Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 5. The Right of Appeal Article 14(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 law”. The existence of a right to appeal is a right guaranteed by the Covenant itself and its existence is thus not in theory dependent on domestic law; the reference to “according to law” refers here exclusively to “the modalities by which the review by a higher tribunal is to be carried out”.224 Article 7(1)(a) of the African Charter on Human and Peoples’ Rights provides that “every individual shall have the right to have his cause heard”, a right which includes “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”. Article 8(2)(h) of the American Convention on Human Rights stipulates that in criminal proceedings “every person is entitled, with full equality [to] the right to appeal the judgment to a higher court”. Article 6 of the European Convention does not, per se, guarantee a right of appeal,225 but this right is contained in article 2 of Protocol No. 7 to the Convention, although it “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 first instance by the highest tribunal or was convicted following an appeal against acquittal” (art. 2(2) of the Protocol). ***** The African Commission on Human and Peoples’ Rights has held that the “foreclosure of any avenue of appeal to competent national organs in a criminal case attracting punishment as severe as the death penalty clearly violates” article 7(1)(a) of the African Charter. In the view of the Commission, the lack of appeal in such cases also falls short of the standard contained in paragraph 6 of the United Nations Safeguards guaranteeing protection of the rights of those facing the death penalty, which provides that “anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction ...”.226 Article 7(1)(a) was thus also violated where the Nigerian Government had passed the Civil Disturbances Act whereby it excluded any review by any court of law of the “validity of any decision, sentence, judgment ... or order given or made, ... or any other thing whatsoever done under this Act”.227 In the particular case involving the Constitutional Rights Project acting on behalf of seven men sentenced to death, the fundamental rights involved were the rights to life and to liberty and security as guaranteed by articles 4 and 6 of the African Charter. The Commission held that, while “punishments decreed as the culmination of a carefully conducted criminal procedure do not necessarily constitute violations of these rights, to foreclose any 224 Communication No. R.15/64, C. Salgar de Montejo v. Colombia (Views adopted on 24 March 1982), in UN doc. GAOR, A/37/40, p. 173, para. 10.4. 225 Eur. Court HR, Case of Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A, No. 316-B, para. 59 at p. 79. 226 ACHPR, Civil Liberties Organisation and Others v. Nigeria, Communication No. 218/98, decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, para. 33 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/218-98.html; the relevant United Nations resolution was approved by Economic and Social Council resolution 1984/50 of 25 May 1984. 227 ACHPR, Constitutional Rights Project, (on behalf of Zamani Lekwot and six Others) v. Nigeria, Communication No. 87/93, decision adopted during the 16th session, October 1994, paras. 26-27 of the text of the decision as published at: http://www.up.ac.za/chr/. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 305