Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement that it was “not in a position to re-evaluate the ... findings on this point” and concluded that article 14(5) had not been violated.239 5.5 The right to legal aid The Committee has consistently held that “it is imperative that legal aid be available to a convicted prisoner under sentence of death, and that this applies to all stages of the legal proceedings”.240 In the case of LaVende, the author had been denied legal aid for the purpose of petitioning the Judicial Committee of the Privy Council, and, in the opinion of the Committee, this denial constituted a violation not only of article 14(3)(d), but also of article 14(5), since it effectively barred him from obtaining a review of his conviction and sentence.241 ***** The right to appeal as guaranteed by article 8 (2)(h) of the American Convention on Human Rights was violated in the case of Castillo Petruzzi et al. where the victims had only been able to file an appeal with the Supreme Court of Military Justice against the judgement of the lower military court. As noted by the Inter-American Court of Human Rights, the right to appeal the judgement as guaranteed by the Convention “is not satisfied merely because there is a higher court than the one that tried and convicted the accused and to which the latter has or may have recourse”; on the contrary, for “a true review of the judgment, in the sense required by the Convention, the higher court must have the jurisdictional authority to take up the particular case in question”.242 In this case, where the victims had been tried by a military court with an appeal possible to the Supreme Court of Military Justice, “the superior court was part of the military structure and as such did not have the independence necessary to act as or be a tribunal previously established by law with jurisdiction to try civilians”; consequently, “there were no real guarantees that the case would be reconsidered by a higher court that combined the qualities of competence, impartiality and independence that the Convention requires”.243 ***** Although the right to appeal is not guaranteed as such by article 6 of the European Convention on Human Rights, the European Court has consistently held that “a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees” of that article; yet “the manner of application of Article 6 to proceedings before such courts depends on the special features of the proceedings involved” and “account must be taken of the entirety of the proceedings in the domestic legal order 239 Ibid., para. 10.8. 240 Communication No. 554/1993, R. LaVende v. Trinidad and Tobago (Views adopted on 29 October 1997), in UN doc. GAOR, A/53/40 (vol. II), p. 12, para. 5.8; emphasis added. 241 Ibid., pp. 12-13, para. 5.8. 242 I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, p. 208, para. 161 243 Ibid., loc. cit. 308 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers