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11 Right to Appeal

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 September 2021

Right to fair trial — Human rights remedies — Appeals — Appeals Chamber — Reservations and exceptions — Waiver — Remedies — Remedies and costs

This chapter examines the right to appeal, which is a safeguard against wrongful conviction, ensuring that a defendant has at least one review of their conviction and sentence. The right to appeal is not absolute and states may place restrictions on the right, such as imposing conditions on access to courts of appeal by requiring defendants to apply for leave. The test is whether the conditions impair the very essence of the defendant’s right to appeal. Once an appeal is granted, the review by the higher tribunal does not necessarily involve the full range of guarantees that are required for a fair trial at first instance. An appeal may not always require an oral hearing, the presence of the defendant, the examination of witnesses, the presentation of new evidence, or detailed reasons for dismissal of the appeal. Among international human rights bodies, the European Court has taken a particularly narrow approach to the right to appeal, allowing for a number of exceptions to the enjoyment of the right and limiting the standard of review to points of law or the sentence only. The key issues regarding the right to appeal concern the stage of proceedings from which the defendant can appeal, the question of who can bring an appeal, and in what types of criminal cases the right must be provided.

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