Practice Relating to Rule 100. Fair Trial Guarantees

Geneva Convention III
Article 106 of the 1949 Geneva Convention III provides:
Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 106.
Geneva Convention IV
Article 73, first paragraph, of the 1949 Geneva Convention IV provides: “A convicted person shall have the right of appeal provided for by the laws applied by the court.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 73, first para.
Protocol 7 to the European Convention on Human Rights
Article 2(1) of the 1984 Protocol 7 to the European Convention on Human Rights provides:
Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law. 
Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 22 November 1984, Article 2(1).
International Covenant on Civil and Political Rights
Article 14(5) of the 1966 International Covenant on Civil and Political Rights provides: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(5).
American Convention on Human Rights
Article 8(2)(h) of the 1969 American Convention on Human Rights provides: “During the proceedings, every person is entitled, with full equality, to the following minimum guarantees … the right to appeal the judgment to a higher court”. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(2)(h).
African Charter on Human and Peoples’ Rights
Article 7(1)(a) of the 1981 African Charter on Human and Peoples’ Rights provides:
Every individual shall have the right to have his cause heard. This comprises … the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force. 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5., Article 7(1)(a).
Convention on the Rights of the Child
Article 40(2)(b) of the 1989 Convention on the Rights of the Child provides:
Every child alleged or accused of having infringed the penal law has at least the following guarantees:
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 12(2) of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 12(2).
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Article 26 of the 2007 Statute of the Special Tribunal for Lebanon provides:
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:
(a) An error on a question of law invalidating the decision;
(b) An error of fact that has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Article 26.
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(2) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides: “An individual convicted of a crime shall have the right to his conviction and sentence being reviewed according to law.” 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(2).
Argentina
Argentina’s Law of War Manual (1969) provides: “Any prisoner of war has the right, under the same conditions as the members of the armed forces of the [Detaining Power], to make an appeal against any sentence pronounced against him.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.087.
The manual further provides that the “proceedings shall foresee the right to appeal for the persons [placed in assigned residence or interned]”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 5.008(2).
With respect to occupied territory, the manual states:
Any sentenced person has the possibility to use the recourse prescribed in the legislation which applies to the tribunal … If the legislation which applies to the tribunal does not foresee possibilities of appeal, the sentenced/convicted person shall have the right to appeal the sentence in front of the competent authority of the Occupying Power. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 5.029(4).
Canada
Canada’s LOAC Manual (2001) states in its chapter on rights and duties of occupying powers: “There is no absolute right of appeal against sentence. [The 1949 Geneva Convention IV] merely states that ‘The convicted persons shall have the right of appeal provided for by the laws applied by the court’.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.5.
Hungary
Hungary’s Military Manual (1992) states, regarding the prosecution of prisoners of war, that there is a right of appeal. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 92.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the obligations of the occupying power under the 1949 Geneva Convention IV, states: “All convicted persons must be informed of their rights to appeal and the time limits for doing so.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(E).
Netherlands
The Military Manual (2005) of the Netherlands states: “Every prisoner of war has, in the same manner as the members of the armed forces of the detaining power, the right of appeal quashing or revising a judgment delivered against him.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
New Zealand
New Zealand’s Military Manual (1992) provides that prisoners charged with offences “shall enjoy the same right of appeal as members of the Detaining Power’s own forces”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 932.
The manual further states:
There is no absolute right of appeal against sentence. The [1949 Geneva Convention IV] Article 73 merely lays down that “the convicted person shall have the right of appeal provided for by the laws applied by the court”. If, however, the court makes no provision for appeal, the convicted person must be given the right to petition the competent authority of the Occupying Power against the finding and sentence. In either case, he must be fully informed of his right to appeal or petition and of the time limit within which he may do so. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1330(3).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “The right of recourse in appeal, cassation and review shall be ensured.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
Every prisoner of war must be given, in the same manner as members of the armed forces of the Detaining Power, the right of appeal or petition against any judgement or sentence passed on him, with a view to the quashing of the sentence or the reopening of the trial. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 232.
With respect to situations of occupation, the manual provides:
There is no absolute right of appeal against sentence. The Civilian Convention Article 73 merely lays down that “the convicted person shall have the right of appeal provided for by the laws applied by the court”. However, where the law makes no provision for appeal, the convicted person must be given the right to petition the competent authority of the Occupying Power against the finding and sentence. In either case, he must be fully informed of his right to appeal or petition and of the time limit within which he may do so. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 572.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states: “Every prisoner of war must be given the same rights of petition and appeal against finding and sentence as members of the armed forces of the detaining power and must be fully informed of those rights and of any time limits.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.141.
In its discussion on the administration of criminal law in occupied territory, the manual states:
Although a convicted person has no specific right of appeal under the law of armed conflict, a right of appeal may exist under the law applied by the court. Even where that law makes no provision for appeal, the convicted person has a right to petition the competent authority of the occupying power in respect of finding and sentence. He must be fully informed of his rights of appeal and of any time limits within which he must present his appeal or petition. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.70 11 .
United States of America
The US Field Manual (1956) reproduces Article 106 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 182.
The manual also uses the same wording as Article 73 of the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 443.
United States of America
The US Air Force Pamphlet (1976) provides that there are provisions in the 1949 Geneva Convention III which “grant [the prisoner of war] the right of appeal”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The Pamphlet further states with respect to protected persons arrested for criminal offences: “Among other rights, accused persons are assured the right … to appeal”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
United States of America
The US Manual for Military Commissions (2007) states:
Appellate proceedings.
(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings under this rule as provided in R.M.C. 1202. Appellate Government counsel shall diligently prosecute an appeal under this rule. Neither party has a right to oral argument under this rule.
(2) Court of Military Commission Review. A government appeal shall, whenever practicable, have priority over all other proceedings before the Court of Military Commission Review. In determining a government appeal, the Court may take action only with respect to matters of law.
(3) Action following decision of Court of Military Commission Review. After the Court of Military Commission Review has decided any appeal, the accused may petition for review by the United States Court of Appeals for the District of Columbia Circuit or the United States may appeal an adverse ruling to the United States Court of Appeals for the District of Columbia Circuit. The parties shall be notified of the decision of the Court of Military Commission Review promptly. If the decision is adverse to the accused, the accused shall be notified of the decision and of the right to petition the United States Court of Appeals for the District of Columbia Circuit for review within 20 days. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 908(c)(1)–(3), p. II-91.
United States of America
The US Manual for Military Commissions (2010) states:
Notice concerning post-trial and appellate rights
(a) In each military commission, prior to adjournment, the military judge shall ensure that the defense counsel has informed the accused orally and in writing of:
(1) The right to submit matters to the convening authority to consider before taking action;
(2) The right to appellate review, as applicable, and the effect of waiver or withdrawal of such right;
(3) The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them.
(b) The written advice to the accused concerning post-trial and appellate rights shall be signed by the accused and the defense counsel and inserted in the record of trial as an appellate exhibit. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1010, p. II-137.
The manual also states:
Matters submitted by the accused
(a) In general. After a sentence is adjudged, the accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1105(a), p. II-148.
The manual further states:
Further review
(a) Petition to the United States Court of Appeals for the District of Columbia Circuit by the Accused. The accused may petition for review of the decision of the United States Court of Military Commission Review if such petition is filed within 20 days after the date on which—
(1) written notice of the final decision of the United States Court of Military Commission Review is served on the accused or on defense counsel, whichever is earlier; or
(2) the accused submits, in the form prescribed by R.M.C. [Rules for Military Commissions] 1110, a written notice waiving the right of the accused to review by the United States Court of Military Commissions Review. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 1205(a), p. II-164.
Note. The vast majority of States provide for a right to appeal in their constitution and/or legislation relating to criminal or military law. 
See, e.g., Ethiopia, Constitution, 1994, Article 20(6); Georgia, Constitution, 1995, Article 42(1); Kuwait, Constitution, 1962, Article 166; Russian Federation, Constitution, 1993, Articles 46(2) and (3), 47 and 50(3).
These constitutions and pieces of legislation are not all listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 63. Appeal against the Decision of the Primary Court.
1. The person who has been sentenced or the Primary Saranwal [prosecutor] can contest the decision of the Court by filing an appeal.
Article 68. Powers of the Court of Appeal.
3. When the appeal is filed only by the accused the Court can in no case increase the punishment inflicted by the Primary Court.
Article 71. Recourse against the Decision of the Court of Appeal.
1. The person sentenced by the Court of Appeal, the victim or the Saranwal can lodge a recourse to the Supreme Court only if the complaint refers to:
a. Violations in the application of the law or wrong interpretation of the law; and
b. A decision based on the provisions of article 7 [regarding evidence collected without respect for legal requirements]. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 63(1), 68(3) and 71.
Afghanistan
Afghanistan’s Juvenile Code (2005) states:
Act of Appeal.
… The convicted child, his legal representative or the prosecutor may contest the decision of the primary court by filing an appeal.
… The child may not wave his [or] her right of appeal without the consent of his [or] her legal representative.
… If the child or his [or] her legal representative appeals against the issued decision of the court, the [sentence] of the higher court cannot be more severe than the decision of the primary court.
… The child, his [or] her legal representative or the juvenile prosecutor may submit a recourse to the Supreme Court within 30 days against the sentence of the appeal court. 
Afghanistan, Juvenile Code, 2005, Article 42.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 48. Application for Appeal.
(1) The convict, plaintiff of sin to mankind (Haq-ul-abd) or victim can appeal the decision of the basic court.
Article 53. Authorities of the Appeals Court.
(2) In case the appeals application is presented to the appeals court by the convict, [under no circumstances can] the court increase the punishment imposed by the primary Court.
Article 56. Challenge against the Decision of the Appeals Court.
(1) The convict, the harmed party or the appellate prosecutor can appeal to the Supreme Court against the decision of the Appeals Court in the following circumstances:
1- In case the decision of the Appeals Court is mistaken in the [application] or interpretation of the law.
2- In case the decision of the Appeals Court is issued irrespective [of] the provisions of [the] law. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 48(1), 53(2) and 56(1).
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or serve a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states:
Article 27 (Minimum procedural guarantees. Guarantees in judicial or administrative proceedings)
In any judicial or administrative proceedings affecting children and adolescents, the governmental bodies shall guarantee [that children and adolescents enjoy] the following rights and guarantees, in addition to all those rights provided for in the National Constitution [of Argentina], in the Convention on the Rights of the Child, in international treaties ratified by the Argentine Nation and any laws promulgated in consequence of such treaties:
e) To appeal to a superior body against any decision affecting him or her. 
Argentina, Law on the Protection of Children’s and Adolescents’ Rights, 2005, Article 27(e).
Bangladesh
Bangladesh’s International Crimes (Tribunals) Act (1972), as amended in 2009, states: “A person convicted of a crime specified in section 3 [including war crimes] and sentenced by a Tribunal shall have the right of appeal to the Appellate Division of the Supreme [C]ourt of Bangladesh against such conviction and sentence. 
Bangladesh, International Crimes (Tribunals) Act, 1973, as amended in 2009, Article 21(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “An appeal may be filed against the verdict rendered in the first instance within 15 days from the date when the copy of the verdict was delivered.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 292(1); see also Article 318(1).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on the proceedings of the Extraordinary Chambers:
The Extraordinary Chamber of the Supreme Court shall decide appeals made by the accused, the victims, or the Co-Prosecutors against the decision of the Extraordinary Chamber of the trial court. In this case, the Supreme Court Chamber shall make final decisions on both issues of law and fact, and shall not return the case to the Extraordinary Chamber of the trial court. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 36 new.
Canada
Canada’s National Defence Act (1985) states: “Every person subject to the Code of Service Discipline has … the right to appeal to the Court Martial Appeal Court.” 
Canada, National Defence Act, 1985, Section 230.
The Act further states:
A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court
(a) on any question of law on which a judge of the Court Martial Appeal Court dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. 
Canada, National Defence Act, 1985, Section 245(1).
Chile
Chile’s Code of Criminal Procedure (1906), as amended in 2007, states: “In general, any person affected by a judicial decision has the right to appeal against this decision.” 
Chile, Code of Criminal Procedure, 1906, as amended in 2007, Article 39.
The Code also states: “Any definite sentence may be appealed by any of the parties within five days following the respective notification.” 
Chile, Code of Criminal Procedure, 1906, as amended in 2007, Article 510.
China
China’s Criminal Procedure Law (1979), as amended in 1996, states:
If the defendant, private prosecutor or their legal representatives refuse to accept a judgment or order of first instance made by a local People’s Court at any level, they shall have the right to appeal in writing or orally to the People’s Court at the next higher level …
A defendant shall not be deprived on any pretext of his right to appeal. 
China, Criminal Procedure Law, 1979, as amended in 1996, Article 180.
China
China’s Organic Law of the People’s Courts (1979), as amended in 2006, states:
In the administration of justice, the people’s courts adopt the system whereby the second instance is the last instance.
From a judgment or orders of first instance of a local people’s courts, a party may bring an appeal to the people’s court at the next higher level in accordance with the procedure prescribed by law, and the people’s procuratorate may present a protest to the people’s court at the next higher level in accordance with the procedure prescribed by law.
Judgments and orders of first instance of the local people’s courts at various levels become legally effective judgments and orders if, within the period for appeal, none of the parties has appealed and the procuratorate has not protested.
Judgments and orders of second instance of intermediate courts, higher people’s courts and the Supreme People’s Court, and judgments and orders of first instance of the Supreme People’s Court are all judgments and orders of last instance, that is, legally effective judgments and orders. 
China, Organic Law of the People’s Courts, 1979, as amended in 2006, Article 11.
Colombia
Colombia’s Constitution (1991) provides: “Any judicial sentence may be appealed or adjudicated, but for exceptions provided by law.” 
Colombia, Constitution, 1991, Article 31.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Article 18:
In time of war or in any other exceptional circumstances of a nature to endanger the life of the Nation, in particular threats of war, armed rebellion or insurrection, Operational Military Courts are established in the zones of war operation, which accompany the units of the army in operation.
The installation of Operational Military Courts is decided by the President of the Republic.
Article 276:
With the exception of the decisions rendered by the Operational Military Courts, the decisions and judgements of the Military Tribunals are subject to objection [opposition] and appeal [appel].
Article 279:
With the exception of the decisions rendered by the Operational Military Courts, during the circumstances contained in article 18 above, the decisions and judgements of the military jurisdictions are subject to annulment for violation of the law [annulation] and re-opening of proceedings after a conviction [révision] in accordance with the provisions of the present Code. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 18, 276 and 279.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Constitution (2006) provides:
The military jurisdictions adjudge offences committed by members of the Armed Forces and the National Police.
In time of war or when a state of siege or emergency has been proclaimed, the President of the Republic, by a decision deliberated in the Council of Ministers, can suspend, in the whole or a part of the Republic and for the duration and the offences he designates, the penal law actions of the ordinary law courts and tribunals, in favour of the military jurisdictions. However, the right to appeal cannot be suspended. 
Democratic Republic of the Congo, Constitution, 2006, Article 156.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Estonia
Estonia’s Constitution (1992) provides: “Every person shall have the right to appeal a judgment by a court in his or her case to a higher court, in accordance with procedures established by law.” 
Estonia, Constitution, 1992, Article 24.
Hungary
Hungary’s Constitution as amended (1994) provides:
In the Republic of Hungary everyone is entitled to legal redress or has the right to appeal against court or administrative decisions, or any other authority’s decisions that infringe his rights or lawful interests. 
Hungary, Constitution, 1994, as amended, Article 57(5).
India
India’s Armed Forces Tribunal Act (2007) states:
15.(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental thereto.
(2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed.
(4) The Tribunal shall allow an appeal against conviction by a court martial where
(a) the finding of the court martial is legally not sustainable due to any reason whatsoever; or
(b) the finding involves wrong decision on a question of law; or
(c) there was a material irregularity in the course of the trial resulting in miscarriage of justice,
but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant:
Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon.
30. (1) Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19):
Provided that such appeal is preferred within a period of ninety days of the said decision or order:
Provided further that there shall be no appeal against an interlocutory order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt:
Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.
(3) Pending any appeal under sub-section (2), the Supreme Court may order that –
(a) the execution of the punishment or the order appealed against be suspended; or
(b) if the appellant is in confinement, he be released on bail:
Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be. 
India, Armed Forces Tribunal Act, 2007, Sections 15(1)–(2) and (4)–(5) and 30.
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to appeal:
151. At the conclusion of the reading of the judgment, the military court shall explain the defendant’s right to appeal the judgment to him, and shall notify him of the deadline for filing the appeal.
152. The judgment of the military court of the first instance can be appealed in the Military Court of Appeals. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Articles 151 and 152.
Libyan Arab Jamahiriya
The Libyan Arab Jamahiriya’s Code of Criminal Procedure for Armed Personnel (1999) states:
The prosecution and the indicted shall have the right to appeal sentences rendered by permanent courts within 30 days of the date of the deposition of the grounds (for the charge or charges). The appeal may be for any legal or substantive ground. If the sentence rendered in presence of the defendant is death, the prosecution must refer the action, with all relevant documents, to the Supreme Court within 30 days of the ruling. The court shall appoint an advocate for the defendant if said does not have one. The prosecution shall submit a memorandum of opinion within the fifteen days that follow the referral; the defendant’s advocate shall lodge a defense brief within another fifteen days. 
Libyan Arab Jamahiriya, Code of Criminal Procedure for Armed Personnel, 1999, Article 87.
Pakistan
Pakistan’s Anti-Terrorism Act (1997) states: “An appeal against the final judgment of Anti-Terrorism Court shall [be] to a High Court.” 
Pakistan, Anti-Terrorism Act, 1997, Section 25.
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(i) To appeal in all cases allowed and in the manner prescribed by law. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(i).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
i) To appeal in all cases allowed and in the manner prescribed by law. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26(i).
Rwanda
Rwanda’s Organic Law Determining the Organization, Functioning and Jurisdiction of Courts (2004) provides:
Title 2: Jurisdiction of courts
Chapter 1: Jurisdiction of ordinary courts
Article: 90
The High Court of the Republic shall have jurisdiction to try any person including non-nationals found within the territory of the Republic of Rwanda, alleged to have committed, outside the national boundaries, any crimes falling within the category of international or cross-border crimes, especially the crimes of genocide, crimes against humanity, war crimes, terrorism, hostage taking, drug trafficking, money laundering, theft of motor vehicles for sale abroad, human trafficking especially of young girls, slavery and other crimes of similar nature. …
Article: 103
Cases tried in first instance by the High Court of the Republic, whether penal, civil or administrative, may be reviewed by the same court, and appealed in the Supreme Court.
Chapter 2: Competence of specialized jurisdictions
Section 1. Jurisdiction based on subject matter or competence of the court
Sub-section 2: The Military Tribunal
Article: 138
Without prejudice to the provisions of article 139 of this organic law, the Military Tribunal tries in the first instance all offences committed by all Military personnel irrespective of their rank.
It also has powers to try Military personnel accused of the crime of genocide and crimes against humanity committed in Rwanda between October 1st 1990 and December 31st 1994, which place them in the first category irrespective of their ranks.
Section 3. General provisions related to Military Courts
Article: 141
Cases heard by the Military Courts may be reviewed or appealed against. Judgments rendered by the military court shall be reviewed in the same court and appealed against in the Military High Court.
Cases heard in the first instance by the Military High Court may be reviewed by the same Court and appealed against in the Supreme Court. If they were heard in the second instance by that court, they may be appealed against in the Supreme Court, provided the sentence passed by the Military High Court is equivalent to or exceeds ten (10) years of imprisonment. 
Rwanda, Organic Law Determining the Organization, Functioning and Jurisdiction of Courts, 2004, Articles 90, 103, 138 and 141.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Chapter 4. Appeals and case review
Article: 16 Appeals
Both the prosecution and the accused have the right to appeal against any decision taken by the High Court of the Republic upon one or all of the following grounds:
1° an error on a question of law invalidating the decision, or;
2° an error of fact which has occasioned a miscarriage of justice.
The Supreme Court may uphold or invalidate some or all of the decisions of the High Court of the Republic. Where necessary, it may order the High Court of the Republic to review the case.
Article: 17 Case review
The President of the High Court of the Republic shall, upon an application by a party in accordance with Article 180 and other provisions of the law relating to the Code of the Criminal Procedure, basing on new arguments, constitute a bench composed of three (3) judges in the High Court of the Republic in charge of taking a decision on the application for a review of case with new arguments the same court had tried. The review proceedings with new arguments shall be conducted pursuant to the relevant provisions of the Code of Criminal Procedure of Rwanda as well as the provisions of the Law Determining the Organization, Functioning and Jurisdiction of Courts in Rwanda.
The President of the High Court of the Republic may, if considered necessary, assign the judge who heard the case with the designated bench of judges in a case which he tried in order to take a decision on the case which was requested for review with new arguments. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Articles 16–17.
The Supreme Court may uphold or invalidate some or all of the decisions of the High Court. Where necessary, it may order the High Court to review the case. 
Rwanda, Law relating to the transfer of cases to the Republic of Rwanda, 2013, Articles 1(2), 2 and 18.
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
8. Appeal by a protected prisoner or a protected internee.
(1) Where a protected prisoner of war or a protected internee has been sentenced to imprisonment for a term of two years or more, the time within which that person must give notice of appeal or notice of application for leave to appeal to the Court of Appeal shall, notwithstanding anything to the contrary in any enactment be the period from the date of conviction, or in the case of an appeal against sentence, of sentencing, to the expiration of 10 days after the date on which the person receives a notice given –
(a) in the case of a protected prisoner of war, by an officer of the Armed Forces; or
(b) in the case of a protected internee by the officer in charge of the prison in which the protected internee is confined; that the protecting power has been notified of his conviction and sentence.
(2) Subsection (1) shall not apply if there was no protecting power at the time of the conviction or sentence.
(3) Where an appeal is pending –
(a) the court shall not make an order in respect of the restitution of property or the payment of compensation to an aggrieved person; and
(b) any law in respect of the revesting of property shall not apply. 
Sierra Leone, Geneva Conventions Act, 2012, Section 8.
South Africa
South Africa’s Military Discipline Supplementary Measures Act (1999) provides:
3. (1) This Act shall, subject to subsection (2), apply to any person subject to the [Military Discipline] Code irrespective whether such person is within or outside the Republic.
(2) For the purposes of the application of this Act and the Code, “person subject to the Code” includes, to the extent and subject to the conditions prescribed in this section and in the Code –
(h) every prisoner of war as contemplated in Articles 4 and 33 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, or by customary international law, and who is in the power of the Republic and detained by the South African National Defence Force.
Right to review of trial
25. Every person subject to the Code who is convicted and sentenced by a military court has the right to the automatic, speedy and competent review of the proceedings of his or her trial to ensure that any proceedings, finding, sentence or order is either valid, regular, fair and appropriate, or remedied. 
South Africa, Military Discipline Supplementary Measures Act, 1999, §§ 3 and 25.
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) states:
(1) Where a protected prisoner of war or a protected internee has been sentenced to imprisonment for a period exceeding two years, the time within which notice of appeal must be given shall, notwithstanding anything in any other law, be deemed to commence on the day on which he receives notice given, —
(a) in the case of a prisoner of war of a Commonwealth country, by an officer of the armed forces of his country; and
(b) in the case of an internee, by or on behalf of the Superintendent of the Prison in which he is confined, to the effect that the protecting power has been notified of his conviction and sentence and for such further time as would have been the time allowed if the conviction or sentence had taken place or been pronounced on that day.
(2) Where after an appeal against the conviction or sentence by a Court of a protected prisoner of war or a protected internee has been determined, the sentence remains unchanged or has become a sentence of imprisonment for a term exceeding two years, any time allowed in relation to a further appeal in respect of the conviction or sentence as confirmed or varied upon the previous appeal shall be deemed to continue to run until the day on which the convicted person receives a notice given by a person referred to in subsection (1), as the case may require, that the protecting power has been notified of the decision of the Court upon the previous appeal, and for such further time as would have been within the time allowed if that decision had been pronounced on that day.
(3) Upon the application of the provisions of subsection (1) in relation to a convicted person, then, unless the Court otherwise orders, the order of Court relating to the restitution of property or the payment of compensation to an aggrieved person shall not take effect, and any provision of law relating to the re-vesting of property on conviction shall not take effect in relation to the conviction, while an appeal by the convicted person against his conviction or sentence is possible without the extension of time other than the extension provided by subsection (2).
(4) The provisions of subsections (1), (2) and (3) shall not apply in relation to an appeal against a conviction or sentence, or against the decision of a Court upon a previous appeal, if at the time of the conviction or sentence or of the decision of the court upon the previous appeal, as the case may be, there is no protecting power. 
Sri Lanka, Geneva Conventions Act, 2006, Section 9.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states: “An appeal is permitted against judgments of courts of first instance that conclude the proceedings in their entirety or in part.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 398(1).
Uganda
Uganda’s Defence Forces Act (2005) provides:
227. Jurisdiction of appellate courts
(1) A party to the proceedings of a Unit Disciplinary Committee or court martial other than a Field Court Martial who is not satisfied with its decision shall have the right to appeal to an appellate court on any or all of the following matters –
(a) the legality or propriety of any or all of the findings;
(b) the legality of the whole or part of the sentence;
(c) the severity or lenience of the sentence.
228. Advice on the rights of appeal
(1) The Unit Disciplinary Committee or court martial shall, at the conclusion of the trial, inform the parties to its proceedings as to their rights of appeal. 
Uganda, Defence Forces Act, 2005, §§ 227–228.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006), amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“ …
§ 950b. Review by the convening authority
“(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence.
“(b) SUBMITTAL OF MATTERS BY ACCUSED TO CONVENING AUTHORITY.—
“(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602 and 2618, §§ 948b(a) and 950b(a) and (b).
United States of America
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 and the Manual for Military Commissions, states:
After the sentence is adjudged, the accused may submit any matters to the convening authority that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 23-3.a, pp. 149–150.
The Regulation also states:
After the convening authority’s action in each case in which a conviction results, the convening authority will forward the complete, original record of trial, as well as two copies of that record, to the Clerk of Court, Court of Military Commission Review … Those records will be accompanied by a transmittal letter containing the identifying data for the accused, the dates of trial, and the date of the convening authority’s action, as well as any subsequent action.
Appellate review is mandatory for any case in which the convening authority has approved a sentence of death. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 24-2 and 24-3.e, pp. 156–157.
The Regulation further states:
Pursuant to 10 U.S.C. § 950g(a), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of the final judgment rendered by a military commission. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 26-1, p. 172.
In addition, the Regulation states:
REVIEW BY THE UNITED STATES SUPREME COURT
a. The United States Supreme Court may review the final judgment of the Court of Appeals for the District of Columbia Circuit by writ of certiorari pursuant to 28 U.S.C. § 1257.
b. The accused has 90 days from the date of entry of the final judgment of the Court of Appeals to file a petition for a writ of certiorari. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 26-3.a and b, p. 173.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950b. Review by the convening authority
“(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—
The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence.
“(b) SUBMITTAL OF MATTERS BY ACCUSED TO CONVENING AUTHORITY.—(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. …
“(c) ACTION BY CONVENING AUTHORITY.—(1) The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.
“ …
“(3)
“(C) In taking action under this paragraph, the convening authority may, in the sole discretion of the convening authority, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission. 
United States, Military Commissions Act, 2009, § 950b(a), (b), (c)(1) and (c)(3)(C).
The Act also states:
§ 950c. Appellate referral; waiver or withdrawal of appeal
“(a) AUTOMATIC REFERRAL FOR APPELLATE REVIEW.—Except as provided in subsection (b), in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Military Commission Review. Any such referral shall be made in accordance with procedures prescribed under regulations of the Secretary.
“(b) WAIVER OF RIGHT OF REVIEW.—(1) Except in a case in which the sentence as approved under section 950b of this title extends to death, an accused may file with the convening authority a statement expressly waiving the right of the accused to appellate review by the United States Court of Military Commission Review under section 950f of this title of the final decision of the military commission under this chapter. 
United States, Military Commissions Act, 2009, § 950c(a) and (b)(1).
The Act further states:
§ 950g. Review by United States Court of Appeals for the District of Columbia Circuit; writ of certiorari to Supreme Court
“(a) EXCLUSIVE APPELLATE JURISDICTION.—Except as provided in subsection (b), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, the United States Court of Military Commission Review) under this chapter.
“(b) EXHAUSTION OF OTHER APPEALS.—The United States Court of Appeals for the District of Columbia Circuit may not review a final judgment described in subsection (a) until all other appeals under this chapter have been waived or exhausted. 
United States, Military Commissions Act, 2009, § 950g(a) and (b).
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The Prosecution Office or the victim … can appeal … the decision to terminate proceedings.” 
Venezuela, Penal Procedure Code, 2009, Article 325.
The Code further states:
Parties can only challenge judgments that are unfavourable to them.
Defendants can always challenge a judgment which violates their statutory or constitutional rights to presence, assistance and representation, even when they contributed to the violation which is the object of the appeal. 
Venezuela, Penal Procedure Code, 2009, Article 436.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The Prosecution Office or the victim … can appeal … the decision to terminate proceedings.” 
Venezuela, Penal Procedure Code, 2012, Article 307.
The Code further states:
Parties can only challenge judgments that are unfavourable to them.
Defendants can always challenge a judgment which violates their statutory or constitutional rights to presence, assistance and representation, even when they contributed to the violation which is the object of the appeal. 
Venezuela, Penal Procedure Code , 2012, Article 427.
Viet Nam
Viet Nam’s Judicature Law (2001) states: “Any court decision is appealable under the law of procedure.” 
Viet Nam, Judicature Law, 2001, § 11.
Viet Nam
Viet Nam’s Criminal Procedure Code (2003) states that defendants have certain rights, including: “To appeal against judgments and decisions of the courts”. 
Viet Nam, Criminal Procedure Code, 2003, § 50.2(i).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
70. Rights of accused persons
(5) Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to –
(a) have the case reviewed by a higher court; or
(b) appeal to a higher court against the conviction and sentence.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1), 70(5), 86(2)(b) and (3)(e), and 87(1) and (4).
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to appeal to a higher authority shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.2.5.1.7
Pakistan
In his separate opinion in the Liaqat Hussain case before the Supreme Court of Pakistan in 1999, Judge Irshad Hasan Khan stated:
Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance [Ordinance XII of 1998], no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor [have] their functioning and supervision … been made subordinate to it. 
Pakistan, Supreme Court, Liaqat Hussain case, Separate opinion of Judge Irshad Hasan Khan, 22 February 1999, § 51.
Considering that the three parties were not content with the judgment [of the lower court] and appealed on 3 April 1997, with the appeal registered under number RPA 01/R1/RUH;
Ruling on the documents submitted by the parties:
[The Court of Appeal d]ecides to grant Ntaganda, Nzakira and Bimenyimana permission to appeal as [the appeals] were submitted within the statutory deadline[.] 
Rwanda, Court of Appeal of Ruhengeri, Ntaganda and others case, Judgment, 24 June 1998, pp. 4, 8–9 and 16.
Spain
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. With regard to the Prosecution Service’s preliminary question on the inadmissibility of the appeal in question, the court held:
4. … An interpretation contrary to the feasibility of an appeal process … and a pronouncement on the substantive issues [of the case] would contradict … the fundamental right of the appellants to a due process, including the prohibition on a lack of a proper defence and the right to appeal.
It should be noted, in addition, that as judgement 4945/1990 of this Chamber of 20 January 1992 recalls, “Article 5(4) of the Law on Judicial Power [1985] establishes that the infringement of a constitutional precept is sufficient grounds for seeking an appeal if the process is to continue”. In addition, Article 5(7) of the same Law provides that “the rights and freedoms recognized in chapter 11 of title 1 of the Spanish Constitution are integrally binding on all judges and tribunals, and are guaranteed under their effective judicial protection”. It can be deduced from both provisions that any final order, the effects of which are equivalent to a sentence, must provide access to an appeal when [the order] has prevented access to the jurisdiction of the court in violation of constitutional rights. …
In addition, concerning the order to terminate the proceedings [currently under review] … the violation of the right to due process can take place not only when there is a person accused of the acts [of the case] but also when the prosecution has been circumvented by the court, thus denying the plaintiffs the possibility of defending their legitimate interests in a trial with all the [judicial] guarantees.
This broadening of the cases in which an appeal is possible, with regard to definite orders to terminate [proceedings] that affect fundamental rights, is a consequence of the “direct third-party effect of the fundamental rights” and of the general mandate of effective protection of these established in the cited Article 5(7)(1) of the Law on Judicial Power.
In the same sense, recent jurisprudence such as that emerging from STS 1172/20009 [Supreme Court judgement] of 22 October 2009 admits that the termination [of the proceedings] must be subject to an appeal, as its decision is equivalent to an acquittal …
As a result, the dismissal [of the proceedings] has denied the plaintiffs their right to a trial in which they could have defended their legally recognized interests, with a substantiation of facts that these could not contest, and despite the existence of prima facie evidence that the offences attributed to the defendants were carried out.
It is therefore appropriate to dismiss the … [preliminary question] of the Prosecution Service. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(I), Primero, § 4, p. 6; see also Section II(II), Tercero, §§ 1–2, p. 9.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
Uganda
In the Kotido Field Court Martial case in 2008, which related to a Field Court Martial held in 2002 that had, within the space of three hours, resulted in the indictment, conviction and then execution of two soldiers for the crime of murder, Uganda’s Constitutional Court unanimously ruled that accused persons in Field Court Martials were entitled, as of right, to appeal through the Military Courts system up to the Supreme Court. In the lead judgment, Twinomujuni J stated:
At the trial of this appeal, both counsel for the petitioners and the respondent appeared to accept the argument that the UPDF [Uganda People’s Defence Forces] Act does not provide for a right to appeal against the decision of a Field Court Martial.
I am unable to tell precisely how they came to that conclusion. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, p. 34.
Twinomujuni J also stated:
Article 22(1) of the Constitution provides:
Protection of Right to Life
(1) No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, p. 28.
Twinomujuni J further stated:
I stated earlier in this judgment that article 45 supra of our Constitution clearly states that Chapter IV of the Constitution is not exhaustive of fundamental human rights and freedoms available to the people of Uganda. An automatic right of appeal where one’s fundamental rights and freedoms have been violated is one good example. In the instant case the accused persons in the Kotido trial were entitled to a right to life guaranteed under article 22(1) of the Constitution. The right of appeal was therefore automatic. A denial of that right was clearly unconstitutional. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, p. 36.
Twinomujuni J further stated: “I am unable to accept the argument that [the] UPDF Act does not grant a right of appeal from the decision of a Field Court Martial or any other Military Court.” 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, p. 37.
Twinomujuni J further stated:
… This does not in any way exempt the court from the mandatory application of article 22(1) of the Constitution, nor does it affect the automatic right of appeal, which I have discussed above. It does not affect the operation of the right of appeal guaranteed by section 81 of the UPDF Act. In the result, I would hold that the accused persons in the Kotido trial were entitled, as of right, to appeal through the Military Courts system up to the Supreme Court. … Unfortunately, the execution of the soldiers in the Kotido trial put an end to this procedure. That was in contravention of article 22(1) of the Constitution of Uganda. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, pp. 42–43.
Canada
In 2004, in its fifth periodic report to the Human Rights Committee, Canada reported with regard to Ontario:
Offenders have the right to apply to the courts for a review of their detention. Sentenced offenders also have the right to appeal their sentence. Offenders who are charged with internal misconduct have the right to appeal any sentence that impacts on their legislated earned remission. 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, § 404.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated:
According to the new Code [of Criminal Procedure], accused persons have the following rights: … to request that the case be dismissed and to appeal against any decision refusing the dismissal. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 149; see also § 211.
[footnote in original omitted]
Israel
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 17 January 2009, Israel’s Ministry of Foreign Affairs stated that, with respect to Military Courts: “Prosecutors have the right to appeal a sentence they regard as too lenient.” 
Israel, Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, 29 January 2010, § 29.
Mexico
In 2006, during the consideration of the third periodic report of Mexico, a representative of Mexico stated before the Committee on the Rights of the Child: “The rights to a defence and a fair hearing and all rights related to due process … [are] respected. … There … [is] a range of remedies available to minors, including the right to appeal.” 
Mexico, Statement before the Committee on the Rights of the Child during the consideration of the third periodic report of Mexico, 1 June 2006, UN Doc. CRC/C/SR.1141, § 18.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated:
The principle enshrined in the procedural laws of the right to bring proceedings in all instances of court: The accused has the right to appeal against judgements, seek their review and contest the impartiality of the judges. 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, submitted 28 April 2005, § 468.
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
151. According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution (… right of appeal or recourse to other legal remedies …
153. Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to a fair trial. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, §§ 151 and 153.
Switzerland
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated:
In Decision ATF 129 I 281 et seq., the Federal Court found that the right accorded to all persons charged with a criminal offence by article 2 of the seventh Additional Protocol to the European Convention on Human Rights and by article 14, paragraph 5, of the International Covenant [on Civil and Political Rights] to have his conviction reviewed by a higher court would be unacceptably voided of content if the necessary defence was limited to the proceedings in first instance and if a convicted person lacking the necessary resources had to take charge of the appeal proceedings himself, when representation by a lawyer would be essential for the effective exercise of his rights of defence. Where necessary defence is concerned, a defendant – or convicted person – whose poverty is recognized has, in principle, an unconditional right to free assistance, even in appeal proceedings which he initiates himself. 
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, § 236.
Thailand
In 2004, in its initial report to the Human Rights Committee, Thailand stated: “Under the conditions of the respective laws, convicted persons in criminal cases in both judicial and military courts have a right to appeal to the Supreme Court or Supreme Military Court.” 
Thailand, Initial report of Thailand to the Human Rights Committee, UN Doc. CCPR/C/THA/2004/1, 2 August 2004, § 410.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
We are still seeking information about the conduct of any trial. Indeed, we continue to express strong views about the way in which we hope that a trial will be conducted. The same applies to the right of appeal.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
Uruguay
In 2003, in its second periodic report to the Committee on the Rights of the Child, Uruguay stated that “article 74 of the Children and Adolescents Code establishes a range of guarantees of due process such as: … the right to challenge any injurious judicial statements”. 
Uruguay, Second periodic report to the Committee on the Rights of the Child, 13 October 2006, UN Doc. CRC/C/URY/2, submitted 18 December 2003, § 78.
UN Commission on Human Rights
In a resolution adopted in 2002 on the integrity of the judicial system, the UN Commission on Human Rights reaffirmed that “every convicted person should have the right to have his/her conviction and sentence reviewed by a higher tribunal according to law”. 
UN Commission on Human Rights, Res. 2002/37, 22 April 2002, § 7, voting record: 34-0-19.
UN Commission on Human Rights
In a resolution adopted in 2003 on the integrity of the judicial system, the UN Commission on Human Rights:
Guided by articles 5, 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 4, 6, 7, 10, 14, 15 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action,
Recalling other important documents on the issue of the integrity of the judiciary endorsed by various forums of the United Nations, in particular the Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers, the Guidelines on the Role of Prosecutors, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,
Stressing that the integrity of the judicial system should be observed at all times,
8. Reaffirms that every convicted person should have the right to have his/her conviction and sentence reviewed by a tribunal according to law. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and § 8, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the death penalty, the UN Commission on Human Rights:
Noting that, in some countries, the death penalty is often imposed after trials which do not conform to international standards of fairness and that persons belonging to national or ethnic, religious and linguistic minorities appear to be disproportionately subject to the death penalty, and condemning cases in which women are subjected to capital punishment on the basis of gender-discriminatory legislation,
4. Urges all States that still maintain the death penalty:
(b) Not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence;
(c) To ensure that all legal proceedings, including those before special tribunals or jurisdictions, and particularly those related to capital offences, conform to the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights. 
UN Commission on Human Rights, Res. 2003/67, 24 April 2003, preamble and § 4(b)–(c), voting record: 23-18-10.
UN Commission on Human Rights
In a resolution adopted in 2004 on the integrity of the judicial system, the UN Commission on Human Rights:
Guided by articles 5, 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 4, 6, 7, 10, 14, 15 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action,
Recalling other important documents on the issue of the integrity of the judicial system endorsed by various forums of the United Nations, in particular the Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers, the Guidelines on the Role of Prosecutors, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the safeguards guaranteeing protection of the rights of those facing the death penalty,
Stressing that the integrity of the judicial system should be observed at all times,
6. Reaffirms that every convicted person should have the right to have his/her conviction and sentence reviewed by a tribunal of competent jurisdiction according to law;
7. Calls upon States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts, where required by applicable law, are an integral part of the general judicial system and that such courts apply due process procedures that are internationally recognized as guarantees of a fair trial, including the right to appeal a conviction and a sentence. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and §§ 6–7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Guided by articles 5, 7, 8, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 4, 6, 7, 10, 14, 15 and 26 of the International Covenant on Civil and Political Rights, and bearing in mind the Vienna Declaration and Programme of Action,
Recalling other important documents on the issue of the integrity of the judiciary endorsed by various forums of the United Nations, in particular the Basic Principles on the Independence of the Judiciary, the Basic Principles on the Role of Lawyers, the Guidelines on the Role of Prosecutors, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the safeguards guaranteeing protection of the rights of those facing the death penalty,
Stressing that the integrity of the judiciary should be observed at all times,
7. Reaffirms that every convicted person should have the right to have his/her conviction and sentence reviewed by a tribunal of competent, independent and impartial jurisdiction according to law;
8. Calls upon States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial, including the right to appeal a conviction and a sentence. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and §§ 7–8, voting record: 52-0-1.
Council of Europe Committee of Ministers
In 1992, the Council of Europe Committee of Ministers recommended that “the governments of member states be guided in their internal legislation and practice by the principles set out in the text of the European rules on community sanctions and measures, appended to the present recommendation”. These provide, inter alia, that “the offender shall have the right to make a complaint to a higher deciding authority against a decision subjecting him to a community sanction or measure, or modifying or revoking such a sanction or measure”. 
Council of Europe, Committee of Ministers, Rec. R (92) 16 on the European rules on community sanctions and measures, 19 October 1992, Appendix, Rule 13.
No data.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Galić case in 2003, the ICTY Trial Chamber, by majority decision, convicted the accused of one charge of violations of the laws or customs of war and of four charges of crimes against humanity. The accused was sentenced to 20 years’ imprisonment. 
ICTY, Galić case, Judgment, 5 December 2003, §§ 752 and 769, VI. Disposition.
In its judgment in 2006, the Appeals Chamber, by majority decision, while upholding the Trial Chamber’s verdict, quashed the sentence of 20 years’ imprisonment and imposed a sentence of life imprisonment. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, XVIII. Disposition, p. 185.
In his Partially Dissenting Opinion, Judge Pocar stated, inter alia:
2. … I part ways with the majority where it finds that the Appeals Chamber, as the Chamber of last resort in this International Tribunal, may itself correct such an error committed by a Trial Chamber by revising and increasing the sentence entered against an accused at trial. For the reasons emphasized in my dissents in Prosecutor v. Rutaganda and Prosecutor v. Semanza, the Appeals Chamber is bound to uphold an accused’s right of appeal enshrined in international law as reflected in Article 14(5) of the International Covenant on Civil and Political Rights (“ICCPR”). Thus, the modalities of the Appeals Chamber’s intervention under Article 25(2) of the Statute of the International Tribunal to correct errors by a Trial Chamber must be interpreted so as to comply with the fundamental human rights principle that any conviction and or sentence must be capable of review by a higher tribunal according to law. While Article 25(1) of our Statute affords the Prosecution the possibility of lodging an appeal that seeks an increase in sentence, this provision does not allow for an exception to the Appeals Chamber’s obligation to guarantee the fundamental right of appeal under Article 14(5) of the ICCPR. As stated by the Human Rights Committee of the ICCPR, although the applicable law in a jurisdiction may allow for a person to be convicted and sentenced at first instance by the higher court in that jurisdiction, “this circumstance alone cannot impair the defendant’s right to review of his conviction and sentence by a higher court.”
3. Consequently, when the Appeals Chamber finds, as it does in this case, that the Trial Chamber erred by imposing a sentence that was inadequate for fully reflecting the gravity of the crimes committed by an accused, the only avenue available to the Appeals Chamber is to quash the Trial Chamber’s sentence and remit it back to the Trial Chamber under Rule 118(C) of the Rules [of Procedure and Evidence] for a redetermination of the sentence consistent with the Appeals Chamber’s decision. 
ICTY, Galić case, Judgment on Appeal, 30 November 2006, XIX. Partially Dissenting Opinion of Judge Pocar, pp. 186–188, §§ 2–3.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In its Judgment on Sentence Appeal in the Mucić case in 2003, the ICTY Appeals Chamber stated:
The prevention of injustice arising from error is, in most systems, provided by rights of appeal. In the civil law system, the first level of appeal is usually a de novo rehearing, followed by two or more levels of appeal on matters of law, or on matters of both facts and law. In the common law system, there is usually no rehearing (except in relation to minor crimes tried before magistrates) but there is either one or two levels of appeal on matters of law, or on matters of mixed fact and law. Many common law systems … also provide for a reconsideration where a filtering authority (either the Attorney General or a government body) examines the basis for the reconsideration request and, where appropriate, refers it to a court of criminal appeal for such reconsideration. 
ICTY, Mucić case, Judgment on Sentence Appeal, 8 April 2003, § 50.
International Criminal Tribunal for the former Yugoslavia
In the Mrkšić case, two of the three accused, officers in the Yugoslav People’s Army (JNA), were convicted of, inter alia, torture as a violation of the laws or customs of war. In its judgment in the case in 2009, the ICTY Appeals Chamber restated the substantive content of the right to appeal, stressing its limitations. The Appeals Chamber stated:
214. [A]n appeal is not an opportunity for the parties to reargue their cases or, “for the Appeals Chamber to reconsider the evidence and factors submitted before the Trial Chamber”. Kupreškić case, Judgement on Appeal, § 430] The Appeals Chamber emphasizes that an appellant cannot hope to see his appeal succeed by simply repeating or referring to arguments that did not succeed at trial, unless he can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Appeals Chamber.
232. …[A]n appealing party must limit its arguments to legal errors that invalidate the decision of the Trial Chamber and to factual errors that result in a miscarriage of justice within the scope of Article 25 of the [1993 ICTY] Statute. 
ICTY, Mrkšić case, Judgment on Appeal, 5 May 2009, §§ 214 and 232.
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, were convicted of crimes against humanity, war crimes and other serious violations of international humanitarian law. The accused Gbao, senior commander in the RUF and AFRC/RUF forces, was convicted of crimes against humanity and war crimes. In its judgment in the case in 2009, the Appeals Chamber, in considering the accused’s right to a reasoned opinion, stated:
344. The fair trial requirements of the Statute include the right of the accused to a reasoned opinion by the Trial Chamber under Article 18 of the [2002] Statute [of the Special Court for Sierra Leone] and Rule 88(C) of the Rules [of Procedure and Evidence of the Special Court for Sierra Leone]. The Appeals Chamber finds the well-established jurisprudence of the ICTY and ICTR which interpret their identical provisions persuasive as to the law in this regard. As recently held by the ICTY Appeals Chamber:
A reasoned opinion ensures that the accused can exercise his or her right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 25 to review these appeals. The reasoned opinion requirement, however, relates to a Trial Chamber’s Judgment rather than to each and every submission made at trial. [ICTY, Krajišnik case, Judgement on Appeal, § 139]
345. As a general rule, a Trial Chamber is required only to make findings on those facts which are “essential to the determination of guilt in relation to a particular Count”; [SCSL, Brima case, Judgement on Appeal, § 268] it “is not required to articulate every step of its reasoning for each particular finding it makes” [ICTY, Krajišnik case, Judgement on Appeal, § 139] nor is it “required to set out in detail why it accepted or rejected a particular testimony.” [ICTY, Krajišnik case, Judgement on Appeal, § 139] However, the requirements to be met by the Trial Chamber may be higher in certain cases.
894. The Appeals Chamber recalls that, while the Trial Chamber is obliged to provide a reasoned opinion, it is not required to articulate every step of its reasoning in relation to each finding it makes or to set out in detail why it accepted or rejected a particular piece of evidence. It need only make findings of material facts that are essential to the determination of guilt in relation to a particular Count. 
SCSL, Sesay case, Judgment on Appeal, 26 October 2009, §§ 344–345 and 894.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
45. Article 14, paragraph 5 of the Covenant provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. As the different language versions (crime, infraction, delito) show, the guarantee is not confined to the most serious offences. The expression “according to law” in this provision is not intended to leave the very existence of the right of review to the discretion of the States parties, since this right is recognised by the Covenant, and not merely by domestic law. The term according to law rather relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, as well as which court is responsible for carrying out a review in accordance with the Covenant. Article 14, paragraph 5 does not require States parties to provide for several instances of appeal. However, the reference to domestic law in this provision is to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.
46. Article 14, paragraph 5 does not apply to procedures determining rights and obligations in a suit at law or any other procedure not being part of a criminal appeal process, such as constitutional motions.
47. Article 14, paragraph 5 is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court. Where the highest court of a country acts as first and only instance, the absence of any right to review by a higher tribunal is not offset by the fact of being tried by the supreme tribunal of the State party concerned; rather, such a system is incompatible with the Covenant, unless the State party concerned has made a reservation to this effect.
48. The right to have one’s conviction and sentence reviewed by a higher tribunal established under article 14, paragraph 5, imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case. 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. However, article 14, paragraph 5 does not require a full retrial or a “hearing”, as long as the tribunal carrying out the review can look at the factual dimensions of the case. Thus, for instance, where a higher instance court looks at the allegations against a convicted person in great detail, considers the evidence submitted at the trial and referred to in the appeal, and finds that there was sufficient incriminating evidence to justify a finding of guilt in the specific case, the Covenant is not violated.
49. The right to have one’s conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provision.
50. A system of supervisory review that only applies to sentences whose execution has commenced does not meet the requirements of article 14, paragraph 5, regardless of whether such review can be requested by the convicted person or is dependent on the discretionary power of a judge or prosecutor.
51. The right of appeal is of particular importance in death penalty cases. A denial of legal aid by the court reviewing the death sentence of an indigent convicted person constitutes not only a violation of article 14, paragraph 3 (d), but at the same time also of article 14, paragraph 5, as in such cases the denial of legal aid for an appeal effectively precludes an effective review of the conviction and sentence by the higher instance court. 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 representation, in order that their concerns may be ventilated at the appeal level. 
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 45–51.
Human Rights Committee
In its concluding observations on the initial report of Uganda in 2004, the Human Rights Committee stated:
[The Committee] finds incompatible with the [1966 International Covenant on Civil and Political Rights] … the imposition of death sentences by field courts-martial without the possibility of appeal or to seek pardon or commutation of the sentence …
The State party should ensure the possibility of full appeal in all cases, as well as the right to seek pardon or commutation of the sentence. 
Human Rights Committee, Concluding observations on the initial report of Uganda, UN Doc. CCPR/CO/80/UGA, 4 May 2004, § 13.
[emphasis in original]
Human Rights Committee
In its views in Salgar de Montejo v. Colombia in 1982, the Human Rights Committee stated that the expression “according to law” contained in Article 14, paragraph 5, of the 1966 International Covenant on Civil and Political Rights is not intended to leave the existence of the right of review at the discretion of States, but only refers to the “modalities by which the review by a higher tribunal is to be carried out”. In this case, an appeal to the same judge was a breach of the right of appeal. 
Human Rights Committee, Salgar de Montejo v. Colombia, Views, 24 March 1982, § 10.4.
However, in Lumley v. Jamaica in 1999, the Human Rights Committee decided that refusal of appeal, where a proper procedure was followed reviewing with care the evidence and the law, was not in violation of the right to appeal. 
Human Rights Committee, Lumley v. Jamaica, Views, 31 March 1999, §§ 7.2–7.3.
Human Rights Committee
In its views in Henry v. Jamaica in 1991 and Frances v. Jamaica in 1993, the Human Rights Committee stated that the right of appeal presupposed a written reasoned judgment delivered by the Court of earlier instance, even where such a court is itself an appeal court. 
Human Rights Committee, Henry v. Jamaica, Views, 1 November 1991, § 8.4; Francis v. Jamaica, Views, 24 March 1993, § 12.2.
Human Rights Committee
In its views in Domukovsky and Others v. Georgia in 1998, the Human Rights Committee stated that the right of appeal required a review of both facts and law, and not only of law. 
Human Rights Committee, Domukovsky and Others v. Georgia, Views, 6 April 1998, § 18.11.
Human Rights Committee
In Evans v. Trinidad and Tobago in 2003, the Human Rights Committee held:
As to the claim of a delay of five years and nine months between conviction and the dismissal of his appeal by the Court of Appeal of the Republic of Trinidad and Tobago, which has also remained unexplained by the State party, the Committee recalls its jurisprudence that the rights contained in article 14, paragraphs 3 (c), and 5 [of the 1966 International Covenant on Civil and Political Rights], read together, confer a right to review of a decision at trial without delay. In Johnson v. Jamaica, the Committee considered that, barring exceptional circumstances, a delay of four years and three months was unreasonably prolonged. As a result of these considerations, the Committee finds a violation of article 14, paragraphs 3 (c), and 5, of the Covenant. 
Human Rights Committee, Evans v. Trinidad and Tobago, Views, 5 May 2003, § 6.3.
Human Rights Committee
In Juma v. Australia in 2003, the Human Rights Committee held:
The Committees notes that the mere dismissal of a request for special leave to appeal is not sufficient to demonstrate that there has been a violation of article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights]. It recalls that this article does not require an appellate court to proceed to a factual retrial, “but that it conduct an evaluation of the evidence presented at the trial and of the conduct of the trial”. 
Human Rights Committee, Juma v. Australia, Inadmissibility Decision, 1 September 2003, § 7.5.
Human Rights Committee
In Sineiro Fernández v. Spain in 2003, the Human Rights Committee held:
7. As to whether the author has been the victim of a violation of article 14, paragraph 5, of the [1966 International Covenant on Civil and Political Rights] because his conviction and sentence were reviewed only by the Supreme Court, a procedure that constitutes a partial review of the conviction and sentence, the Committee refers to the position it adopted on communication No. 701/1996, Gómez Vázquez v. Spain. There, the inability of the Supreme Court, as the sole body of appeal, to review evidence submitted at first instance was tantamount, in the circumstances of that case, to a violation of article 14, paragraph 5. Similarly, in the present communication, the Supreme Court expressly stated that it was not part of its functions to reconsider the evidence on which the court of first instance had based its conviction. As a result, the author has been denied the full review of his conviction and sentence.
8. Accordingly, the Human Rights Committee … is of the view that the facts before it disclose a violation of article 14, paragraph 5, of the Covenant. 
Human Rights Committee, Sineiro Fernández v. Spain, Views, 19 September 2003, §§ 7–8.
Human Rights Committee
In Romanov v. Ukraine in 2003, the Human Rights Committee stated:
In relation to the author’s right to have his conviction and sentence reviewed by a higher tribunal according to law, as provided for in article 14(5) [of the 1966 International Covenant on Civil and Political Rights], the Committee notes that an appellate procedure should, consistent with the Committee’s jurisprudence, entail a full review of the conviction and sentence, together with a due consideration of the case at first instance. 
Human Rights Committee, Romanov v. Ukraine, Inadmissibility Decision, 11 November 2003, § 6.5.
Human Rights Committee
In Saidova v. Tajikistan in 2004, the author submitted that her husband, Gaibullodzhon Saidov, had been arrested by Tajiki authorities in November 1998 and beaten to extract a confession. In December 1999, the Supreme Court found her husband guilty of various charges, including “banditism … terrorism and murder”. 
Human Rights Committee, Saidova v. Tajikistan, Views, 20 August 2004, § 2.10.
He was sentenced to death and executed on 4 April 2001.
The Human Rights Committee held:
The Committee has noted that the author’s husband was unable to appeal his conviction and sentence by way of an ordinary appeal, because the law provides that a review of judgments of the Military Chamber of the Supreme Court is at the discretion of a limited number of high-level judicial officers. Such review, if granted, takes place without a hearing and is allowed on questions of law only. The Committee recalls that even if a system of appeal may not be automatic, the right to appeal under article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights], imposes on the State party a duty substantially to review, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, as long as the procedure allows for due consideration of the nature of the case. In the absence of any explanation from the State party in this regard, the Committee is of the opinion that the above-mentioned review of judgments of the Military Chamber of the Supreme Court, falls short of the requirements of article 14, paragraph 5, of the Covenant, and consequently, that there has been a violation of this provision in Mr. Saidov’s case. 
Human Rights Committee, Saidova v. Tajikistan, Views, 20 August 2004, § 6.5.
Human Rights Committee
In Singarasa v. Sri Lanka in 2004, the author submitted that he had been subjected to torture and ill-treatment by members of the Sri Lankan Criminal Investigation Department, in order to extract a confession. He was subsequently convicted by the High Court on the sole basis of that alleged confession, which, he claimed, amounted to a violation of his right to a fair trial. The Human Rights Committee held:
As to the delay between conviction and the final dismissal of the author’s appeal by the Supreme Court (29 September 1995 to 28 January 2000) in Case no. 6825/1994, which has remained unexplained by the State party, the Committee notes … that more than two years of this period, from 3 January 1998 to 28 January 2000, relate to the time after the entry into force of the Optional Protocol. The Committee recalls its jurisprudence that the rights contained in article 14, paragraphs 3(c), and 5 [of the 1966 International Covenant on Civil and Political Rights], read together, confer a right to review of a decision at trial without delay. In the circumstances, the Committee considers that the delay in the instant case violates the author's right to review without delay and consequently finds a violation of article 14, paragraphs 3(c), and 5 of the Covenant. 
Human Rights Committee, Singarasa v. Sri Lanka, Views, 23 August 2004, § 7.3.
Human Rights Committee
In Alba Cabriada v. Spain in 2004, the Human Rights Committee held:
The Committee notes the comments made by the State party about the nature of the Spanish remedy of judicial review, in particular that the court of second instance is limited to an examination as to whether the findings of the trial court amount to arbitrariness or denial of justice. As the Committee has determined in previous cases [701/1996; 986/2001; 1007/2001], such limited review by a higher tribunal is not in accordance with the requirements of article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights]. Therefore, in the light of the limited scope of review applied by the Supreme Court in the author's case, the Committee concludes that the author is a victim of a violation of article 14, paragraph 5, of the Covenant. 
Human Rights Committee, Alba Cabriada v. Spain, Views, 15 November 2004, § 7.3.
Human Rights Committee
In Terrón v. Spain in 2004, the Human Rights Committee held:
7.2 The State party contends that in the case of minor offences, the requirement of review by a higher tribunal is not applicable. The Committee recalls that the right set out in article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights], refers to all individuals convicted for an offence … Nevertheless the Committee is of the view that the sentence imposed on the author is serious enough in any circumstances to justify review by a higher tribunal.
7.4 The State party contends that in situations such as the author’s, if an individual is tried by the highest ordinary criminal court, the guarantee set out in article 14, paragraph 5, of the Covenant does not apply; the absence of a right to review by a higher tribunal is offset by the fact of being tried by the highest court, and this situation is common in many States parties to the Covenant. Article 14, paragraph 5, of the Covenant stipulates that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. The Committee points out that "according to law" is not intended to mean that the very existence of a right to review is left to the discretion of the States parties. Although the State party's legislation provides in certain circumstances for the trial of an individual, because of his position, by a higher court than would normally be the case, this circumstance alone cannot impair the defendant's right to review of his conviction and sentence by a court. The Committee accordingly concludes that there has been a violation of article 14, paragraph 5, of the Covenant with regard to the facts submitted in the communication. 
Human Rights Committee, Terrón v. Spain, Views, 15 November 2004, §§ 7.2 and 7.4.
Human Rights Committee
In Pagdayawon v. Philippines in 2004, the Human Rights Committee held:
As to the author’s claim that his rights were violated under article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights], as the Supreme Court did not hear the testimony of the witnesses but relied on the first instance interpretation of the evidence provided, the Committee recalls its jurisprudence that a “factual retrial” or “hearing de novo” are not necessary for the purposes of article 14, paragraph 5. 
Human Rights Committee, Pagdayawon v. Philippines, Views, 8 December 2004, § 4.5.
Human Rights Committee
In Khalilov v. Tajikistan in 2005, the Human Rights Committee stated:
The author claimed that her son’s right to have his death sentence reviewed by a higher tribunal according to law was violated. From the documents before the Committee, it transpires that on 8 November 2000, the author’s son was sentenced to death at first instance by the Supreme Court. The judgment mentions that it is final and not subject to any further cassation appeal. The Committee recalls that even if a system of appeal may not be automatic, the right to appeal under article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights], imposes on the State party a duty substantially to review, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case. In the absence of any pertinent explanation from the State party, the Committee considers that the absence of a possibility to appeal to a higher judicial instance judgments of the Supreme Court handed down at first instance, falls short of the requirements of article 14, paragraph 5, and, consequently, that there has been a violation of this provision. 
Human Rights Committee, Khalilov v. Tajikistan, Views, 13 April 2005, § 7.5.
Human Rights Committee
In Martínez Fernández v. Spain in 2005, the Human Rights Committee held:
The Committee further notes the comments made by the State party concerning the nature of the remedy of judicial review, in particular that the court of second instance is limited to an examination as to whether the findings of the trial court amount to arbitrariness or denial of justice. As the Committee has determined in previous cases, such limited review by a higher tribunal does not meet the requirements of article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights]. Therefore, the Committee concludes that the author is a victim of a violation of article 14, paragraph 5, of the Covenant. 
Human Rights Committee, Martínez Fernández v. Spain, Views, 25 May 2005, § 7.
Human Rights Committee
In Ratiani v. Georgia in 2005, the Human Rights Committee considered claims by the author that, inter alia, he had been denied the right of appeal following his conviction by the Collegium of the Supreme Court of Georgia in April 1997 on charges related to the attempted assassination of the President of Georgia in August 1995. The Human Rights Committee found:
11.2 As to the claim that the author was unable to appeal his conviction by the Supreme Court, the Committee recalls its jurisprudence that article 14, paragraph 5 [of the 1966 International Covenant on Civil and Political Rights], requires there to be an available appellate procedure which should entail a full review of the conviction and sentence, together with a due consideration of the case at first instance. In the present case, three review procedures have been referred to by the author, and the Committee must consider whether any of them satisfies the requirements of article 14, paragraph 5. Firstly, the author stated that he complained about his conviction to the Office of the Public Defender, who, it appears, reviewed the author’s case, and prepared a recommendation to the Presidium of the Supreme Court. It transpires that, as a result of this process, the Presidium of the Supreme Court reviewed the author's case and ultimately revised his sentence, whereupon he was released from imprisonment. The State party notes that, under Georgian law then in force (2001), it was not possible to file an appeal against a decision of the Collegium of the Supreme Court, which convicted the author, but that, based on the author’s “supervisory complaint”, the Presidium of the Supreme Court reviewed the author’s case and commuted his sentence. The Committee notes that the State party itself does not refer to this process as being equivalent to a right of appeal; rather, it is referred to merely as a “supervisory complaint”. The Committee recalls its previous jurisprudence that a request for a “supervisory” review which amounts to a discretionary review, and which offers only the possibility of an extraordinary remedy, does not constitute a right to have one's conviction and sentence reviewed by a higher tribunal according to law. From the material before the Committee, it appears that the supervisory complaint process in this instance is of such a nature. Accordingly, based on the information before it, the Committee considers that this process does not amount to a right of appeal for the purpose of article 14, paragraph 5, of the Covenant.
11.3 Secondly, the State party submits that the author could apply to the Supreme Court for a review of his case, through the Prosecutor General, if he could identify new circumstances which called into question the correctness of the original decision. However, the Committee does not consider that such a process meets the requirements of article 14, paragraph 5; the right of appeal entails a full review by a higher tribunal of the existing conviction and sentence at first instance. The possibility of applying to a Court to review a conviction on the basis of new evidence is by definition something other than a review of an existing conviction, as an existing conviction is based on evidence which existed at the time it was handed down. Similarly, the Committee considers that the possibility of applying for rehabilitation cannot in principle be considered an appeal of an earlier conviction, for the purposes of article 14, paragraph 5. Accordingly, the Committee considers that the review mechanisms invoked in this case do not meet the requirements of article 14, paragraph 5, and that the State party violated the author’s right to have his conviction and sentence reviewed by a higher tribunal according to law. 
Human Rights Committee, Ratiani v. Georgia, Views, 4 August 2005, §§ 11.2–11.3.
Human Rights Committee
In Gomariz v. Spain in 2005, the Human Rights Committee stated:
Article 14, paragraph 5, of the [1966 International Covenant on Civil and Political Rights] stipulates that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. The Committee points out that that expression “according to law” is not intended to leave the very existence of a right of review to the discretion of the States parties. On the contrary, what must be understood by “according to law” is the modalities by which the review by a higher tribunal is to be carried out. Article 14, paragraph 5, not only guarantees that the judgement will be placed before a higher court, as happened in the author’s case, but also that the conviction will undergo a second review, which was not the case for the author. Although a person acquitted at first instance may be convicted on appeal by the higher court, this circumstance alone cannot impair the defendant’s right to review of his conviction and sentence by a higher court, in the absence of a reservation by the State party. The Committee accordingly concludes that there has been a violation of article 14, paragraph 5, of the Covenant with regard to the facts submitted in the communication. 
Human Rights Committee, Gomariz v. Spain, Views, 26 August 2005, § 7.1.
Human Rights Committee
In Aliboev v. Tajikistan in 2005, the Human Rights Committee stated:
The author further claimed that her husband’s right to have his death sentence reviewed by a higher tribunal according to law was violated. From the documents available to the Committee, it transpires that on 24 November 2000, Mr. Aliboev was sentenced to death at first instance by the Supreme Court. The judgment mentions that it is final and not subject to any further appeal. The Committee recalls that even if a system of appeal may not be automatic, the right to appeal under article 14, paragraph 5, [of the 1966 International Covenant on Civil and Political Rights] imposes on the State party a duty substantially to review, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case. In the absence of any explanation from the State party, the Committee considers that the absence of a possibility to appeal judgments of the Supreme Court passed at first instance to a higher judicial instance falls short of the requirements of article 14, paragraph 5. Consequently, there has been a violation of this provision. 
Human Rights Committee, Aliboev v. Tajikistan, Views, 16 November 2005, § 6.5.
[emphasis in original]
Human Rights Committee
In Bandajevsky v. Belarus in 2006, the Human Rights Committee held:
The author has claimed that his sentence was not susceptible of cassation appeal and became executory immediately. The State party affirms that the case was examined by the Supreme Court under a supervisory procedure which reviewed the first instance judgment, and that if the Supreme Court had detected violations of the law, the judgment would have been cancelled. The Committee notes, however, that the judgment stipulates that it could not be reviewed by a higher tribunal. The supervisory review invoked by the State party only applies to already executory decisions and thus constitutes an extraordinary mean of appeal which is dependent on the discretionary power of judge or prosecutor. When such review takes place, it is limited to issues of law only and does not permit any review of facts and evidence. The Committee recalls that even if a system of appeal may not be automatic, the right to appeal within the meaning of article 14, paragraph 5, [of the 1966 International Covenant on Civil and Political Rights] imposes on States parties a duty substantially to review conviction and sentence, both as to sufficiency of the evidence and of the law. In the circumstances, the Committee considers that the supervisory review cannot be characterized as an “appeal”, for the purposes of article 14, paragraph 5, and that this provision has been violated. 
Human Rights Committee, Bandajevsky v. Belarus, Views, 18 April 2006, § 10.13.
Human Rights Committee
In Capellades v. Spain in 2006, the author claimed a violation of article 14, paragraph 5, of the 1966 International Covenant on Civil and Political Rights, since he was tried and convicted in sole instance by the Spanish Supreme Court and had no opportunity to appeal against his conviction. The Human Rights Committee found:
[T]he Committee observes that the author was tried by the highest court in the land because among the others accused in the case were a member of the Senate and a member of the Congress of Deputies, and under Spanish law trials of cases involving two members of Parliament are to be conducted by the Supreme Court. It takes note of the State party’s arguments that conviction by the highest court is compatible with the [1966 International Covenant on Civil and Political Rights] and that this is a common situation in many States parties to the Covenant. However, article 14, paragraph 5, of the Covenant provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to the law. The Committee considers that the phrase “according to the law” was not intended to mean that the very existence of the right to review should be left to the discretion of the States parties. Although the legislation of the State party provides that under some circumstances a person, by reason of his office, is to be judged by a higher tribunal than would ordinarily be the case, that circumstance cannot of itself detract from the right of an accused to have his conviction and sentence reviewed by a higher tribunal. The Committee therefore concludes that the facts as set forth in the communication represent a violation of article 14, paragraph 5, of the Covenant. 
Human Rights Committee, Capellades v. Spain, Views, 8 August 2006, § 7.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
As to the author’s claim that his rights were violated under article 14, in particular paragraphs 1 and 5 [of the 1966 International Covenant on Civil and Political Rights], because the Supreme Court did not hear the testimony of the witnesses but relied on the first instance interpretation of the evidence provided, the Committee recalls its jurisprudence that a “factual retrial” or “hearing de novo” are not necessary for the purposes of article 14, paragraph 5. However, in the present case, the Committee notes that whereas the author’s appeal to the Supreme Court concerned the decision at first instance to find him guilty of kidnapping and serious illegal detention of Jacqueline Chiong, the Supreme Court found him guilty also of kidnapping and serious illegal detention with homicide and rape of Marijoy Chiong, a crime for which he had been acquitted at first instance and for which the prosecutor did not request any change of the sentence. The Supreme Court, which did not find it necessary to hear the parties orally, sentenced the author to death. The Committee considers that, as the Supreme Court in the present case, according to national law, had to examine the case as to the facts and the law, and in particular had to make a full assessment of the question of the author’s guilt or innocence, it should have used its power to conduct hearings, as provided under national law, to ensure that the proceedings complied with the requirements of a fair trial as laid down in article 14, paragraph 1. The Committee further notes that the Supreme Court found the author guilty of rape and homicide after he had been acquitted of the same crime at first instance. As a result, the author had no possibility to have the death sentence reviewed by a higher tribunal according to law, as required by article 14, paragraph 5. The Committee concludes that the facts before it disclose a violation of article 14, paragraphs 1 and 5, of the Covenant. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, § 7.8.
Human Rights Committee
In Conde v. Spain in 2006, the Human Rights Committee stated:
The Committee takes note of the author’s contention that his conviction by the appeal court on two counts of which he had been cleared by the trial court, and the subsequent imposition of a heavier penalty, could not be reviewed by a higher court. It recalls that the absence of any right of review in a higher court of a sentence handed down by an appeal court, where the person was found not guilty by a lower court, is a violation of article 14, paragraph 5, of the [1966 International Covenant on Civil and Political Rights]. The Committee notes that, in the present case, the Supreme Court found the author guilty of an offence of forgery of a commercial document, a charge of which he had been acquitted in the lower court, and that it characterized the offence of misappropriation as a continuing offence and thus not time-barred. On that basis the Supreme Court partially set aside the lower court’s sentence and increased the penalty, with no opportunity for review of either the conviction or the sentence in a higher court in accordance with the law. The Committee finds that the facts before it constitute a violation of article 14, paragraph 5. 
Human Rights Committee, Conde v. Spain, Views, 13 November 2006, § 7.2.
Human Rights Committee
In Sánchez and Clares v. Spain in 2006, in which the authors claimed that they had been found guilty by the Provincial High Court of Murcia, after being acquitted by the Criminal Court of Murcia, without the possibility of a full review of the conviction. The Human Rights Committee found:
Article 14, paragraph 5, of the [1966 International Covenant on Civil and Political Rights] stipulates that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. The Committee points out that the expression “according to law” is not intended to leave the very existence of a right of review to the discretion of the States parties. On the contrary, what must be understood by “according to law” is the modalities by which the review by a higher tribunal is to be carried out. Article 14, paragraph 5, not only guarantees that the judgement will be placed before a higher court, as happened in the authors’ case, but also that the conviction will undergo a second review, which was not the case for the authors. Although a person acquitted at first instance may be convicted on appeal by the higher court, this circumstance alone cannot impair the defendant’s right to review of his or her conviction and sentence by a higher court. The Committee accordingly concludes that there has been a violation of article 14, paragraph 5, of the Covenant with regard to the facts submitted in the communication. 
Human Rights Committee, Sánchez and Clares v. Spain, Views, 15 November 2006, § 7.2.
Human Rights Committee
In Moreno v. Spain in 2007, the Human Rights Committee stated:
7. The Committee takes note of the State party’s arguments that conviction in cassation is compatible with the [1966 International Covenant on Civil and Political Rights], and that the conviction [of Jaques Hachuel Moreno] by the Supreme Court was effectively reviewed by the Constitutional Court by means of the remedy of amparo. The Committee recalls its jurisprudence that the absence of any right of review in a higher court of a conviction handed down by an appeal court, where the person was found not guilty by a lower court, is a violation of article 14, paragraph 5, of the Covenant. In the present case, the Supreme Court convicted the author of the offence of misappropriation on the ground that prescription did not apply, and set aside the judgement handed down at first instance by the National High Court, which had acquitted him on the grounds that the offence was time-barred. The Committee notes that the Constitutional Court considered the facts of the case in the course of its review of the constitutional issues raised. However, the Committee cannot agree that that consideration meets the standard set by article 14, paragraph 5, for a review of the conviction.
8. The Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 5, of the Covenant. 
Human Rights Committee, Moreno v. Spain, Views, 11 September 2007, §§ 7–8.
African Commission for Human and Peoples’ Rights
In a resolution adopted in 1992 on the right to recourse and fair trial, the African Commission for Human and Peoples’ Rights stated: “Persons convicted of an offence shall have the right of appeal to a higher court.” 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 3.
African Commission for Human and Peoples’ Rights
In its decision in Constitutional Rights Project v. Nigeria (60/91) in 1995, the African Commission for Human and Peoples’ Rights held:
While punishments decreed as the culmination of a carefully conducted criminal procedure do not necessarily constitute violations of these rights, to foreclose any avenue of appeal to “competent national organs” in criminal cases bearing such penalties clearly violates [Article 7(1)(a) of the 1981 African Charter on Human and Peoples’ Rights], and increases the risk that severe violations may go unredressed. 
African Commission for Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (60/91), Decision, 13–22 March 1995, § 8.
African Commission for Human and Peoples’ Rights
In its decision in Malawi African Association and Others v. Mauritania in 2000, the African Commission for Human and Peoples’ Rights stated:
For an appeal to be effective, the appellate jurisdiction must, objectively and impartially, consider both the elements of fact and of law that are brought before it. Since this approach was not followed in the cases under consideration, the Commission considers, consequently, that there was a violation of [Article 7(1)(a) of the 1981 African Charter on Human and Peoples’ Rights]. 
African Commission for Human and Peoples’ Rights, Malawi African Association and Others v. Mauritania (54/91), Decision, 11 May 2000, § 94.
European Court of Human Rights
In the case of Hadjianastassiou v. Greece, the European Court of Human Rights indicated that the right of appeal presupposed a written reasoned judgment delivered by the court of earlier instance, even where such a court is itself an appeal court. 
European Court of Human Rights, Hadjianastassiou v. Greece, Judgment, 16 December 1992, §§ 29–37.
Inter-American Commission on Human Rights
In a case concerning Argentina in 1997, the Inter-American Commission on Human Rights decided, in a context that it characterized as a non-international armed conflict, that there had been a violation of the petitioner’s right to appeal to a higher court. 
Inter-American Commission on Human Rights, Case 11.137 (Argentina), Report, 18 November 1997, §§ 156 and 435.
Inter-American Commission on Human Rights
In 2002, in its report on terrorism and human rights, the Inter-American Commission on Human Rights stated that even in a state of emergency, “the basic components of the right to a fair trial cannot be justifiably suspended” and that these included “the right of appeal”. 
Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc. OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002, § 247.
ICRC
The ICRC Commentary on the Additional Protocols explains the rationale behind the guarantee of Article 75(4)(j) of the 1977 Additional Protocol I as follows:
It was not considered realistic in view of the present state of national legislation in various countries to lay down a principle to the effect that everyone has a right of appeal against [the] sentence pronounced upon him, i.e., to guarantee the availability of such a right, as provided in the ICRC draft. However, it is clear that if such remedies do exist, not only should everyone have the right to information about them and about the time-limits within which they must be exercised, as explicitly provided in the text, but in addition, no one should be denied the right to use such remedies. 
Yves Sandoz et al. (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 4611.
Amnesty International
Amnesty International, in relation to political prisoners, has often denounced the denial of the right to appeal in cases of the death penalty, as, for instance, in Georgia. 
Amnesty International, Georgia: Fear of Imminent Execution, AI-Index EUR 56/03/96, 21 June 1996.