Introduction

The idea of res judicata is a concept rooted in both traditions of the civil law and the common law. If the defendant has been convicted, in the common law the judicial pronouncement becomes the conclusive judgment - id est, comes into force - immediately after the verdict and the sentencing.

Both in the continental and common law systems this idea is accepted: when a criminal proceeding is definitively concluded no one can change the decision, which was made at the conclusion of that proceeding.

Furthermore, if the criminal proceeding ended with a guilty verdict, the detention of the defendant found guilty is considered a legal detention because the judicial control on the detention is incorporated into the original conviction and sentence.

The traditional approach of the criminal justice system regarding res judicata had been deeply revolutionised after the establishment of the European Court of Human Rights (ECtHR) - especially after its most recent case law - because the convicted defendant can present the application to this judge only when his proceeding has definitively ended.

The ECtHR’s jurisprudence has influenced a lot the national law of the con­tracting Parties. The impact of Court of Strasbourg case law on the several national law systems can be found not only in those States having been a party to a particular case (inter partes effects), but also in those willing to bring its legislation or national case law into line with the principles flowing from the Strasbourg case law (erga omnes effects). The ECtHR has its own internal logic and its authoritative inter­pretation of the human rights treaty contributed to the framing of the domestic human rights protection systems.²

1 Associate Professor of Criminal Procedure at University of Camerino School of Law and Adjunct Professor at Luiss Guido Carli University of Rome Department of Law.

2 M. Oetheimer - G. Cano Palomares, European Court of human rights, in Oxford public international law, 2013, 17.

DOI: 10.4324/9781003200666-6

This framework has changed the role and powers of criminal judges: in the ECHR system, national judges are the first guarantors of human rights granted by the same Convention. They have to apply the ECHR provisions directly, taking into account the case law of the Strasbourg Court. Therefore, the outlook of res judicata in criminal matter has been shaped by the need of national criminal sys­tems to comply with the fundamental rights guarantees.

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