Framework for a National Post-Trial Procedure for Redressing Violations of the European Convention on Human Rights

In: Th. Christou & J.P. Raymond (Eds.), European Court of Human Rights: Remedies and Execution of Judgments, London: BIICL, 2005, p. 107-115.

8 Pages Posted: 24 Apr 2012

Date Written: 2005

Abstract

An important and a difficult problem arises when a judgement of this the European Court of Human Rights (ECrtHR) implies that the European Convention on Human Rights (ECHR) has been violated in a criminal case that has resulted in a final verdict with power of res judicata. In that event the national trial – and with it the case – is closed and the principle of res judicata implies that is has to stay closed. This means that it will often not be feasible to adequately apply the (international) judgement of the Court within the (national) criminal case in question in order to redress the violation. The question that follows from this is: how should the Parties to the Convention address this problem, how should they redress the human rights violation in such closed cases? And, of course, does the problem need addressing at all? In regard to the last questions, several arguments – in favour as well as against – reopening cases as a means of redress, will be discussed in this article. It is submitted that the Parties to the Convention should have redress procedures at their disposal, which can, among other things, result in reopening of closed trials/cases. Subsequently, a number of general principles for such redress procedures are developed in this paper.

Keywords: Human rights, Redress, Violations, European Court, Criminal Law

Suggested Citation

van Kempen, Piet Hein, Framework for a National Post-Trial Procedure for Redressing Violations of the European Convention on Human Rights (2005). In: Th. Christou & J.P. Raymond (Eds.), European Court of Human Rights: Remedies and Execution of Judgments, London: BIICL, 2005, p. 107-115. . Available at SSRN: https://ssrn.com/abstract=2045655

Piet Hein Van Kempen (Contact Author)

Radboud University Nijmegen ( email )

Faculty of Law
PO Box 9049
Nijmegen, 6500 KK
Netherlands

HOME PAGE: http://www.ru.nl/english/people/kempen-p-van/

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