This case provides an opportunity to make an 'analysis about the effect of decisions by the courts Conventional, or their ability to be enforceable in the Member thereto, and the assumption of the validity or not of the decisions, even for the reopening of proceedings in the various domestic laws. Given that the question about the effectiveness of judgments and decisions issued within the EU Court of Justice of the European Community, as an emanation of the interpretation of Community standards, has reached its positive consecration, whether as a result of many decisions now made by the Court, is the confirmation of that address domestic purposes, and finally follows the signing of the new European Union constitution. This dissertation will have as its object, in particular, the decisions issued by the European Court of Human Rights. The creation of a "European judicial space" functional respect for human rights was the beginning of the foundations of the Universal Declaration Human Rights, and still forms the core of a system that, unlike other systems of international protection and inter-state contains specific rules about the binding force of decisions made by its own warranty. A closer look, however, the actual implementation of this "space" can not be considered complete, up to which the decisions issued by the Strasbourg Court will not be given the ability to be cause for review of the conduct of proceedings in individual Stati.Utile, all 'initiation of a discussion that could be constructive in this sense, the analysis appears to be the case that led to the decision of the Strasbourg Court under this dissertation. "In the course of a procedure for arms trafficking, the judge for preliminary investigations of Rimini set a date for the preliminary hearing 23 April 1998. On October 30, 1997 provided that the notice for a hearing, translated into Hungarian language and accompanied by the invitation to appoint a lawyer, was notified by mail to the accused, a Hungarian citizen and resident in Hungary, named TS (L ' receipt returned to the Clerk of the Court with a signature and then repeatedly challenged by the accused). Not showing up at the preliminary hearing, the defendant was declared in default and was assisted by a lawyer office, which were, from that time, notified all acts relating to the procedure. The lawyer did not present exceptions concerning the invalidity of notification of the establishment of the preliminary hearing. TS giudizio.Con was postponed to June 22, 1999 ruling of the Court of Rimini condemned the accused to a term of eight years in prison and 2,000,000 lire (1,032.00 euros) fine. This decision was rendered in absentia dellimputato on the basis of statements of certain persons accused in related procedures. The ruling of June 22, 1999 was duly notified to the lawyer office. On October 30, 1999 June 22, 1999 conviction by the Court of Rimini acquired the force of res judicata, and the same court ordered the arrest of Tsilivi 15 August 2000, the Austrian police arrested a Mr. TS Italiane.Queste and informed the authorities opened an investigation that concluded last believing that the person arrested June 22, 1999 was the subject of Rimini.A condananto by the Court following a decision of 17 August 2000 the Court ordered that the Judgement of Rimini June 22, 1999 were corrected and that the name, date and place of birth of the applicant were given instead of the data initially received and on which the decision was made. This adjustment was notified to the lawyer office. The condemned was extradited from Austria to Italy, where he was deprived of his liberty on the Judgement of 22 June 1999.Il Mr. TS introduced before the Court of Rimini a ' instance in terms of remission under Article .175 cpp argued that the decision of 22 June 1999 was invalid because the quotation in the opinion of the accused was itself nothing. The convicted noted in particular: a) the identity of the offender had not been established with certainty, and therefore the correction of clerical error could not be adopted; b) What had not been informed of the proceedings in their detriment and that the signature on the envelope containing the notice for the establishment of the preliminary hearing was not his. In that regard, he asked, in the case, the execution of a graphology expert to determine the authenticity of the signature, if necessary stating to propose action for fraud, c) that service was invalid for failing to meet the Italo-Hungarian Convention signed May 26, 1977 (and ratified by the Italian Law n.511 of 23 July 1980). Under which all judicial communications from one of the two countries that have signed and addressed to residents of other countries should be made by means of rogatoria.Il applicant also noted that the notification in question was in any case incompatible with the provisions Hungarian law concerning the communications posta.Con a judicial order of October 24, 2000, the Court rejected the demand of Rimini ricorrente.Osservava at the outset that the enforcement court could not provide for invalidation of the courts instead of merit. This void had been healed at the time that the decision of 22 June 1999 had become definitiva.Inoltre, the identity of the offender had been established through an investigation carried out by the Prefecture of Rimini, in cooperation with Interpol in Rome, and that a simple lack of precision on the date of birth of an accused shall not invalidate a ruling could rightly correct an error correction procedure materiale.Infine, according to the Court of Cassation, the question in terms of remission could be accepted only if it is proved that the failure to meet deadlines had occurred for a If due to force majeure. This question is inadmissible on the other hand, if the request is for the nullity of a notification. In the latter case, the person convicted at first instance would have the option of an appeal out of time, arguing that the time within which the appeal was not trascorso.Il November 27, 2000, the convict appealed to the Court of Appeal of Bologna, against the decision of 22 June 1999. Arguing that the latter, based on the invalid measures, could not have the authority of res judicata. Reiterated its request to obtain a graphic skill and the bringing of a lawsuit falso.Con Judgement of 24 May 2001, the text of which was lodged on July 3, 2001. The Court of Appeal declared the appeal inadmissible Bologna. He observed that the charges against the offender had been confirmed by two people accused in a procedure-related. The Court had correctly identified the prisoner as being the Mr TS The Court of Appeal held that information concerning the allegations had been notified to the offender. An acknowledgment of receipt dated 16 January 1998 and apparently signed by the recipient establishes that this information had been effectively received. The address to which the notification was sent, was sufficiently precise, the only errors were an 'h' too and the absence of an umlaut in the name of the village. Of Therefore, one should not compare the signature affixed by the applicant in his passport and some company documents, with the affixed ricevuta.Per regard to the breach of the agreement Italo-Hungarian, the Court of Appeals noted that the notification to ' accused had been properly done and was done in accordance with relevant provisions interne.Pertanto the Court of Appeal upheld the first instance, holding down the appeal by the convicted late and inadmissible under Article .59 cppIl July 30, 2001, the condemned appealed to the Supreme Court, reiterating its request to obtain an expert graphology and insisted on a complaint of falso.Con Judgement of 23 April 2002, the text of which was lodged on 23 May 2002, the Supreme Court held that the Court of Appeal had reasoned in a logical and correct all the issues in dispute and dismissed the appeal. He observed that in spite of small deviations in the indication of the address, the communication of GIP in Rimini was apparently reached its recipient. In fact, no evidence showed that the communication was received from a namesake of the offender, residing at an address similar or almost identical to those concerned. On 11 December 2001, the applicant introduced an application for revision, claiming that the new elements showed that was to be released. With an order of July 18 2002, the Court of Appeal declared the appeal irricevibile.TS Ancona has brought proceedings before the European Court of Human Rights for violation of the right to difesa.La Court of Human Rights, carried out the investigation and dismissed the action brought under Article 43 of the Convention before the Grand Chamber, against the interim decision by the Italian State, finally saying, acknowledged the violation of the right to self-defense of the Italian Republic in the court proceedings in Italy and has condemned the Italian state to pay the court costs. "The Strasbourg Court, following an appeal filed by the person who claimed to be injured in his right to have, in the Contracting State, a process that can be regarded as fair as defined by the Convention for the Protection of Human Rights rules article 6, issue a decision be binding on the parties. Under Article .46, para.1 of the Convention for the Protection of Human Rights, "the High Contracting Parties undertake to comply with final judgments of the Court in which they are parties." In this particular conventional system is not ruled out the idea that States Parties have wished to give to a particular Court a broader function in which the contents of a binding decision extends beyond the limits set by the object the dispute. A system, that is, which gives a predominant position of the Court with respect to the conventional organs of internal systems, the decision of which the latter have the duty to comply with established convention. In this "superiority" of the decision of the Court with respect to conventional courts of the Contracting States, it is interesting to focus the analysis and the assumption about the suitability of these decisions lead to the reopening of internal processes through the 'appeal of revisione.L' review of the institution, governed by artt.629 et seq. cpp, as noted, is a means of appeal special place in dialectical opposition to the principle of res judicata and prevailing on this is based on the need to correct the miscarriage of justice based on facts, on the requirements of liberalizing and favor rei on a principle of rationality and order, which leads to justify the sacrifice of the court to a higher interest relating to rights of freedom and dignity of the person (Cass.Pen., Sez.III, Sent.n.2562/96). By the provision of Article .630 cpp, the Italian legislature considered strictly defined cases in which it can be made use of this extraordinary procedure. The obligatory nature, given the lack of any reference to decisions issued by the ultra-national bodies, prevent, undoubtedly, the remedies of a review process initiated, precisely on the basis of a decision of a conventional organ. But in the wake of authoritative doctrine, according to which article 10, paragraph 1, of the Constitution can be regarded as capable of introducing into domestic law the provisions of the agreement, it is clear a case of conflict between the rule in question and how placed precisely in art.10, paragraph 1, of the Constitution. Under article 10, paragraph 1, of the Constitution "The Italian legal system conforms to generally recognized norms of international law." This principle guaranteed by the Constitution stands in sharp contrast to the lack, in Article cpp .630, the hypothesis of the review to the decisions of the Court of Strasbourg Conventional. Returning to the subject matter of this dissertation, we should start from a premise: the effectiveness of the Contracting States into automatic binding acts of international organizations is to be noted by the conjunction of the rule contained in the Charter of the organization, which sets the ' binding force of the act in question, and the order of execution of the statute, if those rules are clearly self-executing. Part of the doctrine considers that the order of execution of the Convention and the provisions establishing the binding force of judgments of the Court (the latter identified in Article .46, para.1) explicit, in our system, it performs the same function in the international order : to make the binding decision of the Court. In this sense we must read those sentences where it is stated that "the rules of the European Convention on Human Rights (...) as a result of law enforcement, are to be considered, according to settled case law of the Supreme Court, of immediate application in our system" (Cass.Pen.Sez.1, Sent.n.2762 of 16 November 1967; Cass.Pen.Sez.5 of 2 March 1990; Cass.Pen.SU8 May 1989). As mentioned at the beginning, the plans to build the "European legal space" including its respect for human rights, delivering on the principles outlined in the Universal Declaration of Human Rights, the assumption that the essential component of the jurisdiction of Strasbourg, found his confirmation, first, with the entry into force of Protocol No. 11 (the reform marked a decisive step in what has been called the process "giurisdizionalizzazione" Protection of Human Rights), and later, in Recommendation R (2000) 2 adopted January 19, 2000. Unfortunately, the debt reflected that the Protocol No. 11 and Recommendation R (2000) Two have met in other jurisdictions, you want to dictate the form of legislation, we want in the form of judicial interpretation, has not been as effective in reflection of our order. A partial membership in the form of judicial interpretation, seems to have found only recently with the Sentences n.1338 (B.), n.1339 (L.), n.1340 (C.), n.1341 (L.) all January 26, 2004. The Supreme Court in the united section gave an overall picture that should not leave scope for any doubt about the binding nature (for the Italian court) in the European Court in Strasbourg. These four judgments of the Supreme Court are, above all, political significance, because it was reached, and finally by the courts internal to a certain application of the European Convention on Human Rights. The case law cited, referring to the law Pinto (Ln89/01) on the unreasonable length of proceedings in Italy and by interpreting it, come without the need for amendment of legislation, but only by applying the principles espoused by the Court of Strasbourg to grasp the point, albeit limited to reasonable length of trials, the first principle of the Declaration, namely the creation of a "European judicial space" that can be expressed not only in civil law, but also in the field penale.Ciò said, it is out question the fact that a finding of infringement of a right protected by agreement involves the obligation for the State at the international level to end the unlawful conduct and to arrange for repairs to the victim. Therefore, we need to identify the way in which this can and should be repaired. Of course, the just satisfaction, if prepared in accordance with Article 41 of the Convention, should be considered food for supplementary and alternate character than the elimination of the breach and reparation to the victim. It follows that must be found elsewhere the required relief. Among the various forms it can take and interpretation of cash doctrinaire that the first, and foremost, should be the reinstatement integrum.In this sense, the attitude is also set by the Committee of Ministers, which "requires more or less implied that the state screened art. 46, par.2 of the Convention, shall, where necessary conditions are met to review or to review the case at the national level, stating expressly to the legal imperative of such a measure in the light of the obligation to comply with the conventional judgments of the Court. " In the context described above one can easily say that if the Court found a violation of a procedural right, not the outcome of the internal review to be inconsistent with the Convention, but the manner of its unfolding, so, whatever the outcome of subsequent proceedings, the review assumed "the form of reinstatement qualified to remedy the subsequent loss of the chances of the victim because of failure to comply with certain rules of procedural fairness. " The case in question was brought to the attention of the Judge conventional invasion of the defense, as guaranteed by Article 6 of the Convention. It should be noted that specific questions about the violation of procedural rules does not seem to have never been brought to the attention of the Italian Supreme Court, in the absence of a specific case, it is acceptable to the interpretation advanced by the doctrine that the application of the institution of review should be applied where "the persistence of harmful consequences for the victim of the violation not be restored through other measures of individual character". Even if, in fact, violation of procedural safeguards may prove ineffective in practice the outcome of the internal review, the operation of review constitutes a satisfactory repair (re-establishment), regardless of the outcome of its review conducted in accordance with the canons of equity previously rejected. It should not be concealed that the project to create the "European legal space," also in terms of respect for human rights, appeared to have found a crack even under the regulatory aspect with the presentation to the Chamber of Deputies two bills, following a trend already begun, and reproduce in the XIII Legislature. Under the proposal, that arises in full coincidence with the Recommendation R (2000) 2 adopted January 19, 2000 (note 3), the process of review will be subjected to two specific conditions: - breach of contractual securities had significant effect on the sentencing decision - the continuity of the adverse effects of the implementation of the proposals condanna.Purtroppo still remained and these did not come to a regulatory solution in this area. In this case it is clear that the whole process has been vitiated by breach of a condition such as due process guaranteed by agreement, equally obvious is the fact that Mr. TS is still detained at a prison establishment in Hungary. It follows that the application of the institution of review and a retrial would satisfy both the binding force of a decision of the European Court, the premise and the principles of conventional and ultimately dictated the need for the accused to a fair process. Representing the review the only and unique dining, the effective re-establishment as required by the Convention, as requested by the Committee of Ministers, as advocated by conventional law, as accepted by the Italian legislature condendo jure, as expressly stated by the European Court of Human Rights in paragraph 86 of the Judgement in the case in court: "The Court (... ) thought that in principle the repair would be fairer to judge whether new or re-open the procedure in a timely manner and in accordance with Article 6 of the Convention. "The cogency of the decisions of the Strasbourg Court as held by the judgments n.1338 (B.), n.1339 (L.), n.1340 (C.), n.1341 (L.) of 26 January 2004 should not be considered limited to only L.89/01, duration unreasonable process in Italy (Law Pinto), but should they consider to be valid for all other rules of law which conflict with those of the Convention. In conclusion, the Supreme Court, with the four judgments of 26 January 2004, anticipates and even ahead of the new European Union constitution recently signed, in the folds of which must be considered partly implemented the Charter of Fundamental Rights proclaimed in Nice, 7 December 2000, which states again and explicitly that the fundamental rights guaranteed by the European Convention of Human Rights of 1950 "are part of EU law as general principles" and refers specifically "the jurisprudence Court of Justice and the European Union (...) of the European Court of Human Rights. " From the foregoing it may well be said that from an international structure is almost definitely entered a system of integration and cooperation in which bodies, or who are going to be, and their actions take on their face no longer enforceable under an internal act of the State, and, in this case must also apply for the reopening of the proceedings penale.Il Mr. TS, signed by the new application submitted for review before the Court of Appeal of Ancona, and again appealed to the Court of Appeals Bologna.Entrambi Courts hear claims dismissed the more ricorso.Nelle was launched the new structure of 'art.175 cpp, as reformed by the DLn17 February 21, 2005, recently converted by Law n.60 of 22 April 2005, specifically mentioned by the Court of Appeals Ancona as a device to the legal protection afforded by the Strasbourg Court and requested by ricorrente.Tralasciando any argument on the element of the standard-time and historical origins, which assumes absolutely meta-juridical character, is in the interest of the writer to make a hermeneutic process in order to correct framework, from a legal standpoint, the rule and its features, where it will be, the case in question. The article 1 of the amending Article DLn17/05 .175 cpp does is: 1) introduce the term of ten days, one in which constituent is ceased because of unforeseeable circumstances or force majeure, to present the request remission referred to in paragraph 1 (art.175, paragraph 1), 2) state the reasons and the ways in which the defendant may bring an appeal or appeal in case of default judgment or penal order (art.175, comma 2), 3) expand from ten to thirty days, one in which the defendant had actual knowledge of the measures, or after delivery of the offender in case of extradition from abroad, the deadline for submission of appeals referred to in paragraph 2 (Art.175, paragraph 2). The amendment to Article .175 cpp does is to specify and integrate an institution that already existed in our Legal and to which the offender has already had occasion to use in the course of the espletato.Nel procedural course of the accused held in Italy, half of its lawyers had already filed for remission to the Tribunal in terms of Rimini. At that time the Italian authorities argued that the correct remedy would still be an appeal, if delayed, sustained by the grounds of invalidity of the application and then successive acts, nothing that would prevent the formation of res judicata. That view was rejected by the Court of Appeal of Bologna, first, and by the Supreme Court, the legal regulations of Article poi.Certamente .175 cpp, as well as news from DLn17/05 introduces new clear: first, in terms of certainty law explicitly states the time limits for bringing an application in all cases provided for therein, and secondly, with regard to protection of the accused in default, making the words from the knowledge of the measure, or, in case of extradition to 'abroad, of receipt of the offender, or, in our opinion, since the offender has reached the ground italiano.Altrettanto certain is that the story is not an aid to the legal issues raised, or the binding force of judgments of the Strasbourg Court for the reopening of the case in the defense of membri.La ST recurred again Cassazione.La Supreme Court upheld the appeal and ordered without reference to the Court of Appeal of Bologna to celebrate the new process (Sentenza32678/06 issued on July 12, 2006 and filed in the Court on 3 October 2006, the First Criminal Chamber of the Supreme Court of Cassation) At the hearing on 11 \\ 7 \\ 2008la Court of Appeal of Bologna, granted the requests of the defense investigation of ST, while retaining the expertise required.
The report was carried out on 18 \\ 11 \\ 2008, in the case back to the 3 \\ 2 \\ 2009. The
categorically excluded expertise in the signing of the attribuibilità Somogyi. The Judgement No.
983/09 - 1342/07 ppn RG Appeal - Court of Appeal of Bologna, declared the nullity of the sentence against the Somogyi ineistenza for the notification.
Mr. Somogyi was detained for 5 years, 7 months and 35 days for a total of 2040 days, and that there was a valid title to the detention giusitifcare
For the first time in Europe was established the cogency of the Judgement of European Court of Human Rights, even in spite of domestic judgments.
on 23 \\ 2 \\ 2010, before the Court of Appeals discussed the Bologna true claim for wrongful imprisonment. Massimiliano
Scaringella
lawyer the Court of Rome
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