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b)
by a judgment delivered in another case on June 26, 1990, the
Constitutional Chamber of Costa Rica’s Supreme Court held that the
extraordinary remedy of cassation does satisfy the requirements of the
American Convention, provided it is not regulated, interpreted or applied with
mechanical rigor. This Third Chamber of the Costa Rican Supreme Court did
not abide by that earlier ruling in the case involving journalist Mauricio
Herrera Ulloa and the newspaper “La Nación”, as the judgment it delivered on
January 24, 2001, “by using evasive formalisms, circumvent[ed] the full
review of the lower court judgment that should happen with a broad and full
appeal”;
c)
the writ of cassation does not allow, for example, a review of the facts
established as true in the lower court judgment;
d)
in the instant case, the writ of cassation was exercised liberally, but
the Third Chamber of the Costa Rican Supreme Court ruling was a pro forma
decision, which dismissed the writ on formal and narrow grounds, thereby
violating the alleged victims’ right to appeal the conviction by means of a full
review by a higher court;
e)
in the Costa Rican legal system, the only procedural regime that has
no remedy of appeal is the one for cases in the criminal courts. There is no
court of second instance for criminal cases, which is a violation of articles
8(2)(h) and 2 of the Convention;
f)
the Fourth Chamber of the Costa Rican Supreme Court ordered that to
be in compliance with Article 8(2)(h) of the Convention, the writ of cassation
was not to be interpreted or applied with mechanical rigor; that ruling was
disregarded in the cassation judgment delivered against Mauricio Herrera
Ulloa;
g)
it has been shown, then, that the writ of cassation in a criminal law
case did not allow the facts established in the November 12, 1999 judgment
of the Criminal Court of the First Judicial Circuit of San José, Group three,
which convicted Mr. Mauricio Herrera Ulloa, to be reviewed or checked;
hence, the writ of cassation in criminal cases does not meet the requirements
necessary to constitute an effective remedy filed with a higher court, in the
sense of articles 8(2)(h) and 25 of the Convention;
h)
as was established in the expert opinion given by Mr. Carlos Tiffer
Sotomayor, in Costa Rica the writ of cassation does not allow a full review of
a judgment; hence, it cannot be used to check the evidence assessment or
other questions of fact;
i)
the right to appeal a judgment to a higher court can be construed as
an expression of the right to an effective recourse, upheld in Article 25(1) of
the Convention. Furthermore, the lack of an effective remedy of appeal is a
violation of Article 25(2)(b) of the Convention, which provides that the States
parties undertake “to develop the possibilities of judicial remedy”;
j)
elsewhere the Commission has held that as a mechanism for reviewing
judgments, an appeal has characteristics that are: a) procedural: an appeal
must go forward against any lower court judgment to check for misapplication
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