71
A review that is limited to the formal or legal aspects of the conviction without any
consideration whatsoever of the facts is not sufficient under the Covenant. 245
259. The IACHR echoes the observation by the ICCPR’s Human Rights Committee to the
effect that the right of appeal does not necessarily mean a retrial or a new “hearing” if the court that
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hears the appeal is not prevented to study the facts of the case.
What the norm requires is the
opportunity to point out and get an answer to possible errors of various kinds that the judge or the court
may have made, without precluding a priori certain categories such as the facts and the weighing and
taking of evidence. The manner and means through which the review is conducted will depend on the
nature of the questions raised and the characteristics of the criminal procedural system in the State in
question.
260. It should be noted that the American Convention “does not endorse any specific criminal
procedural system. It gives the States the liberty to determine which one they prefer, as long as they
respect the guarantees established in the Convention itself, the internal legislation, other applicable
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international treaties, the unwritten norms, and the imperative stipulations of international law.”
261. It is up to the State to order the measures necessary to ensure that its criminal
procedural system conforms to its international obligations in the area of human rights, especially the
minimum guarantees of due process as set forth in Article 8 of the American Convention. Thus, for
example, in the case of criminal procedural systems like Argentina’s, which operates mainly by the
principles of the orality and immediacy of the proceedings, States are required to ensure that those
principles do not involve exclusions or restrictions of the scope of the review that the court authorities
have the authority to perform. Furthermore, a court’s review of a ruling ought not to pervert the principles
of orality and immediacy.
262. As for the remedy’s accessibility, the Commission considers that, in principle, the rules
requiring that a remedy meet certain minimum requirements is not incompatible with the right recognized
in Article 8(2)(h) of the Convention. Those minimum requirements include, for example, the filing of the
remedy, since Article 8(2)(h) does not require automatic review, or the rule stipulating a reasonable
period of time within which the remedy must be filed. However, in certain circumstances, the court’s
refusal to hear an appeal because the latter does not meet the formal requirements established either by
statute or by judicial practice in a given region may result in a violation of the right to appeal a judgment.
263. Finally, the right to appeal a judgment is one of a set of guarantees that taken together
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constitute due process and that are inextricably interlinked.
Therefore, the right to appeal a judgment
must be interpreted in conjunction with other procedural guarantees if the characteristics of the case so
require. An example is the close relationship that exists between, the right to appeal and a duly
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reasoned judgment and the possibility of seeing the complete record of any oral proceedings.
The
relationship between the guarantee protected under Article 8(2)(h) of the American Convention and
access to an adequate defense also enshrined in Article 8(2) of the American Convention is especially
relevant. The ICCPR’s Human Rights Committee has written that “[t]he right to have one’s conviction
245
UN Human Rights Committee. General Comment No. 32 (2007). Article 14. Right to equality before courts and
tribunals and to a fair trial, para. 48. See also: Aliboev v. Tajikistan, Communication No.985/2001, Decision of October 18, 2005;
Khalilov v. Tajikistan, Communication No. 973/2001, Decision adopted on March 30, 2005; Domukovsky et al. v. Georgia,
Communications Nos. 623-627/1995, Decision adopted on April 6, 1998, and Saidova v. Tajikistan, Communication No. 964/2001,
decision adopted on July 8, 2004.
246
UN Human Rights Committee. General Comment No. 32 (2007). Article 14. Right to equality before courts and
tribunals and to a fair trial, para. 48.
247
I/A Court H.R., Case of Fermín Ramírez v. Guatemala. Judgment of June 20, 2005. Series C No. 126, para. 66.
248
I/A Court H.R., The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process
of Law, Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 120.
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See in this regard, UN Human Rights Committee. General Comment No. 32 (2007). Article 14. Right to equality
before courts and tribunals and to a fair trial, paragraphs 47, 48, 49 and 50.