Following conviction, there is the right to appeal, which may be described as a critical human right.128
The reason for this right is based on the fact that a miscarriage of justice may occur following a conviction or acquittal; thus, the right for appeal provides a further opportunity for all parties to have the case reconsidered by a higher tribunal. This is rooted in both civil and common law.129 Importantly, this right has been
considered and safeguarded directly in the ICCPR, which states: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to the law’.130 With this there are many cases relating to the right of
the accused to have his case reviewed by a higher tribunal, such as in the case of Reid v Jamaica.131
However, the word ‘according to the law’ in article 15(5) of the ICCPR presumably refers to the domestic law of the state party which, to some degree, sets a comprehensive framework on the jurisdiction of the state party’s domestic law. It is therefore under the decision of the state parties to abuse article 14(5) by establishing a law which denies the right of appeal in criminal cases.132 The position within the KSA
differs, as the Saudi legal system derives its rule from Islamic, and thus it may be worth providing a brief summary relating to the concept of appeal in the Islamic system, and accordingly examining the exercise of this right in the Saudi Arabian courts.
125 The UDHR and the conventions related to the right to a fair trial. 126
The cases highlighted in this section have been approved by the High Judiciary Council.
127 Note that the right to appeal will highlighted according to two main laws: the LCP and the Law of
Procedure Before Sharia Courts.
128
Cassese (n 91).
129
See more about the kinds of miscarriage of justice in Peter D Marshall, ‘A Comparative Analysis of The Right to Appeal’ (2011) 22 Duke Journal of Comparative & International Law.
130 ICCPR, art 14(5).
131 Communication No 355/1989, UN Doc CCPR/C/51/D/355/1989 (1994). 132
137 10.1.1 Islamic law
The right to appeal in Islam is one of the controversial issues amongst the scholars of Madahib. Some take the view that that Islamic law has no appeal system. Shapiro states:
… because two distinct judicial systems existed in Islam, some of the uses of appeal are not relevant to the Sharia courts of the kadis. Appeal as a sampling of administrative performance was irrelevant because the Qadis were not in the main line of administration. Appeal as a means of hierarchical control and coordination was irrelevant for the same reason.133
It is mistakenly claimed by some writers that Islamic law has no appeal process; however, in regard to Islamic law, the judge has to form his judgment from two main sources, namely the Quran and the Sunnah. If the judge exercises this method, he will be placed in the position of Mujtahid.134 However, the Mujtahid is vulnerable in terms of mistakes, as his decisions are based on what he considers to be the meaning of both sources. Therefore, his decision will not be perfect, and will be subject to appeal.135
10.1.2 Saudi Arabian courts
The legal system of Saudi Arabia has two approaches in protesting against decisions: the right to appeal and the right to request review. Notably, in the case of the former, article 193 of the LCP affords the right to appeal to both parties. Moreover, through this same article, in the case of a claim of lack of jurisdiction, the right to appeal can also be exercised with consideration to court jurisdiction rules;136 this is also clarified in the
Law of Procedure Before Sharia Courts.137
Notably, it is emphasized in the regulatory schedule of the law of Law of Procedure Before Sharia Courts that ‘the only person who has the right to protest against the judgment is the defendant or his lawyer.138
However, article 194 of the LCP considers in depth the process of appealing a judgment, which needs to be initiated within 30 days of the judgment. At this point, following the judgment reading, a date for the receipt of a copy of the judgment should
133
Martin Shapiro, ‘Islam and Appeal’ (1980) 68 Cal L Rev 350
134
‘Mujtahid’ is an Arabic word for ‘thinker’.
135 Al-Eshaikh (n 46) 230.
136 As highlighted in LCP, arts 128-134.
137 Law of Procedure Before Sharia Courts, art 174. 138
138 be designated by the court, within 10 days, with this detailed in the case record. Moreover, an acknowledgement of receipt needs to be signed by the appellant. In the event of a failure to appear on the date established, a copy shall then be deposited within the case file, in addition to a note to the same effect, which would need to be entered into the record pursuant to the order of the judge.139
It is recognized that the efficiency of the right to appeal can be seen in the case of an appellant who, unhappy with a conviction, appealed within 15 days.140 The case
involved a husband violently beating his wife on a number of occasions, with the judge subsequently ruling in favour of the wife, awarding 9,000 Riyals, equal to GBP 1,500, by way of compensation. The Court of Appeal subsequently approved the decision on the basis that there was no reasonable ground to believe that the court’s decision violated the rights of the appellant in any way.141
The second method of protesting against a judgment is for reconsideration,142
which has been highlighted in the LCP,143 where reconsideration can be requested by
any of the litigants in the following situations:
1. If the accused is convicted of murder but the individual supposedly murdered is found to be alive.
2. If an individual is convicted of an act but another individual has committed the same act, thus resulting in contradiction and necessitating that one of the two be acquitted.
3. If evidence upon which the judgment was made is found to be false.
4. If the judgment is made on the basis of a previous judgment which is subsequently quashed.
5. If, following judgment, new facts or evidence emerge, which would have seen the accused acquitted of the crime.144
The final judgment process is detailed in the regulatory schedule to the Law of Procedure Before Sharia Courts, applies to:
Cases that are not commonly under appeal.
A judgment which has been accepted by the defendant.
139 See Law of Procedure Before Sharia Courts, Regulatory Schedule 1/176, 2/176. 140
ibid art 178, and the Regulatory Schedule 1/178.
141
Court of Appeal decision a\5G\310 2002.
142 LCP, arts 206-212
143 It is worth mentioning here that this method has been clarified in both the LCP and the Law of
Procedure Before Sharia Courts.
144
139
Cases in which the time for appeal has been exceeded.
Judgments issued and/or signed by the Court of Appeal.145
As a way of drawing a comparison between the law within the KSA and international human rights standards, it can be seen that, theoretically, the right to appeal in the higher tribunal featured in the Saudi legal system even before the establishment of the Bill of Rights. This right has been recognized in Islamic jurisprudence as being one of the important elements of fair trial, although in the case of the Saudi Arabian legal system, the right to appeal—which has been guaranteed to the accused—comprises a number of challenges. Firstly, in the practical sense, there are some issues regarding the methods in which the appeal should be conducted: for instance, it has been noted that the right of appeal has been violated in the special court in Saudi Arabia, which may subsequently have a significant impact on the right of a sentenced person to exercise this right. Moreover, through various cases, it can be seen that the Court of Appeal in Saudi Arabia tends to send the case to the same judge who has sentenced the accused, which can be seen in the Court of Appeal’s decision ‘287/ 1392’: ‘the court has decided to send the case to the judge to reconsider the amount of the imprisonment’.146 Such a
procedure affects the right of the accused in the trial, as the same judge will have the same perspective and reasoning upon which the initial decision was made. Furthermore, it will affect his right to appeal again as, according to the Law of Procedure Before Sharia Courts, the Court of Appeal has to consider a case only once.