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REOPENING CASES FOLLOWING JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS: ROOM FOR A EUROPEAN CONSENSUS?

Summary: – 1. Introduction. – 2. Reopening as a restitutio in integrum: The ECtHR Perspective. – 3. Reopening Criminal Proceedings in Member States. – 3.1. Availability of reopening. – 3.2. Competent court. – 3.3. Who can seek reopening? – 3.4. Erga omnes effect and beneficium cohaesionis. – 3.5. Unilateral declaration and friendly settlement as a ground for reopening. – 3.6. Time limits. – 4. Reopening Civil and Administrative Proceedings. – 4.1. Why not reopen? – 4.2. Competent court. – 4.3. Who can seek reopening? – 4.4. Unilateral declaration and friendly settlement as a ground for reopening. – 4.5. Time limits. – 5. Concluding Remarks.

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Abstract

The reopening of domestic criminal, civil, and administrative proceedings following European Court of Human Rights findings of a violation of the ECHR is an extraordinary remedy; its application is debatable in the Contracting States to the Convention. The overall objective of this article is to analyse the availability of the reopening of proceedings as a means of ensuring restitutio in integrum, i.e., the restoration of the status quo ante for a victim of violation or awarding compensation that would be sufficient in order bring the victim of a violation back to their position as if no violation had been committed.

This article focuses on the examination of whether reopening a case following an adversarial ECtHR judgment is available as a remedy in the national legal systems throughout Europe. The method is comparative analysis without claiming to be exhaustive. Where analysed data made it possible, certain generalisations were made.

The research allowed us to conclude that in contrast to the successful implementation of the CoE CM Recommendation, in part related to making available reopening in criminal proceedings to the benefit of a victim of a violation of the ECHR in almost every member state, the reopening of civil and administrative proceedings remains available only in half of the member states, where it faces significant limitations aimed at protecting res judicata and interests of good faith third parties (the bona fide third parties). Also, it has become subject to a test of effectiveness as a legal remedy compared to compensation measures.

About Authors

 

 Pilkov Kostiantyn

Cand of Science of Law (Equiv. Ph.D. (Law), Supreme Court Justice, Kyiv, Ukraine k.pilkov@gmail.com 

https://orcid.org/0000-0002-8931-0413

 

Corresponding author, solely responsible for writing, conceptualization, data curation, and methodology. Competing interests: No competing interests were disclosed. Disclaimer: The author declares that his opinion and views expressed in this manuscript are free of any impact of any organizations, including the Supreme Court, where he serves as a judge.

 

 

Translation: The content of this article was translated with the participation of third parties under the authors’ supervision.

Funding: The author received no financial support for the research, authorship, and/or publication of this article. Funding for this publication was provided by author.

The author(s) received no financial support for the research, authorship, and/or publication of this article. The Journal provides funding for the publication of this article.

Managing editor – Dr. Olena Terekh. English Editor – Dr. Sarah White.

Copyright: © 2022 K Pilkov. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.

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Keywords

  • finality of judgments, beneficium cohaesionis, erga omnes effect, res judicata, restitutio in integrum, rule of law

How to cite it?

  •  Pilkov K ‘Reopening cases following judgments of the European Court of Human Rights: Room for a European Consensus?’ 2022 4(16) Access to Justice in Eastern Europe 7-31. https://doi.org/10.33327/AJEE-18-5.4-a000415