1        Subchapter 1: Right to Appeal as a Constitutional or Fundamental Right?

1. Although the reality of appeals is very old and their study, albeit more modern, is also very old, the reflection on whether there should be a right to appeal is actually very recent. In fact, the history of rights itself is not so old. But what is interesting to note here is that the existence of a right of recourse/appeal was not originally the subject of any right. It appears neither in the oldest catalogues - Magna Carta Libertatum (1215), Petition of Right (1628), Bill of Rights (1689) - nor is it really present in the amendments to the US Constitution, despite some recent attempts to include it^[1], which will be dealt with later, and which are also still very few. This is why the bibliography on the subject is also scarce and the current constitutional, legal or case law references are somewhat poor, as will be seen later.
2. However, at least since Roman times^[2], and even earlier in other cultures^[3], the idea of appeal was present, ie, the possibility of appealing to a higher judge whose cognition was more or less extensive, although usually not as a right, but as a power of the sovereign of a territory. Be that as it may, although there may be older antecedents in different cultures, in the most widespread one today we start from the model of the Roman appellatio, which was a genuine novum iudicium. However, the history of law has come to create mechanisms as strange and restricted as the old English ‘writ of error’^[4], or means of challenge that appear to be as original as ‘cassation’^[5]. In other words, a series of instruments have been produced over time in one way or another which allow a final judicial decision to be called into question, despite the fact that in some legal systems - again, the English - there was an aversion to the second instance - particularly in criminal proceedings - as a consequence of the existence of the jury.^[6]
3. This means that although the legal systems appear to be very uniform in general due to the strong influence - also in the Anglo-Saxon area^[7] - of Roman law, the juridical reality and judicial structure in many places have been too varied to allow the creation of a right to an appeal to be conceivable wherever. At most, the right to a ‘remedy’ was generally guaranteed in the first constitutional norms, terminology which refers both to the possibility of going before a judge of first instance - as the equivalent of judicial protection of a right^[8] - and also to an instance of appeal^[9], but a right to a remedy was not specifically established.
4. This study will address the opportunity for such a right to appeal to exist, ie, to the review of judicial decisions by a higher judge in civil proceedings, assessing the opportunity to configure a content similar to that which exists in criminal proceedings.^[10] It should be added that this analysis is based on a paradox. In criminal proceedings, the possibility of introducing this right has been hotly debated, and yet this is the area in which, since the middle of the twentieth century, it has existed without doubt, at least for the convicted person, in accordance with Art 14.5 of the International Covenant on Civil and Political Rights of the United Nations of 1966^[11] and Art 2 of Protocol no 7 of the European Convention on Human Rights^[12] (1984) (ECHR).
5. In contrast, in civil proceedings there is no real equivalent right. Over time, the doctrine^[13] has taken it for granted that in this civil sphere, the legal systems generally recognize appeals against the first instance judgment, and therefore the concern to elevate it to the rank of a fundamental right has been almost non-existent. Only occasionally has the doctrine been concerned with the issue for very specific reasons. In the US, for example, to try to mitigate the abuses of summary judgment.^[14] Meanwhile, in continental Europe, the concern has been mainly about ‘cassation’ (a final appeal), but focusing the question not so much on whether the ‘right to cassation’ exists or is fundamental, but about whether the restrictions that are usually imposed on it are legitimate from a constitutional point of view,^[15] which is quite different. Only in Italy was ‘cassation’ surprisingly included in the scope of constitutionalization (Art 111^[16] of the Italian Costituzione^[17]),^[18] which has been an indirect way of recognizing this right, which, incidentally, has not even had a really positive effect. In fact, this ‘right’ has for years now been a burden on the Italian Corte di Cassazione (Court of Cassation)^[19].
6. In short, the question of whether the right to appeal should exist - autonomously or as a derivation of the right of defence - will be dealt with, not only when the existence of the appeal has been foreseen by the legislator, but in general. To this end, a comparative law study will be carried out covering the most interesting experiences worldwide in the field. The study will be extended to whether the right to appeal to a constitutional court and to a supranational court such as the European Court of Human Rights (ECtHR) should also exist. The answer is not obvious, since most states do not have anything like the German Verfassungsbeschwerde (constitutional complaint). Moreover, moving to the supranational level, the Inter-American Court of Human Rights does not, as we shall see, guarantee direct access for citizens to its cognition, but through the difficult intermediate step of the Inter-American Commission on Human Rights. In fact, there are states such as Canada or the USA that do not recognise any international judicial protection mechanism for the rights of individual citizens.
7. This first chapter will begin with a descriptive study of comparative law in order to show the state of the question. On this basis, it will then conclude by examining the theoretical essence of the right and its potential to be fundamentalized or at least constitutionalized.

1.1        Access to Internal Remedies

8. The legal systems are relatively uniform in this area. The existence of a domestic remedy is not usually provided for as a right of the litigant. Remedies in civil proceedings exist rather by tradition than by constitutional provision. However, if the tradition is so long-established and the public awareness is so widespread that there is almost always the possibility of at least appealing – also with restrictions – against the judgment of a first instance judge, perhaps the constitutionalization of this reality could come about one day. We will see later that this is already the case in some places.
9. However, what remedies should there be, only the traditional appeal, or something else? Let us see what national constitutional laws have to offer in this respect.

1.1.1        Discretion of the Legislature to Provide Access to Remedies?

10. According to the majority of national constitutional rules, strictly speaking there should be no appeal at all. The legislator is thus free to decide whether or not to provide for appeals against judicial decisions. We could well imagine a legal system that only provided for a single-instance procedure in which even the judge's interlocutory decisions could not be appealed, not even to the judge himself. This would radically change the history of law and would in fact lead to a return to a situation of non-existence of appeals that had not existed, with a few exceptions, for millennia, at least in the territories influenced by Roman culture.
11. Therefore, as we shall see, the right to appeal does not generally exist in national constitutions, although there are some relevant exceptions that will be analysed. And which, by the way, are growing in number.

1.1.2        According to National Law

12. Relatively few countries expressly recognize in their constitutions a right of appeal in civil proceedings, and it is not always the same kind of appeal. In fact, we could say that, according to the constitutional texts only, in all the democratic countries of the world^[20], the only ones where rights are really conceivable - leaving aside their different levels of corruption - there are three main groups: those which do not recognize any fundamental right to appeal and which have not constitutionalized a similar content; countries which recognize in their constitutions judicial structures from which their courts might one day be able to deduce a right to appeal; and finally States in which the right to some kind of appeal is recognized, usually the right to traditional appeal. I will now refer to all the states in these three groups, quoting in the first place the provisions in which the right of defence is recognized, and then those articles in which the judiciary is regulated.
13. The first of these groups - neither constitutionalization nor fundamentalization of the right of appeal - is the most numerous (34 States), and it is also cross-cutting, since it includes different geographical areas and areas of diverse legal tradition. Taking the United Kingdom for granted, as mentioned above, it also includes Canada^[21], Switzerland^[22] (Art 29, 29a and 30)^[23], France^[24] (Art 64-66-1), Germany^[25] (Art 1 and 92-104), Austria^[26] (Art 82-94), Spain^[27] (Art 24 and 117-123), Andorra^[28] (Art 10 and 85-94), the Netherlands^[29] (Art 18 and 112-122), Belgium^[30] (Art 144-159), Luxembourg^[31] (Art 84-95b), Greece^[32] (Art 20 and 87-100A) and Turkey^[33] (Art 36 and 138-160); also Denmark^[34] (Art 59-65), Sweden^[35] (Chapter 11) and Iceland^[36] (Art 59-61) in the Nordic area; Latvia^[37] (Art 92 and 82-86), Czech Republic^[38] (Art 90-96), Slovakia^[39] (Art 46 and 141-148), Hungary^[40] (Art 25-28) and Bosnia and Herzegovina^[41] (Art 3.d) in countries with a Soviet-influenced past; in Latin America, Argentina^[42] (Art 43 and 108-129), Paraguay^[43] (Art 15, 247-275), Peru^[44] (Art 138-149), Ecuador^[45] (Art 75 and 167-203), Costa Rica^[46] (Art 41 and 152-166), Panama^[47] (Art 201-224), Honduras^[48] (Art 82 and 303-320) and Bolivia^[49] (Art 178-204). Japan^[50] (Art 32, 37 and 76-82) and South Korea^[51] (Art 12, 27 and 101-110)^[52] in Asia, Somalia^[53] (Art 34 and 105-109C) in Africa and New Zealand^[54] (Art 23-24) in Oceania. In all these States, however, there are appeals against first instance judgments and also to Highest Courts, sometimes recognized by their constitutions, which has led the doctrine not to question the existence of the appeal at least, but neither has it felt the need to establish a fundamental right or any constitutional rule guaranteeing it.
14. Finally, the US^[55] should also be recognized^[56] in this first group, since although its Constitution^[57] makes some allusions to the courts of appeal (Art II Sec 2), and Amendment I refers to the ‘redress of grievances’, Amendment VII makes a relative prohibition of appeal in civil proceedings, which does not exist except in accordance with the rules of the common law, which means, in any case, an appeal limited to questions of law. This constitutes, albeit indirectly and a contrario, a first step towards the constitutionalization of appeals, which is what is happening in the countries of the second group, and which has already been sought within the US itself through Amendment XIV^[58].
15. This second group, in fact, is a sort of transitional area between the first and the third group, since their constitutional rules expressly recognize the existence of appellate courts, which implies the constitutionalization of the right but not yet its fundamentalization. In this small group are only 16 countries: Portugal^[59] (Art 32 and 202-220), Finland^[60] (Sec 21 and 98-105), Lithuania^[61] (Art 30, 33 and 109-118), Bulgaria^[62] (Art 31, 119 and 117-134), Albania^[63] (Art 33 and 136), Chile^[64] (Art 19.3º and 76-82), Uruguay^[65] (Art 233-261), Guatemala^[66] (Art 12 and 218), Brazil^[67] (Art 33.3 and 92-126) ^[68], Dominican Republic^[69] (Art 157-159), Mexico^[70] (Art 17 and 94-107), Malaysia^[71] (Art 122), South Sudan^[72] (Art 19 and 129), Namibia^[73] (Art 12 and 80), Botswana^[74] (Art 10 and 99) and South Africa^[75] (Art 34, 35.3 and 165-180), which also only expressly recognises the right of appeal in the criminal procedure.
16. The third group comprises those states that are firmly committed to the right of appeal, and in fact are the 20 countries that currently have a fundamental right of appeal. There are six States with a direct or indirect common law influence: Ireland^[76] (Art 34-37, in particular Art 34.4^[77]), Australia^[78] (Art 71-80, in particular Art 73^[79]), India^[80] (Art 32, 132, 133, 134, 134A^[81], 137, 214-237, in particular Art 132 and 134A), Israel^[82] (Basic Law: The Judiciary (1984), Section 17^[83]), Malta^[84] (Art 95^[85]) and Cyprus^[86] (Art 23.11^[87], 111.4^[88] and 155.1^[89]). But a large number of states from the former Soviet orbit are also included, perhaps influenced by the supervisory role of the Highest Court of the Soviet Union over the lower courts^[90]: Estonia^[91] (Art 15, 24^[92] and 146-153), Poland^[93] (Art 78^[94] and 173-187), Romania^[95] (Art 21 and 124-141, in particular Art 129^[96]), Slovenia^[97] (Art 25^[98] and 125-134), Croatia^[99] (Art 18^[100]), Serbia^[101] (Art 36^[102]), Macedonia^[103] (Art 15^[104]), Montenegro^[105] (Art 20^[106] and 118-128) and Ukraine^[107] (Art 129.8^[108]). Finally, there is a kind of legal island in its geographical area in this sense in Latin America: Colombia^[109] (Art 31^[110] and 228-257); two in Africa: Tunisia^[111] (Art 108^[112]) and Ghana^[113] (Art 19 and 138^[114]). And two more in Europe: the first country to recognise it in 1814, Norway^[115] (Art 95 and 86-91, in particular Art 88, 89 and 90 a contrario^[116]) and Italy^[117] (Art 24^[118] and 101-113^[119]).
17. Within this third group, however, there are different intensities. On the one hand, there are the states that recognize this right of appeal - usually a traditional appeal - insofar as it is prescribed by law or with the exceptions prescribed by the legislator. This is the case in Ireland, Australia, Poland, Romania, Croatia, Malta, Colombia with regard to the second instance and also Norway with regard to final appeal, although one could infer from their regulation a fundamentalization of the second instance, by excluding appeal only with regard to judgments of the Supreme Court (Art 90 Constitution of Norway). The Ukrainian Constitution specifically provides for just that: an absolute right with regard to appeal, and a relative right with regard to final appeal, depending on what the legislator provides for.
18. As a genuine fundamental right of appeal, appeal is only provided for without qualification in Estonia, Slovenia, Serbia, Macedonia, Montenegro, Cyprus, Israel, Tunisia and Ghana. Interestingly enough, the same right exists with regard to cassation no less in Italy, as mentioned above.
19. Final case in point is India. The right of appeal to the Highest Court is provided for but only with the consent of the judge a quo, as is customary in the United Kingdom or partly in Germany (Zulassungsrevision (admission revision), Sec 543 German Civil Code of Procedure (GCCP)), but with no constitutional provision to that effect in the latter two countries, which is why they have not been included in this group.
20. From the above study it can be tentatively concluded that the fundamental right to appeal, without qualification, is a minority right in the world. Regarding traditional appeal, it exists in only ten states. Six of them are countries in the area of former Soviet influence, and in fact four of them were part of a single State that has now disappeared (Yugoslavia). Italy's case with regard to cassation is a real rarity, formulated at a time of fascination with cassation^[120], perhaps inspired by the great work of Calamandrei^[121].

1.1.3        According to Regional and International Instruments

21. The question that remains is whether, this being the reality, progress should be made towards a recognition of a right to appeal. Let us begin by saying that at the global level, neither Art 8-11 of the Universal Declaration on Human Rights (10 December 1948)^[122] nor Art 14 of the International Covenant on Civil and Political Rights (16 December 1966)^[123] refer to this issue, as has already been mentioned. It is difficult for such generic norms to refer more than five decades ago to such specific content as the one in question, given that, as we have seen, the domestic development of the right to a remedy at that time was almost non-existent. It was enough that the aforementioned Art 14.5 International Covenant on Civil and Political Rights provided for the systematic review of convictions in criminal proceedings.
22. At a more regional level, neither the European Convention on Human Rights ^[124] nor Art 47^[125] of the Charter of Fundamental Rights of the EU (CFREU) provide for such a right, since Art 13 ECHR only requires the presence of an ‘effective remedy’, ie, a means of challenging violations of rights committed by national authorities before the courts. In fact, the specific right to appeal is only recognized in Art 2 of Protocol no 7 to the ECHR, but like the UN provisions, only with regard to criminal proceedings. This does not prevent a future recognition of the right in the European Convention with regard to civil proceedings, obviously, but at present such a right does not exist, as confirmed by the case law of both the ECtHR^[126] and the Court of Justice of the European Union (CJEU)^[127].
23. However, a Recommendation^[128] of the Committee of Ministers of the Council of Europe concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases provided to the contrary, suggesting the generalized introduction of appeal in civil proceedings, although leaving a wide margin to introduce exceptions in the cognition of the tribunal ad quem, such as excluding small claims, or providing for an admission phase in the second instance (Art 3).
24. However, most disappointing, as will be seen later, were the restrictions that the Recommendation allowed to be placed on the second instance court's cognition (Art 5). In particular, it endorsed restricting the appeal to points of law, respecting the assessment of evidence at first instance, as well as providing for grounds of appeal limiting the possibilities of the court ad quem. In reality, all of this had a strong Anglo-Saxon influence^[129] that probably had to be respected in order to achieve consensus, and which might make sense when a jury decides, but not when a professional judge does so, however accustomed we are by now to the persistence of this historical error, which will be detailed later. The end result is that the Recommendation did not propose, far from it, a ‘right to appeal’ but, as its Art 1 put it, a ‘right to judicial control’, which is certainly not a second instance, but rather something that is much more akin to a writ of error^[130]. Nevertheless, the aforementioned Recommendation is simply a minimum standard.
25. The Inter-American Convention on Human Rights (San Jose, 22 November 1969) did not make any progress in the American area either, but it does offer some interesting innovations. Although it only recognizes the right to a remedy for criminal proceedings in Art 8.2.h^[131], in civil proceedings the Inter-American Court of Human Rights (CIDH) leaves the task of establishing remedies to the legislator - or the constituent assembly -, demanding, however, that if the legislator has provided for a remedy, it must be suitable, effective, simple and brief in order to respond to violations of the rights contemplated in the convention^[132]. In other words, although it does not stipulate an obligation for the legislature to provide for a right to a remedy, it does demand a minimum essential content if the remedy exists, which is a curious indirect strategy for affirming the right. In fact, case law extends this essential content to all appeals, including traditional appeals^[133], of course, but also appeals to a constitutional court^[134].
26. In the African area, the African Charter on Human and People's Rights (27 June 1981)^[135] did not really provide in Art 7 for a right to a second instance or any other right. The use of the expression ‘right to an appeal’ could have been interpreted as an improper use of this word equivalent to the term ‘remedy’, or even better, to a simple ‘access to justice’. However, the still scarce case law^[136] of the African Court of Human and People's Rights (ACHR) - established in 2006 - has been bolder and has considered that the aforementioned article obliges states to provide for an appeal against judgments, and clearly establishes it as a right of citizens^[137], which constitutes a novelty that goes far beyond, as we have seen, what is provided for in the European area.
27. It can be concluded from the above that the more modern the rules, the greater the awareness of the right to appeal, in a similar way to what was seen in the presentation of the domestic legal systems. It can be inferred from this that a debate is opening up about the introduction of this right in a generalized way, and not only in the criminal field. Its content will be discussed below.

1.2        Specific Remedies in Case of Violation of (Some) Constitutional or Fundamental Rights?

28. Usually, legal systems do not provide for specific remedies to challenge judicial decisions that may have infringed fundamental rights. It is generally considered that the protection afforded by the generalized means already existing in the ordinary justice system is sufficient for this purpose.
29. However, some relevant initiatives have been developed in some states that challenge this general principle, although few of them are genuine appeals, but rather simple complaints or remedies that oblige the courts to carry out a specific analysis of the violation of a given right in a specific case. In other words, they have a very specialized subject matter. This is the case of the Abhilfe bei Verletzung des Anspruchs auf rechtliches Gehör (remedy for violation of the right to a fair hearing) of Sec 321a GCCP, created after a judgment of the Constitutional Court^[138], which is brought before the same court that would have committed an infringement of the right of defence in a final decision. It is very similar to the ‘incidente de nulidad de actuaciones’ (motion to dismiss proceedings) in Art 241 of the Spanish Civil Procedure Act, although this remedy extends to all kinds of fundamental rights. In France, the ‘recours-nullité’ (appel-nullité or pourvoi-nullité (appeal for annulment or appeal for nullity)) has been created by case law in case of an excès de pouvoir (excess of power) of the judge^[139], in case the regular appeal (recourse) is not available^[140].
30.  Somewhat similar are the ‘amparo’ actions or trials in some Latin American countries, including Argentina^[141], Paraguay^[142], Ecuador^[143], Mexico^[144], the Dominican Republic^[145], Panama^[146], Honduras^[147], Guatemala^[148], Bolivia^[149] and Peru^[150], which are brought before various judicial bodies. In reality, they are sometimes only special civil proceedings for the specific protection of fundamental rights, and not really intra-procedural complaints against a judicial decision.
31. All of them, therefore, are really separate from the object of our study, since they do not constitute any right to appeal of some sort. Nor do the actions for patrimonial liability of the State for damages caused to citizens under Art L. 141-1 Code de l’organisation judicaire (French Code of Judicial Organization (COJ)) ^[151] in France, or the action for patrimonial liability of the State for the functioning of the Administration of Justice in Spain (Art 292-296 of the Organic Law of the Judiciary), or the action provided for in the case of undue delay^[152] in Germany, through the Gesetz über den Rechtsschutz bei überlangen Verfahren (Law on legal protection in excessively long proceedings)^[153].
32. Therefore, the study will briefly refer only to direct challenges by citizens before constitutional courts as well as supranational courts, which do represent a right of appeal, albeit super-specialized in the protection of fundamental rights. In reality, both because of their general significance for the creation of case law, and also because of the restriction to the questions of law addressed by the courts, they are either small super-specialized ‘final appeals’, also inheritors of some traditional appeals before the Highest Courts^[154].

1.2.1        Constitutional Remedies

33. Appeals for infringement of a fundamental right before a constitutional court must be distinguished from citizens' actions before constitutional courts for the control of the constitutionality of laws, which are far from the object of our study. They have their origin in the case of Marbury v Madison (1803)^[155] in the US and have been discarded by some states following the English example^[156], for example the Netherlands^[157], out of absolute respect for the independence of Parliament from the courts.
34. The result of the above is that not many countries have a constitutional court autonomous from the highest court, and even fewer have provided for this competence to hear a direct appeal by citizens with the specific aim of reviewing a judicial decision that has violated fundamental rights. A pioneer in this area, not so well known, was the Tribunal of Constitutional Guarantees of the Second Spanish Republic^[158], which existed from 1933 to 1939, and which had among its competences precisely an ‘amparo appeal’. This same remedy has been in effect again since 1980 as a competence of the current Constitutional Court^[159]. A similar system exists in the German Verfassungsbeschwerde (constitutional complaint) (Art 93, 4a Grundgesetz (GG)).^[160] Similar means are also provided for in their constitutions in countries such as Andorra (Art 88^[161] and 98), Poland (Art 79.1)^[162], Serbia^[163], Montenegro^[164], Macedonia^[165], Peru (Art 202.2^[166]), Colombia^[167], Bolivia^[168], South Africa^[169], Malta^[170], Albania^[171], Turkey^[172] and Hungary, which regulates an appeal which even goes beyond the scope of fundamental rights and extends to the entire constitutional rule (Art 24.d^[173]). Only Lithuania^[174], Croatia^[175], the Dominican Republic^[176], Cyprus^[177], Belgium^[178] and Austria^[179] can be included in this list in a very nuanced way, given that their constitutions contain rather actions of unconstitutionality of general provisions exercised by citizens, designed more for complaints against laws, regulations and even administrative acts, but only eventually against judicial decisions, which in any case are in the administrative sphere after the exhaustion of this jurisdictional channel.
35. Other countries such as Italy, Bulgaria, Romania, Bosnia and Herzegovina, Slovakia, the Czech Republic, Ukraine, Portugal, Chile, Tunisia, Somalia and Korea have a constitutional court, but its powers do not include this direct appeal by citizens for judicial infringement of their fundamental rights.
36. Each of the countries with remedies for infringement of fundamental rights has specific procedural rules, of course, but their treatment is not relevant to the justification for the establishment of this appeal before a constitutional court, which is what must be clarified in this section. Insofar, there does not seem to be a single political criterion when deciding on the provision of this super-specialized remedy in a constitution. In the case of Spain - beyond their particular historical background - Germany and Austria - also particular with the Austrian Constitutional Court of 1919-1920, the awareness that after harsh periods of dictatorship, the members of their judiciary, even because of their education as jurists - typical of the early twentieth century - might not be as sensitive as they should be to the protection of fundamental rights^[180], which justified the creation of a specific high court responsible for correcting the ordinary justice system if it ignored them^[181], may have had a decisive influence.
37. A similar motivation may have existed in South Africa, after overcoming apartheid, and also in the countries of the former Soviet orbit, beyond an attempt to present themselves as states with a more democratic image to the international community, thus publicly reflecting an overcoming of their authoritarian periods that could convince the Council of Europe and the European Union to join. In Andorra, the criteria of these two organizations also weighs heavily, although in addition, as in the Latin American countries, there may have been a certain influence of mimicry with the Spanish system, leaving only the reasons for Malta and Cyprus to be explained, which rather than the European Union and the Council of Europe - although without ruling it out - perhaps have more to do with the usual ambition of the political class of small countries to possess all the institutions of a larger country.
38. In any case, is it necessary to have this appeal to a constitutional court, given that the protection of the ordinary courts is already available? The communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (2020 Rule of Law Report)^[182] refers only to the importance of the review of the constitutionality of laws, but does not even make this reference in a generalized way, nor does it address the case of direct appeal for the protection of fundamental rights. Furthermore, the Rule of Law Checklist of the Venice Commission (2016)^[183] is more concerned with the independence and impartiality of judges, as well as with the ease of free access to the courts but also does not specifically refer to such appeal to a constitutional court, or even its existence.
39. It can by no means be said that democratic countries that do not have this remedy, and indeed they are the vast majority, have their citizens less protected for this reason. In fact, the cases of Turkey, Hungary^[184] and, to a lesser extent, Poland, which do have this remedy and which, on the other hand, are having serious problems of democratic legitimization before the European Union^[185] and, foreseeably, before the European Court of Human Rights itself, are worthy of consideration at the moment^[186].
40. This appeal is therefore dispensable. In fact, at the European level, it delays the European Court of Human Rights' opportunity to rule on the issue. Its existence, moreover, does not guarantee that the Constitutional Court will be composed of judges who are more aware of fundamental rights, but rather that they are often judges from the judiciary itself, and moreover with political influence in their appointment. Moreover, given that both in the European and American areas, and incipiently in the African area, there already exists – as we are about to see – an international court of reference on the subject with a consolidated case law on each fundamental right, the existence of these constitutional courts in reality constitutes a national opportunity to ignore this case law, which is disastrous. The problem has already occurred in Spain in the area of freedom of expression^[187] or in Germany in various areas^[188].

1.2.2        External Remedies

41. In the international sphere, for decades there has been a concern for the enforcement of human rights that has led to the provision of different mechanisms so that citizens from all over the world can turn to them in one way or another. These are not genuine remedies, since compliance with their resolutions is, to a greater or lesser extent, left to the goodwill of the states. However, as has already been said, these mechanisms create a relevant body of doctrine that guides the courts of all countries. In fact, just as the US Federal Supreme Court has served as an inspiration in the field of human rights - particularly in its case law on the exclusionary Rule ^[189] and the Rights of the accused ^[190] - all over the world, the ECtHR also has a special relevance for the Inter-American Court of Human Rights. In this way, a dialogue between courts is activated, which encourages the exchange of views on the best protection of citizens.

1.2.2.1        At Regional Level

42. At the regional level, there are three major international tribunals dealing with the protection of human rights, which are available to citizens in order to obtain a remedy against final judicial decisions rendered to their detriment in their states. These courts are the ECtHR, the CIDH and the African Court of Human Rights. These are true milestones in the history of law, covering immense geographical areas, and which represent the extension of the culture of human rights throughout the world, even though, as is the case with the ECtHR, they are subject to the principle of subsidiarity^[191], which makes states primarily responsible for the respect of rights, rather than the ECtHR^[192].

1.2.2.1.1        In Europe: The Individual Complaint Before the ECtHR

43. Once domestic remedies have been exhausted before the jurisdiction of one of the signatory States to the Convention (Art 35 ECHR), any individual, non-governmental organization (NGO) or group of individuals (Art 34 ECHR), or one signatory State to the Convention against another (Art 33 ECHR), may bring a case before the ECtHR, generically considered, if they consider that a decision - usually of a court - has violated the rights recognized in the ECHR or in the other Protocols supplementing the Convention (Art 34 ECHR)^[193].
44. The time limit for bringing an action is four months from the date of the final decision (Art 35 ECHR). Its content is defined by Art 47 of the Rules of the Court^[194], of which the (e) ‘concise and legible statement of the facts’ and (f) the ‘concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments’ stand out above all, which are the most relevant aspects of its substantiation and which, despite being formulated in a way that attempts to be simple – and which can be written in one's own language (Art 34 of the Rules of the Court) – finally become the main aspect that the lawyers who draft it are concerned with. In fact, the language of drafting is an important aspect, given that the latest reforms of the Rules try to lead the parties to the use of English or French, the official languages of the ECtHR. And in fact, these are the languages that can be properly understood by all judges, which, whether they want to or not, is important for the success of the appeal.

1.2.2.1.1.1        Requirements to Be Met for the Admissibility of the Application

45. Firstly, if the claim is individual – that is, if it is not from a State – it will be examined by a single judge who is not from the defendant State (Art 27 ECHR). If the single judge does not reject it outright, it will be referred to a committee (Art 28 ECHR). The committee will decide on the merits of the case if it bases its decision on the constant case law of the ECtHR, or if not, it will defer the case to one of the chambers, which will carry out a new admissibility examination (Art 29 ECHR).
46. If this new examination is passed, the case will be decided by the Chamber itself, unless there is no previous case law or it considers it necessary to change it, in which case it transfers the case to the Grand Chamber (Art 30 ECHR).
47. In any case, the possibilities of inadmissibility of the ECtHR are enormous^[195], considering the grounds for inadmissibility set out in Art 35 and 37 ECHR. Particularly noteworthy are the following, related to the merits of the case:

The application is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

The application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application.

The applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits.^[196]

Loss of interest in the application, particularly if by any [...] reason established by the Court, it is no longer justified to continue the examination of the application.^[197] 

48. Inadmissibility may occur at any stage of the proceedings (Art 35.4 and 37.1 ECHR). If the application is finally admitted, the court may set a time limit for the parties to submit supplementary written observations or evidence, and even a hearing, although it usually does neither.
49. Notwithstanding the important – and partially worrying – influence of NGO on the ECtHR^[198], the role of states is predominant according to the rules. They may participate in the proceedings as third parties if one of their nationals has submitted an application, and the President of the Court may even invite a non-party state ‘in the interests of the proper administration of justice’ (Art 36 ECHR).
50. The court, after an investigation of the case, may attempt mediation before the court itself (Art 38 and 39 ECHR).

1.2.2.1.1.2        Effects of a Finding of Violation of the ECHR or of One of its Protocols

51. If mediation and the eventually celebrated 12-weeks-phase of friendly exchange of offers^[199] between the parties have not been successful, the ECtHR will enter into the merits of the case and issue a judgment. Even if the law of the State provides only partial satisfaction to the litigant, it will take appropriate measures to ensure full satisfaction (Art 41 ECHR). There is no appeal against the Chamber's decision, but either party has three months to bring the case to the Grand Chamber ‘in exceptional cases’. A section of five judges of the Grand Chamber decides on the admissibility of the case. They will admit it if it is a case of general importance, or very relevant to the interpretation of the ECHR.
52. The effects of the ECtHR's judgment are binding, according to Art 46 ECHR, which provides that in case of non-compliance by the State, the Committee of Ministers may take appropriate measures to compel such compliance, given that resistance is a violation of an international treaty. However, non-compliance is repeated, and even national legislators have created domestic judicial procedures to discuss how to enforce an ECtHR judgment, which was not necessary in every case and actually sometimes delays compliance with the judgment, as it happened in Spain^[200]. It was all due to a well-intentioned 2000 Recommendation^[201] of the Committee of Ministers of the Council of Europe, which was aimed at facilitating compliance with ECtHR judgments, not hindering it, and which proposed the creation of a specific procedure for this purpose. This gave rise to procedures in German law (Sec 580.8 GCCP), French law (Art L. 452-1 COJ^[202] or Art 622-1 of the Code de Procédure Pénale (Criminal Procedure Code)), Swiss Law (Art 328(2) of the Code of Civil Procedure and Art 122 of the Bundesgerichtsgesetz (Federal Supreme Court Act)), Turkish law (Art 311 of the Ceza Muhakemesi Kanunu (Criminal Procedure Code)) or Spanish law (Art 510.2 of the Ley de Enjuiciamiento Civil (Code of Civil Procedure)).

1.2.2.1.2        Interamerican Commission (and Court) of Human Rights and African Court on Human and People’s Rights

53. A mechanism similar to that of the ECtHR exists in the Americas, with particular relevance in Latin America^[203]. This is the Inter-American Court of Human Rights, which acts essentially with a preliminary phase before the Inter-American Commission on Human Rights^[204], which is already too far removed from the object of our study, given that the mechanism does not really open up anything similar to an appeal and, therefore, it is not possible to speak of a right to appeal in this area.
54. In reality, it is only a matter of complaints or petitions that can be submitted by citizens or NGOs to the aforementioned Commission^[205], which is made up of persons elected by the Organization of American States (Art 44 ff American Convention on Human Rights (ACHR)). The Commission requires that domestic remedies have been exhausted (Art 46 ACHR), but it shall be insisted that what is opened from there has nothing to do with an appeal. In reality, the Commission tries to mediate with the State and, if it fails to do so, issues a report (Art 50 ACHR), which, if unsuccessful, may be submitted to the Inter-American Court of Human Rights but, and this is very important, only by the States party to the Convention or by the Commission itself, seeking to alter or confirm its report (Art 61 ff ACHR)^[206], which confirms that the above has nothing to do with an appeal.
55. In fact, the whole procedure described above is nothing more than an intraprocedural Alternative Dispute Resolution (ADR) with the appearance of an appeal to a court to give more psychological weight to its decisions, but little more. Thus, moving away from the object of the study, the analysis must be abandoned here.
56. An absolutely similar procedure is the one before the African Court of Human and People's Rights^[207], which, for the same reason, should not be commented on either^[208]. Even the Asian Human Rights Commission^[209], which is only an NGO of lawyers and human rights activists in Asia, does not reach this level.

1.2.2.2        At International Level

57. At the global level, there is no court that can provide anything resembling a remedy for national judicial decisions. The only body with international impact which has at least, among other more general objectives^[210], the examination of complaints of rights violations with some impact on states, is the Human Rights Committee of the United Nations^[211]. Its basic text compiling rights is the International Covenant on Civil and Political Rights (16 December 1966).^[212]
58. The work of the Committee is only consultative. Its procedure is described in Art 41 of the International Covenant and in the First Optional Protocol to the International Covenant on Civil and Political Rights^[213], although it has many reservations from a large number of countries^[214]. Complaints can only be made after domestic remedies have been exhausted. The Committee transmits them to the country concerned for a decision within 6 months. Following this information, the Committee gives its opinion.
59. It is therefore a simple embryo of an international court, but it cannot be classified as such at all. Moreover, many countries – most European countries – do not recognise the competence of the Committee if the case has already been examined by an international procedure, such as the European Court of Human Rights. For this reason, when the Committee nevertheless gives its opinion, the value of its opinion is only symbolic, beyond the value that the international community may wish to attribute to it at any given moment.

1.2.2.3        Impact of Supranational Remedies and Jurisprudence on the Existence or the Design of National Remedies

60. Leaving aside the procedures for the enforcement of ECtHR judgments that exist in a number of states – and which do not involve any remedies – international case law has not had a great impact on the design of the structure of the remedies system, with the exception of Switzerland and its final appeal against judgments of the Highest Court after a judgment of the ECtHR^[215]. But generally, States have maintained their original structure and at least in the civil sphere, little or nothing has changed. The situation is different in the criminal field, where in several countries an appeal was finally introduced, which did not exist as a consequence of many of the modern nineteenth century regulations being based on the English jury system^[216], having only provided for cassation as the only appeal against judgments. And it is obvious that not only the right to review of convictions in Art 2 of Protocol No. 7 of the ECHR, but also the corresponding Art 14.5 of the International Covenant on Civil and Political Rights played a decisive role in the introduction of the appeal. But as has been said, all this has occurred in the criminal field, not in the civil field.
61. Where there has been an unquestionable impact of international case law on civil proceedings has been both in the cognition of evidentiary issues and in the system for admitting appeals. The latter has become more flexible, while the former has moved away completely from the novum iudicium model and increasingly moved towards the system of revisio prioris instantiae. Both issues have partly affected the legal design of traditional appeals but, it shall be insisted, only in terms of the object of their cognition. Therefore, this whole issue will be examined in the next chapter.
62. In fact, there only has been an extension of awareness of the existence of a right to appeal, in general in any process, which has even been reflected, as we have already seen, in some constitutions. It is possible that in the future these provisions will influence future reforms in each country. But constitutional reforms tend to be very slow and an explosion of express recognition of the right insofar is not foreseeable.

1.3        Should a Right to Appeal Exist?

63. At this point, it is necessary to decide whether or not there should be a right to appeal, and whether it is sufficient for it to be constitutionalized or whether it should also be fundamentalized. So far, the existence of appeals, as we have seen, has been mainly due to the weight of the tradition of the original Roman model^[217]. But at this point it is necessary to go beyond this and decide whether there is better justice when a legal system recognizes remedies, and whether or not it is therefore essential for them to exist and what their limits should be. The following section is devoted to all these questions, leaving the final decision on the advisability of constitutionalization/fundamentalization for the last section of this chapter.

1.3.1        Essence

64. This has not been a subject that has generally interested the doctrine. When the basis for the existence of appeals is studied, once it has been ruled out that they serve to combat injustice, above all because of the complexity and imprecision of the very concept of ‘justice’, it is recognized that, despite everything, their remote origin could probably have been this – justice –, at least in the consciences of the people who created them, apart from the consciousness of the simple subordination of inferior judges to a superior judge.^[218] Today, however, it is necessary to look for a more precise basis to explain the presence of the appeal in the legal system from an essentially organizational perspective.
65. To this end, the desire to correct a legal or factual error is cited as the reason for the existence of appeals^[219], but such a basis is not tenable. The reality is that not a few decisions are overturned, not because they are erroneous, far from it, but because the court ad quem has another opinion on the matter, just as valid as that of the first instance, but based on different factual and legal assessments. And such a reversal is not unlawful, since it is within the powers of any court of appeal insofar as the law does not prohibit it. Historically^[220], in fact, it was assumed that the basis for appeals was the damage or disadvantage caused to the appellant by the decision appealed against, which legitimized the possibility of appealing with the aim of obtaining a better judgment. This is how, for example, the doctrine of materielle Beschwer (substantive complaint)^[221] arose in Germany, although it was criticized by other authors^[222].
66. However, this prejudice is rather a reason that authorizes a specific litigant to appeal, but it is not a general, systemic aim of the legal system, since the reparation of damages is one of the expectations that any citizen has with justice in general, not only with an appeal, and therefore does not individualise it for these purposes. When looking for the essence of an institution, in this case of a supposed right to appeal, one is rather thinking of an objective of the legal system that can serve the political ends of the state in general. And in this particular case, the essential reason that one is trying to locate could be found in some task, purpose or orientation related to the work of the judiciary but which, as has been said, singles out the appeal as the right institution to fulfil that purpose.
67. Although there have been some attempts to abolish the right to appeal, in particular the right of traditional appeal^[223], but also the right of final appeal^[224], the scarce doctrine that has considered this issue has emphasized, as the basis for appeals, a state vocation of excellence in the work of the judiciary, which would logically occur when judicial decisions are reviewed by a judge other than the one who has issued them^[225]. E Allorio even offered an additional reason that also supports the existence of appeals: the appeal judge examines the work already carried out by another judge, which gives him a greater serenity and objectivity than the judge a quo, and allows the degree of certainty or correctness of the second judge to be greater.^[226] This probably increases the possibilities of improving the quality of the service provided by the judiciary. Ultimately, according to this view, the rationale for appeals would lie in the purpose of obtaining a better judgment.^[227]
68. That view seems broadly acceptable. The state must always, at least in a democracy, desire the welfare of its citizens, and that welfare cannot be achieved if the justice service provided is deficient. Nevertheless, however perfect the system of training judges may be, mistakes will always arise, and it is good to have an opportunity to correct them. One could, of course, leave that opportunity to the judge who handed down the judgment, but that would create two problems. The first is that only with great difficulty will the judge be able to perceive that he or she has made a mistake, since the influence of confirmation bias^[228] is too strong in any human being for the state to assume a reliance on self-correction of errors, which would occur very rarely. But furthermore, if the judge themself could correct their mistakes, we would be breaking one of the main guarantees of legal certainty in the legal system: res judicata^[229]. It would therefore seem advisable to wait a further period of time so that, if an appeal is lodged, a different judge can review the appealed judgment, confirming the correctness of the ruling or attempting to rectify any errors it may contain. Naturally, the system can malfunction, and mistakes can be made by the judge ad quem, as well as by the judge a quo. This is precisely why it is so important that the appellate court is always collegial, since this makes it more unlikely that errors will be made by the multiplicity of minds carrying out the legal analysis of the same issue^[230].
69. Finally, it should not be forgotten that the right to appeal, if it exists, is a negative right, in the sense that it limits state action but does not impose any obligation on the state, since appeals are simply a matter for the citizen to decide, it being sufficient for the state to provide for the existence of the appeal.^[231] The question is, however, whether the existence of this opportunity should become a requirement for the state when legislating or, even more so, when drafting its constitution. It is precisely this point, which is the decisive one, that is dealt with in the last section.        

1.3.2        Usefulness of its Constitutionalization / Fundamentalization

70. If anything can be clearly deduced from the comparative law study carried out at the beginning of this chapter, it is that there is no criterion or master line for deciding what is included in a constitutional text, and much less to what extent the catalogue of recognized rights is broad or restricted. In the 71 countries we are considering, there is really everything to be found, and if the catalogues are similar, it is not because there is a general theory behind them, but because they have been copied from one another. In this sense, the most influential norms have obviously been the Bill of Rights of the US Constitution, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. But none of these three texts, nor the Charter of Fundamental Rights of the European Union, recognises the right to appeal. In fact, the latter text does not even recognize it in the criminal field, unlike the ECHR and the International Covenant on Civil and Political Rights.
71. Perhaps what should be in a constitution is the most basic, but in human rights matters it is possible to be more or less explicit without necessarily affecting the protection of citizens. However, it seems logical that a constitution should contain what citizens conceive of as part of their protection. From that perspective it can be said that the citizen expects a remedy for an adverse decision, an expectation so widespread that some believe it should be transformed into a right.^[232]
72. Such a view of citizens' expectations may be a first democratic orientation, but it cannot become the only thing that the drafter of a constitution must take into account. Sometimes citizens yearn for rights that are not compatible with democratic coexistence, and sometimes they do not even think about some of them because they are not even aware of them. In fact, it is not unusual for them to be violated and not even be aware of it, as happened during the 2020 pandemic in several countries with freedom of movement. Most citizens were unaware that such a right even existed.
73. It therefore seems a more guiding criterion to imagine what would happen if, apart from traditions, the legislator was to decide that justice has only a first and only instance, with no opportunity for appeal. And although such a situation is perfectly conceivable and perhaps even feasible in some cases – small claims^[233] –, the reality that would be created would perhaps not be the most desirable: a state in which judges rule sovereignly without the possibility of being challenged. No doubt Hegel^[234] would not like this, as it eliminates the dialectical element that is created by the appeals and that reinforces the use of the same method during the process with the confrontation between the parties. Nor does it say anything in favour of the undeniable incidence of confirmation bias^[235] indicated above, which would lead to many erroneous judicial decisions and which would also be wrong time and time again as it would be more difficult for judges to change their criteria if they are not corrected, behaving practically like tools of artificial intelligence^[236].
74. Therefore, both from the citizens' perspective and from the point of view of the quality of the provision of the justice service, however cumbersome it may seem, it seems essential that there should be a double opportunity for the judiciary to provide a service of the appropriate quality.^[237] It is, in fact, a guarantee of that obvious quality that should be found in any constitution.
75. The question is whether this content should only be constitutionalized or also fundamentalized. In other words, does it seem more appropriate to follow the tendency of those states that require the mere existence of an appeal in their constitutions, or is it better to create a genuine right of appeal that the interpreter does not have to deduce from the somehow hollow reference to an appeal in the constitution?
76. The differences from one decision to the other can be considerable. A legislator who is only required to recognize the right of appeal can place many restrictions on its admissibility at the disposal of the court, despite the limitations that exist in this area and which will be discussed in the following section. However, if the right to appeal is fundamentalized, the restrictions on its admission are much more complicated, which can lead to the collapse of the courts dealing with such appeals, which is already empirical evidence in most countries, and which is also detrimental to the quality of the service of justice. On the other hand, the constitutionalization of the right to appeal makes it possible to claim it before the courts, also in cases where the litigant has no reason on the merits of the case, being able to achieve a victory on simple procedural grounds that in the end would prove to be vacuous.
77. The decision, as can be seen, is a complex one. Yet the arguments in favour of the right to appeal seem to outweigh the arguments against. In the end, we are opposing excellence in the provision of a service to savings in human and material resources on the part of the state, without these savings making it possible to maintain this level of excellence. For this reason, it seems that the most acceptable option is to fundamentalize the right to appeal, generalizing it and at the same time freeing it from the limitations that have been imposed on it in criminal proceedings. Perhaps it must be recognized that a modern-day justice system is inconceivable without the existence of at least two instances, and this should be the content of the law, epistemically based on the dialectical method and psychologically based on the avoidance of confirmation bias, as has already been explained. In other words, the reasons for the existence of the right are no longer merely intuitive and based on the expectations of citizens, but are based on the soundness of arguments that are even extra-legal, even though they have undeniable influence in the legal sphere.
78. The question remains, however, whether this fundamentalization should also extend to a third degree of jurisdiction, ie, an appeal to a highest (or supreme) court. The discussion on this issue is more complex and, in my opinion, goes beyond the scope of the right of appeal. Basically, with highest courts, we want the existence of bodies with a paralegislative vocation to guide the courts. Do we really need them? This is undoubtedly a reflection on the general theory of law and its development would require a space that is not available here^[238]. But in any case, the easy conception of alternatives to the existence of such a body, alternatives that might even be more efficient - imagine a section of parliaments in charge of supervising case law - rules out that it should be constituted as a right. In any case, it is beyond dispute that the highest courts, the pinnacle of the system, do not open up a citizen's possibility of appeal to them in practically any legal system, except the Italian one. And this possibility, although also useful, is highly controversial, above all because it ends up leading to a certain elitism, as will be analysed in the following chapter. In any case, in these conditions, it should not be the object of constitutionalized law.

2        Subchapter 2: Constitutional or Fundamental Requirements for the Design of Effective Remedies

79. Once it has been concluded that the right to appeal should be constitutionalized, it remains to be discussed somewhat more briefly under what conditions both the admission to appeals and the object of their cognition should be established, in order to prevent the existence of the appeal from being in vain, if it is then restricted by the existence of overly demanding or simply unpredictable requirements. Or that even if they are predictable, they are so difficult to fulfil that the right to appeal will eventually cease to exist. This would be the case, for example, if appeals would only be accepted in cases with a value of more than 10,000,000 EUR. It is not difficult to predict whether they will be admissible or not, but the reality is that most cases do not reach that amount. Such a threshold would risk becoming a restriction of the right of access to justice.
80. In the following, the most frequent requirements and demands in the legislations will be reviewed, which tend to be more or less the same in the different countries, which is why in this case the study will mainly focus on these obstacles and their justification in the light of the case law.

2.1        Requirements for the Clarity and Transparency of the Formal Prerequisites of Remedies. Prohibition of Overly Formalistic Requirements

81. The study of the requirements for lodging appeals has normally been a matter of national case law, particularly with regard to the final appeal. In reality, this is a very uninteresting part of procedural studies if one looks at it with a certain objectivity. The highest courts, in order to defend themselves against the number of appeals that came to them, have been improvising demands on the appellants in order to reject appeals and avoid collapsing. In this task, they have sometimes been helped by the legislator, who has often established – not infrequently at the suggestion of the judges – requirements that were simply far removed from any essential human logic, since they had been established as a simple arbitrary control of the volume of appeals. And this also affects, as we shall see, both the restriction to questions of law proper to the courts of cassation, as well as the creation of certiorari itself in the US Supreme Court.
82. Although the study is above all a study of national law, it will begin with an exposition of supranational case law, since, as has occurred in other areas, this case law has become an inexcusable guide for national courts and legislators, which simplifies this study of domestic law.

2.1.1        The Case Law of the ECtHR and the Interamerican Court of Human Rights

83. The ECtHR has set out quite simply what are the minimum standards to be respected when assessing the admissibility of appeals. It is indeed curious to note that it has done so without the need to recognize a right of appeal, which does not exist in the civil sphere in the ECHR.^[239] But a good summary of its case law would be that if a legal system provides in its laws for the existence of an appeal, arbitrary obstacles to its admission cannot be placed in the way which would end up nullifying the right to free access to justice.^[240] In order to carry out this task, as usual, the ECtHR does not interpret national law, because this is a matter for the courts of each State, but will only verify that the interpretation made by national judges does not violate the right to free access (Art 6 ECHR).^[241]
84. Therefore, the only objective of the case law is to guarantee this right^[242], although taking into account that the ECtHR recognizes the capacity of the States to establish more rigorous conditions for cassation than for appeal.^[243] Thus, the curious thing is that the ECtHR has accepted restrictions that are highly controversial in the doctrine, such as the limitation of cassation courts to questions of law. However, this is a restriction that is very widespread in the laws and case law of the States, which is probably the reason why the ECtHR does not see a realistic occasion to question it, even when its application is misplaced. Only if such a limitation, or others, were used in a completely unreasonable manner, would the ECtHR deal with the issue. To do otherwise would be to call into question not only the interpretative power of state courts, but even their legislative power, since, as has been said, if a state does not wish to provide remedies, it does not have to do so, with the only limit being respect for the right to free access, a requirement that is not by chance relaxed with respect to the cassation.
85. But even if this is the case, the procedural rules must avoid excessive formalism which could violate the right to a fair trial, even to the point of making compliance with the procedural conditions laid down by law unpredictable.^[244] This requirement of the ECtHR obliges the case law to avoid laying down requirements which serve absolutely no purpose in relation to the provision of the service of justice, and which only have the effect and objective of rendering appeals inadmissible.^[245] Therefore, it is not that the case law cannot establish admission requirements, but that they must be reasonable from this perspective.^[246] Consequently, they cannot simply be arbitrary requirements.
86. And furthermore, the requirements imposed must not be impossible or very difficult for the appellant to comply with, as would be the case, for example, if the litigant were to be imposed an excessively short time limit for lodging an appeal against a decision of particular relevance to them.^[247] In other words, if they were obliged to comply with a requirement which they are not in a position to meet, this would amount to a denial of justice, in other words, a violation of the right of free access.
87. Finally, in order to be inadmissible, the non-compliance with the conditions for appeal must be solely attributable to the appellant, without the authorities having favoured or even forced the non-compliance with requirements contrary to the principle of proportionality^[248] or, as already mentioned, in an arbitrary manner^[249]. Moreover, it is incumbent on the national authorities to provide themselves with sufficient administrative and judicial infrastructures to ensure that any inconvenience caused by the litigant is not used as an excuse for the system to have deficiencies which ultimately lead to the rejection of the appeal as a result of those deficiencies.^[250]
88. So as to sum up, the case law of the ECtHR sets out the following three requirements in order to consider that admission has been carried out in a manner compatible with the right to free access:

1. Exclusion of arbitrariness: the requirements for authorizing admission are permitted, but only insofar as they are not arbitrarily laid down by the legislature or judges.
2. Proportionality: The requirements must respect the principle of proportionality: they must not be impossible or very difficult for the appellant to comply with.
3. Imputability to the appellant: Non-compliance with the requirement must be imputable only to the appellant, without the involvement of the authorities.

89. Based on these requirements, the problem is their interpretation, which has a relatively wide margin in the ECtHR's case law, as can be seen in the cases quoted above. Perhaps it would be positive if the ECtHR's decisions following these three requirements were more predictable, although the general idea for predicting the result in these cases would be the following, already indicated: the ECtHR will never discuss the interpretation of state judges of their national rules. They will only assess whether it fails to meet any of the three requirements indicated.
90. The case law of the Inter-American Court of Human Rights has focused above all on the guarantees of quality of the tribunal ad quem, as well as on the three characteristics that an appeal must have, in the opinion of this court: suitability, effectiveness and speed. Suitability, so that the appeal is not a mere formality and can deal with the full merits of the case, particularly the violation of human rights^[251]; effectiveness^[252], in the sense that the court hearing it is independent and impartial and can enforce its decisions^[253]; and speed^[254], which is related to the prohibition of undue delay and therefore goes beyond the analysis being carried out in this paper. In any case, this case law is less specific than that explained from the ECtHR, and in fact expressly follows it on this point^[255], so it is not necessary to address it in more detail.

2.1.2        In National Law

91. Today, as has been said, the European courts generally follow the ECtHR guidelines in this area, so the following discussion is no longer as relevant as it was in the past, nor does it aim to study in a comparative manner the restrictions – arbitrary – imposed by each court in each country, as this would be cumbersome and largely useless. Instead, beyond the already studied requirements of ECtHR case law, some of the more controversial or even constructive decisions in this area will be discussed in order to illustrate the impact of the right of free access on them.

2.1.2.1        The Most Common (Formal) Prerequisites of Remedies

92. As already noted, case law and legislation have sought above all to unburden the highest courts. Thus, they have essentially provided four ways to achieve this goal: restriction to points of law, certiorari, the binding precedent and formalism. In one way or another, these four paths end up becoming formal prerequisites for the filing of appeals.
93. The restriction to points of law arises in English law as a consequence of the existence of the jury^[256], but it ends up becoming a mechanism to restrict the admission of appeals. Before the English higher courts, particularly in the House of Lords, from at least the eighteenth century onwards, no new evidence was admitted under any circumstances for the review of the case in the framework of an appeal, it being considered a practice alien to English law – not so to Roman or canon law – to review the judgment of a lower court on the basis of evidence that was not used in the first instance.^[257] And all this was logical precisely because of what has already been said: the jury resolves the question of fact in an unmotivated manner^[258], so that it can no longer be modified by a higher court^[259] because there is no human way of knowing the factual reasons that remained in the jurors' minds without ever being disclosed. The restriction was therefore logical and unavoidable.
94. It was different when this restriction was transferred in France^[260] to the new Tribunal de Cassation^[261], which in 1804 would become the Cour de Cassation^[262]. P A Merlin had already developed the idea of the restriction^[263], with the significance of the fact that Merlin was State Counsellor and Imperial Procurator General of the Cour de Cassation. But in fact, Merlin was taking up what was already the case law of the Cour^[264]. As is well known, the restriction became consubstantial to the French cassation and from there it was transferred to the whole world, despite the doctrinal attacks it has suffered and continues to suffer for its lack of ontological and epistemic viability.^[265]
95. As for the binding precedents system, its emergence is not ancestral in the United Kingdom, as is sometimes believed, but appeared much later than one might think.^[266] It comes from the case law of the House of Lords at the end of the nineteenth century^[267], and not really from the English Judicature Acts 1873-1875, since these laws were rather focused on other issues, such as the reorganization of the English judiciary and the corruption of hereditary members of the House of Lords. And it simply arose as a way of avoiding appeals, ie, workload, by making the case law of the lower courts more uniform.
96. Finally, the selection of cases or certiorari is even more modern. In the US, the introduction of case selection was gradual, first with the Judiciary Act of 1891 (Evarts Act), then with the Judiciary Act of 1925 and finally with the Supreme Court Case Selections Act of 1988, all laws that gradually restricted the formerly existing possibility of appeal. What is most striking, however, is that case selection was not introduced at all to enable the Supreme Court to play a quasi-legislative role, but that the primary purpose of the above-mentioned reforms was once again to combat the backlog of cases.^[268] Thus, the possibilities for individuals to appeal to the Supreme Court were gradually reduced to an almost symbolic position, and the respective legislators decided to rely on the decisions of the lower courts. A factor of reliability in their own justice, which already had a historical basis^[269], was thus introduced into the system, turning the English and American Highest Courts into quasi-legislative bodies, issuing very few decisions each year – just over 100 – which are intended to serve as a guide for all lower courts in every aspect of the entire legal system^[270].
97. In this whole scenario of conditions and restrictions, which, as can be seen, comes almost exclusively from the common law system, the other states have done nothing but copying, probably attracted by the enormous reduction in the volume of cases involving these procedures. Thus arises – despite initial criticism^[271] – the ‘grundsätzliche Bedeutung’ (fundamental significance) of Sec 511.4.1 and 522.1 GCCP with regard to appeal, and the same expression applied to Revision (appeal) in Sec 543.1, or the ‘Fortbildung des Rechts oder die Sicherung einer einheitlichen Rechtsprechung’ (further development of the law or ensuring uniform case law) of Sec 543.2 of the same law, although constitutionally no Revision with a chance of success is allowed to be rejected on this ground^[272]. The same applies to Sec 477 of the Spanish Civil Procedure Act with the ‘interés casacional’(annulment interest)^[273], which, moreover, the Supreme Court interpreted in an exaggeratedly restrictive manner, with the approval of the Constitutional Court^[274], given that it considered constitutional a case law that absolutely exceeded the legal boundaries of discretion in the admission, overruling its own previous case law on the issue^[275], which followed the ECtHR case law examined above. In the same vein, reference should also be made to Sec 502 ATCCP with the ‘Wahrung der Rechtseinheit, Rechtssicherheit oder Rechtsentwicklung erhebliche Bedeutung’ (preservation of legal unity, legal certainty or legal development of considerable importance).

2.1.2.2        The Formalism

98. But there remains formalism, which is a very old strategy of the highest courts above all. Examples of this could be given in many states, ranging from the very delimitation of grounds for cassation, which attempt not to guide but to restrict the infringements that can be alleged, to simple and stupid bureaucratic requirements, such as those cited by a Spanish Supreme Court judge 50 years ago, saying that one of those unforgivable defects that caused the fulminating inadmissibility was that ‘infringements of rules of different content that should be denounced in different grounds and with different numbering’^[276] were accumulated in the same ground of cassation. These abuses are precisely those which the ECtHR case law cited above helped to quash, being this case law taken up, as has been said, by the Spanish Constitutional Court^[277].
99. It is not a matter now of listing these requirements in each country.^[278] In general, they have already been discarded, fortunately, by national case law^[279], echoing the need to follow the ECtHR case law as far as possible in the field of interpretation^[280]. This case law requires clarity of requirements, so that the admission of the appeal does not become an incalculable expectation, over and above the costs involved. The substance of the reasoning has in fact something to do with the prohibition of surprise decisions, which is also based on the case law of the ECtHR^[281]. The Strasbourg^[282] Court has had to develop its work in the face of the many requirements that are being imposed in France to restrict access to remedies^[283], which obviously have had an effect on the French case law^[284].
100.  However, sometimes it seems that the work already done by the ECtHR is not enough. As can be seen in the French or Spanish example, as soon as a court is faced with an excessive volume of cases, it improvises new strategies of inadmissibility. This is why the reaffirmation of the ECtHR's case law will always be necessary, at least until one day we learn to control the workload of the courts with modern management methods, with the assistance of artificial intelligence in some cases, and without falling into the temptation of exaggeratedly narrowing access to the supreme courts with methods similar to certiorari. Were it not for respect for the method employed in this regard, first by the House of Lords, and since 2009 by the Supreme Court of the United Kingdom, perhaps the ECtHR would have excluded this method of case selection as manifestly overly arbitrary as it really is.^[285]

2.2        Re-assessment of Evidence in Appellate Proceedings

101. One of the most controversial issues in recent times relates to the case law that prevents appeal-tribunals to search for errors in the evaluation of the evidence, if this evaluation depends on the immediacy of the court of first instance, as it is the case with all interrogations.
102. This case law^[286], in principle aimed only for the criminal procedure, which clearly comes from the common law jury system where it makes full sense, is not so understandable in a system in which there is a professional judge who motivates the judgments, unlike the jury, and therefore gives reasons for its assessment of every evidence, also interrogations.
103. On the other hand, the scientific advances of the psychology of eyewitness testimony must be taken into account. They confirm that the gestures of a person can be very misleading.^[287] Also if gestures have traditionally been one of the main points that judges have almost intuitively taken into account^[288], perhaps the value of immediacy is not as high as it is thought. Instead, the piecemeal examination of the assessment of the trial judge about the interrogations might bring much better results, and in this task, immediacy might not be essential.^[289]
104. In light of these recent assessments, the traditional case law of the ECtHR on this point should probably be reviewed. It unreasonably restricts the courts' scrutiny in appeals simply because it relies on a tool that scientifically does not yet have the efficiency attributed to it, namely immediacy, thus unjustifiably restricting the litigants' possibilities of appeal.
105. On the contrary, these possibilities should be extended to the criticism of the assessment of evidence, also when it consists of interrogations. The judge at first instance will have had to state in their reasoning the specific reasons why they decided to believe a witness. These reasons are not simply intuitive, let alone uncontrollable to the point of arbitrariness. On the contrary, they must be legitimately reviewed and verified in a second instance, leaving behind an obscurantism which, as we have seen, makes no sense, thus definitively enhancing the content of the right to appeal in its full extent.

2.3        The Requirement of Equal Access to an Equal Use of Remedies

106. The right to appeal has not often been studied from the perspective of the economic needs of litigants. In other words, the right to free access to the courts for persons without financial means is generally studied, but not specifically at the appeal stage.
107. However, the general provisions on legal aid are certainly applicable to the right to appeal. If we start from a case law that guarantees free access, it cannot be denied at one of the stages of the proceedings that the legislator has made available to citizens. Lacking other country contributions, at least this is the view of the US Supreme Court in M.L.B. v S.L.J.^[290] Following its earlier case law in Lindsey v Normet^[291] in which it held that ‘when an appeal is afforded [...] it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause’ [emphasis added].
108. That is the general principle, applicable to any other circumstance affecting or individualising a human being.^[292] However, apart from any other consideration in this regard that might be made, underlies the decision on whether or not there is a right to appeal. In Griffin v Illinois^[293] the Supreme Court made an interesting point when it held that

There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance.

109. But nevertheless, in the same judgment, Justice Harlan – and in part Frankfurter – held that States could not be put in the position of deciding whether to provide for appellate review for everyone or not to provide for it at all.^[294] It is precisely the dilemma that we have already seen that years later was accepted by the ECtHR, in the sense that it is legitimate to opt for one of the two options.
110. This appeal in forma pauperis^[295] should come as no surprise. Access to justice should be open to all citizens, irrespective of their economic or any other status, such as weak parties like consumers or insured persons. To discriminate against them in appealing their judgments, at least in the second instance, is simply not admissible from any perspective. Also, from the perspective of the parties' procedural powers and expectations, as was the case in France with regard to the litigant's obligation to indicate the points on which he is appealing in order to materialise the devolutive effect. A similar obligation was considered formalistic by the Cour de Cassation^[296] in cases where the procedure does not require mandatory representation by a lawyer.
111. Would it be different if we consider a final appeal, ie, an appeal to a highest court? Perhaps it could be argued that as this is an extraordinary appeal, restrictions for economic reasons would be admissible. But it is precisely through this reflection that it becomes clear, once again, why it is not possible to deny free access to justice on the basis of any human quality. What lies at the heart of the matter is not so much the right to free access to the courts, but rather the right to equality, from which all the considerations that have been made in the case law, as already suggested in Lindsey v Normet^[297], stem. The right to a remedy cannot be restricted on economic grounds simply because that would be discriminatory. This is perhaps what, as we have seen, was difficult for many jurists to understand seventy years ago, and even now, but should now be grasped without any difficulty.
112. Equal access could also be studied, not as a discrimination, but from the point of view of rules that would lead to a kind of unjustified privilege in some situations, such as the one that occurred in France in relation to the territory of Mayotte, with regard to which a time limit for lodging an appeal different from the ordinary one was provided by decree, which was not justified as the situation of Mayotte was not different from that of other overseas territories, and which was therefore disallowed by the Conseil constitutionnel^[298].

Abbreviations and Acronyms

ACHR ACHR	African Court on Human and Peoples’ Rights American Convention on Human Rights
CFREU	Charter of Fundamental Rights of the EU
GCCP	German Code of Civil Procedure
ADR	Alternative Dispute Resolution
Art	Article/Articles
BRCCP	Brazilian Code of Civil Procedure
BVerfG	Bundesverfassungsgericht (Federal Constitutional Court) [Germany]
BVerwG	Bundesverwaltungsgericht (Federal Administrative Court) [Germany]
Cass Civ	Cour de cassation, civile (Court of Cassation Civil Devision) [France]
cf	confer (compare)
CIDH	Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
COJ	Code de l’organisation judicaire (Code of judicial organization) [France]
ECLI	European Case Law Identifier
ECHR	European Convention on Human Rights
EctHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
etc	et cetera
EUR	Euro
ff	following
fn GG	footnote (external, ie, in other chapters or in citations) Grundgesetz (Federal Constitution) (Germany)
ie	id est (that is)
NGO	Non-governmental organization
no	number/numbers
para	paragraph/paragraphs
PU	Presses Universitaires
Sec	Section/Sections
supp	supplement/supplements
UP	University Press
US / USA	United States of America
v	versus
vol	volume/volumes

Legislation

International/Supranational

African (Banjul) Charter on Human and Peoples’ Rights 1986.

American Convention on Human Rights 1969.

Charter of Fundamental Rights of the European Union 2000.

Charter of the Organization of the American States 1951.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Union of Equality: LGBTIQ Equality Strategy 2020-2025. Brussels, 12.11.2020. COM(2020) 698 final 2020.

European Convention on Human Rights 1953.

First Optional Protocol to the International Covenant on Civil and Political Rights 1976.

International Covenant on Civil and Political Rights 1966.

Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms 2016.

Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights 2020.

Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity 2010.

Recommendation No. R (95) 5 of the Committee of Ministers to Member States concerning the Introduction and Improvement of the Functioning of Appeal Systems and Procedures in Civil and Commercial Cases 1995.

Universal Declaration of Human Rights 1948.

National

Bill of Rights 1689 (England).

Bundesgerichtsgesetz 2017 (Federal Court Act) (Switzerland).

Ceza Muhakemesi Kanunu 2005 (Code of Criminal Procedure) (Turkey).

Code de l’organisation judicaire (Code of judicial organization) (France).

Code de procédure pénale 1959 (Code of Criminal Procedure) (France).

Código de Processo Civil 2015 (Code of Civil Procedure) (Brazil).

Constitution Act of Canada 1982.

Constitution of Albania 1998.

Constitution of Andorra 1993.

Constitution of Argentina 1853.

Constitution of Australia 1900.

Constitution of Austria 1920.

Constitution of Belgium 1831.

Constitution of Bolivia 2009.

Constitution of Bosnia and Herzegovina 1995.

Constitution of Botswana 1966.

Constitution of Brazil 1988.

Constitution of Bulgaria 1991.

Constitution of Chile 1980.

Constitution of Colombia 1991.

Constitution of Costa Rica 1949.

Constitution of Croatia 1990.

Constitution of Cyprus 1960.

Constitution of Denmark 1953.

Constitution of Ecuador 2008.

Constitution of Estonia 1992.

Constitution of Finland 1999.

Constitution of France 1958.

Constitution of Germany 1949.

Constitution of Ghana 1992.

Constitution of Greece 1975.

Constitution of Guatemala 1985.

Constitution of Honduras 1982.

Constitution of Hungary 2011.

Constitution of Iceland 1944.

Constitution of India 2020.

Constitution of Ireland 1937.

Constitution of Israel 1958.

Constitution of Italy 1947.

Constitution of Japan 1946.

Constitution of Korea 1948.

Constitution of Latvia 1922.

Constitution of Lithuania 1992.

Constitution of Luxemburg 1868.

Constitution of Macedonia 1991.

Constitution of Malaysia 1957.

Constitution of Malta 1964.

Constitution of Mexico 1917.

Constitution of Montenegro 2007.

Constitution of Namibia 1990.

Constitution of New Zealand 1986.

Constitution of Norway 1814.

Constitution of Panamá 1972.

Constitution of Paraguay 1992.

Constitution of Peru 1993.

Constitution of Poland 1997.

Constitution of Portugal 1976.

Constitution of Romania 1991.

Constitution of Serbia 2006.

Constitution of Slovakia 1992.

Constitution of Slovenia 1991.

Constitution of South Africa 1996.

Constitution of South Sudan 2011.

Constitution of Spain 1931.

Constitution of Spain 1978.

Constitution of Sweden 1974.

Constitution of Switzerland 1999.

Constitution of the Czech Republic 1992.

Constitution of the Dominican Republic 2010.  

Constitution of the Netherlands 2008.

Constitution of the Republic of Turkey 1982.

Constitution of the United States 1788.

Constitution of Tunisia 2014.

Constitution of Ukraine 1996.

Constitution of Uruguay 1830.

Décret November 27-December 1, 1790 (France).

Digest, XLIX, 5 art. 100- ex 30.

Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren 2011 (Law on legal protection in excessively long court proceedings and criminal investigations) (Germany).

Judiciary Act 1891 (Evarts Act) (United States).

Judiciary Act 1925 (United States).

Ley de Enjuiciamiento Civil 2000 (Code of Civil Procedure) (Spain).

Ley organic del poder judicial 1985 (Organic Law of the judiciary) (Spain).

Magna Carta Liberatum 1215 (England).

Petition of Rights 1628 (England).

Provisional Constitution of the Federal Republic of Somalia 2012. Constitution of Italy, 1947.

Supreme Court Case Selection Act 1988 (United States).

Supreme Court of Judicature Act 1873 and 1875 (England).

Zivilprozessordnung 1895 (Code of Civil Procedure) (Austria).

Zivilprozessordnung 1950 (Code of Civil Procedure) (Germany).

Zivilprozessordnung 2011 (Code of Civil Procedure) (Switzerland).

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Cases

International/Supranational

‘Cinco Pensionistas’ v Perú, Case Serie C No. 98 (CIDH), Judgment 28 February 2003.

Bámaca Velásquez v Guatemala, Case Serie C No. 70 (CIDH), Judgment 25 November 2000.

Bayev and others v Russia, Case 67667/09 (ECtHR), Judgment Final 13 November 2017.

Bazo González v Spain, Case 30643/04 (ECtHR), Judgment 16 December 2008 [ECLI:CE:‌ECHR:2008:1216JUD003064304].

Caso del Tribunal Constitucional v Perú, Case Serie C No. 71 (CIDH), Judgment 31 January 2001.

Caso del Tribunal Constitucional v Perú, Case Serie C No. 712 (CIDH), Judgment 31 January 2001.

Castillo Petruzzi y otros v Perú, Case Serie C No. 52 (CIDH), Judgment 30 May 1999.

Constantinescu v Romania, Case 28871/95 (ECtHR), Judgment 27 June 2000.

Davran v Turkey, Case 18342/03 (ECtHR), Judgment 3 November 2009 [ECLI:CE:ECHR‌:2009:1103JUD001834203].

De Cubber v Belgium, Case 9186/809 (ECtHR), Judgment 26 October 1984 [ECLI:CE:ECH‌R:1984:1026JUD000918680].

Dorado Baúlde v Spain, Case 23486/12 (ECtHR), Judgment 1 September 2015 [ECLI:CE:ECHR:2015:0901DEC002348612].

Dorado Baúlde v Spain, Case 23486/12 (ECtHR), Judgment 24 September 2015 [ECLI:CE:ECHR:2015:0901DEC002348612].

Ekbatani v Sweden, Case 10563/83 (ECtHR), Judgment 26 May 1988.

Evaggelou v Greece, Case 44078/07 (ECtHR), Judgment 13 January 2011 [ECLI:CE:ECHR‌:2011:0113JUD004407807].

Gil Sanjuan v Spain, Case 48297/15 (ECtHR), Judgment 26 May 2020 [ECLI:CE:ECH‌R:2020:0526JUD004829715].

Helmers v Sweden, Case 11826/85 (ECtHR), Judgment 29 October 1991 [ECLI:CE:ECHR‌:1991:1029JUD001182685].

Henrioud v France, Case 21444/11 (ECtHR), Judgment 5November 2015.

Igual Coll v Spain, Case 37496/04 (ECtHR), Judgment 10 March 2009.

Jan-Äke Andersson v Sweden, Case 11274/84 (ECtHR), Judgment 29 October 1991 [ECLI:CE:ECHR:1991:1029JUD001127484].

Johansen v Germany, Case 17914/10 (ECtHR), Judgment 15 September 2016 [ECLI:CE:‌ECHR:2016:0915JUD001791410].

Labergère v France, Case 16846/02 (ECtHR), Judgment 26 September 2006 [ECLI:CE:ECHR:2006:0926JUD001684602].

Makungu v Tanzania (merits) (ACHR), (2018) 2 African Court Law Report 550.

Mallya v Tanzania (merits and reparations) (ACHR), (2019) 3 African Court Law Report 482.

Maresti v Croatia, Case 55759/07 (ECtHR), Judgment 25 September 2009 [ECLI:CE:E‌CHR:2009:0625JUD005575907].

Maresti v Croatia, Case 55759/07 (ECtHR), Judgment 25 September 2009 [ECLI:CE:E‌CHR:2009:0625JUD005575907].

Maresti v Croatia, Case 55759/07 (ECtHR), Judgment 25 September 2009 [ECLI:CE:E‌CHR:2009:0625JUD005575907].

Popovici v Moldavia, Case 38178/08 (ECtHR), Judgment 24 June 2014 [ECLI:CE:ECH‌R:2014:0624DEC003817808].

Randstad Italia SpA v Umana SpA, Case C-497/20 (ECJ Grand Chamber), Judgment 21 December 2021 [ECLI:EU:C:2021:1037].

Reichman v France, Case 50147/11 (ECtHR), Judgment 12 July 2006 [ECLI:CE:ECHR:2016:0712JUD005014711].

San Miguel Sosa y otras v Venezuela, Case Serie C No. 3485 (CIDH), Judgment 8 February 2018.

Trabajadores Cesados de Petroperú y otros v Perú, Case Serie C No. 344 (CIDH), Judgment 23 November 2017.

Velásquez Rodríguez v Honduras, Case Serie C No. 123 (CIDH), Judgment 26 June 1987.

Walchli v France, Case 35787/03 (ECtHR), Judgment 26 July 2007 [ECLI:CE:ECHR:200‌7:0726JUD003578703].

Werema v Tanzania (merits) (ACHR), (2018) 2 African Court Law Report 520.

Xavier Lucas v France, Case 15567/20 (ECtHR), Judgment 9 June 2022 [ECLI:CE:ECHR‌:2022:0609JUD001556720].

National

Abney v United States (Supreme Court, US), Judgment 9 June 1977 [431 U.S. 651].

Case 1 BvR 1750/19 (BVerfG, Germany) [ECLI:DE:BVerfG:2020:rk20200218.1bvr17501‌9].

Case 1 BvR 2965/10 (BVerfG, Germany), Order 5 August 2013 [ECLI:DE:BVerfG:2013:‌rk20130805.1bvr296510].

Case 1 BvR 547/06 (BVerfG, Germany), Order 24 July 2008 [ECLI:DE:BVerfG:2008:rk‌20080724.1bvr054706].

Case 1 PBvU 1/02 (BVerfG, Germany), Order 30 April 2003 [ECLI:DE:BVerfG:2003:up‌20030430.1pbvu000102].

Case 190-2020 (Constitutional Court, Spain), Judgment 190/2020 of 15 December [ECLI:ES:TC:2020:190].

Case 2 BvR 1380/08 (BVerfG, Germany), Order 18. August 2013 [ECLI:DE:BVerfG:2013‌:rk20130818.2bvr138008].

Case 2 BvR 831/76 (BverfG, Germany), (1979) 34(1) Juristenzeitung 20.

Case 2 C 5.99 (BVerwG, Germany), Judgment 21 September 2000, NVwZ 2000, 810.

Case 90 Hun-Ba 26 (Constitutional Court, Korea), Decision 26 June 1992.

Case Cass. civ. 1, 19-22.508 (Cour de cassation, France), Judgment 27 January 2021 [ECLI:FR:CCASS:2021:C100102].

Case Cass. civ. 2, 17-28.285 (Cour de cassation, France), Judgment 21 February 2019 [ECLI:FR:CCASS:2019:C200274].

Case Cass. Civ. 2, 18-23.626 (Cour de cassation, France), Judgment 17 September 2020 [ECLI:FR:CCASS:2020:C200827].

Case Pourvoi 20-13.662, (Cour de cassation, France), 9 September 2021.

Case SSTC 150 y 164/2004 (Constitutional Court, Spain), Judgment 4 October 2004 [ECLI:ES:TC:2004:164].

Case STC 56/1982 (Constitutional Court, Spain), Judgment 26 July 1982 [ECLI:ES:TC:1982:56].

Eisenstadt v Baird (Supreme Court, US), Judgment 22 March 1972 [405 U.S. 438].

Griffin v Illinois (Supreme Court, US), Judgment 23 April 1956 [351 U.S. 12].

Judgment 8.1.1806 (1806) 373(1) Journal du Palais 442.

Lindsey v Normet (Supreme Court, US), Judgment 23 February 1972 [405 U.S. 56].

M. L. B. v S. L. J. (Supreme Court, US), Judgment 16 December 1996 [519 U.S. 102].

Marbury v Madison (Supreme Court, US), Judgment 24 February 1803 [5 U.S. 137].

Miranda v Arizona (Supreme Court, US), Judgment 1 March 1966 [384 U.S. 436].

Nardone v U.S. (Supreme Court, US), Judgment11 December 1939 [308 U.S. 338].

Rice v Sioux City Memorial Park Cemetery Inc. et al (Supreme Court, US), Judgment 9 May 1955 [349 U.S. 70 (1955)].

Silverthorne Lumber Co. v United States (Supreme Court, US), Judgment 26 January 1920 [251 U.S. 385].

Société Horizon OI et autre [Délai d'appel des jugements rendus par le tribunal du travail de Mamoudzou], Case  2017-641 QPC (Cour de cassation, France), Decision 30 June [ECLI:FR:CCASS:2017:C200782].

Weeks v US (Supreme Court, US), Judgment 24 February 1914 [232 U.S. 383].

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