Crazy Cassation

I am the only person in the world who cares about this

Many countries in the world have courts of cassation including these: The Netherlands, Belgium, France, Italy, Bulgaria, Greece, Lithuania, Serbia, Turkey, Colombia, Senegal and the Congo.

If this list didn’t scare you, this boring definition from Wikipedia definitely will:

“Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In this way they differ from systems which have a supreme court which can rule on both the facts of a case and the relevant law. The term derives from the Latin cassare, “to reverse or overturn”.

Why am I writing about this? Well, I have got nothing better to do read about too many miscarriages of justice where the person was unjustly convicted was unlucky with his or her judges twice. In the Philippines, Australia or Slovakia you can appeal again to the highest court of the nation and argue that the evidence shows you’re innocent. Seems fair. With cassation you have to show the law was misapplied, not evidence wrongly interpreted.

It seems rather arbitrary. 2 people falsely accused are convicted in the lower courts. One has this conviction overturned on appeal based on the evidence. The other doesn’t. In both cases the appeals courts apply the law correctly, but with regards to how they asses the evidence, one appeals court says the glass is half full, the other one says it is half empty. One legal remains a convicted murderer/rapist and stays in prison, the other is acquitted as a victim of a miscarriage of justice. This would be even worse if the appeals court(s) is/are split. What if one of the people is acquitted 2-1 but the other has his conviction upheld 2-1?

Should the highest court of the nation not be allowed to intervene in that situation at least? If experienced judges on appeal courts agree regarding matters of fact, intervention by the court of final appeal can help to clear up ambiguity.

The High Court of Australia is famous because it recently did this for Cardinal Pell after the appeals court denied his appeal 2-1. They acquitted him 7-0 on both his grounds of appeal (that the majority appeals court both misapplied the law and misinterpreted the evidence). What if the judges hadn’t gone insane with their legal reasoning, reserving their insanity for the analysis of the evidence.

Pell’s initial appeal being turned down 2-1 was especially odd since the judge who supported Pell’s acquittal, Justice Weinberg, had just a few months previously acquitted another Catholic clergyman unjustly convicted of child sexual abuse, John Francis Tyrell in a 3-0 decision, even though the appeals were extremely similar as was the evidence. What a difference 2 appeal judges can make.

That the composition of the appeals court one faces can absolutely determine whether you’re acquitted or not seems arbitrary. As long as the appeals courts get the law right you better hope you’re lucky regarding the evidence.

If everyone can seek special leave to appeal to the highest court, this arbitrary element disappears. All plaintiffs have the possibility of having their case heard by the same final court. There is an additional possibility of appeal (2 instead of 1) regarding facts when this is necessary and therefore more chance to correct a miscarriage of justice.

Doesn’t it make citizens more safe to know that the evidence in important cases can always be assessed (if necessary) by the highest and most qualified judges in the country?

Obviously the composition of the court of final appeal is even more selective and bound to higher criteria. The members and their basic qualifications are available knowledge for the public and are more easily held accountable. With appeals courts the requirements are often lower and the convictions of the court members can vary highly per court.

That the court of final appeal cannot function as a court of third instance is obvious. It would be ridiculous to expect it to try the case a third time and go through all the evidence again like an appeals court. It can however focus on crucial facts which evidently were decisive in sustaining conviction yet the interpretation of which remain disputed by the applicant and possibly dissenting judges.

While the highest court of a nation should obviously focus first and foremost on establishing a uniform interpretation and application of the law, there seems to be no good reason why it can’t be allowed to prevent miscarriages of justices by acquitting the innocent when necessary, (especially when there is dissent amongst the appeals court judges).

The most qualified judges in the country being forced to guide appeals courts from the sidelines without the ability to acquit victims of bad evidence analysis is terrible. Judges dedicated to justice and fairness might end up disliking the highest promotion if they become unable to intervene in the case of miscarriages of justice.

Cassation was popularized by the French Revolution. It ensured that the lower courts applied parliament’s laws correctly but neutured it as a force of justice or a hands-on highest court. It ensures a form of legal positivism and strengthens the position of parliament. All bad ideas inspired by Rousseau’s majoritarian tyranny as opposed to the strengthening of liberty through checks and balances advocated by Montesquieu.

Ramon Giralt

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