Information Note on the Court’s case-law 84

March 2006

Sejdovic v. Italy [GC] - 56581/00

Judgment 1.3.2006 [GC]

Article 6

Article 6-3

Rights of defence

Conviction in absentia of an applicant not to be found and declared a runaway, without having informed him of the proceedings against him: violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Application for leave to appeal out of time from the applicant convicted in absentia and declared a runaway: preliminary objection dismissed

Article 46

Article 46-2

Execution of judgment

Retrial or reopening of the proceedings in order to redress violation found in respect of a person convicted in absentia

Facts : The applicant was suspected of murder and an order was made for his detention pending trial. However, since he was untraceable, he was declared to be a “fugitive” ( latitante ). The authorities did not manage to contact him to invite him to choose his own defence counsel. Instead, they assigned him a lawyer, who was informed that his client had been committed for trial on a specified date in the Assize Court. The lawyer took part in the trial, but the applicant was absent. He was found guilty. The applicant ’s lawyer was informed that the Assize Court’s judgment had been deposited with the registry. He did not appeal, and the conviction accordingly became final. Two and a half years later, the applicant was arrested in Germany. The German authorities refused a request by Italy for his extradition, on the ground that Italian law did not guarantee with sufficient certainty that the proceedings conducted in his absence could be reopened.

Law : Government’s preliminary objection dismissed – The Government were esto pped from raising the objection of failure to use the domestic remedy provided for in Article 670 of the Code of Criminal Procedure. The remedy in Article 175 of the CCP had been bound to fail in the applicant’s case and there had been objective obstacles to his using it. There had therefore been special circumstances dispensing him from the obligation to avail himself of it.

Article 6 – The applicant had been tried in absentia . Before his arrest he had not received any official information about the charge s or the date of his trial. The issue to determine was whether, in the absence of official notification, the applicant could be regarded as having been sufficiently aware of his prosecution and the trial to be able to decide to waive his right to appear in court, or to evade justice. It had not been shown that the applicant had had sufficient knowledge of his prosecution and of the charges against him in the present case. It could not therefore be concluded that he had sought to evade trial or had unequivoc ally waived his right to appear in court. It remained to be determined whether the domestic legislation had afforded him with sufficient certainty the opportunity of appearing at a new trial. Use by the applicant of the remedy in Article 670 of the CCP wou ld have had no prospect of success. Furthermore, the remedy provided for in Article 175 of the CCP, likewise referred to by the Government, had not guaranteed with sufficient certainty that the applicant would have the opportunity of appearing at a new tri al to present his defence. It had not been argued that he had had any other means of obtaining the reopening of the time allowed for appealing, or a new trial. Accordingly, the applicant, who had been tried in absentia and had not been shown to have sought to escape trial or to have unequivocally waived his right to appear in court, had not had the opportunity to obtain a fresh determination of the merits of the charge against him by a court which had heard him in accordance with his defence rights.

Conclus ion : violation (unanimously).

Article 46 – The unjustified obstacle to the applicant’s right to a fresh determination by a court of the merits of the charge against him appeared to result from the wording of the provisions of the CCP in force at the materi al time on the conditions for applying for leave to appeal out of time. That might suggest that there had been a defect in the Italian legal system such that anyone convicted in absentia who had not been effectively informed of the proceedings against them could be denied a retrial. However, after the applicant’s trial had ended, various legislative reforms had been implemented in Italy; in particular, Law no. 60/2005 had amended Article 175 of the CCP. The Court considered that it would be premature, in th e absence of any domestic case-law concerning the application of the new law, to examine whether the reforms had achieved the result required by the Convention. It therefore considered it unnecessary to indicate any general measures at national level that could be called for in the execution of its judgment in the present case. Furthermore, referring to the principles set forth in Recommendation R(2000)2 of the Committee of Ministers of the Council of Europe, the Court considered that where an individual ha d been convicted following proceedings that had entailed breaches of the requirements of Article 6, a retrial or the reopening of the case, if requested, represented in principle an appropriate way of redressing the violation.

Article 41 – The Court consid ered that the finding of a violation constituted in itself sufficient just satisfaction. It awarded a specified sum for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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