obligation to adopt domestic legal effects to guarantee the right, on the other. The Court
has established that Argentina had a duty to ensure that Mr. Mohamed had access to an
effective, timely and accessible remedy that guaranteed a comprehensive and extensive
review (supra paras. 90 to 101) of the conviction imposed on him for the first time in
second instance. In this regard, the Court determined that the remedies that were
available to Mr. Mohamed under the laws in force at that time in Argentina, that is, the
special federal appeal and the motion for review, did not guarantee that right (supra
paras. 102 to 112).
116. As to Argentina’s arguments concerning the legal and jurisprudential
developments for guaranteeing the right to appeal a ruling, the Court will not rule on this
matter in this case since it involves measures supposedly adopted after the facts of this
case, and which refer to legal norms governing the cassation appeals that were not
applied in the criminal proceedings against Mr. Mohamed.
117. Accordingly, the Court concludes that the absence of a judicial remedy to
guarantee comprehensive and extensive review of Mr. Mohamed’s conviction and the
application of judicial remedies that also did not guarantee the right to appeal the
judgment implied a failure by the State to fulfill its general obligation to adapt its
domestic law to ensure compliance with the judicial guarantee protected by Article
8(2)(h)of the Convention.
118. Based on the foregoing considerations, the Court concludes that Argentina
violated the right to appeal the judgment protected under Article 8(2)(h)of the American
Convention, in relation to Articles 1(1) and 2 thereof, to the detriment of Mr. Oscar
Alberto Mohamed.
*
119. As to the alleged violations of the right to defense, the right to be heard, the duty
to substantiate the decision and the right to a simple, prompt and effective recourse
supposedly derived from the judicial decisions issued by the First Chamber of the Court
and by the Supreme Court of Justice upon ruling on the admissibility of the special
federal appeal and the motion for review (supra paras. 69, 70, 72, 74 and 75), the
Court finds that the alleged damages suffered by Mr. Mohamed due to these judicial
decisions are encompassed within the violation of the right to appeal the judgment. It
was precisely the absence of a comprehensive integrated appeal under the terms of
Article 8(2)(h)of the Convention, which would have guaranteed the possibility of
challenging the conviction in second instance, which propitiated and enabled the
situations alluded to by the Commission and the representatives.
120. The Court also emphasizes that, notwithstanding the fact that each of the rights
contained in the Convention has its own sphere, meaning and scope100, the failure to
guarantee the right to appeal the judgment prevents the exercise of the right to defense
which is protected through this mechanism and implies the lack of protection of other
basic guarantees of due process that must be assured to the appellant, as applicable, so
that a higher judge or court may rule on the grievances argued. Accordingly, the Court
does not consider it necessary to issue an additional ruling on the alleged violation of the
rights to defense, the right to be heard, the duty to substantiate the decision and the
right to a simple and prompt remedy.
E) Alleged violation of the right protected in Article 8(4) of the
American Convention
100
Cf. Case of Manuel Cepeda Vargas v. Colombia. Preliminary Objections, Merits and Reparations.
Judgment of May 26, 2010. Series C No. 213, para. 171.
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