Court of Cassation No. 27003/2025: The Actual Impact of ECHR Violations on Italian Criminal Proceedings

Justice is a complex system, in constant dialogue between national regulations and supranational principles. A striking example of this interaction is represented by the recent ruling of the Court of Cassation, judgment no. 27003 of June 18, 2025, which provided essential clarifications on the application of Article 628-bis of the Code of Criminal Procedure. This provision introduces a crucial remedy for citizens who believe they have suffered a violation of their human rights, recognized by the European Court of Human Rights (ECtHR), within an Italian criminal proceeding. Let's analyze together the scope of this decision and its practical implications.

The Right to Enforcement of ECtHR Judgments: Article 628-bis of the Code of Criminal Procedure

Article 628-bis of the Code of Criminal Procedure, introduced with the aim of ensuring the effective enforcement of judgments from the European Court of Human Rights, represents a fundamental pillar in the system of protecting individual rights. This provision allows for the elimination of prejudicial effects arising from an Italian judicial decision when the ECtHR has ascertained a violation of the European Convention on Human Rights and Fundamental Freedoms. In practice, if the Court of Strasbourg establishes that an Italian trial was not fair or violated a fundamental right, the convicted person can request that the effects of that judgment be removed or modified.

However, the acceptance of such a request is not automatic. The provision, and the case law interpreting it, require proof of an "actual impact" of the violation on the measure issued against the applicant. And it is precisely on this concept that the Cassation judgment no. 27003/2025 provides a particularly significant interpretation, broadening the scope of protection.

The Actual Impact of the Convention Violation: New Perspectives

The Court of Cassation, in the judgment under review (no. 27003 of 2025), has more precisely defined what is meant by "actual impact of the convention violation, by its nature and gravity, on the measure issued against the applicant." This prerequisite is found in two distinct scenarios, which the Supreme Court has clarified to offer broader and more substantial protection to the defendant:

• Opposite outcome of the proceeding: When, in the absence of the alleged violation, the outcome of the proceeding would have been the opposite. This means that, if the violated right had been respected, the defendant would have been acquitted instead of convicted, or vice versa.
• Potentially different and more favorable outcome: When, in the absence of the violation, the decisional outcome would have been potentially different and more favorable to the defendant. This scenario is crucial because it does not require certainty of an opposite outcome, but also admits the mere possibility of a better result for the convicted person.

This extensive interpretation is fundamental, as it recognizes that a violation of human rights can alter the course of justice even without causing a total reversal of the verdict, but simply by preventing a fairer or less burdensome outcome.

In relation to remedies for the enforcement of decisions of the European Court of Human Rights, the acceptance of the request requires, pursuant to Article 628-bis, paragraph 5, of the Code of Criminal Procedure, the actual impact of the convention violation, by its nature and gravity, on the measure issued against the applicant. This prerequisite is found both in cases where the outcome of the proceeding, in the absence of the alleged violation, would have been the opposite, and in cases where, in its absence, the decisional outcome would have been potentially different and more favorable to the defendant. (Factual situation in which the Court accepted the request for revocation of the conviction judgment issued by the appellate court based on testimonies that had led, following the first-instance judgment, to the acquittal of the defendant, but without carrying out the due renewal of the examination of the same witnesses).

The headnote of judgment no. 27003 of 2025, reported here, is illuminating. It tells us that it is not necessary for the ECtHR violation to have guaranteed a different outcome 100%, but it is sufficient that it prevented a "potentially different and more favorable" result. The specific case that led to this ruling concerns a request for revocation of a conviction judgment issued on appeal. The conviction was based on testimonies that, in the first instance, had led to the acquittal of the defendant, Ms. S. D. The critical point is that the appellate judge had not renewed the examination of those same witnesses, an omission that the Court of Cassation evidently considered a violation of the right to a fair trial. This is a direct reference to Article 6 of the ECtHR, which protects the right to a fair trial, and to the principle of adversarial proceedings, a cornerstone of our criminal procedure system (consider Article 111 of the Constitution). The failure to renew the witness examination, in a context where the testimonies had been decisive for acquittal in the first instance, constitutes a clear example of how a procedural violation can have a decisive impact on the final outcome.

Conclusions: A Step Forward for the Protection of Rights

The Court of Cassation's judgment no. 27003/2025 represents an important development in Italian case law regarding the protection of human rights and the enforcement of ECtHR decisions. By strengthening the concept of "actual impact," the Supreme Court has expanded the possibilities for convicted persons to obtain the review of judgments vitiated by conventional violations, even when the alternative outcome is not certain but only "potentially" more favorable. This jurisprudential trend not only reaffirms the importance of the dialogue between the domestic and supranational legal systems but also offers greater guarantees of justice for the defendant, emphasizing the need for a fair trial that respects all fundamental rights. It serves as a reminder to national judges to always consider the impact of their decisions on conventional rights, and it is a positive signal for those seeking protection even after a final conviction.