The close connection between the Court of Strasbourg’s judgments and res judicata
According to Art. 35 of the European Convention on Human Rights, people (and also entities or social organisations) can lodge complaints to the Court of Strasbourg against a State Party by claiming that one of their conventional rights has been violated just after the previous exhaustion of ‘all domestic remedies’.
The exhaustion of ‘all domestic remedies’ is the condition to bring an action before the European Court of Human Rights, because Art. 13 ECHR provides that ‘everyone whose rights and freedoms as outlined in this Convention are violated shall have an effective remedy before a national authority’.Hence, there are two key points of the ECHR system. The first one is that each national legal system must comply with the regulation established by the European Convention of Human Rights. The second one is that national judges represent the first guarantors of human rights.
Consequently, the control of the ECtHR is external and its jurisdiction is subsidiary. The subsidiarity of the Court of Strasbourg consists in the fact that it might be possible to resort to it only if the domestic remedies have been unsuccessful, on both ‘vertical’ perspective (id est, all instances must be exhausted) and ‘horizontal’ perspective (id est, before appealing to the Strasbourg Court the same claims presented to this judge must have been presented at the national level, and all the means available to promote a successful claim must have been employed at that level, as the respect of the national procedural rules and the production of evidence).
When the ECtHR declares the violation of a human right granted by the ECHR and claimed by the person who promoted the action in front of the same Court, the State in which the right has been violated has to implement this judgment. The enforcement of the Strasbourg Court’s pronouncement is a State’s duty, according to Art.
46 ECHR, which provides that ‘the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’. In other words, if a State Party was found to have breached the ECHR, it will be under the obligation not only to pay the just satisfaction but also to take individual and/or general measures in its domestic legal order to put an end to the violation and to redress its consequences; the aim being to put the applicant, as far as possible, in the position in which he or she would have been had the requirements of the ECHR not been disregarded (restitutio in integrum).3 kostoris, European Law and Criminal Justice, in kostoris (ed.), Handbook of European Criminal Procedure, Springer, 2018, 52.
States are, in principle, free to choose how to comply with the judgment because this freedom of the States is established by the principles of international law on responsibility of States for internationally wrongful acts (see Art. 35 UN ILC ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’). Indeed, the ECHR does not contain a provision similar to Art. 63 American Convention on Human Rights (‘ACHR’, signed 22 November 1969, entered into force 18 July 1978), which enables the Inter-American Court of Human Rights (lACtHR) to order that the injured party be ensured the enjoyment of the particular right that was violated, and to rule that the consequences of the ACHR violation be remedied.
That’s the reason why, in special circumstances, the ECtHR has found it useful to indicate to a State the type of measures that might be taken to put an end to the violation found in its judgment and to redress its consequences. Individual measures may include the re-trial or the re-opening of a case where an individual has been convicted following proceedings that have not met the requirements of Art. 6 ECHR (Ocalan vs Turkey [ECtHR] Reports 2005-IV 131 par. 210), and also the immediate release of the applicant (Ilascu vs Moldova [ECtHR] Reports 2004-VII 179 par.
22[155]).In the light of the above, it is clear what the close connection between the protection of human rights granted by the ECtHR and res judicata is: the effects of the Court of Strasbourg’s statements are bound to affect the internal res judicata because domestic criminal judges cannot ignore what the ECtHR has decided concerning the specific criminal proceeding in which the violation was put into being. In other words, the need to enforce the European judgments on human rights has consequently imposed that national legal systems have to establish new rules of res judicata in order to adjust definitive criminal verdicts with the ECtHR statements.
The implementation of Strasbourg Court’s pronouncements in criminal matters operates on multiple levels: the first step is verifying the detention legitimacy of the convicted person who appealed the ECtHR; the second one is activating any remedies to remove the judgment which ended the criminal procedure where the Court of Strasbourg found the violation of a fundamental right. Both levels concern res judicata and involve criminal procedure rules established to discipline the stages of the procedure following the final judgment.
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