By: Bayu Mahendra
The right of appeal is a fundamental right in the international criminal proceedings. The adoption of two tier systems of proceedings in the ICC established the Appeals Chambers as the final arbiter, and therefore, has all the power of the Trial Chamber, including inter alia, amending and reversing conviction. However, when the Appeals Chamber pronounced to impose new or more serious conviction than what has been imposed by the Trial Chamber, there is no more remedy available for the accused to review this new judgment.
The essence of appeal
Appeal proceedings are a stage in criminal proceedings of re-examining either decisions of pre-trial or trial judges, or judgment of the trial judges due allegations by the parties that there is an error in the decision (in the appeals proceedings, the error decision alleged by the parties is called ‘impugned decision’). In the international criminal proceedings, appeals are generally held before five appeal judges that are larger in composition than in the trial.
In the ad hoc Tribunals, the Trial Chambers before International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) consist of the composition of three judges. In appeal, the Appeals Chamber consists of the composition of five judges. In the International Criminal Court (ICC), the same composition of judges in the ad hoc Tribunals also applies for the Trial Chambers and Appeal Chambers.
In general, there are three purposes of appeal in criminal proceedings. The first and the second purpose concern on the jurisprudential aspect. First, appeal is purposed to achieve consistency, both consistency on verdicts (decision or judgment) and consistency on the application of law. Consistency on the verdicts means that appeal is the path to guarantee or to ensure that similar cases are treated similarly on the similar basis. Consistency on the application of law means that appeal will be the single authority body to set out consistence answer if there is recent development on the questions of law. Accordingly, appeal will ensure the uniformity of the application of the law and the same procedures apply across the first instance courts. Third, appeal is the pure avenue for individual to pursuit their justice. In this regard, appeal will be also the resort to check or control that the first instance courts had followed the procedures set out and had applied the law correctly and therefore individual receives right guarantee.
The aim of the appellate proceedings is to evaluate the activity of the Trial Chamber to verify whether there have been errors in two respects on facts or on law. In the ICC, during its negotiation of determining the general scope of appeal, it was discussed whether or not to allow cassation in term of the right to reverse or confirm the appealed judgment only without amendment or full appeals that include the right to amend the previous judgment. The other fundamental debate was concerned on appeal against sentence and acquittal due the opposite view between civil and common law system. As the result, the articles in the ICC Statute decided to adopt full appeals instead of cassation only. It was also decided to allow appeals against judgment (conviction, sentence and acquittal).
The right of appeal: rationale
The right of appeal is generally recognized as a fundamental human right in criminal proceedings. However, it would be very hard to argue that the right of appeal is protected jus cogens (peremptory norm). Nonetheless, it has been recognized in the ad hoc Tribunals and ICC proceedings as fundamental guarantee of fair trial process.
The first international convention expressly enshrining the right of appeal is Geneva Convention IV 1949. Article 73 (1) of the 1949 Geneva Convention IV provides that a convicted person shall have the right of appeal provided for by the laws applied by the court.Article 14 (5) of the International Covenant on Civil and Political Rights is particularly influential as well. It provides that everyone convicted of a crime shall have the right of review of his or her conviction and sentence by a higher tribunal. However, pursuant to Article 2 (2) of European Convention of Human Rights the right of appeal may be subject to exceptions in regard to offences of a minor character, in case it is prescribed by law, or when the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.
The decisions of the international courts are generally not subject to appeal. For instance, the judgment of the International Court of Justice (ICJ) is final and without appeal. Again, there are two counter arguments regarding this issue. One may also argue that the ICJ is not a court that has jurisdiction over criminal proceedings, and thus this argument does not support the argument against the right of appeal in the criminal proceedings context. Furthermore, there is exception within the scope of international court decisions itself (exclude the criminal proceedings context) that are not generally subject to appeal. It is firmly known that the Court of Justice of the European Union recognizes the right of appeal. It seems that Court of Justice of the European Union is not in line with the ICJ.
Grounds of appeal
Grounds of appeal is considered as ‘the basis on which the appeal can be brought’. Both of the prosecution and the convicted person are entitled to file appeal on these three following grounds; procedural error, error of fact or error of law. But, the convicted person is also entitled to appeal based on the basis of ‘any other grounds that affects the fairness or reliability of the proceedings or decision’. This ground of appeal, however, can be invoked by the prosecution as well, but only on behalf of the convicted person. This might be likely to happen in two exceptional circumstances; due the course of absence of counsel or inability of the counsel to represent him correctly. As regards to standard of appeal where it relates to ‘the test need to be met for succesful grounds of appeal’, no written provision sets out such standard. However, it can be inferred from two grounds. First, the standard sets out by the ICC Appeals Chamber in the interlocutory appeal decision. It may be highlighted that there is only one Appeal Chamber consisting of five appeal judges under the Appeals Division. Therefore, the standard of appeal on judgment would be more likely similar in essence as the standard set out on the interlocutory appeal. Second, it can be inferred from the ad hoc Tribunals’ practice since ‘the Court shall apply … where appropriate, applicable treaties and the principles and rules of international law’.
The right of appeal is entitled against decision of acquittal, conviction and sentence as established under Article 81 ICC Statute. One may argues that the word ‘decision’ is ambiguous in this article; it is used instead of ‘judgment’. This choice of word can also lead to misinterpretation that will reveal different origin meaning and purpose. Therefore, one might be correct to say that word ‘decision’ does not refers to final judgment, but it refers to decision as it is read plainly. However, the word ‘decision’ in Article 81 actually stands for final judgment, since it must be read in accordance with the scope of Article 74.
Judgment on appeal
Pursuant to Article 83 (1) and (2) ICC Statute, on appeal, the Appeals Chamber have all the powers as the Trial Chamber.  Therefore in the appeal judgment, the Appeals Chamber may (i) reverse or amend the decision or sentence, (ii) order new trial. Regarding the factual issue that might arise in appeal, the Appeals Chamber has two options. First, the Appeals Chamber may call evidence directly to determine the issue. Second, the Appeals Chamber may also remand the factual issue to the Trial Chamber to determine that issue and then report back its finding to the Appeals Chamber.
It is clear that the ICC Statute has established all power of the Appeals Chamber. However, such power must be considered in relation with whether the Appeals Chamber can enter new or more serious conviction. Are they allowed to exercise such authority? How about the accused right of appeal? Can the Appeals Chamber impose new or more serious sentence on appeal? If so, does the accused have right to appeal against this new appeal judgment in this two tier level of trials since his right is protected under international human rights law? How about revision? Is that such of other avenue to appeal this new judgment? Before determine these questions, it would be clear to go first to Revision.
The essence of appeal, in ICC, is to review the error of the Trial Chamber decision and judgment. The parties are entitled to file appeal against acquittal, conviction and sentence. In appeal, the Appeals Chamber has the power; (i) to reverse or amend the decision or sentence or (ii) order new trial. As the Appeals Chamber has such power, when new or more serious conviction is imposed, accordingly, the Appeal Judgment will become the new judgment, and no further remedy is available to review it under the ICC Statute. At national level, imposing new or more serious conviction in appeal is a normal practice before the domestic proceedings. The Appeals Chamber has such authority because there is third layer to review this Appeal Judgment, by means of the Supreme Court. However, when such practice is adopted to the international proceedings before the ICC it will deprive the right of appeal to review the appeal judgment.
Concluding, the adoption of the two tier systems of proceedings in the ICC established the Appeals Chamber as the final arbiter that has all power of the Trial Chamber cannot be justified merely because its Statute established so. Indeed, this adoption must be revisited on the basis of the ad hoc Tribunals’ practice where this two tier systems was once applied. The ICC should not have established the full power of the Appeals Chamber including to impose new or more serious conviction on appeal. Specifically, the Appeals Chamber should not have the power to impose new or more serious sentence. If the Appeals Chamber imposes new or more serious conviction there will be no last Chambers to review this new judgment since the Appeals Chamber is the last resort Chamber in two tier systems of proceedings.
Nevertheless, two things must be considered in the ICC systems to avoid such problem. It is simply by learning from the ad hoc Tribunal’s regime, reflecting the debate between Judge Pocar and Judge Shahabuddeen. First, is to restructure the systems from two to three tier systems of proceedings where there is third tier Chamber to review the Appeal Judgment if it is agreed that the Appeals Chamber shall have all power of the Trial Chamber, including imposing new or more serious conviction. Second, if the two tier systems shall be maintained, then the Appeals Chamber should not have the power to impose new or more serious conviction, in other words the power of the Appeals Chamber shall be limited. The Appeals Chamber may impose new conviction only if the conviction will be in favor of the accused. It is the Trial Chamber to render conviction or sentence. Thus, when issue of conviction or sentence is brought on appeal, it has to be made clear under the Statute that the Appeals Chamber must remit back the case to the Trial Chamber to render its decision. Then, this decision will be reviewed by the Appeals Chambaer, with the same power, the Appeals Chamber may not impose new or more serious conviction in light of this reviewed trial judgment. Such mechanism establishes the Trial Chamber as the cornerstone of the Court and places the Appeals Chamber in more limited power.
* Texto aportado por presidencia de URED.
 In the ad hoc Tribunals, according to Article 25 of the Statute of International Criminal Tribunal for Former Yugoslavia (ICTY Statute) and Article 24 Statute of the International Criminal Tribunal for Rwanda (ICTR Statute) there are two grounds of appeal: (i) error of law and (ii) error of fact. In the International Criminal Court (ICC), according to Article 81 (1) (b) of ICC Statute, there are four grounds of appeal: (i) procedural error, (ii) error of fact, (iii) error of law and (iv) any other ground that affects the fairness or reliability of the proceedings or decision. This part of grounds of appeal will be considered more in-depth in the following chapter.
 Salvatore Zappala, Appeal in The Oxford Companion to International Criminal Justice (Antonio Cassese eds. Oxford University Press, Oxford 2009) p. 246.
 The basic difference between the Trial Chamber and the Appeals Chamber in international criminal proceedings is that the Appeals Chamber has larger composition of judges than the Trial Chamber. See also Salvatore Zappala (Antonio Cassese eds.) p. 246.
 The meaning of ad hoc Tribunals in this paper refers to the International Criminal Tribunal for Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
 Statute of International Criminal Tribunal for Former Yugoslavia (ICTY Statute) Article 12 (3) and Statute of the International Criminal Tribunal for Rwanda (ICTR Statute) Article 11 (3).
 Ibid., p. 114.
 Ibid., p. 113.
 Salvatore Zappala, Human Rights in International Criminal Proceedings (Oxford University Press, Oxford 2003) p. 165.
 José Doria and others (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers, Leiden 2009) p. 947.
 ICC Statute Article 83 (2).
 ICC Statute Article 81 (1) (2).
 Ibid., p. 154.
 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 (Fourth Geneva Convention) Article 73 para 1.
 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Article 14 para 5.
 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Article 2 para 2.
 Salvatore Zappala, op.cit., p. 159.
 Charter of the United Nations and Statute of the International Court of Justice (ICJ Statute) Article 60.
 Statute of the Court of Justice of the European Union Article 56.
 José Doria and others (eds), op.cit., p 948.
 ICC Statute Article 81 (1)
“Appeal against decision of acquittal or conviction or against sentence
- A decision under Article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision. …”
 José Doria and others (eds), op.cit., p 948. ‘Apart being codified in the Statute, standards of appeal are also the product of development of jurisprudence of the intenrational tribunals and reflect either customary law or general principles of law.’
 ICC Statute Article 39 (1) and (2) (b) (i).
 ICC Statute Article 21 (1) (b).
 ICC Statute Article 83 (1) and (2), it reads as follows:
“Proceedings on appeal
- For the purposes of proceedings under Article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber.
- If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may:
(a) Reverse or amend the decision or sentence; or
(b) Order a new trial before a different Trial Chamber.
For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person’s behalf, it cannot be amended to his or her detriment.”