CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 novembre 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s1EDF3BA6 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   559 10.11.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF SEJDOVIC v. ITALY   The European Court of Human Rights has today notified in writing a 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 of the European Convention on Human Rights (right to a fair trial; that the violation found was the result of a structural problem linked to the malfunctioning of Italian legislation and practice caused by the lack of an effective mechanism for securing the right of persons convicted in absentia to obtain a new ruling on the charges against them from a court which had heard them in accordance with the requirements of Article 6 of the Convention in cases where, not having been informed effectively of the charges against them, such persons had not unequivocally waived their right to appear at their trial; that Italy must, by appropriate measures, secure the right in question to the applicant and other persons in a similar situation.   Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 6,000.16 euros for costs and expenses.   (The judgment is available only in French.)   1.     Principal facts   The applicant, Ismet Sejdovic, is a national of former Yugoslavia who was born in 1972 and lives in Hamburg (Germany).   In October 1992 the preliminary investigations judge ordered the applicant to be detained pending trial on account of his presumed implication in the killing of a person in a gipsy encampment in Rome. As the applicant was untraceable, the authorities considered that he had deliberately evaded justice and declared him “a fugitive” ( latitante ). The lawyer appointed to represent him under the legal aid scheme took part in the trial, whereas the applicant did not. On   2   July 1996 the Rome Assize Court sentenced to the applicant to 21 years and eight months’ imprisonment for manslaughter 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. That request was rejected by the German authorities on the ground that Italian law did not guarantee with sufficient certainty that the applicant would be able to obtain the reopening of his trial.   Mr Sejdovic was released on 22 November 1999.   2.     Procedure and composition of the Court   The application was lodged on 22 March 2000 and declared partly admissible on 11   September 2003.   Judgment was given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Peer Lorenzen (Danish), Giovanni Bonello (Maltese), Anatoli Kovler (Russian), Vladimiro Zagrebelsky (Italian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaint   Relying on Article 6 of the Convention, the applicant complained that he had been convicted by default without having had the opportunity to present his defence to the Italian courts.   Decision of the Court   Article 6 of the Convention   The Italian authorities had taken the view that the applicant had waived his right to appear at his trial because he had become untraceable immediately after the killing, which had been committed in the presence of a number of eyewitnesses. But there was nothing to prove that the applicant knew of the proceedings against him, and even supposing that he was indirectly aware that criminal proceedings had been opened, it could nevertheless not be concluded that he had unequivocally waived his right to appear at his trial.   As to the Italian Government’s argument that by virtue of Article 175 of the Code of Criminal Procedure (CCP) a person convicted in absentia could ask the courts to lift a procedural bar if he proved that he had not had knowledge of steps taken in the proceedings, the Court pointed out that it had already held that such an action had few chances of success. Moreover, even if he proved that he had had no intention of evading justice, the Court considered that an action under Article 175 of the CCP did not give the defendant an unconditional right to obtain the reopening of the time allowed for an appeal.   The Court reiterated that convicted persons who could not be considered to have unequivocally waived the right to appear should in all cases be able to obtain a new ruling by a court on the charges brought against them. The mere possibility that there might have been a waiver, depending on the evidence that might be supplied by the prosecuting authorities or by the convicted person regarding the circumstances surrounding the declaration of the latter’s fugitive status, could not satisfy the requirements of Article 6 of the Convention. It followed that the action provided for in Article 175 of the CCP did not guarantee with sufficient certainty that the applicant would have the opportunity of appearing at a new trial to present his defence.   Consequently, the means provided by the Italian authorities had not made it possible to achieve the results required by Article 6 of the Convention, and the Court accordingly held unanimously that there had been a violation of that provision.   Article 46 of the Convention (binding force and execution of judgments)   The infringement of the applicant’s right to a fair trial had originated in a problem resulting from Italian legislation on the question of trial in absentia and had been caused by the wording of the provisions of the CCP relating to the conditions for lodging an application for the lifting of a procedural bar. There was a shortcoming in the Italian legal system which meant that every person convicted in absentia who had not been effectively informed of the proceedings against him could be deprived of a retrial. The Court considered that the shortcomings of domestic law and practice revealed in the present case could lead in the future to a large number of well-founded applications.   Italy had a duty to remove every legal obstacle that might prevent either the reopening of the time allowed for an appeal or a retrial in the case of every person convicted by default who, not having been effectively informed of the proceedings against him, had not unequivocally waived the right to appear at his trial. Such persons would thus be guaranteed the right to obtain a new ruling on the charges brought against them from a court which had heard them in accordance with the requirements of Article 6 of the Convention.   Consequently, Italy should take appropriate measures to make provision for and regulate further proceedings capable of effectively securing the right to the reopening of proceedings, in accordance with the principles of the protection of the rights enshrined in Article 6 of the Convention.   Article 41 of the Convention   The Court reiterated that where it had held that an applicant had been convicted despite the existence of a potential infringement of his right to take part in his trial, the most appropriate form of redress, in principle, was to retry him or reopen the proceedings in due course and in accordance with the requirements of Article 6 of the Convention. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   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] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.