European Court of Human Rights - case of Sejdovic v. Italy (2006) (excerpts)

European Court of Human Rights - case of Sejdovic v. Italy (2006) (excerpts)

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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.

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82.  Although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Colozza, cited above, p. 15, § 29; Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI; Krombach v. France, no. 29731/96, § 85, ECHR 2001-II; and Somogyi v. Italy, no. 67972/01, § 66, ECHR 2004-IV) or that he intended to escape trial (see Medenica, cited above, § 55).

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105.  In the light of the foregoing, the Court considers that the applicant, who was tried in absentia and has not been shown to have sought to escape trial or to have unequivocally waived his right to appear in court, did not have the opportunity to obtain a fresh determination of the merits of the charge against him by a court which had heard him in accordance with his defence rights.

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109.  The Chamber held that the violation it had found had originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the lack of an effective mechanism to secure the right of persons convicted in absentia – where they had not been informed effectively of the proceedings against them and had not unequivocally waived their right to appear at their trial – 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. It accordingly held that the respondent State had to secure the right in question, through appropriate measures, to the applicant and to other persons in a similar position.