Diego Mauri

The ‘Myth’ of Res Judicata in Civil and Administrative Proceedings and the Obligation of Restitutio in Integrum

  • Abstract

Informations and abstract

Keywords: res judicata; reopening of the proceedings; civil and administrative proceedings; restitutio in integrum; ECHR; European consensus and margin of appreciation.

The principles of res judicata and legal certainty in terminated civil and administrative proceedings often clash with the obligation of restitutio in integrum stemming from the violation of international law, namely of human rights provisions such as the European Convention on Human Rights (ECHR). Frequently, the European Court on Human Rights indicates the re-opening of terminated proceedings as (one of) the most appropriate form for redress. The Italian Constitutional Court, however, has recently held that the lack of specific clauses allowing for the re-opening of civil and administrative proceedings which have resulted in the violation of the ECHR does not contravene the Constitution. The arguments resorted to in order to justify such decision – the circumstance that no precise duty seems to stem from the European Court’s jurisprudence; the need to preserve the legitimate interests of third parties; the convenience of a normative reform by the Parliament – are not fully convincing though. On such premise, the present contribution aims at analyzing the European Court’s jurisprudence on re-opening clauses with a view to testing the Italian Constitutional Court’s reasoning and advocating for a more principled appraisal of such jurisprudence: the focus will be mostly on the state of the art at both the ECHR and the international level.

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