CASE OF SEJDOVIC v. ITALY
Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (national proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
Christos Rozakis
7. The applicant was born in 1972 and lives in Hamburg (Germany). 8. On 8 September 1992 a Mr S. was fatally injured by a shot fired at a Gypsy encampment in Rome. The initial statements taken by the police from witnesses indicated that the applicant had been responsible for the killing. 9. 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 evaded 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). 10. As the Italian authorities had not managed to contact the applicant to invite him to select 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. 11. The lawyer attended the hearing, but the applicant did not. 12. 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 manslaughter and illegally carrying a weapon and sentenced him to twenty-one years and eight months' imprisonment. One of the applicant's co-defendants was sentenced to fifteen years and eight months' imprisonment for the same offences, while the three others were acquitted. 13. The applicant's lawyer was informed that the Assize Court's judgment had been deposited with the registry. He decided not to avail himself of his right of appeal under Italian law. The applicant's conviction accordingly became final on 22 January 1997. 14. 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 (“the CCP”) for leave to appeal out of time against the Rome Assize Court's judgment. 15. 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 not in a position to say whether the applicant had contacted the lawyer assigned to represent him. In any event, the lawyer had attended the hearing 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 witness 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.” 16. 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. 17. In the meantime, the applicant had been released on 22 November 1999. 18. The relevant parts of Article 175 §§ 2 and 3 of the CCP provide: “A person convicted in absentia ... may apply for leave to appeal out of time against the judgment where he is able to prove that he was not effectively notified [of the judgment] ... [and] on condition that there has been no negligence on his part or, if the judgment delivered in absentia has been served ... on his lawyer ..., that he has not deliberately refused to apprise himself of the steps taken in the proceedings. An application for leave to appeal out of time must be lodged within ten days of the date ... on which the accused learned [of the judgment], failing which it shall be inadmissible.”