CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 28 October 2024   FIRST SECTION Applications nos. 13997/20 and 19559/20 Aymen TALBI against Italy and Xhevit GJOKA against Italy lodged on 5 March 2020 and 5 May 2020 respectively communicated on 7 October 2024 SUBJECT MATTER OF THE CASE The applications concern criminal proceedings in which the applicants were convicted in absentia and the refusal of the Court of Cassation to reopen the proceedings. In application no. 13997/20, the final rejection of the Supreme Court was based on the presumed unwillingness of the applicant, who knew about the existence of a criminal investigation against him, to attend the trial. However, the applicant had appointed a lawyer and provided his personal residence address but never officially received the vocatio in ius . In application no. 19559/20, the Court of Cassation’s refusal to reopen the proceedings was based on the assumption that the applicant knew about the proceedings but that he had deliberately absconded, leading him to be considered a “fugitive” during the course of the proceedings. However, the applicant, following another Italian ruling for drug-related crimes, was expelled from Italy and repatriated to his home country, while the current proceedings were ongoing. In addition, a few days before the first instance judgment, the judicial authority had been informed by Interpol that the applicant was indeed residing in Albania. Despite the fact that the judicial authorities were aware of the whereabouts of the applicant, they proceeded to conduct also the second instance proceedings in his absence. The applicants complain under Article 6 §§ 1 and 3 (c) of the Convention, claiming that their convictions in absentia and the refusals to reopen the proceedings against them deprived them of a fair hearing and of access to a tribunal, as well as hindered their right to defend themselves in person. In application no. 19559/20, the applicant further complains under Article   6 § 3 (a), (b) and (d) of the Convention claiming that (i) he was never informed about the charges against him, and (ii) he had no time to prepare his defence and could not examine any witnesses. QUESTIONS TO THE PARTIES 1.     Did the applicants have a fair hearing in the determination of the criminal charges against them (see Yeğer v. Turkey , no.   4099/12, §   30, 7   June 2022, and compare Sanader v. Croatia , no.   66408/12, §§   67-68, 12   February 2015)?   2.     Having regard to the fact that the applicants were tried and convicted in absentia , did they have effective access to court as guaranteed by Article   6 §   1 of the Convention (see Sejdovic v. Italy [GC], no.   56581/00, §§   81 ‑ 95 and   99, ECHR 2006-II)? In particular:   (a)     Did the judgments of the Court of Cassation (R.G.   25317/2019 of 26   November 2019 no. 48104/19, and R.G. 18365/2019 of 21   November 2019 no. 2949/2019) constitute an unjustified denial of the applicants’ right of access to a new hearing on the merits (see Topi v.   Albania , no.   14816/08, §   53,   22 May   2018)?   (b)     Was it unequivocally established that the applicants had waived their right to participate in their trial (see Lena Atanasova v.   Bulgaria , no.   52009/07, § 52, 26   January   2017)?   3.     Did the applicants enjoy a practical and effective defence in accordance with Article 6 §§ 1 and 3 (c) of the Convention during the criminal proceedings brought against them? If not, were the relevant authorities obligated to take steps to ensure practical and effective respect for the applicants’ right to due process (see   Sejdovic v. Italy [GC], no.   56581/00, §§   81, 84 and 94, ECHR   2006-II)?   Concerning application no. 19559/20:   4.     Was the applicant informed in sufficient detail of the nature and cause of the accusations against him, as required by Article 6   §   3 (a) of the Convention? In this regard, was the writ of summons served and notified to the applicant ( see Pereira Cruz and Others v. Portugal , nos.   56396/12 and   3   others, § 196,   26 June   2018)?   5.     Was the applicant afforded adequate time to prepare his defence, as required by Article 6 § 3 (b) of the Convention, having regard to the fact that he did not attend the trial (see Pereira Cruz and Others v.   Portugal , nos.   56396/12 and 3 others, §§ 196-99, 26 June 2018, and Pélissier and Sassi v.   France [GC], no.   25444/94, §§   52-54,   ECHR   1999 ‑ II)?   6.     Was the applicant given an adequate and proper opportunity to challenge and question the witnesses against him as required by Article   6 §   3   (d) of the Convention? In this connection, did the domestic court take the necessary steps to enable him to cross-examine witnesses? (see Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos.   26766/05 and   22228/06, ECHR 2011, and Schatschaschwili v.   Germany   [GC], no.   9154/10, ECHR   2015)?