EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

(see Krombach v. France , no. 29731/96, § 96, ECHR 2001‑II). The Court observed that this provision mostly regulates institutional matters, such as accessibility of the court of appeal or scope of review in appellate proceedings (see, for example, Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, 18 January 2000). As the Court has observed in its case-law, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Furthermore, it is considered acceptable that, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach , cited above, § 96; Gurepka v. Ukraine , no. 61406/00, § 59, 6 September 2005; and Galstyan v. Armenia , no. 26986/03, § 125, 15 November 2007). Having regard to the aforementioned analogy, it appears pertinent to reiterate here the Court’s well-established principle on the importance of the right of access to a court , having regard to the prominent place held in a democratic society by the right to a fair trial (see Airey v. Ireland , 9 October 1979, § 24, Series A no. 32). Where the right to a review under Article 2 of Protocol No. 7 exists, it should be effective in the same way. The Court notes that this provision is aimed at providing a possibility to put right any shortcomings at the trial or sentencing stages of proceedings once these have resulted in a conviction (see Rybka v. Ukraine (dec.), no. 10544/03, 17 November 2009). Indeed, an issue would arise under the Convention if the appellate jurisdiction is deprived of an effective role in reviewing the trial procedures (see, mutatis mutandis, Hewitson v. the United Kingdom (dec.), no. 50015/99, 22 October 2002). The Court has held that delays by the national courts in examining appeals against decrees on a special prison regime applicable for a limited period time may raise issues under the Convention, in particular, its Article 13. Thus, in Messina v. Italy (no. 2) the Court, while acknowledging that the right to an effective remedy was not infringed merely by a failure to comply with a statutory time-limit, concluded that the systematic failure to comply with the ten-day time-limit imposed on the courts was liable to considerably reduce, and indeed practically nullify, the impact of judicial review of the decrees on a special regime. One of the factors, which drove the Court to that conclusion, was the limited period of validity of each decree imposing the special regime (no. 25498/94, §§ 94‑96, ECHR 2000‑X; see also Enea v. Italy [GC], no. 74912/01, §§ 73 and 74, ECHR 2009). In other words, a judicial review of a measure, which had by that time expired or almost expired, was considered to serve no longer any purpose. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. General principles of the Court and explanations Article 3 of Protocol No. 7 envisages that a person who was sentenced and his or her sentence was reversed, or when he or she has been pardoned on the conditions noted above, has a right to compensation according to the law or practise of the member state concerned. The expression “the practise of the State concerned” is of unclear meaning, and unfortunately the Explanatory Report 7 does not contain any explanation in this respect. In paragraph 25 it only states that the compensation is payable even if the law or practise makes no provision for Article 3 of Protocol No. 7 to the Convention Compensation for wrongful conviction

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