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(f)
Applications for leave to appeal
In many jurisdictions, leave to appeal is often dealt with on the papers, without a
hearing and without reasons for dismissal of the application. The requirements of
BOR 10 and Art 6(1) are more easily satisfied in relation to applications for leave to
appeal since they generally follow one or two layers of public hearings with reasoned
judgments and raise only narrow questions relating to known criteria for granting or
refusing leave. Thus, it was said in Helmers v Sweden,
that :-
"......Provided a public hearing has been held at first instance, the absence of such a hearing
before a second or third instance may accordingly be justified by the special features of the
proceedings at issue. Thus, leave-to-appeal proceedings and proceedings involving only
questions of law, as opposed to questions of fact, may comply with the requirements of
Article 6, although the appellant was not given an opportunity of being heard in person by the
appeal or cassation court (see, inter alia, the above-mentioned Ekbatani judgment, Series A
no. 134, p. 14, para. 31)."
In Monnell and Morris v United Kingdom (1987) 10 EHRR 205, this was held to
apply even in the criminal field where an applicant could, albeit on limited grounds,
seek to raise factual issues in the Court of Appeal. In this case, the applicants were not
only refused leave to appeal, but were ordered to suffer "loss of time"
by the English
Court of Appeal, without the applicants being present in person or heard in oral
argument. Their complaint to the E Ct HR was rejected. After reviewing the law and
practice of the English Court of Appeal, the E Ct HR stated :-
"It is not in dispute that at first instance before the Crown Court each applicant had received
the benefit of a fair trial ...... The limited nature of the subsequent issue of the grant or refusal
of leave to appeal did not in itself call for oral argument at a public hearing or the personal
appearance of the two men before the Court of Appeal"
Notes
Case No. 22/1990/213/275, Judgment 26 September 1991 at §36.
That is, that part of the time spent in custody pending appeal should not count towards serving their
sentence.
At §58.
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