Tribunal Do Amor
Nesse sentido, inquestionavelmente, a posicao da "plenitude de defesa" no ordenamento juridico nacional, de indole eminentemente constitucional. Ela pode tudo, com todas as suas forcas, ainda que inexista lei a respeito. O que existe, e, expressamente, e a sua autorizacao, isso sim, indeclinavel, e, portando, inarredavel naquele tribunal, mas pendente, lamentavelmente, muitas vezes, de concretizacao.
Tribunal do amor
3. The author claims that his right to have his conviction and sentence reviewed by a higher court was violated. He argues that, owing to the special nature of the appeal process, the Chamber may not hear or review the entire proceedings of the court of first instance, but only analyse the grounds referred to by the applicant to decide whether or not they are in conformity with the law. The author asserts that the Chamber may rule only on irregularities in the judgement, and may not deal fully with the "rights" [sic] involved, but must confine itself to examining the applicant's arguments to determine whether or not they are well founded. The author maintains that there is no review by a higher tribunal, as provided for by article 14, paragraph 5, of the Covenant.
4.2 On the merits of the communication, the State party maintains that article 14, paragraph 5, does not establish the right for an appeal court to reconduct the trial in toto, but concerns the right to review by a higher tribunal of the proper conduct of the trial at first instance, including the application of the rules that led to the finding of guilt and the imposition of the sentence in the specific case. The object of the review is to verify that the decision at first instance is not manifestly arbitrary and that it does not constitute a denial of justice.
7. The Committee notes that the main issue in the penal case against the author was the assessment of his capacity to perform military duty, and that means an assessment of facts. The Committee further notes the comments made by the State party concerning the nature of the remedy of judicial review, in particular that the court of second instance is limited to an examination as to whether the findings of the trial court amount to arbitrariness or denial of justice. As the Committee has determined in previous cases, (3) such limited review by a higher tribunal does not meet the requirements of article 14, paragraph 5. Therefore, the Committee concludes that the author is a victim of a violation of article 14, paragraph 5, of the Covenant. 041b061a72