Effect of Decisions of the European Court of Human Rights on Domestic Criminal Courts

The article deals with Judgment No. 2800 of 1 December 2006 of Court of Cassation (the highest court of appeal in Italy), a significant judgment considering the relationship between the final national judgments in criminal cases and decisions of the European Court of Human Rights. In this judgment, the Court of Cassation deals with the controversial topic concerning the binding force and the execution of judgments of the European Court of Human Rights in the Italian system, with particu- lar connection to the problematic theme of the relationship between national and Strasbourg court judgments. Most notably, the Court of Cassation identifies the extent of the national judge’s duty to abide by the Strasbourg Court’s judgments which constitute violations of Article 6 and denote the reopening of the trial as a proper remedy under the circumstances. In the Italian system the judgment in a criminal case becomes final where all avenues of appeal against a judgment are exhausted. According to the Court the national judge must state, under Article 670 of the Italian Code of Criminal Procedure, that a final judgment in a criminal case cannot be executed where the European Court of Human Rights: 1. has ascertained that the conviction was obtained as a result of violation of the right to a fair trial under Article 6 of the European Convention on Human Rights; and 2. has recognised the right of the sentenced party to reopen National proceedings, even if the Italian legislature has not introduced appropriate means to initiate the new trial