Court of Strasbourg’s judgments and the reopening of the criminal proceedings
The case law of the European Court of Human Rights has increasingly identified the reopening of the criminal proceedings as the privileged form of satisfaction for violations of guarantees concerned with procedural fairness[158] (ECtHR, 23 October 2003, Gencel vs Turkey, no.
53431/99, § 27; ECtHR, 18 May 2004, Somogyi vs Italy, no. 67972/01, § 86; ECtHR, 24 March 2005, Stoichkov vs Bulgaria, no. 9808/02, §§81, 82; ECtHR, 12 May 2005, Ocalan vs Turkey [GC], no. 46221/ 99, § 210 in fine; ECtHR, 1 March 2006, Sejdovic vs Italy, no. 56581/00, § 86; See also ECtHR, 17 January 2008, Abbasov vs Azerbaijan, no. 24271/05, § 42; ECtHR, 20 April 2010, Laska and Lika vs Albania, nos. 12315/04 and 17605/ 04, § 76). The so-called ‘retrial clause’ was first claimed in a case against Turkey, regarding the independence and impartiality of the national security courts. The ECtHR established under Article 41 of the Convention that, ‘in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay’ (Gencel vs Turkey, no. 53431/99, § 27, 23 October 2003). In the same way, the ECtHR ruled in a case against Italy where the violation of art. 6 ECHR consisted of the infringement of the defendant’s right to participate in his trial (Somogyi vs Italy, no. 67972/01, § 86, 18 May 2004). That’s the reason why this statement is usually known as the Geiicel-Somogyi clause.In the Ocalan vs Turkey case, the Grand Chamber of the ECtHR endorsed this approach, but changed the ECHR article on which to base its pronouncement; according to art. 46 ECHR, the Strasbourg Court claimed that ‘a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation’.[159]
The States have complied with this approach in different ways. Sometimes, the legislator intervened; other times, judicial practices occurred.
The situation is especially sensitive given the need to overcome a domestic final decision in criminal matters (a decision that is the result of the required previous exhaustion of all domestic remedies). Therefore, the legislative solutions adopted in the various contracting Parties have concerned special forms of review of such a judgment, like revision.It should be added that in many cases the violation of a human right concerning criminal justice consists of an invalid procedural act. That means that those invalid procedural acts, which could not be reported to an internal criminal court because of res judicata, can indeed be reported to the European Court of Human Rights to check if there has been a human rights violation or not. The fact that an applicant could denounce invalid acts of the criminal proceeding to the ECtHR - because those invalidities also consist of a violation of the fundamental rights established by art. 6 ECHR - has produced a revolutionary effect on an essential aspect of the concept of res judicata, particularly rooted in the experience of continental law. In these systems, it is usually stated that res judicata covers the possible invalid procedural acts which have been made during the criminal proceeding.
The case law of ECtHR breaks this long-standing tradition. Now, the people convicted reporting any violations of the European Convention on Human Rights in front of the Strasbourg Court could challenge the invalid acts that have had been in their proceeding because of the violation of internal rules concerning art. 6 ECHR guarantees, without remaining bound by the deadline of res judicata.
The Italian experience highlights that the enforcement of the Strasbourg Court pronouncements in the criminal field has been realised without the intervention of the parliament, but with the mediation of criminal courts, and with one very important pronouncement of the Italian Constitutional Court.
In the previous paragraph we wrote about Italian jurisprudence regarding the suspension of the imprisonment following ECtHR judgments finding the violation of art.
6 ECHR. This interpretation of the domestic criminal procedure rules allowed the Italian system to comply with the ECHR system only partially. Those assessments of criminal courts were necessary to prevent the violation of art. 5 ECHR that it could have been done without the release of the prisoner who applied the Strasburg Court’s judgment successfully. But, this suspension of imprisonment did not solve the contrast between the conviction pronounced by Italian criminal courts and the judgment pronounced in Strasbourg. Despite such suspension, according to the Italian legal system, the convicted person remained as he or she was before the ECtHR decision: this person continued to be considered by the Italian law as a guilty person; nevertheless the claim of the violation of art. 6 ECHR in the proceeding ended with the conviction. In all these cases, the suspension of the imprisonment was not an adequate measure to comply with the ECHR system: such action was necessary but not enough to restore the violated applicants’ human rights, because only the reopening of the trial could have represented the indispensable action to repair the individual prejudice suffered by the convicted person who appealed the ECtHR decision.That is the reason why since the early twenty-first century in the Italian parliament there were some legislative drafts to introduce new procedural rules allowing the reopening of criminal proceedings as a remedy for violations of guarantees concerned with procedural fairness. Nevertheless, the Italian parliament has never approved any draft in this matter, probably because the political conditions to introduce the reopening of criminal proceedings have never been met.
The Italian Constitutional Court overcame the parliament’s inertia when it established that the lack of a case of revision to remedy the violation of art. 6 ECHR stated by the Strasbourg Court was in contrast to the Constitution. More precisely, in its 7 April 2011 judgment, no.
113, the Italian Constitutional Court ruled that Article 630 of the Code of Criminal Procedure was illegitimate, insofar as it did not include, among the cases of revision of a judgment or of a decree, the reopening of the criminal proceedings subsequent to a finding of a violation of the Convention by a final judgment of the Court. It is clear that the Italian Constitutional Court has introduced a new kind of revision. Thus, when a Strasbourg Court’s judgment has been pronounced which demands the reopening of the trial, because the irremediable violation of fair trial guarantees cannot be repaired otherwise, the person whose procedural rights have been breached could promote the revision.Consequently, Italian criminal justice complies with ECtHR, leveraging two different legal instruments. First of all, it is allowed a specific appeal for the conviction to be reversed (revision) all the times the Strasbourg Court recognised the violation of art. 6 ECHR and stated that the trial had to be reopened. This revision can be granted only when a European judgment has been pronounced and only if the ECtHR demands the reopening of the trial because of the irremediable violation of fair trial guarantees.[160] Furthermore, this revision cannot be promoted by a person who did not apply the Court on Human Rights, even if this person has been harmed by the same violation which has already been decided in another case by the Court of Stras- bourg.[161] This statement has been much discussed in Italy, because it is not suitable for fundamental rights violations depending on a common dysfunction at the national level. When the Court of Strasbourg’s decision finds a violation which is not connected with the internal proceeding involved by a specific European judgment only, because this breach relates to internal structural problems, people whose same fundamental right has been harmed by a national common dysfunction should be able to apply to an internal judge for revision: even if they did not apply to the Court of Strasbourg, their guarantees concerned with procedural fairness have been infringed because of general structural problems and this, in my opinion, gives them the right to reopen their proceeding in which they have been harmed.
On the other hand, the judge appointed to deal with this stage of the criminal proceedings subsequent to the enforcement of the conviction (so-call ‘Giudice dell’esecuzione’) can reshape the contents of the original domestic conviction when the contrast between the European and Italian pronouncements can easily be overcome by replacing the internal judicial rulings with the European ones, without any discretionary evaluation.[162] Moreover, this domestic judge retains the power to suspend the imprisonment whenever the judgment in which the detention has been sentenced had been declared unfair by the Strasbourg Court.[163]
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