CASE OF SEJDOVIC v. ITALY
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Giovanni Bonello;Jean-Paul Costa;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych
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. 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 themthey 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] ...” 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.”