The present book focuses on the effects of the European Convention on Human Rights and the European Court’s case law on domestic final judgments handed down in breach of one of the rights enshrined in Article 6 of the Convention. Despite its specificity, this issue raises important questions of general international law, a preliminary analysis of which has been essential to provide the reader with a wide theoretical framework regarding the (im)mutability of national final judgments.Firstly, the analysis clarifies to what extent the current relations among domestic legal systems, the international legal order and the European system of human rights protection should be rebuilt and, in particular, whether it is possible to attribute to the core of fundamental freedoms an essential feature of any legal system (National, European and International). In this light, special attention has been devoted to the Italian domestic order and the question of which place the European Convention holds within this order’s legal sources.Secondly, the book pinpoints the regulatory framework governing the fair trial guarantee and analyzes it in light of the European Court of Human Rights’, as well as of the Italian courts’ case law. On these assumptions, it is acknowledged that the current links between national law and the European Convention should be understood in terms of relationships not only between sources, but also and above all between institutions and, ultimately, legal orders. Indeed, only in the context of cooperation between national and international authorities (in which the judge plays a fundamental role), might the problem of the (im)mutability of national final judgment be faced. Since the system of the European Convention on Human Rights is based on the principle of subsidiary (expressed with the rule of "prior exhaustion of all domestic remedies"), each individual violation, before being scrutinized at the international level, must be submitted to a domestic court. Accordingly, except in particular circumstances, the international judgment will always be issued when the domestic judgment has become final.This leads to two consequences: a) the contrast between State acts and treaty obligations becomes a conflict between domestic and international judgments; b) any violation of the provisions of the European Convention must be “channeled” into the national trial system.Finally, in this perspective, the book seeks to establish whether, under the Italian legal system, a judgment issued by the European Court, ascertaining a violation of a fundamental human right, can overrule a national judgment and, if so, what are the tools used for this purpose. In particular, it ascertains to what extent it is possible to establish the obligation to re-open a judicial proceeding that has already been definitively concluded.

Equo processo, giudicato nazionale e Convenzione europea dei diritti dell'uomo

PETRALIA, GIUSEPPINA
2012

Abstract

The present book focuses on the effects of the European Convention on Human Rights and the European Court’s case law on domestic final judgments handed down in breach of one of the rights enshrined in Article 6 of the Convention. Despite its specificity, this issue raises important questions of general international law, a preliminary analysis of which has been essential to provide the reader with a wide theoretical framework regarding the (im)mutability of national final judgments.Firstly, the analysis clarifies to what extent the current relations among domestic legal systems, the international legal order and the European system of human rights protection should be rebuilt and, in particular, whether it is possible to attribute to the core of fundamental freedoms an essential feature of any legal system (National, European and International). In this light, special attention has been devoted to the Italian domestic order and the question of which place the European Convention holds within this order’s legal sources.Secondly, the book pinpoints the regulatory framework governing the fair trial guarantee and analyzes it in light of the European Court of Human Rights’, as well as of the Italian courts’ case law. On these assumptions, it is acknowledged that the current links between national law and the European Convention should be understood in terms of relationships not only between sources, but also and above all between institutions and, ultimately, legal orders. Indeed, only in the context of cooperation between national and international authorities (in which the judge plays a fundamental role), might the problem of the (im)mutability of national final judgment be faced. Since the system of the European Convention on Human Rights is based on the principle of subsidiary (expressed with the rule of "prior exhaustion of all domestic remedies"), each individual violation, before being scrutinized at the international level, must be submitted to a domestic court. Accordingly, except in particular circumstances, the international judgment will always be issued when the domestic judgment has become final.This leads to two consequences: a) the contrast between State acts and treaty obligations becomes a conflict between domestic and international judgments; b) any violation of the provisions of the European Convention must be “channeled” into the national trial system.Finally, in this perspective, the book seeks to establish whether, under the Italian legal system, a judgment issued by the European Court, ascertaining a violation of a fundamental human right, can overrule a national judgment and, if so, what are the tools used for this purpose. In particular, it ascertains to what extent it is possible to establish the obligation to re-open a judicial proceeding that has already been definitively concluded.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/20.500.11769/249181
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