A Substantive and Radical Difference in the Approach of the Right to Appeal a Criminal Conviction

There are three radical differences in the approach to the right to appeal a criminal conviction in the European and the Inter-American systems. This right is established in Article 8.2(h) of the American Convention and Article 2 of Protocol 7 to the European Convention. In the American Convention, the wording is very simple: “the right to appeal the judgment to a higher court.” In Protocol 7 to the European Convention, the right to appeal the conviction includes two exceptions that have been treated differently by the Inter-American Court.

The first exception to the right to appeal the conviction in the European system is when the “person concerned was tried in the first instance by the highest tribunal.” In contrast, the Inter-American Court has established in two cases (Barreto Leiva v. Venezuela and Alibux v. Suriname), the right to appeal applies even though the conviction was delivered by the highest Court. The second exception to the right to appeal the conviction in the European system is when the person was “convicted following an appeal against acquittal.” In contrast, the Inter-American Court established in the case Mohamed v. Argentina, that when a person is convicted for the first time at second instance, the right to appeal still applies. And the third radical difference in the approach of both systems is not related to the text of the provisions, but the interpretation in the case law regarding the scope of the review. In the Inter-American system, the Inter-American Court has established in the case of Herrera Ulloa v. Costa Rica and then in the Mendoza and others v. Argentina case that there is a breach of the right to appeal the conviction, when the remedy provides only for a review in matters of law, excluding matters of fact or evidence. In contrast, in a number of cases related to France, starting from the Krombach case and followed by others, the European Court indicated that states have a wide margin of appreciation to determine how this right is to be exercised. Therefore, it established that the review by a higher court may concern points of fact and points of law, or be confined solely to points of law. In sum, the right to appeal the criminal conviction provides for an example of radical different approaches in both systems, to the point where what is considered a breach in one system, is not in the other.

One paradox that I wish to point out is related to methodological approaches. As widely known, the margin of appreciation doctrine related to consensus among states is not used within the Inter-American system. The only case in which the Inter-American Court mentioned “margin of appreciation,” was precisely one of the cases analyzing the right to appeal the conviction, which as explained, had radical different results in both systems. I will provide an example of the opposite in my third point.

A Substantive but Slight Difference in the Approach in Cases of Forced Sterilization

Now I wish to turn to an example of a substantive difference in the approach in the two systems, but unlike the right to appeal, with less impact on the overall result on the determination of international responsibility. Both the European and the Inter-American Court have heard cases regarding lack of informed consent and forced sterilization and both have established the international responsibility of the states concerned. However, they did so under different provisions of the respective Convention.

In the cases of VC and NB against Slovakia, the European Court addressed the sterilization without informed consent as a violation of Articles 3 and 8 of the European Convention, that is the prohibition of ill-treatment, and the right to private and family life. The European Court deemed it unnecessary to analyze independently the right to found a family under Article 12. For its part, in the case of IV v. Bolivia, the Inter-American Court addressed the same issue as a violation of the same rights, in addition to others. Like the European Court, it established the violation of the right to personal integrity and private and family life (Articles 5 and 11 of the American Convention). However, it also included in the analysis the rights to personal liberty (with a wider understanding of its scope as to include a general notion of autonomy) and, more importantly, the right to access to information, which in the context of the Inter-American system has been developed as an extension of the right to freedom of expression established in Article 13 of the American Convention, which I cover in my next example.

For the purposes of this example, the cases of sterilizations without informed consent show slightly different substantive approaches that have no overall impact on determination of the international responsibility. There is convergence on the main provisions used (the prohibition of ill-treatment and the right to private and family life, but a more comprehensive approach is taken by the Inter-American system by reference to other provisions of the American Convention.

An Example of Evolution from Divergence to Convergence Regarding the Subject of Access to Information

My third point is an example of evolution from divergence to more convergence with respect to access to information. In 2005, the Inter-American Court issued a landmark decision in which it interpreted Article 13 of the American Convention (freedom of expression) to include a right to access to information, although it was not expressly mentioned in the provision. That was the case of Claude Reyes v. Chile. For its part, it was only recently, in 2016, when the Grand Chamber ruled in a case against Hungary that access to information is included in Article 10 of the European Convention, also related to freedom of expression, although there were previous judgments stating the opposite. Although the right, as recognized by the Grand Chamber, is more limited in scope than is recognized in the Inter-American system, in my opinion this provides for an example of evolution on the understanding of a matter in which there used to be a radical difference and a recent decision shifted the situation and gave a step forward toward a more similar approach. Finally, another paradox in terms of methodology, is that in this case, the evolution toward convergence on this specific topic, was possible by means of the use of the methodology that the Inter-American Court has been reluctant to use, again the margin of appreciation doctrine, particularly related to consensus among states.