Maleki v Italy, UN Human Rights Committee (1996) (excerpts)

Maleki v Italy, UN Human Rights Committee Communication 699/1996 (excerpts)


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9.4 The State party has not denied that Mr. Maleki was tried in absentia. However, it has failed to show that the author was summoned in a timely manner and that he was informed of the proceedings against him. It merely states that it "assumes" that the author was informed by his counsel of the proceedings against him in Italy. This is clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia. It was incumbent on the court that tried the case to verify that the author had been informed of the pending case before proceeding to hold the trial in absentia. Failing evidence that the court did so, the Committee is of the opinion that the author's right to be tried in his presence was violated.

 9.5 In this regard the Committee wishes to add that the violation of the author's right to be tried in his presence could have been remedied if he had been entitled to a retrial in his presence when he was apprehended in Italy. The State party described its law regarding the right of an accused who has been tried in absentia to apply for a retrial. It failed, however, to respond to the letter from an Italian lawyer, submitted by the author, according to which in the circumstances of the present case the author was not entitled to a retrial. The legal opinion presented in that letter must therefore be given due weight. The existence, in principle, of provisions regarding the right to a retrial, cannot be considered to have provided the author with a potential remedy in the face of unrefuted evidence that these provisions do not apply to the author's case.