Res iudicata and effective reparation
The system of protection set for by the European Convention on Human Rights (ECHR) is based on subsidiarity. Domestic authorities have the primary responsibility for guaranteeing the rights and freedoms enshrined in the Convention, while the European Court of Human Rights (ECtHR) is meant to exercise a ‘supplementary and subsidiary’ role.  Accordingly, when a breach of the Convention is found, it is primarily for the State concerned to choose how to repair for the violation. However, subsidiarity cannot justify a diminished protection for the Convention rights and freedoms: therefore, the State must ‘put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before’.
The duty thus imposed on State Parties can generates issues, particularly when the breach derives from a violation of fair trial (Article 6 ECHR). Indeed, appeals to the European Court of Human Rights are admissible only when all domestic remedies have been exhausted. This usually means that the domestic proceedings are over, and the principle of res iudicata (a feature of legal certainty) prevents their reopening. However, such a reopening might be the only way to grant reparation for a violation of fair trial.
The Committee of Ministers of the Council of Europe has called upon States Parties to introduce mechanisms for re-examining a case following the finding of a violation of the Convention by the Court. Some of the States have introduced specific legislative provisions to this purpose:  Ukraine, for instance, has modified its Code of Civil Procedure so as to allow appeals of final decisions when ‘a finding by an international judicial authority’ determines that the decision ‘violated the international commitments of Ukraine’. Other countries have not modified their legislation: Italy, for instance, has been stigmatized twice by the Committee of Ministers for not providing a legislative answer.
It is this Author’s belief that the effectiveness of reparation should not be measured on the presence or absence of a legislative provision allowing to overcome res iudicata, but on the concrete will of domestic courts to grant a new and fair trial. Notwithstanding the presence of a legislative provision, Ukraine has recently been held responsible for a violation of the Convention, due to the fact that its Supreme Court has refused to conform to a judgment released by the ECtHR (Bochan v Ukraine). On the other hand, in those States lacking a legislative solution (such as Italy) domestic courts have sometimes developed and applied effective remedies for reopening the domestic proceedings.
The Italian experience
The Italian Code of Civil Procedure allows a final judgment to be ‘revoked’ only in exceptional circumstances, not including the finding of a violation by the Strasbourg Court. Article 630 of the Italian Code of Criminal Procedure (C.P.P.) allows the ‘review’ of final judgments only in four cases, not including a decision by the European Court of Human Rights. With regard to criminal proceedings, however, the situation has now evolved.
Between 2005 and 2006, the criminal sections of the Italian Corte di Cassazione started to be confronted with final domestic judgments released in violation of the Convention rights, and particularly in violation of the right to fair trial. In the absence of any action by the legislative body, the Corte di Cassazione tried to solve the problem by using other procedural remedies by analogy. The solutions thus found, however, did not have general application. The problem was then referred to the Italian Constitutional Court, in connection with the case of Dorigo v Italy.
Mr Dorigo had been the victim of a violation of Article 6 ECHR, assessed by the European Commission of Human Rights. He had asked to the Corte di Appello of Bologna to review his (final) conviction in accordance with the international decision. The Corte di Appello, lacking any remedies, raised two constitutionality claims before the Italian Constitutional Court, both focusing on Article 630 C.P.P. The Constitutional Court agreed with the reasoning developed in the second claim, according to which the provision at issue violates the international obligations undertaken by Italy to which Article 117, par. 1, of the Constitution makes reference. Accordingly, the Court declared the partial unconstitutionality of Article 630 C.P.P.
This decision, a typical case of ‘manipulative’ judgment, has voided Article 630 C.P.P. insofar as it does not include Strasbourg decisions assessing human right violations among the exceptional circumstances allowing the review of a final conviction. While it is unclear how the remedy will work, according to the Italian Constitution, the void of legislative provisions by the Constitutional Court has erga omnes effects. Thus, Article 630 C.P.P. should now be read as including Strasbourg decisions assessing the violation of a Convention right among the exceptional cases for review.
In the absence of a legislative intervention, Italian courts have been looking for a way to grant the reopening of domestic proceedings when a decision of the ECtHR ascertains that a violation of fair trial has occurred. This is not an isolated case: in other State Parties to the Convention, domestic courts have created effective remedies of the same kind. On the other hand, the presence of an express legislative provision allowing the reopening does not always imply an effective remedy, as demonstrated by the case of Bocham v Ukraine. A legislative provision is not, in itself, sufficient to repair for breaches of Article 6 ECHR, whereas the will of domestic courts to provide a new and fair trial is essential.
 Subsidiarity is not an express principle of the ECHR: however, it is commonly acknowledged as a principle informing the Convention. E.g.: LR Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 EJIL 128, 129
 Y Arai-Takahashi, ‘The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR’ (2001) Intersentia, 236
 Assanidze v Georgia, ECHR 2004-II
 Scoppola v Italy (No 2) App n 10249/03 (ECtHR, 17 September 2009); Assanidze v Georgia, ECHR 2004-II
 Article 35 par 1 ECHR
 Res iudicata is a principle informing both common law and civil law jurisdictions. E.g.: Y Sinai, ‘Reconsidering Res Judicata: A Comparative Perspective’ (2011) 21 Duke Journal of International and Comparative Law 352, 353 ff
 Recommendation No R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights
 Cfr. the comparative survey of national legislation and practice in thirty-eight of the Member States of the Council of Europe cited in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, 5 February 2015, par 46
 Ukrainian Code of Civil Procedure, Artt 353-354, as amended by Law 16.03.2006, N 3570-IV
 ResDH (2005) 82; CM/ResDH (2007) 83
 Bochan v Ukraine (no. 2) [GC], no 22251/08, 5 February 2015
 V Sciarabba, ‘La riapertura del giudicato a seguito di sentenze della Corte di Strasburgo: il ruolo della comparazione’ (2014) Europeanrights Newsletter – europeanrights.eu
 Italian Code of Civil Procedure, Artt 395, 396, 391 bis
 Italian Code of Criminal Procedure, Artt 629-647
 Cass, Sez I, 22 settembre 2005 n.35616, Cat Berro; Cass, Sez I, 12 luglio 2006 n 32678, Somogyi
 Eg: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447; Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457
 On the various attempts made by the Italian judiciary to give effects to the Strasbourg judgments, see: MG Aimonetto, ‘Condanna “europea” e soluzioni interne al sistema processuale penale: alcune riflessioni e spunti de iure condendo’ (2009) Riv It Dir Proc Pen 1510; E Aprile, ‘I “meccanismi di adeguamento alle sentenze della Corte Europea dei Diritti dell’Uomo nella giurisprudenza penale di legittimità’ (2011) Cass Pen 321 M Gialuz, ‘Il riesame del processo a seguito di condanna della Corte di Strasburgo’(2009) Riv It Dir Proc Pen 1845; D Negri, ‘Corte europea e iniquità del giudicato penale’ (2007) Dir Pen Proc 1229; A Tamietti, ‘Un ulteriore passo verso una piena esecuzione delle sentenze della Corte europea dei diritti dell’uomo in tema di equo processo: il giudicato nazionale non è di ostacolo alla riapertura dei processi’ (2007) Cass Pen 1015
 Dorigo v Italy, App n 33286/96 (ECtHR, 20 May 1998)
 n 18
 Ord 22 March 2006 Ord 23 December 2008 of the Corte di appello of Bologna, cited in; C Cost, sent 129/2008; C Cost, sent 113/2011
 C Cost, sent n 113/2011 (2011) Giur Cost 1523. Commentaries to the decision: L Parlato, ‘Revisione del processo iniquo: la Corte Costituzionale “getta il cuore oltre l’ostacolo”’ (2011) Dir Pen Proc 833; G Ubertis, ‘La revisione successiva a condanne della Corte di Strasburgo’ (2011) Giur Cost 1542; G Repetto, ‘Corte Costituzionale e CEDU al tempo dei conflitti sistemic’ (2011) Giur Cost 1548; S Lonati, ‘La Corte Costituzionale individua lo strumento per adempiere all’obbligo di conformarsi alle condanne europee: l’inserimento delle sentenze della Corte Europea tra i casi di revisione’ (2011) Giur Cost 1557
 C Cost, sent n 113/2011 (2011) Giur Cost 1523
 S Quattrocolo, ‘La vicenda Drassich si ripropone come crocevia di questioni irrisolte’ (2013) Diritto Penale Contemporaneo: <www.penalecontemporaneo.it> accessed 12 December 2013
 Costituzione della Repubblica Italiana, Art 136
 Cfr V Sciarabba , ‘Il Giudicato e la CEDU. Profili di diritto costituzionale, internazionale e comparato’ (2013) CEDAM 88 ff