The effects of judgments of the European Court of Human Rights on the final decisions of domestic courts. Recent developments in the italian case law

The debate concerning the effects of ECtHR judgments on final domestic court decisions has been revived by some recent rulings by the Italian Corte Costituzionale and Corte di Cassazione, respectively. These rulings have contributed to refining the position of the Italian case law in respect of that issue, revealing a rather conservative attitude. In fact, as concerns the consequences ensuing from a ECtHR judgment finding a violation of a ECHR right in a final civil or administrative court decision, not less than in a final criminal court decision, the recent rulings considered in this paper have highlighted the discretion which Contracting States enjoy as to the choice of the most appropriate means for abiding by a ECtHR judgment under Article 46(1) ECHR. These rulings have tended to limit the circumstances in which a re-opening of proceedings might be sought, excluding any generalisation of the recourse to such a remedy as the most suitable form of redress notwithstanding the effect of res judicata acquired by the final domestic court decision at stake. Equally conservative appears the approach revealed by the recent rulings by the Corte Costituzionale considered in this paper as concerns the possibility for persons other than the applicants before the European Court to rely on the effects of ECtHR judgments for challenging final domestic court decisions. The approach adopted in this respect, although consistent with the relevant legal framework, appears followed too rigidly by the Corte Costituzionale, in that it tends to overlook the circumstances of the individual case. This appears particularly striking in respect of cases where the legalposition of the applicants before the ECtHR can hardly be separated from that of the other persons seeking revision of a final domestic court decision.