Violation of ECHR “procedural” guarantees and post-iudicatum remedies

• Autor(a) principal: Lavarini, Barbara
• Data de Publicação: 2018
• Tipo de documento: Artigo
• Idioma: ita
• Título da fonte: Revista Brasileira de Direito Processual Penal (Online)
• Texto Completo: https://revista.ibraspp.com.br/RBDPP/article/view/184
• topic: Res iudicata; European Court of Human rights; review; retrial.; Giudicato; Corte europea dei diritti dell’uomo; riapertura del processo; revisione.; Coisa julgada; Tribunal Europeu dos Direitos Humanos; reabertura do processo; revisão.

The paper analyzes the remedies available in Italy to implement judgments of the European Court of Human Rights which identitify the retrial as a suitable means to ensure that the injured party is restored in a conventional “trial” guarantee. Due to Italian legislator’s inertia, the Constitutional Court introduced the "European" review, using as a model a completely different institute - the "traditional" review - whose regulation is, therefore, in many respects unsuitable to implement the new remedy. Thus, it is quite hard to identify the conditions, procedures and results of the "European" review. It is also hard to reconcile the wide interpretative discretion granted by the Constitutional Court on judges with the principle of procedural legality. Moreover, a new institute – the “rescissione” of res iudicata – was recently added to the review. Such remedy would already be suitable to restore the conventional guarantees of the process in absentia, but in future it could be taken as a model for any kind of retrial in compliance with conventional guarantees.