EHRM, 01-03-2006, nr. 56581/00

The Government observed that in Italian law, persons who had been convictedin absentia had two remedies available. Firstly, they could lodge an objection to execution under Article 670 of the CCP in order to contest the judgment's existence or validity. This remedy was not subject to any time-limit; however, there had to have been an irregularity in the proceedings capable of rendering the judgment void. The irregularity could concern, in particular, a breach of the rules on service of process and, more specifically, failure to observe the safeguards afforded to defendants deemed to be untraceable. If the objection was declared admissible, the court had to suspend the enforcement of the sentence. If it was allowed, the statutory period for appealing against the judgment was reopened. The applicant could have availed himself of this remedy if he had shown that the police had been negligent in their searches or that the safeguards for defendants deemed to be untraceable had not been observed.

The Government further noted that if the objection to execution was dismissed, the court still had to examine the application for leave to appeal out of time which persons convicted in absentia were entitled to lodge separately from or jointly with the objection. If such an application was granted, the time allowed for appealing was reopened and the defendant had the opportunity to submit any arguments in support of his or her case — in person or through counsel — before a court with jurisdiction to deal with all matters of fact and law. Unlike an objection to execution, an application for leave to appeal out of time did not require there to have been any formal or substantive irregularity in the proceedings, particularly as regards searches and service of process.

The Government submitted that the remedy provided for in Article 175 of the CCP, as in force at the material time, had been effective and accessible since it had been specifically intended to apply to cases where accused persons claimed to have had no knowledge of their conviction. It was true that an application for leave to appeal out of time had to be lodged within ten days. However, such a period, which had not been peculiar to Italian law, had been sufficient to allow persons on trial to exercise their right to defend themselves, as its starting-point had been fixed as the moment at which they had had ‘effective knowledge of the decision’ (as the Court of Cassation had held on 3 July 1990 in the Rizzo case). Furthermore, the time-limit had not concerned the lodging of the appeal itself but merely the lodging of the application for leave to appeal out of time, a much less complex process.

Although the fact of not being an Italian national, together with linguistic and cultural difficulties, could make it harder to comply with a procedural requirement in the time allowed, national laws could not be expected to make all their time-limits flexible in order to adapt them to the infinite variety of factual circumstances in which defendants might find themselves.

The Government further pointed out that, in accordance with the Court's case-law, it could not be presumed that defendants had intended to escape trial where there had been manifest shortcomings in the efforts to trace them. Defendants should also have the opportunity to rebut any presumption to that effect without being unduly obstructed or having to bear an excessive burden of proof. The system laid down in Article 175 of the CCP had satisfied those requirements.

It followed from a grammatical analysis of paragraph 2 of Article 175 (as in force before the 2005 reform), supported by the case-law of the Court of Cassation which the Government produced to the Court (see paragraphs 23 and 24 above), that persons applying for leave to appeal out of time had been required to prove merely that they had not had effective knowledge of their conviction. Evidence of this had been very easy to provide since in most cases it resulted from the actual manner in which the conviction had been served. It had been sufficient for applicants to state — without having to supply proof — the reasons why they had not been informed of the judgment in time to lodge an appeal. The fact that they might have been aware of other procedural steps, or that the reasons they gave might have resulted from their own lack of diligence, had not meant that the application should be refused. Indeed, the time allowed for appealing could be reopened even where their ignorance of the judgment had been their own fault. In such cases leave to appeal out of time had been precluded only where their lawyer had already lodged an appeal (an exception which was not relevant to the present case).

In addressing the allegations submitted by the convicted person, the prosecuting authorities had been required to provide evidence (for assessment by the courts) that the person was a fugitive and had therefore consciously and deliberately avoided being served with the relevant documents. In other words, to ensure that an application for leave to appeal out of time was refused, they had had to show that where the judgment had been served on the defendant's lawyer, the defendant's ignorance had not been merely negligent but wilful. In order to prove intentional fault on the part of the defendant, the prosecution had not been able to rely on mere presumptions.

The applicant contested the Government's arguments. He submitted that he had not had any opportunity to have his case reopened and that he had not been informed of the existence of a domestic remedy. He had also been unaware that he had been deemed to be a ‘fugitive’ and that criminal proceedings had been pending against him.

The applicant observed that he had never had any knowledge of the Rome Assize Court's judgment. The judgment had never been served on him, since at the time of his arrest in Germany he had simply been the subject of an international arrest warrant indicating that he had been sentenced to twenty-one years and eight months' imprisonment. It had, moreover, been impossible for him to prove that he had not known about the facts of the case or about the proceedings against him.

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 citedColozza 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, they argued, set it apart 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 take part in the trial, or grounds to believe that the authorities had been negligent in ascertaining the accused's whereabouts.

Under the former system an untraceable defendant had been deemed to be a fugitive, and if notice had been served in due form there had been no possibility of appealing out of time. Under the system introduced by the new CCP, however, the authorities had to conduct thorough searches for the accused at every stage of the proceedings, and the time allowed for appealing could be reopened even where there had been no irregularities in notification.

In the present case, notice of the procedural steps had been served on the applicant's lawyer because the applicant had been deemed to be a ‘fugitive’ (latitante). Before designating him thus, the authorities had searched for him at the travellers’ encampment where he was thought to be living.

In the Government's submission, the particular circumstances of the case showed that the applicant had deliberately sought to escape trial. A number of factors supported that conclusion: the applicant had been in a delicate position and it had clearly been in his interests not to appear at the trial; he 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; and before being arrested by the German police, he had never come forward and had never sought a retrial.

It followed from the judgment in Medenica v. Switzerland(no. 20491/92, ECHR 2001-VI) that the intention to escape trial extinguished the right of a person convicted in absentia to a new trial under the Convention. In that connection, the Government pointed out that the Court had endorsed the view of the Swiss authorities that Mr Medenica's trial in absentia had been lawful and that it had not been necessary to reopen the proceedings because his inability to appear had been his own fault and he had not provided any valid excuse for his absence. Furthermore, the presumption that a defendant had sought to evade justice was not irrebuttable. Convicted persons could always provide explanations by arguing that they had never been aware of the proceedings and consequently had not intended to abscond, or by citing a legitimate impediment. In such cases it was for the prosecution to seek to prove the contrary where appropriate, and for the judicial authorities to assess the relevance of the convicted person's explanations.

It was true that, unlike the applicant, Mr Medenica had been officially informed of the proceedings against him and of the date of his trial. The Chamber had inferred from this that the applicant could not be said to have intended to escape trial. Its conclusion had been based on the cases of T. andF.C.B. v. Italy, in which the Court had refused to attach any importance to the indirect knowledge which the applicants had had or might have had of the proceedings against them and of the date of their trial. Although the Court's excessive formalism and severity in the above two cases were understandable in the light of the legislation in force in Italy at the material time, they were not acceptable today.

Admittedly, a purely formal notification (as in the present case, where the relevant documents had been served on the officially appointed lawyer) could not give rise to an irrebuttable statutory presumption that the accused had been aware of the proceedings. However, a presumption to the contrary was equally unjustified. That would amount to denying that the accused might be aware of the proceedings where there was evidence that they were guilty and had absconded (for example, where criminals escaped from police officers pursuing them immediately after the offence, or where defendants produced a written statement declaring their guilt, their contempt towards the victims and their intention to remain untraceable). In the Government's submission, the mere fact that an applicant had not been notified of the conviction did not in itself constitute sufficient proof that he or she had acted in good faith; further evidence of negligence on the part of the authorities was required.

It would therefore be advisable, they argued, to take a more balanced, common-sense approach consisting in assuming — at least provisionally — that the accused had absconded if such an inference was justified by the particular circumstances of the case, regard being had to logic and to ordinary experience, and seeking to substantiate this through concrete evidence. In particular, it was not contrary to the presumption of innocence to assume that persons accused of an offence had absconded where it proved impossible to ascertain their whereabouts immediately after the offence had been committed. Such an assumption was reinforced if they were subsequently found guilty on the basis of evidence adduced at the trial and did not provide any relevant explanation as to what had caused them to leave their home address. That was precisely what had happened in the applicant's case, in which the Rome Assize Court had carefully established the facts, basing its findings on statements by several eyewitnesses.

If convicted persons were acknowledged as having the ‘unconditional’ right ‘in all cases’ to a new trial when they had not been officially notified of the charges and the date of the hearing, the State would be denied the opportunity to adduce evidence of a simple fact: knowledge that a prosecution had been brought. That would, however, be contrary to the purpose of all judicial proceedings — namely establishing the truth — and would mean that justice was denied or the victims were caused additional anguish. There would also be paradoxical consequences: defendants who were quicker and more skilful at escaping would be at an advantage in relation to those who were caught unawares by an initial summons. If that were so, only the accused would have the power to review the validity of their own trial, and the guilty would be in a more favourable position than the innocent. Furthermore, people who had consciously sought to evade trial could claim a right ‘which logic and any sense of justice suggest[ed] should not be theirs’: the right to clutter the courts’ lists of cases and to inconvenience victims and witnesses at a later stage.

Nor should it be forgotten, the Government submitted, that in the cases ofPoitrimol v. France (judgment of 23 November 1993, Series A no. 277-A), andLala and Pelladoah v. the Netherlands(judgments of 22 September 1994, Series A nos. 297-A and 297-B) the Court had coupled the right to appear in court with a corresponding duty. It had accordingly accepted that unjustified absences could be discouraged and that States were entitled to impose on defendants the burden of justifying their absence and, subsequently, to assess the validity of such explanations. It was true that in the above cases the Court had held that the sanctions imposed on the defendants (the impossibility of being represented by counsel) had been disproportionate; however, it had implicitly accepted that Article 6 would not have been infringed if the restrictions on the absent defendants’ rights had struck a fair balance.

In the cases cited above, the Court had also laid emphasis on the defence conducted by a lawyer. In particular, it had held that the ‘crucial’ importance of defending the accused should prevail over the ‘capital’ importance of their appearing at the trial. The active presence of a defence lawyer 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.

In the instant case the applicant had been represented in the Rome Assize Court by an officially appointed lawyer, who had conducted his defence effectively and adequately, having called a number of witnesses. The same lawyer had represented other defendants in the same proceedings, some of whom had been acquitted.

In any event, the Government submitted that Italian law had afforded the applicant a genuine possibility of appearing at a new trial. In this connection, two distinct scenarios were possible. If notice had not been served in accordance with the formal requirements, the proceedings were null and void and, by virtue of Articles 179 and 670 of the CCP, the judgment thus became unenforceable.

If, however, as in the present case, the summons had been served in accordance with domestic legislation, Article 175 of the CCP was applicable. In that connection, the Government reiterated the observations relating to their preliminary objection (see paragraphs 32 to 37 above) and pointed out that the applicant belonged to a population group with a traditionally nomadic culture, which might serve to explain why he had not been present at his home address.

In the Government's submission, the system provided for in Article 175 of the CCP and the evidentiary rules deriving from it did not in any way contravene the general principle that the burden of proof rested with the accuser and not with the accused. In the case of John Murray v. the United Kingdom (judgment of 8 February 1996,Reports1996-I) the Court had considered that it was legitimate to require explanations from the accused and to draw inferences from their silence where the circumstances manifestly called for such explanations. If that was acceptable in relation to the merits of a charge, it should be all the more so when it came to establishing a fact — namely, whether the applicant's ignorance had been wilful — which was incidental and procedural in nature.

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 officially appointed 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. Furthermore, the applicant had not known that he was being represented by that lawyer. He had therefore had no reason to contact him or the Italian authorities. If he had known that he had been charged with a criminal offence, he could have made a fully informed choice as to his legal counsel.

The applicant alleged that the Italian authorities had proceeded on the assumption that he was guilty because he was absent. Since the proceedings against him had not complied with the Convention, however, his right to be presumed innocent had been infringed. Nor could it be inferred that he had sought to evade justice when he had not first been questioned. Such an inference by the authorities had been all the more unreasonable in that at the time of his arrest he had been lawfully resident in Germany with his family and his address had been officially registered with the police. In any event, the Government could not prove that he had fled in order to escape the proceedings against him.

The applicant lastly asserted that his identification by the Italian authorities had been imprecise and dubious and that the file on him had not contained either his photograph or his fingerprints.

The Court observes that in the instant case the Rome investigating judge made an order on 15 October 1992 for the applicant's detention pending trial. Since he had become untraceable, he was deemed to be a ‘fugitive’ (latitante) (see paragraph 12 above). A lawyer was appointed to represent him and was notified of the various steps in the proceedings, including the applicant's conviction. The Government did not dispute that the applicant had been tried in absentia and that before his arrest he had not received any official information about the charges or the date of his trial.

Relying on the line of case-law developed in the Medenica v. Switzerlandcase, the Government argued, however, that the applicant had lost his entitlement to a new trial as he had sought to evade justice, or in other words that he had known or suspected that he was wanted by the police and had absconded.

The Court observes at the outset that the instant case differs fromMedenica(cited above, § 59), in which the applicant had been informed in good time of the proceedings against him and of the date of his trial. He also had the assistance of and was in contact with a lawyer of his own choosing. Lastly, the Court found that Mr Medenica's absence had been due to his own culpable conduct and agreed with the Swiss Federal Court that he had misled the American court by making equivocal and even knowingly inaccurate statements with the aim of securing a decision that would make it impossible for him to attend his trial (ibid., § 58). His position was therefore very different from that of the applicant in the instant case. In the particular circumstances of the present case the question arises whether, if official notice was not served on him, Mr Sejdovic may be regarded as having been sufficiently aware of his prosecution and the trial to be able to decide to waive his right to appear in court, or to evade justice.

In previous cases concerning convictions in absentia, the Court has held 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; vague and informal knowledge cannot suffice (see T. v. Italy, cited above, p. 42, § 28, andSomogyi, cited above, § 75). The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution. This may be the case, for example, where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest (see, among other authorities,Iavarazzo v. Italy (dec.), no. 50489/99, 4 December 2001), or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces.

In the Court's view, no such circumstances have been established in the instant case. The Government's argument is not based on any objective factors other than the applicant's absence from his usual place of residence, viewed in the light of the evidence against him; it assumes that the applicant was involved in, or indeed responsible for, the killing of Mr S. The Court is therefore unable to accept this argument, which also runs counter to the presumption of innocence. The establishment of the applicant's guilt according to law was the purpose of criminal proceedings which, at the time when the applicant was deemed to be a fugitive, were at the preliminary investigation stage.

In those circumstances, the Court considers that it has not been shown that the applicant had sufficient knowledge of his prosecution and of the charges against him. It is therefore unable to conclude that he sought to evade trial or unequivocally waived his right to appear in court. It remains to be determined whether the domestic legislation afforded him with sufficient certainty the opportunity of appearing at a new trial.

In that connection, the Government referred, firstly, to the remedy provided for in Article 670 of the CCP. The Court observes at the outset that it has found that the Government are estopped from raising a preliminary objection of failure to exhaust domestic remedies on the basis of this provision (see paragraph 42 above). However, such a finding does not preclude the Court from taking the remedy referred to by the Government into consideration in its examination of the merits of the complaint (see, mutatis mutandis, N.C. v. Italy, cited above, §§ 42–47 and 53–58). It notes that in Italian law an objection to execution is admissible only where it is established that there has been an irregularity in the proceedings capable of rendering the judgment void, particularly with regard to the service of process on defendants who cannot be traced (see paragraphs 31 and 71 above). However, the Government themselves admitted that in the present case the summons had been served in accordance with domestic law (see paragraph 72 above). Use by the applicant of the remedy in Article 670 of the CCP would therefore have had no prospect of success.

In so far as the Government referred to the possibility for the applicant to apply for leave to appeal out of time, the Court would simply reiterate the observations it set out in connection with the preliminary objection (see paragraphs 47–56 above). It notes again that the remedy provided for in Article 175 §§ 2 and 3 of the CCP, as in force at the time of the applicant's arrest and detention pending extradition, was bound to fail and there were objective obstacles to his using it. In particular, the applicant would have encountered serious difficulties in satisfying one of the legal preconditions for the grant of leave to appeal, namely in proving that he had not deliberately refused to take cognisance of the procedural steps or sought to escape trial. The Court has also found that there might have been uncertainty as to the distribution of the burden of proof in respect of that precondition (see paragraphs 49–51 above). Doubts therefore arise as to whether the applicant's right not to have to prove that he had no intention of evading trial was respected. The applicant might have been unable to provide convincing explanations, when requested to do so by the court or challenged by the prosecution, as to why, shortly after the killing of Mr S., he had left his home without leaving a contact address and travelled to Germany. Moreover, the applicant, who could have been deemed to have had ‘effective knowledge of the judgment’ shortly after being arrested in Germany, had only ten days to apply for leave to appeal out of time. There is no evidence to suggest that he had been informed of the possibility of reopening the time allowed for appealing against his conviction and of the short time available for attempting such a remedy. These circumstances, taken together with the difficulties that a person detained in a foreign country would have encountered in rapidly contacting a lawyer familiar with Italian law and in giving him a precise account of the facts and detailed instructions, created objective obstacles to the use by the applicant of the remedy provided for in Article 175 § 2 of the CCP (see paragraphs 53–55 above).

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 the reopening of the time allowed for appealing, or a new trial.

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.

There has therefore been a violation of Article 6 of the Convention in the instant case.

This finding makes it unnecessary for the Court to examine the applicant's allegations that the defence conducted by his lawyer had been defective and that his identification by the Italian authorities had been imprecise and dubious.

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.

The Government argued that if the Court remained persuaded that there had been a violation, it should conclude that the violation stemmed solely from reasons relating to the particular circumstances of the case (in other words, to the applicant's personal situation), without calling into question the entire Italian legislation on the subject.

They contended that the Italian system fully complied with the requirements of the Convention, as outlined by the Court, and with all the principles listed in Resolution (75) 11 of the Committee of Ministers of the Council of Europe on the criteria governing proceedings held in the absence of the accused. The system required every effort to be made to ensure that accused persons were aware of the proceedings against them, the nature of the charges, and the date and place of the essential steps in the proceedings. Furthermore, those convicted in absentia were afforded an ample opportunity — more so than in other European States — to appeal out of time if they could prove that they had not had any knowledge of the judgment. The only exception to that rule which was relevant in the present case occurred where it was established that convicted persons deemed to be untraceable or fugitives had deliberately sought to evade trial.

Furthermore, even supposing that the Italian system in force at the material time had been incompatible with the requirements of the Convention, any possible shortcomings had been remedied by the reform introduced by Law no. 60/2005.

In the event of the Court's finding a structural defect in the domestic legal system, the Government pointed out that the obligation to grant a new trial to a person convicted in absentia might make it impossible to gather all the evidence (in particular, witness statements) obtained during the first trial. In such circumstances, the national authorities would face two alternatives. They could either make use of evidence and statements obtained during the original trial (although this could entail an infringement of the accused's right not to be convicted on the basis of statements by persons whom he or she had never had the opportunity to examine), or acquit the accused in spite of the existence of sufficient evidence to satisfy the court beyond reasonable doubt of his or her guilt (which would amount to a potential breach of the positive obligation to protect other rights guaranteed by the Convention).

It would therefore be advisable, the Government contended, for the Court to clarify how the second trial was to proceed: was it sufficient to examine the defendant? Did the entire trial phase need to be repeated? Or were more balanced, intermediate solutions desirable? The Court would thus be able to give the respondent State clear and detailed indications as to how to ensure that its legislation or practice complied with the Convention.

The Government stated that they were not opposed in principle to the Court's giving fairly detailed indications of the general measures to be taken. However, the new practice pursued by the Court ran the risk of nullifying the principle that States were free to choose the means of executing judgments. It also ran counter to the spirit of the Convention and lacked a clear legal basis.

The Court's judgments were essentially declaratory in nature. The only exception to that rule was Article 41 of the Convention, which empowered the Court to impose what amounted to ‘sentences’ on Contracting States. Article 46, however, did not contain any such provision but merely stated that the Court's final judgment was transmitted to the Committee of Ministers for supervision of its execution. The Committee of Ministers was therefore the only Council of Europe body empowered to say whether a general measure was necessary, adequate and sufficient.

In the Government's submission, this distribution of powers was confirmed by Article 16 of Protocol No. 14, which, in amending Article 46 of the Convention, introduced two new remedies: a request for interpretation and infringement proceedings. According to the explanatory report, the aim of the first of these was ‘to enable the Court to give an interpretation of a judgment, not to pronounce on the measures taken by a High Contracting Party to comply with that judgment’. As regards the second, it was stated that where the Court found a violation, it should refer the case to the Committee of Ministers ‘for consideration of the measures to be taken’. Lastly, in Resolution Res(2004)3 the Committee of Ministers had invited the Court to identify any underlying systemic problems in its judgments, but not to indicate appropriate solutions as well. The distribution of powers between the Committee of Ministers and the Court as envisaged by the drafters of the Convention had therefore not been altered.

In any event, if the practice of indicating general measures were to be continued, it should at least become institutionalised in the Rules of Court or in the questions which the Court put to the parties, so that the parties could submit observations on whether a violation was ‘systemic’.

The Court observes that under Article 46 of the Convention the Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, among other things, that a judgment in which the Court finds 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 choose, 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. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see, mutatis mutandis,Scozzari and Giunta v. Italy[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).

In the case of Broniowski v. Poland ([GC], no. 31443/96, §§ 188–194, ECHR 2004-V) the Court considered that where it found that a violation had originated in a systemic problem affecting a large number of people, general measures at national level could be called for in the execution of its judgments. This kind of adjudicative approach by the Court to systemic or structural problems in the national legal order has been described as a ‘pilot-judgment procedure’. The procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms as required by Article 1 of the Convention, offering them more rapid redress and, at the same time, easing the burden on the Court, which would otherwise have to take to judgment large numbers of applications similar in substance (seeBroniowski v. Poland(friendly settlement) [GC], no. 31443/96, §§ 34–35, ECHR 2005-…).

The Court observes that in the present case the unjustified obstacle to the applicant's right to a fresh determination by a court of the merits of the charge against him appears to result from the wording of the provisions of the CCP in force at the material time on the conditions for applying for leave to appeal out of time. This might suggest that there was a defect in the Italian legal system such that anyone convicted in absentia who had not been effectively informed of the proceedings against them could be denied a retrial.

However, it should be borne in mind that after the applicant's trial had ended, various legislative reforms were implemented in Italy. In particular, Law no. 60/2005 amended Article 175 of the CCP. Under the new provisions, the time allowed for appealing against a judgment may be reopened at the convicted person's request. The only exception to this rule occurs where the accused had ‘effective knowledge’ of the proceedings against them or of the judgment and have deliberately waived the right to appear in court or to appeal. In addition, the time available for persons in a similar position to the applicant to apply for leave to appeal out of time has been increased from ten to thirty days and now begins to run from the point at which the accused are handed over to the Italian authorities (see paragraphs 26–27 above).

It is true that these new provisions did not apply to the applicant or to anyone else in a similar position who had had effective knowledge of their conviction or had been handed over to the Italian authorities more than thirty days before the date on which Law no. 60/2005 came into force. The Court considers that it would be premature at this stage, in the absence of any domestic case-law concerning the application of the provisions of Law no. 60/2005, to examine whether the reforms outlined above have achieved the result required by the Convention.

The Court therefore considers it unnecessary to indicate any general measures at national level that could be called for in the execution of this judgment.

Furthermore, the Court observes that in Chamber judgments in cases against Turkey concerning the independence and impartiality of national security courts it has held that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she requests one (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January 2004). It should also be noted that a similar position has been adopted in cases against Italy where the finding of a breach of the fairness requirements in Article 6 resulted from an infringement of the right to take part in the trial (seeSomogyi, cited above, § 86, and R.R. v. Italy, no. 42191/02, § 76, 9 June 2005) or the right to examine prosecution witnesses (see Bracci, cited above, § 75). The Grand Chamber has endorsed the general approach adopted in the cases cited above (see Öcalan v. Turkey[GC], no. 46221/99, § 210, ECHR 2005-…).

The Court accordingly considers that where, as in the instant case, an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see the principles set forth in Recommendation R(2000)2 of the Committee of Ministers, as outlined in paragraph 28 above). However, the specific remedial measures, if any, required of a respondent State in order for it to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the Court's judgment in that case, and with due regard to the Court's case-law as cited above (see Öcalan, loc. cit.).

In particular, it is not for the Court to indicate how any new trial is to proceed and what form it is to take. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see Piersack v. Belgium (former Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12), provided that such means are compatible with the conclusions set out in the Court's judgment and with the rights of the defence (see Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX).

The applicant observed that he had been detained in Germany with a view to extradition from 22 September to 22 November 1999, a period of 62 days. If the Italian authorities had attempted to contact him in Germany at his officially registered address, that deprivation of liberty would not have occurred. 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, and Bracchi, cited above, § 71).

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. It has not observed any shortcomings in the efforts to trace the applicant and is unable to find that the Italian authorities should be held responsible for his detention pending extradition. Furthermore, the applicant has not cited any information that might have given the Italian authorities cause to suppose that he was in Germany.

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 it has 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 applicant sought the reimbursement of the costs incurred in the extradition proceedings in Germany, amounting to EUR 4,827.11. He further claimed EUR 7,747.94 in respect of the proceedings before the Court. In particular, he submitted that the sum of EUR 3,500.16 (comprising EUR 3,033.88 for fees and EUR 466.28 for translations) had been incurred in connection with the Chamber proceedings, and that the subsequent proceedings before the Grand Chamber, including his lawyers' participation in the hearing on 12 October 2005, had cost EUR 4,247.78.

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. They further submitted that the amount claimed for the Grand Chamber proceedings was excessive, in view of the small amount of work that this phase had entailed for the applicant's counsel, who had not filed a memorial.

The Court notes that before applying to the Convention institutions, the applicant had to take part in extradition proceedings in Germany, during which the issue of the impossibility of reopening his trial was raised. It accordingly accepts that the applicant incurred expenses in respect of proceedings linked to the Convention violation. 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, and Cianetti v. Italy, no. 55634/00, § 56, 22 April 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.

The Court likewise considers excessive the amount claimed in respect of the costs and expenses incurred in the proceedings before it (EUR 7,747.94) and decides to make an award of EUR 5,500 under this head. It should be pointed out in this connection that the applicant's counsel did not file written pleadings before the Grand Chamber (see paragraph 8 above). The total amount awarded to the applicant for costs and expenses is therefore EUR 8,000.

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.