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FIRST
SECTION
CASE OF
SEJDOVIC v. ITALY
(Application
no. 56581/00)
JUDGMENT
STRASBOURG
10 November 2004
THIS
CASE WAS REFERRED TO THE GRAND CHAMBER,
WHICH
DELIVERED JUDGMENT IN THE CASE ON
1
March 2006
This judgment is final
but it may be subject to editorial revision.
In the case of Sejdovic v. Italy,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr P.
Lorenzen,
Mr G. Bonello,
Mr A. Kovler,
Mr V.
Zagrebelsky,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 11 September 2003 and on 21 October 2004,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 56581/99) against the Italian
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a national of former Yugoslavia, Mr Ismet
Sejdovic (“the applicant”), on 22 March 2000.
- The
applicant was represented by Mr B. Bartholdy, a lawyer practising in
Hamburg. The Italian Government (“the
Government”) were represented by their Agent, Mr I.M.
Braguglia, and their co-Agent, Mr F. Crisafulli.
- The
applicant complained, in particular, that he had been convicted in
absentia without having had the opportunity to present his
defence before the Italian courts, in breach of Article 6 of the
Convention.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
- In
a decision of 11 September 2003 the Chamber declared the application
partly admissible.
- The
Government, but not the applicant, filed written observations on the
merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1972 and lives in Hamburg
(Germany).
- 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.
- 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).
- 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.
- The
lawyer attended the hearing, but the applicant did not.
- 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.
- 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.
- 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.
- 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.”
- 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.
- In
the meantime, the applicant had been released on 22 November 1999.
II. RELEVANT DOMESTIC LAW
- 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been convicted in absentia
without having had the opportunity to present his defence before the
Italian courts. He relied on Article 6 §§
1 and 3 of the Convention, the relevant parts of which provide:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. The parties' submissions
1. The applicant
- The
applicant argued that his right to a fair trial had been infringed in
that he had not been informed of the accusations against him. He
submitted that the defence conducted by his lawyer could not be
regarded as effective and adequate in view of the fact that, among
the defendants whom the lawyer had represented, those who had been
present had been acquitted and those who had not had been convicted.
2. The Government
- The
Government observed that the applicant's defence in the Rome Assize
Court had been adequately and effectively conducted by a lawyer
appointed by the authorities with a view to ensuring that the
defendant's rights were respected. The same lawyer had represented
other defendants in the same proceedings, some of whom had been
acquitted, and had discharged his duties actively by calling a number
of witnesses.
- The
Government pointed out that notice of the steps taken in the
proceedings had been given to the applicant's lawyer because the
applicant had deliberately sought to evade justice and had been
deemed to be a fugitive. Before designating him thus, the authorities
had searched for the applicant at the nomads' camp (campo nomadi)
where he was said to be living. Furthermore, the Rome Assize Court
had carefully established the facts, basing its findings on
statements by several eyewitnesses.
- Noting
that no issue arose in the present case as to whether the applicant
had been represented, the Government observed that the Court had
found a violation of Article 6 of the Convention in cases where a
defendant's failure to appear at the trial had been governed by the
former Code of Criminal Procedure (they cited Colozza v. Italy,
judgment of 12 February 1985, Series A no. 89; T. v. Italy,
judgment of 12 October 1992, Series A no. 245-C; and F.C.B. v.
Italy, judgment of 28 August 1991, Series A no. 208-B). The new
procedural rules introduced subsequently and the special
circumstances of Mr Sejdovic's case set it apart, in their
submission, from those cases, in which there had been cause to doubt
that the applicants had deliberately sought to evade justice, or that
they had had the opportunity to participate in the trial, or that the
authorities had been negligent in ascertaining the accused's
whereabouts.
- The
Government explained that under the former system an untraceable
accused had been deemed to be a fugitive, and if notice had been
served in due form there had been no possibility of extending the
time allowed for appealing. Under the system introduced by the new
Code of Criminal Procedure, however, the authorities had to conduct
thorough searches for the accused at every stage of the proceedings,
and an appeal could be lodged out of time even where there had been
no irregularities in notification. Moreover, contrary to what the
Court had stated in its decision on the admissibility of the
application, persons convicted in absentia were not required
to prove that they had not deliberately refused to apprise themselves
of the steps taken in the proceedings, but could simply show that
they had not been aware of them. It was for the court to assess in
turn whether the convicted person's ignorance had been wilful.
- In
the light of the foregoing, the Government considered that Italian
law had provided the applicant with a genuine chance of appearing at
a new trial, that possibility being ruled out only where the
convicted person's absence had been intentional – in other
words, where the person appeared to have deliberately waived the
right to appear. Such a waiver could be implicit, resulting for
example from conduct incompatible with the intention of exercising
procedural rights and the right to appear as enshrined in domestic
legislation. The Government referred in that connection to the
Medenica v. Switzerland judgment (no. 20491/92, ECHR 2001-VI),
in which they claimed that Court had laid down the principle that
absconding amounted to a waiver of the right to appear at the
hearing.
- It
was true that, unlike Mr Medenica, Mr Sejdovic had never been
officially informed of the proceedings against him. However, that
factor should not be given too much importance; otherwise, compliance
with the Convention would depend on the speed and efficiency with
which the accused managed to abscond. In the Government's submission,
the mere absence of official notification did not in itself
constitute sufficient proof that an applicant had acted in good
faith; further evidence of negligence on the part of the authorities
was required. It would, moreover, be manifestly incompatible with the
effectiveness of the criminal-justice system and with the Court's
case-law to consider that even a person who had consciously evaded
justice had not waived his right to appear in court and should be
granted a new trial. If that were the case, the accused would have
sole power to review the validity of their own trial, and the guilty
would be in a more favourable position than the innocent.
- In
the instant case, the applicant had been in a perilous position and
it had clearly been in his interests not to appear at the trial (or,
more precisely, to avoid the prison sentence he would have received).
The applicant had not advanced any plausible reason as to why,
immediately after a killing for which he had been responsible
according to eyewitnesses, he had suddenly moved from his usual place
of residence without leaving an address or the slightest trace of his
whereabouts. Furthermore, before being arrested by the German police,
he had never come forward and had never sought a retrial. In the
Government's opinion, the applicant had in fact intended to abscond.
- Lastly,
the Government pointed out that, in accordance with the Court's
case-law, the “crucial” importance of defending an
accused person should prevail over the “capital”
importance of his appearing at the trial (here, they cited Lala v.
the Netherlands and Pelladoah v. the Netherlands,
judgments of 22 September 1994, Series A nos. 297-A and 297-B). The
active presence of a defence lawyer, of which the applicant had had
the benefit in the present case, was therefore sufficient to restore
the balance between the State's legitimate reaction to a defendant's
unjustified absence and respect for the rights set forth in Article 6
of the Convention. Furthermore, the Italian legislature, in making a
choice that was not open to criticism under the Convention, had
decided to attach particular importance to the “technical”
defence conducted by a lawyer, whose role was clearly essential in
view of the complexity of modern legal systems.
B. The Court's assessment
- The
Court reiterates that, although this is not expressly mentioned in
paragraph 1 of Article 6, the object and purpose of the Article taken
as a whole show that a person “charged with a criminal offence”
is entitled to take part in the hearing. Moreover, sub-paragraphs
(c), (d) and (e) of paragraph 3 guarantee to “everyone
charged with a criminal offence” the right “to defend
himself in person”, “to examine or have examined
witnesses” and “to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court”, and it is difficult to see how he could exercise these
rights without being present (see Colozza, cited above, p. 14,
§ 27; T. v. Italy, cited above, p. 41, § 26; F.C.B.
v. Italy, cited above, p. 21, § 33; and Belziuk v.
Poland, judgment of 25 March 1998, Reports of Judgments and
Decisions 1998-II, p. 570, § 37).
- 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 in accordance with the requirements of Article 6 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, and Einhorn v. France (dec.), no. 71555/01,
§ 33, ECHR 2001-XI).
- The
Convention allows the Contracting States considerable discretion as
regards the choice of the means calculated to ensure that their legal
systems are in compliance with the requirements of Article 6, while
at the same time preserving their effectiveness. The Court's task,
however, is to determine whether the result called for by the
Convention has been achieved. In particular, the resources available
under domestic law must be shown to be effective where a person
charged with a criminal offence has neither waived his right to
appear and to defend himself nor sought to escape trial (see
Medenica, cited above, § 55).
- In
the present case the Italian authorities considered, in substance,
that the applicant had waived his right to appear at the trial
because he had become untraceable immediately after the killing of Mr
S., which had taken place in the presence of several eyewitnesses
(see paragraphs 8 and 9 above). That interpretation was supported by
the respondent Government, who argued that it could be inferred from
the applicant's conduct that he had intended to escape trial.
- The
Court reiterates that neither the letter nor the spirit of Article 6
of the Convention prevents a person from waiving of his own free
will, either expressly or tacitly, the entitlement to the guarantees
of a fair trial; however, any such waiver must be made in an
unequivocal manner and must not run counter to any important public
interest (see, mutatis mutandis, Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 2000, and Håkansson
and Sturesson v. Sweden, judgment of 21 February 1990, Series A
no. 171-A, p. 20, § 66).
- In
the instant case, unlike in Medenica (cited above, § 59),
there is no evidence that the applicant knew of the proceedings
against him or of the date of his trial. Only his absence from his
usual place of residence when the authorities attempted to arrest him
could have given the impression that he was aware or feared that the
police were searching for him.
- The
Court considers it unnecessary to speculate as to what caused the
applicant to leave his home and travel to Germany. It reiterates that
to inform someone of a prosecution brought against him is a legal act
of such importance that it must be carried out in accordance with
procedural and substantive requirements capable of guaranteeing the
effective exercise of the accused's rights, as is moreover clear from
Article 6 § 3 (a) of the Convention. Vague and informal
knowledge cannot suffice (see T. v. Italy, cited above, p. 42,
§ 28).
- Consequently,
even supposing that the applicant was indirectly aware that criminal
proceedings had been opened against him, it cannot be inferred that
he unequivocally waived his right to appear at his trial.
It remains to be determined whether the domestic legislation
afforded him with sufficient certainty the opportunity of appearing
at a new trial.
- In
this connection, the Government referred to the remedy provided for
in Article 175 of the CCP, pointing out that in order for a person
convicted in absentia to apply for leave to appeal out of
time, it was sufficient for him to prove that he had not been aware
of the steps taken in the proceedings (see paragraph 24 above). The
Court observes, however, that in its decision on the admissibility of
the application it dismissed an objection by the Government that
domestic remedies had not been exhausted, finding that the remedy in
question would have had little chance of success and that the
applicant would have encountered objective difficulties in using it.
The Court sees no reason to revise that conclusion.
- Moreover,
even supposing that, as the Government argued, it is unnecessary for
a convicted person wishing to apply for leave to appeal out of time
to prove that he had no intention of evading justice, the Court notes
that Article 175 of the CCP does not confer on an accused person who
has never been effectively informed of his prosecution the
unconditional right to an extension of the time allowed for
appealing. As the Rome public prosecutor's office itself rightly
observed, the applicant was not automatically entitled to a new trial
as it was first necessary to ascertain whether he had been wrongly
deemed to be a “fugitive” (see paragraph 15 above).
- The
Court reiterates that, in accordance with its case-law cited above
(see paragraphs 30 and 31), a person convicted in absentia who
cannot be deemed to have unequivocally waived his right to appear
must in all cases be able to obtain a fresh determination by a court
of the merits of the charge. The mere possibility that there might
have been a waiver, subject to the submission of evidence by the
prosecuting authorities or by the convicted person regarding the
circumstances in which he was declared to be a fugitive, cannot
satisfy the requirements of Article 6 of the Convention.
- It
follows that the remedy 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.
It has not been argued before the Court that the applicant had any
other means of obtaining an extension of the time allowed for
appealing, or a new trial.
- It
follows that in the instant case the means provided by the national
authorities did not make it possible to achieve the results required
by Article 6 of the Convention.
- There
has therefore been a violation of that provision.
II. ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
- Article 46 provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- It
is inherent in the Court's findings that the violation of the
applicant's right as guaranteed by Article 6 § 1 originated in a
problem which results from the Italian legislation on trial in
absentia and which remains capable of affecting others in future.
The unjustified hindrance of the applicant's right to a fresh
determination by a court of the merits of the charge against him was
not prompted by an isolated incident and is not attributable to the
particular turn of events in his case, but was rather the consequence
of the wording of provisions of the CCP on the conditions for
applying for leave to appeal out of time. Moreover, violations
similar to the one in the present case have been found by the Court,
either in relation to the former CCP (see Colozza, T. v.
Italy and F.C.B. v. Italy, cited above) or after the entry
into force of the new CCP (see Somogyi v. Italy,
no. 67972/01, ECHR 2004-IV), and it should be noted that the
United Nations Human Rights Committee has expressed the view that
Italy breached Article 14 of the International Covenant on Civil and
Political Rights where a person had been convicted in absentia
without having been officially and personally informed of the
proceedings against him (see the opinion of 27 July 1999 in the case
of Ali Malaki v. Italy). The Court concludes that the facts of
the case disclose the existence, within the Italian legal order, of a
shortcoming as a consequence of which anyone convicted in absentia
who has not been effectively informed of the proceedings against him
may be denied a retrial. It also finds that the deficiencies in
national law and practice identified in the applicant's particular
case may subsequently give rise to numerous well-founded
applications.
- The
Court reiterates that, in accordance with Article 46 of the
Convention, a finding of a violation imposes on the respondent State
a legal obligation not just to pay those concerned the sums awarded
by way of just satisfaction under Article 41, but also to select,
subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the
Court and to redress so far as possible the effects (see Broniowski
v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V).
- It
is in principle for the respondent State, subject to monitoring by
the Committee of Ministers, to choose the means by which it will
discharge its legal obligation under Article 46 of the Convention
(see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and
41963/98, § 249, ECHR 2000-VIII). The Committee of Ministers'
practice has extended the scope of the respondent State's obligations
in such matters, requiring, in addition to measures concerning the
applicant's individual situation, the adoption of general measures
designed to prevent the recurrence of similar violations. In view of
the systemic situation which it has identified, the Court would
observe that general measures at national level are undoubtedly
called for in the execution of the present judgment (see, mutatis
mutandis, Broniowski, cited above, §§ 193-194).
The measures must be such as to remedy the systemic defect underlying
the Court's finding of a violation, so that persons in a comparable
situation to Mr Sejdovic do not have to suffer a similar breach of
their rights under Article 6 of the Convention.
- The
Court considers that the respondent State must remove every legal
obstacle that might prevent anyone convicted in absentia who,
having not been effectively informed of the proceedings against him,
has not unequivocally waived the right to appear at his trial from
obtaining either an extension of the time allowed for appealing or a
new trial, so as to guarantee the right of those concerned to obtain
a fresh determination of the merits of the charge against them by a
court which has heard them in accordance with the requirements of
Article 6 of the Convention. The respondent State must therefore make
provision, by means of appropriate regulations, for a new procedure
capable of securing the effective realisation of the entitlement in
question while ensuring respect for the rights guaranteed by Article
6 of the Convention (see paragraphs 29-42 above).
B. Article 41 of the Convention
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
1. Damage
- The
applicant observed that he had been detained in Germany with a view
to his extradition from 22 September to 22 November 1999, a period of
62 days. He submitted that redress for the damage and inconvenience
caused by his detention should be afforded at a rate of 100 euros
(EUR) per day, and accordingly claimed a total sum of EUR 6,200.
- The
Government observed that the applicant had not established any causal
link between the violation of the Convention and the damage he
alleged. As regards non-pecuniary damage, the finding of a violation
would in itself provide sufficient just satisfaction.
- The
Court reiterates that it will award sums for just satisfaction under
Article 41 where the loss or damage alleged has been caused by the
violation it has found, but that the State is not expected to pay for
damage not attributable to it (see Perote Pellon v. Spain, no.
45238/99, § 57, 25 July 2002).
- In
the instant case the Court has found a violation of Article 6 of the
Convention in that the applicant, who had been convicted in
absentia, was unable to have his trial reopened. The applicant
would, however, have been detained in Germany with a view to his
extradition even if the Italian legal system had afforded him that
possibility.
- Accordingly,
the Court does not consider it appropriate to make an award to the
applicant in respect of pecuniary damage. No causal link has been
established between the violation found and the detention complained
of by the applicant.
- With
regard to non-pecuniary damage, the Court considers that, in the
circumstances of the case, the finding of a violation constitutes in
itself sufficient just satisfaction (see Brozicek v. Italy,
judgment of 19 December 1989, Series A no. 167, p. 20, §
48; F.C.B. v. Italy, cited above, p. 22, § 38; and
T. v. Italy, cited above, p. 43, § 32).
- The
Court reiterates its settled case-law to the effect that, where there
has been a violation of Article 6 § 1 of the Convention, the
applicant should as far as possible be put in the position he would
have been in had the requirements of that provision not been
disregarded (see Piersack v. Belgium (Article 50),
judgment of 26 October 1984, Series A no. 85, p. 16, § 12).
Besides the general measures indicated in paragraphs 44 to 47 above,
the Court considers that, where it finds that an applicant has been
convicted despite an infringement of his right to participate in his
trial, the most appropriate form of redress would, in principle, be
trial de novo or the reopening of the proceedings, in due
course and in accordance with the requirements of Article 6 of the
Convention (see Somogyi, cited above, § 86; see
also, mutatis mutandis, in relation to the trial court's lack
of independence and impartiality, Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003, and
Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January
2004).
2. Costs and expenses
- The
applicant sought the reimbursement of the costs incurred in the
extradition proceedings in Germany, amounting to EUR 4,827.11. In
respect of the costs incurred in the proceedings before the Court, he
claimed EUR 3,500.16, comprising EUR 3,033.88 for fees and
EUR 466.28 for translations.
- The
Government failed to see a causal link between the breach of the
Convention and the costs incurred in Germany. With regard to those
incurred in the Strasbourg proceedings, the Government left the
matter to the Court's discretion, while emphasising that the
applicant's case was a straightforward one.
- The
Court notes that before applying to the Convention institutions, the
applicant was the subject of extradition proceedings in Germany,
during which the issue of the impossibility of reopening his trial
was raised. The Court consequently accepts that the applicant
incurred expenses in order to redress the Convention violation, both
in the domestic legal system and at European level (see Rojas
Morales v. Italy, no. 39676/98, § 42, 16 November
2000). However, it considers the sums claimed for the proceedings in
the German courts to be excessive (see, mutatis mutandis,
Sakkopoulos v. Greece, no. 61828/00, § 59, 15 January
2004). Having regard to the information in its possession and to its
relevant practice, the Court considers it reasonable to award the
applicant the sum of EUR 2,500 under this head.
- On
the other hand, the Court finds the costs and expenses relating to
the proceedings before it to be reasonable and awards the applicant
the amount sought (EUR 3,500.16). The total amount awarded to the
applicant for costs and expenses is therefore EUR 6,000.16.
3. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
6 of the Convention;
- Holds that the above violation has 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 have not been informed effectively of the proceedings
against them and have 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 has heard them in
accordance with the requirements of Article 6 of the Convention;
- Holds that the respondent State must, through
appropriate measures, secure the right in question to the applicant
and to other persons in a similar position;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant, drawing attention in
this connection to its conclusions in paragraph 55 of the present
judgment;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, EUR 6,000.16 (six
thousand euros and sixteen cents) for costs and expenses, plus any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in French, and notified in writing on 10 November 2004, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
