is
discretional.
91.
In the instant case, Oscar Alberto Mohamed’s special appeal was rejected by the
Chamber of Appeals in limine, precisely because it was not an appeal for review of questions of
fact, evidence, or law. The Court said in its decision that “This doctrine does not seek to make
the Supreme Court a third regular instance, nor to correct erroneous or allegedly erroneous
decisions (…).” Inadmissibility was ratified later by the Supreme Court in its rejection of the
complaint and revocation motions.
92.
From the foregoing, it is evident that the consideration of admissibility was
limited to establish the existence or nonexistence of a violation of constitutional guarantees or
manifest arbitrariness, not to review the questions of fact, evidence, and law that were alleged.
93.
In light of the standards described above, it is incompatible with Article 8.2.h of
the American Convention for the right to review to be contingent upon the existence of a
violation of constitutional guarantees or manifest arbitrariness. Apart from such violations or
arbitrariness, every individual who is convicted, even at the second instance following acquittal
at the first instance, has the right to request a review of various questions and to have them
effectively analyzed by the higher court that does the revision, precisely in order to correct
possible errors of interpretation, weighing of evidence or analysis, just as Mr. Mohamed’s
counsel argued at each instance to which he appealed.
94.
In conclusion, in the instant case, given the limitations imposed by the Chamber
of Appeals and the Supreme Court, Oscar Alberto Mohamed did not get a review of his
conviction in order to correct possible errors by the respective judge, and the State therefore
violated to his detriment the right established in Article 8.2.h of the Convention, in connection
to the obligations established in Article 1.1 of the same instrument.
95.
Finally, the Commission notes that the right to appeal the judgment is part of the
body of procedural guarantees that ensures the due process of law, which are inextricably interlinked.62 Therefore, the right to appeal the judgment must be interpreted together with other
procedural guarantees if the characteristics of the case require it. An example is the close
connection between the right to appeal the judgment and the opportunity to have the full acts of
the file, including trial acts in the case of oral systems.63 There is an especially relevant link
between the guarantee set forth in Article 8.2.h of the American Convention and access to
adequate counsel, also enshrined in article 8.2 of the Convention. In this regard the CCPR
Human Rights Committee has established that “The right to have one’s conviction reviewed is
also violated if defendants are not informed of the intention of their counsel not to put any
arguments to the court, thereby depriving them of the opportunity to seek alternative
161 Petitioners’ note of April 1, 1996. Annex, Judgment on the special appeal handed down by the First
Chamber of the Chamber of Appeals for Criminal and Correctional Matters on July 4, 1995.
2
62 I/A Court H. R., The Right to Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para.120.
363 In this sense, see United Nations Human Rights Committee. General Comment No. 32 (2007).
Article 14. Right to equality before courts and tribunals and to a fair trial, paras. 47, 48, 49, and 50.