Mensenrechtenhof tikt Italië op de vingers wegens falend rechtssysteem: bij verstek veroordeelde verdachten krijgen later geen eerlijk tweede proces (en)

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Sejdovic v. Italy (application no. 56581/00).

The Court held unanimously that there had been a violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him 8,000 euros (EUR) for costs and expenses. (The judgment is available in English and French.)

• 1. 

  Principal facts

The case concerns the applicant’s conviction in absentia.

Ismet Sejdovic is a 33-year-old national of former Yugoslavia, who lives in Hamburg (Germany).

In October 1992 an investigating judge made an order for the applicant’s detention pending trial on account of his suspected involvement in the killing of a person at a travellers’ encampment in Rome. As the applicant was untraceable, the authorities considered that he had deliberately sought to evade justice and declared him to be a “fugitive” (latitante). The lawyer assigned to represent him by the authorities took part in his trial, but the applicant did not appear. On 2 July 1996 the Rome Assize Court sentenced the applicant to 21 years and eight months’ imprisonment for murder and illegally carrying a weapon.

In September 1999 the applicant was arrested by the German police in Hamburg and the Italian Minister of Justice requested his extradition. The request was refused by the German authorities on the ground that Italian law did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened.

The applicant was released on 22 November 1999.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 22 March 2000 and declared partly admissible on 11 September 2003.

In a judgment of 10 November 2004 (see press release no. 559 from 2004) the Court held that there had been a violation of Article 6 of the Convention and that the violation had originated in a systemic problem connected with the malfunctioning of Italian legislation and practice in that persons convicted in absentia were unable to obtain a fresh court ruling on the merits of the charge against them.

On 7 February 2005 the Italian Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention (referral to the Grand Chamber). On 30 March 2005 the panel of the Grand Chamber accepted that request. The President granted leave to the Slovakian Government to intervene in the proceedings as a third party. A Grand Chamber hearing was held in public in the Human Rights Building, Strasbourg, on 12 October 2005.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Luzius Wildhaber (Swiss), President,

Christos Rozakis (Greek),

Jean-Paul Costa (French),

Nicolas Bratza (British),

Boštjan M. Zupan?i? (Slovenian),

Loukis Loucaides (Cypriot),

Corneliu Bîrsan (Romanian)

Volodymyr Butkevych (Ukrainian),

Vladimiro Zagrebelsky (Italian),

Antonella Mularoni (San Marinese),

Stanislav Pavlovschi (Moldovan),

Lech Garlicki (Polish),

Elisabet Fura-Sandström (Swedish),

Renate Jaeger (German),

Egbert Myjer (Netherlands),

Sverre Erik Jebens (Norwegian),

Danute Jo?ien? (Lithuanian), judges,

and also Lawrence Early, Deputy Grand Chamber Registrar.

• 3. 

  Summary of the judgment2

Complaint

Relying on Article 6 of the Convention, the applicant complained that he had been convicted in absentia without having had the opportunity to present his defence before the Italian courts.

Decision of the Court

Article 6

The Court reiterated that anyone convicted in absentia was subsequently entitled to obtain a fresh determination of the merits of the charge by a court which had heard him, where it was not established that he had waived his right to appear and to defend himself.

The Italian Government maintained that the applicant had lost his entitlement to a new trial as he had sought to evade justice. However, that argument was not based on any objective factors other than the applicant’s absence from his usual place of residence, viewed in the light of the evidence against him, and assumed that he had been involved in, or indeed responsible for, the killing. The Court was unable to accept that argument, which also ran counter to the presumption of innocence. The establishment of the applicant’s guilt had been the purpose of criminal proceedings which, at the time when he was deemed to be a fugitive, had been at the preliminary investigation stage.

In those circumstances, the Court considered that it had not been shown that the applicant had had sufficient knowledge of his prosecution and of the charges against him. It was therefore unable to conclude that he had sought to evade trial or had unequivocally waived his right to appear in court.

As to whether Italian legislation had afforded the applicant the opportunity of appearing at a new trial, the Court noted that the Italian Government had asserted that two remedies had been available to him. The Court considered that the remedy provided for in Article 670 of the Code of Criminal Procedure (CCP), by which a convicted person could lodge an “objection to execution” in order to contest the validity of the conviction, would have had no prospect of success. With regard to the possibility for the applicant to apply for leave to appeal out of time under Article 175 of the CCP, the Court considered that that remedy would have been bound to fail at the material time and that there had been objective obstacles to his using it, such as the requirement for him to prove that he had not deliberately refused to take cognisance of the procedural steps or sought to escape trial.

In conclusion, the Court considered that 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.

The Court accordingly held that there had been a violation of Article 6 of the Convention.

Article 46 (binding force and execution of judgments)

The violation of the applicant’s right to a fair trial had originated in a problem deriving from the Italian legislation on trial in absentia and resulted from the wording of the provisions of the CCP in force at the material 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 him could be denied a retrial.

The Court noted that after the applicant’s trial had ended, legislative reforms had been implemented in Italy. In particular, Law no. 60/2005 had amended Article 175 of the CCP. However, it would be premature at this stage, in the absence of any domestic case-law concerning the application of those new provisions, to examine whether the reforms had achieved the result required by the Convention. The Court therefore considered it unnecessary to indicate any general measures at national level that could be called for in the execution of its judgment in this case.

The Court further reiterated its case-law to the effect that where, as in the applicant’s case, an individual had been convicted following proceedings that had entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, in principle represented an appropriate way of redressing the violation found.

Judge Mularoni expressed a concurring opinion, the text of which is annexed to the judgment.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

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Press contacts:

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Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21)

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.

1. Grand Chamber judgments are final (Article 44 of the Convention).

2. This summary by the Registry does not bind the Court.