An Appeal Is the Act Or Fact of Challenging a Judicially Cognizable and Binding Judgment

The Right of Appeal: a guarantee of the defendant... or not quite?

Miguel Ângelo Loureiro Manero de Lemos

1. Appeals

“An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority”[1].

One can state indisputably that,both in civil and in criminal proceedings, the appeal is the act of challenging a judgment to a higher authority. In relation to civil matters this notion provides a fair analysis of what an appeal is. In criminal matters, by contrast, it neglectswhat should be considered its fundamental feature: an appeal isa right of the defendant.“Appealing against a conviction or a sentence is normally regarded as a fundamental human right”[2].

This latter approach is highlighted by three important international human rights instruments: the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR).

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law” (ICCPR, art. 14 § 5)

“Right of appeal in criminal matters

1. 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.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal” (ECHR, art. 2º of Protocol nº 7).

“Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. 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” (ACHR, art. 8 § 2(h)).

The international human rights instruments stress that a crime-convicted-person shall have the right to have his/her conviction or sentenced reviewed. These instruments do not mention any similar right to the prosecution[3]. Nevertheless, they do not forbid signatory countries from establishing the possibility for the prosecution to appeal a conviction or sentence[4]: States are not bound by any obligation in this respect.

The defendant’s right to appeal his/her conviction or sentence can beeasily justified. As criminal procedure creates the greatest possibility ofrestrictinga citizen’s fundamental rights,additional guarantees are given to the person subject to it. In consequence, a person convicted of having committed a crime, possibly being subject toimprisonment,should beentitled to have that judgment scrutinized. As the deprivation of liberty is the gravest sanction that exists in the majority of countries, it is the one handled with the most care.

Alsoin other situations not involving the deprivation of liberty – for example, a fine that has as possible consequence, in case of non payment, its conversion into prison, or other deprivation of certain rights – a right of appeal should exist.

Nevertheless, the bottom line is that, at least, when someone is sentenced to a penalty of deprivation of liberty, the right to appeal that judgment must exist.

2. The purpose of the right of appeal

Appeals may serve different purposes. They may function as a mechanism: whereby the parties can obtain a more favourable outcome than they did in the first instance; which aims is to assure the fairness of the first judgment; whereby a consistent and uniform interpretation may be achieved[5]; to correct judicial errors.

In criminal matters, the first of these functions canonly be pursued by one of the ‘parties’: the defendant. It would be intolerable to allow the prosecution another ‘chance’. In fact, when a guilty verdict is handed down,it can be said that supervisionis justified to ensure the judgment, that deprives a person of fundamental rights, is sound[6]. The same reasoning obviously does not apply to an innocent verdict: once a person is declared innocent, the need to confirm it can not be said to exist. It is even possible to defend that, in the case where someone is declared innocent,the presumption of innocence somewhat gains an additional strength. In a first approach, the reversion of a not guilty verdictinto a guilty one only seems to be reasonable in the cases in which the decision of the first instance is extremely defective.

In relation to the other purposes, the question that must be addressed is if the uniform interpretation of the law, the fairness of the decision or the correction of judicial errors should serve as grounds to overturn a decision more favourable to the defendant.

In common law systems this question is normally answered in the negative, except in extreme cases. An ideological approach surely has its importance: since the jury is the substitute of god, how could anyone challenge its judgment[7]?Economic reasons – reducing the number of cases appealed – also add something to the explanation. But, the close connection that exists between this possibility and the right to be protected from double jeopardy (the continental ne bis in idem principle) seems to provide a far better and more rationale explanation of the stand in common law countries[8]. The idea of the State subjecting a person to continuous prosecution for a crime for which he/she has already been acquitted is intrinsically opposed and gives rise to a stance that rejects further meddling in a person’s life[9].

In civil law systems, the same question is generally answered in the affirmative. It is fairly easy also for the prosecution to appeal against a conviction or sentence. If it is true that sometimes only questions of law can be appealed and that different systems establish different rules[10], it is not untrue to underline that often the appeal proceedings “entail a sort of retrial, in that the same evidence may be scrutinized a second time and legal arguments reheard”[11]. The rationale behind this involves the idea that the prosecution is conceived as an ongoing process and the hierarchical idea that a judgment of an higher court is a better one. Additionally, this view is allowed by an interpretation of the ne bis in idem principle that closely connects it to the moment when the case becomesres judicata,a moment identified in many civil law systems with the impossibility of further appeal.

In short, whereas in the common law systems a strong emphasis is givento the rights of the defendant, in the civil law systems the primacy goes to the public interest of ensuring a proper administration of justice.

3. The questions that can be submitted to the appreciation of the higher court

Clearly, the right to appeal established in the human rights instruments extends only to criminal proceedings and to the defendant. Thus, all the advantages that a second judgment may have on the overall fairness of the proceedings, namely correcting the errors of the previous judgment, providing a reasoned judgment or an effective remedy[12], must be faced, in the light of these instruments, in intimate connection to a right that belongs only to the defendant.

The extent of this right is not, however, so clear.

3.1 International Instruments

The first problem to be analysed is related to the extent of discretion left to the States in regulating the right of appeal.

The Commission of Human Rights,in accordance with the Explanatory Report to Protocol 7 of the ECHR, defendsthat a very wide margin of discretion isleft to the States as “different rules govern review by a higher tribunal in the member States of the Council of Europe. In some countries such review is in certain cases limited to questions of law such as the “recours en cassation” (in French law) or ‘Revision’ (in German law). In other countries there is a right to appeal against the findings of fact as well as on questions of law; and in some States a person wishing to appeal to a higher tribunal must in certain cases apply for a leave to appeal”[13].This approach tends to highlight the countries practise and can be grounded on the obscure statement of Protocol 7 that states that “the exercise of this right [of appeal], including the grounds on which it may be exercised, shall be governed by law”.

Another approach is to pay respect to the normative value of the international instrument and to evaluate the countries practise at its light. Henceit is submitted that – except in the cases where the ECHR establishes exceptions and in cases where States have made reservations to the international instruments – no such wide margin of discretion exists.

Indeed the purpose of the international instruments is clear: to provide an effective ‘remedy’ to defendants. Such a ‘remedy’ can not be limited to questions of law or of fact: it has to cover both. It would seem fair to go even further and defend that an effective remedy must exist when there is a “procedural error…, error of fact…, error of law…, or any other ground that affects the fairness or reliability of the proceedings or decision”[14].

This broad approach is consistent with the provisions of the international instruments that aim to provide an effective control against possible unfair decisions not favourable to the defendant: it is difficult to imagine how such controlcould exist ifonly questions of law or only questions of fact are admitted to be analysed by the higher instance[15].

It is worth noting that the international instruments do not make a distinction between questions of procedure, law, fact, or on any other ground.They merely state that the conviction/sentence/judgment can be appealed to a higher tribunal. None of these words allows an interpretation that limits its scope to any type of the questions mentioned[16].

However, it is also worth noting that this does not mean that the party is entitled to the higher court examining any question as if it was the first time, somehow pretending to be the first instance. What the right of appealconfers to the defendant is an effective remedy to any error of the first judgment that may affect the fairness or reliability of the proceedings or decision. A material rather than a formal approach must be taken by the higher court. In other words, the conditions may not be so restrictive as to “infringe the very essence of the right”[17].

One last remark must be made to say that, although the wording of the international instruments seems clear, some doubts could be raised about this interpretation, in the context of the ECHR, due to the aforementioned content of the Explanatory Report to Protocol nº 7. But even in such a context this is the logical interpretation: if the margin of discretion would be so wide as the one implied by the Explanatory Report then the exceptions would come as ‘redundant’ or, more accurately, would constitute examples!If, as the Explanatory Report states, “the article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law”, then the normative value of the ECHR in this respect would be almost null.

3.2.Macao SAR

An introduction to the Macao SAR legal framework in this context must highlight that the ICCPR applies in the Macao SAR[18]. The relevant provision in the Basic Law is article 40º:

The provisions of International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Macao shall remain in force and shall be implemented through the laws of the Macao Special Administrative Region.

The rights and freedoms enjoyed by Macao residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the first paragraph of this Article.

A – An appeal on matters of fact

The legislation of the Macao SAR, on an initial approach, seems not to grant an effective appeal on matters of fact to the defendant. This would mean a violation of the ICCPR. However, as I will explain there seems to be enough room to accommodate a different perspective.

The relevant rules are article 400º/1/2 of the CPCM (Criminal Procedure Code of Macao) and articles 39º and 47º of Law 9/99. It is useful toprovidea translation of the relevant articles in order to gain a better understanding of what is at stake.

CHAPTERII of CPCM

Unitary [appeals] Procedure

Article 400º

(Grounds for Appeal)

1. The appeal can be grounded in any question of law that the appealed decision could have known.
2. The appeal can also be grounded, as long as the defect emerges from the elements of the proceedings, on its own or connected with the rules of common experience:
3. On the insufficiency for the decision of the facts proved
4. On an incurable contradiction of the motivation [of the judgment]
5. On a notorious error on the evaluation of the evidence

Article 39º of Law 9/99

Cognition Powers

The Court of Second Instance, when deciding in its appeal function, knows of fact and law matters, except if the laws of the procedure state otherwise.

Article 47º of Law 9/99

Cognition Powers

1. The Court of Last Instance, when deciding on an appeal that corresponds to a second level of jurisdiction, knows matters of law and of fact, except if the laws of the procedure state otherwise.
2. The Court of Last Instance, when deciding on an appeal that does not correspond to a second level of jurisdiction, knows only matters of law, except if the laws of the procedure state otherwise.

In relation to matters of law no doubt arises. Both the Court of Second Instance (CSI) andthe Court of Last Instance (CLI) can judge on questions of law[19]. As a logical consequence,in criminal law procedure, the appeals filled in both of these instances can be grounded ona question of law (400º/1 CPCM).

In relation to matters of fact, the problem becomes complicated.

One interpretation would be to say that:on the one hand, when the appeal is filed in the CSI it can be grounded in any of the questions of fact established in article 400º/2; on the other hand, when the appeal comes to the CLI, following an appeal filed in the CSI, the CLI can not judge on the questions of fact of the number 2 of article 400º[20].

This interpretation, it could be said, leads to a rational division of powers between the two instances: the CSI being entitled to review questions of fact and law, leaving the CLI only with the power to review questions of law.

But the major problem of this interpretation is that the law does not support it at all. The law establishes that the appeal can have as ground those three situations and does not make a distinction depending on the circumstance of the instance in which the appeal is filed. Therefore, this interpretation contra legem in detriment of the defendant must be strongly rejected.

Additionally, it seems that, according to such an interpretation, the circumstance that the appeal to the CSI can only be grounded on those three situationswould be an exception to rule 39º of Law 9/99 established by the laws of procedure. Indeed, the concept of matter of fact included in this law is broader than the three situations referred in the CPCM.Hence, from a logical perspective, the only way to uphold that the appeal to the CSI can only cover those three situations is to face the rule of the CPCM as a proper exception to rule 39º. Otherwise, a full jurisdiction on matters of factwould be the logical outcome.

According to my interpretation different issues intervene in this problem.

The first one relates to the doubtful statement that the situations established in article 400º/2are questions of fact. It would be more appropriate to simply describe them as specific situations which the legislator decided that could not be subtractedfrom the decision making capability of any court[21]. When a tribunal comes to the conclusion – ex officio or in the consequence of an appeal that raises the question – that the decision is infirmed with one of thosethree very serious situations, the only reasonable thing to do is to rule on it in order to correct the serious mistake of the lower level court.

In consequence, it is submitted that an appeal to the CLI can be grounded not only in questions of law but also in any of those three situations[22].

The second issue, and most difficult one, is what happens in the case of other matters of fact that can not be subsumed in those three situations. For example, what happens: if there is a serious error on the evaluation of the evidence that can jeopardize the fairness of the proceedings but that error is not notorious; or if there is any other question that is not of law or is not included in those three situations but can affect the fairness of the proceedings?

One possible answer would be to consider that the legislator wanted to containthe possibility of appeal to those three situations: on any other situation the judgment of the first instance is the one that should be trusted.According to this perspective, in these other situations it should not be allowed that the superior courts could overturn the decision of the first instance. This reasoning had and still has its advocates. Nevertheless, it is worth noting that in Portugal the legislator,with the 1998 revision of the CPC, did not follow it, because it was thought that a second instance with ‘full jurisdiction’ on questions of fact was the only way to guarantee that the right of appeal of the defendant was actually ensured.

A similar legislative intervention did not exist in Macao but one can legitimately question what the legislator in 1999 meant when it established that the CSI can decide on matters of law and of fact. As mentioned, it does not stand to reason that when the legislator refers to matters of fact itis only referring to the three situations mentioned above. Furthermore, one should not forget that the rule applies to both civil and criminal proceedings and that it is not reasonable that the parties in civil proceedings have a broader access to a second instance than the defendant in criminal proceedings. Even if the problem would be the “overload” of the superior courts, then one should legitimately expect that the restrictions hit harder the cases where the fundamental rights are less at stake. The right of appeal of a party in a civil proceeding is definitely not more important than the right of appeal of a defendant in a criminal proceeding.