CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 1 mars 2006

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page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s72F8249F { font-family:Arial; display:none }       GRAND CHAMBER             CASE OF SEJDOVIC v. ITALY   (Application no. 56581/00)                     JUDGMENT       STRASBOURG   1 March 2006       In the case of Sejdovic v. Italy, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Luzius Wildhaber, President ,   Christos Rozakis,   Jean-Paul Costa,   Nicolas Bratza,   Boštjan M. Zupančič,   Loukis Loucaides,   Corneliu Bîrsan,   Volodymyr Butkevych,   Vladimiro Zagrebelsky,   Antonella Mularoni,   Stanislav Pavlovschi,   Lech Garlicki,   Elisabet Fura-Sandström,   Renate Jaeger,   Egbert Myjer,   Sverre Erik Jebens,   Danutė Jočienė, judges , and L awrence E arly, Deputy Grand Chamber Registrar , Having deliberated in private on 12 October 2005 and 8 February 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 56581/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the then Federal Republic of Yugoslavia, Mr   Ismet Sejdovic (“the applicant”), on 22 March 2000. 2.     The applicant was represented by Mr B. Bartholdy, a lawyer practising in Westerstede (Germany). The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their co-Agent, Mr F. Crisafulli. 3.     The applicant complained, in particular, that he had been convicted in absentia without having had the opportunity of presenting his defence before the Italian courts, in breach of Article 6 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 11 September 2003 it was declared partly admissible by a Chamber of that Section, composed of Christos Rozakis, President, Peer Lorenzen, Giovanni Bonello, Nina Vajić, Snejana Botoucharova, Vladimiro Zagrebelsky, Elisabeth Steiner, judges, and Søren Nielsen, then Deputy Section Registrar. 5.     On 10 November 2004 a Chamber of the same Section, composed of Christos Rozakis, President, Peer Lorenzen, Giovanni Bonello, Anatoly Kovler, Vladimiro Zagrebelsky, Elisabeth Steiner, Khanlar Hajiyev, judges, and Søren Nielsen, Section Registrar, delivered a judgment in which it held unanimously that there had been a violation of Article 6 of the Convention. It further considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant, that the violation had originated in a systemic problem connected with the malfunctioning of domestic legislation and practice and that the respondent State should, through appropriate measures, secure the right of persons convicted in absentia to obtain a fresh determination of the merits of the charge against them by a court which had heard them in accordance with the requirements of Article 6 of the Convention. 6.     On 9 February 2005 the Government requested, in accordance with Article 43 of the Convention and Rule 73, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted that request on 30   March 2005. 7.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 8.     The Government filed a memorial, but the applicant did not, referring to the observations he had submitted during the proceedings before the Chamber. In addition, third-party comments were received from the Slovakian Government, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 12 October 2005 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   F. Crisafulli , magistrato , Ministry of Foreign Affairs,   Co-Agent ; (b)     for the applicant Mr   B. Bartholdy ,   Counsel , Ms   U. Wiener ,   Adviser .   The Court heard addresses by them and also their replies to questions put by several of its members. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1972 and lives in Hamburg (Germany). 11.     On 8 September 1992 Mr S. was fatally injured by a shot fired at a travellers' encampment ( campo nomadi ) in Rome. The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing. 12.     On 15 October 1992 the Rome investigating judge made an order for the applicant's detention pending trial. However, the order could not be enforced as the applicant had become untraceable. As a result, the Italian authorities considered that he had deliberately sought to evade justice and on 14 November 1992 declared him to be a “fugitive” ( latitante ). The applicant was identified as Cloce (or Kroce) Sejdovic (or Sajdovic), probably born in Titograd on 5 August 1972, the son of Jusuf Sejdovic (or Sajdovic) and the brother of Zaim (ou Zain) Sejdovic (or Sajdovic). 13.     As the Italian authorities had not managed to contact the applicant to invite him to choose his own defence counsel, they assigned him a lawyer, who was informed that his client and four other persons had been committed for trial on a specified date in the Rome Assize Court. 14.     The lawyer took part in the trial, but the applicant was absent. 15.     In a judgment of 2 July 1996, the text of which was deposited with the registry on 30 September 1996, the Rome Assize Court convicted the applicant of murder and illegally carrying a weapon and sentenced him to twenty-one years and eight months' imprisonment. One of the applicant's fellow defendants was sentenced to fifteen years and eight months' imprisonment for the same offences, while the other three were acquitted. 16.     The applicant's lawyer was informed that the Assize Court's judgment had been deposited with the registry. He did not appeal. The applicant's conviction accordingly became final on 22 January 1997. 17.     On 22 September 1999 the applicant was arrested in Hamburg by the German police under an arrest warrant issued by the Rome public prosecutor's office. On 30 September 1999 the Italian Minister of Justice requested the applicant's extradition. He added that, once he had been extradited to Italy, the applicant would be entitled to apply under Article   175 of the Code of Criminal Procedure for leave to appeal out of time against the Rome Assize Court's judgment. 18.     At the request of the German authorities, the Rome public prosecutor's office stated that it did not appear from the evidence that the applicant had been officially notified of the charges against him. The public prosecutor's office was unable to say whether the applicant had contacted the lawyer assigned to represent him. In any event, the lawyer had attended the trial and had played an active role in conducting his client's defence, having called a large number of witnesses. Furthermore, the Rome Assize Court had clearly established that the applicant, who had been identified by numerous witnesses as Mr S.'s killer, was guilty. In the opinion of the public prosecutor's office, the applicant had absconded immediately after Mr S.'s death precisely to avoid being arrested and tried. Lastly, the public prosecutor's office stated: “A person who is to be extradited may seek leave to appeal against the judgment. However, for a court to agree to re-examine the case it has to be proved that the accused was wrongly deemed to be a 'fugitive'. To sum up, a new trial, even in the form of an appeal (during which new evidence may be submitted), is not granted automatically.” 19.     On 6 December 1999 the German authorities refused the Italian government's extradition request on the ground that the requesting country's domestic legislation did not guarantee with sufficient certainty that the applicant would have the opportunity of having his trial reopened. 20.     In the meantime, the applicant had been released on 22 November 1999. He has never lodged an objection to execution ( incidente d'esecuzione ) or an application for leave to appeal out of time (see “Relevant domestic law and practice” below) in Italy. II.     RELEVANT DOMESTIC LAW AND PRACTICE 21.     The validity of a conviction may be contested by means of an objection to execution under Article 670 § 1 of the Code of Criminal Procedure (“the CCP”), the relevant parts of which provide: “Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable, he shall, [after] assessing on the merits [ nel merito ] whether the safeguards in place for a convicted person deemed to be untraceable have been observed, ... suspend its enforcement, ordering, where necessary, that the person be released and that defects in the service of process be remedied. In such cases the time allowed for appealing shall begin to run again.” 22.     Article 175 §§ 2 and 3 of the CCP provides for the possibility of applying for leave to appeal out of time. The relevant parts of that provision were worded as follows at the time of the applicant's arrest: “In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [ effettiva conoscenza ] [of it] ... [and] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or, in the case of a conviction in absentia having been served ... on his lawyer ..., that he did not deliberately refuse to take cognisance of the procedural steps. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learned [of the judgment], failing which it shall be declared inadmissible.” 23.     When called upon to interpret this provision, the Court of Cassation has held that the rejection of an application for leave to appeal out of time cannot be justified by mere negligence or lack of interest on the defendant's part but that, on the contrary, there must have been “intentional conduct designed to avoid taking cognisance of the procedural steps” (see the First Section's judgment of 6 March 2000 (no. 1671) in Collini , and also the Court of Cassation's judgment no. 5808/1999). More specifically, where a judgment has been served on the accused in person, the accused must prove that he or she was unaware of it and that there has been no negligence on his or her part; however, where the judgment has been served on an absent defendant's lawyer, it is for the court to establish whether the defendant deliberately avoided taking cognisance of the relevant steps (see the Second Section's judgment of 29 January 2003 (no. 18107) in Bylyshi , where the Court of Cassation set aside an order in which the Genoa Court of Appeal had held that negligence could only be due to the wish not to receive any information, thereby treating negligent conduct as intentional without giving any arguments in support of that position). 24.     In its judgment of 25 November 2004 (no. 48738) in Soldati , the Court of Cassation (First Section) observed that leave to appeal out of time could be granted on two conditions: if the accused had not had any knowledge of the proceedings and if he or she had not deliberately avoided taking cognisance of the procedural steps. It was for the convicted person to prove that the first condition was satisfied, whereas the burden of proof in respect of the second lay with the “representative of the prosecution or with the court”. Accordingly, a lack of evidence as regards the second condition could only work to the defendant's advantage. The Court of Cassation accordingly held that, before declaring defendants to be “fugitives”, the authorities should not only search for them in a manner appropriate to the circumstances of the case but should also establish whether they had intentionally avoided complying with a measure ordered by the court, such as a measure entailing deprivation of liberty (see the First Section's judgment of 23 February 2005 (no. 6987) in Flordelis and Pagnanelli ). 25.     On 22 April 2005 Parliament approved Law no. 60/2005, by which Legislative Decree no. 17 of 21 February 2005 became statute. Law no.   60/2005 was published in Official Gazette ( Gazzetta ufficiale ) no. 94 of 23 April 2005. It came into force the following day. 26.     Law no. 60/2005 amended Article 175 of the CCP. The new version of paragraph 2 reads as follows: “In the event of conviction in absentia ... the time allowed for appeal against the judgment shall be reopened, on an application by the defendant, unless he had effective knowledge [ effettiva conoscenza ] of the proceedings [against him] or of the judgment [ provvedimento ] and has deliberately refused to appear or to appeal against the judgment. The judicial authorities shall carry out all necessary checks to that end.” 27.     Law no. 60/2005 also added a paragraph 2 bis to Article 175 of the CCP, worded as follows: “An application referred to in paragraph 2 above must be lodged within thirty days of the date on which the defendant had effective knowledge of the judgment, failing which it shall be declared inadmissible. In the event of extradition from another country, the time allowed for making such an application shall run from the point at which the defendant is handed over [to the Italian authorities] ...” III.     RECOMMENDATION No. R (2000) 2 OF THE COMMITTEE OF MINISTERS 28.     In Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, the Committee of Ministers of the Council of Europe encouraged the Contracting Parties “to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTION 29.     The Government objected, firstly, that domestic remedies had not been exhausted in that the applicant had not used the remedies provided for in Articles 175 and 670 of the CCP. A.     Decision of the Chamber 30.     In its decision of 11 September 2003 on admissibility, the Chamber dismissed the Government's objection that the applicant had failed to use the remedy in Article 175 of the CCP, holding that, in the particular circumstances of the case, an application for leave to appeal out of time would have had little prospect of success and there were objective obstacles to his using it. B.     The parties' submissions 1.     The Government 31.     The Government observed that in Italian law, persons who had been convicted in absentia had two remedies available. Firstly, they could lodge an objection to execution under Article 670 of the CCP in order to contest the judgment's existence or validity. This remedy was not subject to any time-limit; however, there had to have been an irregularity in the proceedings capable of rendering the judgment void. The irregularity could concern, in particular, a breach of the rules on service of process and, more specifically, failure to observe the safeguards afforded to defendants deemed to be untraceable. If the objection was declared admissible, the court had to suspend the enforcement of the sentence. If it was allowed, the statutory period for appealing against the judgment was reopened. The applicant could have availed himself of this remedy if he had shown that the police had been negligent in their searches or that the safeguards for defendants deemed to be untraceable had not been observed. 32.     The Government further noted that if the objection to execution was dismissed, the court still had to examine the application for leave to appeal out of time which persons convicted in absentia were entitled to lodge separately from or jointly with the objection. If such an application was granted, the time allowed for appealing was reopened and the defendant had the opportunity to submit any arguments in support of his or her case – in person or through counsel – before a court with jurisdiction to deal with all matters of fact and law. Unlike an objection to execution, an application for leave to appeal out of time did not require there to have been any formal or substantive irregularity in the proceedings, particularly as regards searches and service of process. 33.     The Government submitted that the remedy provided for in Article   175 of the CCP, as in force at the material time, had been effective and accessible since it had been specifically intended to apply to cases where accused persons claimed to have had no knowledge of their conviction. It was true that an application for leave to appeal out of time had to be lodged within ten days. However, such a period, which had not been peculiar to Italian law, had been sufficient to allow persons on trial to exercise their right to defend themselves, as its starting-point had been fixed as the moment at which they had had “effective knowledge of the decision” (as the Court of Cassation had held on 3 July 1990 in Rizzo ). Furthermore, the time-limit had not concerned the lodging of the appeal itself but merely the lodging of the application for leave to appeal out of time, a much less complex process. 34.     Although the fact of not being an Italian national, together with linguistic and cultural difficulties, could make it harder to comply with a procedural requirement in the time allowed, national laws could not be expected to make all their time-limits flexible in order to adapt them to the infinite variety of factual circumstances in which defendants might find themselves. 35.     The Government further pointed out that, in accordance with the Court's case-law, it could not be presumed that defendants had intended to escape trial where there had been manifest shortcomings in the efforts to trace them. Defendants should also have the opportunity of rebutting any presumption to that effect without being unduly obstructed or having to bear an excessive burden of proof. The system laid down in Article 175 of the CCP had satisfied those requirements. 36.     It followed from a grammatical analysis of paragraph 2 of Article   175 (as in force before the 2005 reform), supported by the case-law of the Court of Cassation which the Government produced to the Court (see paragraphs 23 and 24 above), that persons applying for leave to appeal out of time had been required to prove merely that they had not had effective knowledge of their conviction. Evidence of this had been very easy to provide since in most cases it resulted from the actual manner in which the conviction had been served. It had been sufficient for applicants to state – without having to supply proof – the reasons why they had not been informed of the judgment in time to lodge an appeal. The fact that they might have been aware of other procedural steps, or that the reasons they gave might have resulted from their own lack of diligence, had not meant that the application should be refused. Indeed, the time allowed for appealing could be reopened even where their ignorance of the judgment had been their own fault. In such cases, leave to appeal out of time had been precluded only where their lawyer had already lodged an appeal (an exception which was not relevant in the present case). 37.     In addressing the allegations submitted by the convicted person, the prosecuting authorities had been required to provide evidence (for assessment by the courts) that the person was a fugitive and had therefore consciously and deliberately avoided being served with the relevant documents. In other words, to ensure that an application for leave to appeal out of time was refused, they had had to show that, where the judgment had been served on the defendant's lawyer, the defendant's ignorance had not been merely negligent but wilful. In order to prove intentional fault on the part of the defendant, the prosecution had not been able to rely on mere presumptions. 2.     The applicant 38.     The applicant contested the Government's arguments. He submitted that he had not had any opportunity to have his case reopened and that he had not been informed of the existence of a domestic remedy. He had also been unaware that he had been deemed to be a “fugitive” and that criminal proceedings had been pending against him. 39.     The applicant observed that he had never had any knowledge of the Rome Assize Court's judgment. The judgment had never been served on him, since at the time of his arrest in Germany he had simply been the subject of an international arrest warrant indicating that he had been sentenced to twenty-one years and eight months' imprisonment. It had, moreover, been impossible for him to prove that he had not known about the facts of the case or about the proceedings against him. C.     The Court's assessment 40.     The Court observes that the Government's objection that domestic remedies have not been exhausted is based on two elements, namely the applicant's failure to use the remedies provided for in Articles 670 and 175 of the CCP. 41.     In so far as the Government have cited the first of these provisions, the Court reiterates that under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K.   and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII, and N.C.   v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). However, in their written observations on the admissibility of the application, the Government did not argue that the applicant could have availed himself of the remedy in Article   670 of the CCP. Moreover, the Court cannot discern any exceptional circumstances that could have dispensed the Government from the obligation to raise their preliminary objection before the adoption of the Chamber's admissibility decision of 11 September 2003 (see Prokopovich v. Russia , no. 58255/00 , § 29, 18 November 2004). 42.     Consequently, the Government are estopped at this stage of the proceedings from raising the preliminary objection of failure to use the domestic remedy in Article 670 of the CCP (see, mutatis mutandis , Bracci v. Italy , no. 36822/02, §§ 35-37, 13 October 2005). It follows that the Government's preliminary objection must be dismissed in so far as it concerns the failure to lodge an objection to execution. 43.     With regard to the remedy provided for in Article 175 of the CCP, the Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Remli v. France , 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see Kudła v. Poland [GC], no.   30210/96, § 152, ECHR 2000-XI). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV). 44.     In the context of machinery for the protection of human rights, the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it requires, in principle, that the complaints intended to be made subsequently at international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and Fressoz and Roire v.   France [GC], no. 29183/95, § 37, ECHR 1999-I). 45.     However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Dalia v. France , 19 February 1998, § 38, Reports 1998-I). In addition, according to the “generally recognised rules of international law”, there may be special circumstances which absolve applicants from the obligation to exhaust the domestic remedies at their disposal (see Aksoy v. Turkey , 18 December 1996, § 52, Reports 1996-VI). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). 46.     Lastly, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others , cited above, § 68). 47.     In the instant case, the Court observes that if an application under Article 175 of the CCP for leave to appeal out of time is granted the time allowed for appealing is reopened, so that persons who have been convicted in absentia at first instance are given the opportunity of substantiating their grounds of appeal in the light of the reasoning set out in the judgment against them and to submit the factual and legal arguments they consider necessary for their defence in the course of the appeal proceedings. However, in the particular circumstances of the instant case, in which the judgment delivered in absentia had been served on the applicant's officially assigned counsel, an application to that effect could be granted only if two conditions were satisfied: if the convicted person could establish that he had not had effective knowledge of the judgment, and if he had not deliberately refused to take cognisance of the procedural steps. 48.     While the applicant could have proved that he satisfied the first of these conditions purely because his conviction had not been served on him in person before the date on which it had become final, the position is different regarding the second condition. The applicant had become untraceable immediately after the killing of Mr S., which had taken place in the presence of eyewitnesses who had accused him of being responsible, and this could have led the Italian authorities to conclude that he had deliberately sought to escape trial. 49.     Before the Court, the Government attempted to show, on the basis of a grammatical analysis of the wording of Article 175 § 2 of the CCP in force at the time of the applicant's arrest, that the burden of proof in respect of the second condition did not rest with the convicted person. They argued that, on the contrary, it was for the prosecution to provide evidence, if any existed, from which it could be inferred that the accused had wilfully refused to take cognisance of the charges and the judgment. However, such an interpretation appears to be belied by the note from the Rome public prosecutor's office, which states: “for a court to agree to re-examine the case it has to be proved that the accused was wrongly deemed to be a 'fugitive' ” (see paragraph 18 above). 50.     It is true that the Government have provided the Grand Chamber with domestic case-law confirming their interpretation. However, it should be noted that only the judgment of the First Section of the Court of Cassation in Soldati explicitly states how the burden of proof is to be distributed in a situation similar to that of the applicant. That judgment, which does not cite any precedent on the issue, was not delivered until 25   November 2004, more than five years after the applicant was arrested in Germany (see paragraphs 17 and 24 above). Doubts may therefore arise as to the rule that would have been applied at the time when, it was submitted, the applicant should have used the remedy provided for in Article 175 of the CCP. 51.     The Court considers that the uncertainty as to the distribution of the burden of proof in respect of the second condition is a factor to be taken into account in assessing the effectiveness of the remedy relied on by the Government. In the instant case, the Court is not persuaded that, as a consequence of the above-mentioned uncertainty about the burden of proof, the applicant would not have encountered serious difficulty in providing convincing explanations, when requested to do so by the court or challenged by the prosecution, as to why, shortly after the killing of Mr S., he had left his home without leaving a contact address and travelled to Germany. 52.     It follows that, in the particular circumstances of the case, an application for leave to appeal out of time would have had little prospect of success. 53.     The Court considers it appropriate to examine, in addition, whether the remedy in question was accessible to the applicant in practice. It notes in this connection that he was arrested in Germany on 22 September 1999, slightly more than seven years after the killing of Mr S. (see paragraphs 11 and 17 above). It finds it reasonable to believe that, during his detention pending extradition, the applicant was informed of the reasons why he had been deprived of his liberty, and in particular of his conviction in Italy. Furthermore, on 22 March 2000, six months after being arrested, the applicant lodged an application in Strasbourg through his lawyer, in which he complained that he had been convicted in absentia . His lawyer has produced to the Court extracts from the Rome Assize Court's judgment of 2   July 1996. 54.     It follows that the applicant could have been deemed to have had “effective knowledge of the judgment” shortly after being arrested in Germany, and that from that point on, in accordance with the third paragraph of Article 175 of the CCP, he had only ten days to apply for leave to appeal out of time. There is no evidence to suggest that he had been informed of the possibility of reopening the time allowed for appealing against his conviction, which had officially become final, and of the short time available for attempting such a remedy. Nor should the Court overlook the difficulties which a person detained in a foreign country would probably have encountered in rapidly contacting a lawyer familiar with Italian law in order to enquire about the legal procedure for obtaining the reopening of his trial, while at the same time giving his counsel a precise account of the facts and detailed instructions. 55.     In the final analysis, the Court considers that in the present case the remedy referred to by the Government was bound to fail and there were objective obstacles to its use by the applicant. It therefore finds that there were special circumstances dispensing the applicant from the obligation to avail himself of the remedy provided for in Article 175 § 2 of the CCP. 56.     It follows that the second limb of the Government's preliminary objection, concerning the failure to apply for leave to appeal out of time, must likewise be dismissed. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 57.     The applicant complained that he had been convicted in absentia without having had the opportunity of presenting his defence before the Italian courts. He relied on Article 6 of the Convention, the relevant parts of which provide: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3.     Everyone charged with a criminal offence has the following minimum rights: (a)     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e)     to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” A.     The Chamber judgment 58.     The Chamber found a violation of Article 6 of the Convention. It considered that the applicant, who had never been officially informed of the proceedings against him, could not be said to have unequivocally waived his right to appear at his trial. Furthermore, the domestic legislation had not afforded him with sufficient certainty the opportunity of appearing at a new trial. That possibility had been subject to the submission of evidence by the prosecuting authorities or by the convicted person regarding the circumstances in which he had been declared to be a fugitive, and had not satisfied the requirements of Article 6 of the Convention. B.     The parties' submissions 1.     The Government 59.     The Government observed that the Court had found a violation of Article 6 of the Convention in cases where a defendant's failure to appear at the trial had been governed by the former Code of Criminal Procedure (they cited Colozza v. Italy , 12 February 1985, Series A no. 89; T. v. Italy , 12   October 1992, Series A no. 245-C; and F.C.B. v. Italy , 28 August 1991, Series A no. 208-B). The new procedural rules introduced subsequently and the special circumstances of Mr Sejdovic's case, they argued, set it apart from those cases, in which there had been cause to doubt that the applicants had deliberately sought to evade justice, or that they had had the opportunity of taking part in the trial, or grounds to believe that the authorities had been negligent in ascertaining the accused's whereabouts. 60.     Under the former system, an untraceable defendant had been deemed to be a fugitive, and if notice had been served in due form there had been no possibility of appealing out of time. Under the system introduced by the new CCP, however, the authorities had to conduct thorough searches for the accused at every stage of the proceedings, and the time allowed for appealing could be reopened even where there had been no irregularities in notification. 61.     In the present case, notice of the procedural steps had been served on the applicant's lawyer because the applicant had been deemed to be a “fugitive” ( latitante ). Before designating him thus, the authorities had searched for him at the travellers' encampment where he was thought to be living. 62.     In the Government's submission, the particular circumstances of the case showed that the applicant had deliberately sought to escape trial. A number of factors supported that conclusion: the applicant had been in a delicate position and it had clearly been in his interests not to appear at the trial; he had not advanced any plausible reason as to why, immediately after a killing for which he had been responsible according to eyewitnesses, he had suddenly moved from his usual place of residence without leaving an address or the slightest trace of his whereabouts; and before being arrested by the German police, he had never come forward and had never sought a retrial. 63.     It followed from the judgment in Medenica v. Switzerland (no.   20491/92, ECHR 2001-VI) that the intention to escape trial extinguished the right of a person convicted in absentia to a new trial under the Convention. In that connection, the Government pointed out that the Court had endorsed the view of the Swiss authorities that Mr Medenica's trial in absentia had been lawful and that it had not been necessary to reopen the proceedings because his inability to appear had been his own fault and he had not provided any valid excuse for his absence. Furthermore, the presumption that a defendant had sought to evade justice was not irrebuttable. Convicted persons could always provide explanations by arguing that they had never been aware of the proceedings and consequently had not intended to abscond, or by citing a legitimate impediment. In such cases it was for the prosecution to seek to prove the contrary where appropriate, and for the judicial authorities to assess the relevance of the convicted person's explanations. 64.     It was true that, unlike the applicant, Mr Medenica had been officially informed of the proceedings against him and of the date of his trial. The Chamber had inferred from this that the applicant could not be said to have intended to escape trial. Its conclusion had been based on T.   and F.C.B. v. Italy (cited above), in which the Court had refused to attach any importance to the indirect knowledge which the applicants had had or might have had of the proceedings against them and of the date of their trial. Although the Court's excessive formalism and severity in the above two cases were understandable in the light of the legislation in force in Italy at the material time, they were not acceptable today. 65.     Admittedly, a purely formal notification (as in the present case, where the relevant documents had been served on the officially appointed lawyer) could not give rise to an irrebuttable statutory presumption that the accused had been aware of the proceedings. However, a presumption to the contrary was equally unjustified. That would amount to denying that the accused might be aware of the proceedings where there was evidence that they were guilty and had absconded (for example, where criminals escaped from police officers pursuing them immediately after the offence, or where defendants produced a written statement declaring their guilt, their contempt towards the victims and their intention to remain untraceable). In the Government's submission, the mere fact that an applicant had not been notified of the conviction did not in itself constitute sufficient proof that he or she had acted in good faith; further evidence of negligence on the part of the authorities was required. 66.     It would therefore be advisable, they argued, to take a more balanced, common sense approach consisting in assuming – at least provisionally – that the accused had absconded if such an inference was justified by the particular circumstances of the case, regard being had to logic and to ordinary experience, and seeking to substantiate this through concrete evidence. In particular, it was not contrary to the presumption of innocence to assume that persons accused of an offence had absconded where it proved impossible to ascertain their whereabouts immediately after the offence had been committed. Such an assumption was reinforced if they were subsequently found guilty on the basis of evidence adduced at the trial and did not provide any relevant explanation as to what had caused them to leave their home address. That was precisely what had happened in the applicant's case, in which the Rome Assize Court had carefully established the facts, basing its findings on statements by several eyewitnesses. 67.     If convicted persons were acknowledged as having the “unconditional” right “in all cases” to a new trial when they had not been officially notified of the charges and the date of the hearing, the State would be denied the opportunity of adduci