European Court of Human Rights - case of Lalmahomed v. the Netherlands (2011) (excerpts)

European Court of Human Rights - case of Lalmahomed v. the Netherlands (2011) (excerpts)

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36. Even so, a Contracting Party which provides for the possibility of an appeal is required to ensure that persons amenable to the law shall enjoy before the appellate court the fundamental guarantees contained in Article 6 (see the above-cited Delcourt judgment, loc. cit., and De Cubber v. Belgium, 26 October 1984, § 32, Series A no. 86; as more recent examples, Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999 IX; and Kudła v. Poland [GC], no. 30210/96, § 122, ECHR 2000 XI). The right to a fair trial, from which the requirement of the proper administration of justice is to be inferred, applies to all types of criminal offence, from the most straightforward to the most complex. The right to the fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed for the sake of expedience (see Delcourt, loc. cit.; more recently, Ryakib Biryukov v. Russia, no. 14810/02, § 37, ECHR 2008 ...; and Ramanauskas v. Lithuania [GC], no. 74420/01, § 53, ECHR 2008 ...).

37. However, it is quite possible that leave-to-appeal proceedings may comply with the requirements of Article 6, even though the appellant be not given an opportunity to be heard in person by the appeal court, provided that he or she had at least the opportunity to be heard by a first-instance court (see, in particular, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115; more recently, Sibgatullin v. Russia, no. 32165/02, § 35, 23 April 2009). Moreover, as long as the resulting decision is based on a full and thorough evaluation of the relevant factors (Monnell and Morris, § 69), it will escape the scrutiny of the Court; in this connection, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I; and Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)), as it is not a court of appeal – or, as is sometimes said, a “fourth instance” – from these courts (see, among many other authorities, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296 C; and Melnychuk v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).


38. It is also worth noting for the sake of clarity that Protocol No. 7 adds to the guarantees contained in the Convention: it does not detract from them. For present purposes, this means that Article 2 of Protocol No. 7 cannot be construed a contrario as limiting the scope of Article 6 guarantees in appellate proceedings with respect to those Contracting Parties for which Protocol No. 7 is not in force (Ekbatani v. Sweden, 26 May 1988, § 26, Series A no. 134).