Trial in absentia and retrial rights in Italy: ECtHR finds a breach of Article 6

In its recent judgment in the case Shala v. Italy, published on 31 August 2023, the ECtHR found a violation of Article 6 § 1 ECHR because the remedy envisaged by former Article 175 § 2 of the Italian Code of Criminal Procedure (CCP) to challenge a conviction in absentia – i.e., the so-called out of time appeal – did not provide the convicted person with an effective opportunity to obtain a fresh determination of the merits of the charges against him.

The case may be summarized as follows.

The applicant had been declared a fugitive (latitante) and then tried in absentia and sentenced to 26-years imprisonment. During the trial, he was represented by a court-appointed lawyer and all the procedural documents were served on the latter. The judgment became final in 2002; after 11 years the applicant was arrested by the Albanian police and then extradited to Italy. He filed a request for a new time limit to appeal under Article 175 § 2 CCP as in force prior to the 2014 reform and, after having obtained it, he filed an appeal against the judgment. He requested inter alia that the proceedings be reopened ab initio since he had been declared a fugitive even though he was not aware of the proceedings and had not voluntarily escaped trial. He further contested the territorial jurisdiction and requested, in any event, that the summary procedure (rito abbreviato) be adopted. However, the Court of Appeal upheld the first-instance conviction holding that: i) he was not entitled to have the proceedings reopened ab initio; ii) he was no longer within the time-limit to request the adoption of the summary procedure (which had expired during the first-instance proceedings to which he had not participated in person); iii) the lack of territorial jurisdiction should have been raised by the court-appointed lawyer in the first-instance trial. The judgment was then upheld by the Court of Cassation. Therefore, the applicant turned to the ECtHR claiming a breach of Article 6 ECHR.

In its judgment, the Court highlighted all the limitations of defence rights inherent in the remedy provided for by former Article 175 § 2 CCP, which, contrary to the regime enacted with the 2014 reform, does not entail that the judgment rendered in absentia be considered null and void. In particular, the Court stressed that “the applicant did not have the opportunity to have the proceedings reopened ab initio, but only to appeal against the first‑instance judgment, with all the limitations inherent in appeal proceedings. It does not appear from the case file that there was any evidence‑taking activity before the Court of Appeal, nor that the applicant was heard personally by that court. He was denied the rights to contest the territorial jurisdiction of the courts and to obtain to be tried under the summary procedure, that he could have exercised, if he had been present, in the first-instance trial, when indeed he was absent and represented by an officially appointed lawyer” (ivi, § 15). On this basis, the Court found a breach of Article 6 ECHR.

The Court’s findings provide strong support to potential claims regarding full retrial rights in extradition proceedings concerning Italian convictions rendered in absentia before the entry into force of the 2014 reform, which introduced new ex post remedies to the benefit of the person tried and convicted in his absence. Indeed, the 2014 reform only applies to proceedings pending in first-instance at the date in which the reform entered into force (i.e. 17 May 2014). Furthermore, proceedings in absentia, albeit pending at the time when the 2014 reform entered into force, continue to be governed by the old statute if: i) the first instance judgment had already been delivered; ii) trial in absentia had been ordered before 17 May 2014 and such order had been adopted for reasons other than the accused being untraceable.

Saccucci and Partners provides legal assistance in extradition proceedings where fair trials rights are at stake. Should you wish to obtain more information, you can send an email to: studio@saccuccipartners.com.

Avv. Valentina Cafaro

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