Reopening cases following judgments of the European Court of Human Rights: Room for a European Consensus?

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.