The Italian rules governing the retrial of in absentia convictions do not meet European convention on Human rights' standard, because they do not grant the defendant the right to adduce new evidence and to effectively dispute the evidence gathered in his absence.
Italian in absentia trials: an ongoing history of violation the right of “fair trial”
A trial in absentia, derived from the Latin word meaning ‘in absence’, is a trial in the absence of the accused: the underlying rationale for holding a trial in absentia is to ensure that the accused cannot delay the administration of justice by opting to be absent from the court. On the other hand, same scenario becomes potentially problematic for the defendant’s right to a fair trial.
Many international legal instruments address trials in absentia : focusing on European legal framework, this article will shortly summarize European Convention of Human rights’ principles, as recognized in EU Charta of fundamental rights and in the jurisprudence of the Court of Justice of European Union , and analyze if the Italian procedural rules respect those principles.
The European Court of Human Rights (ECtHR) has found that trials in absentia do not infringe the right to a fair trial as enshrined in art. 6 of the European Convention on Human rights (ECHR) if some conditions are met.
Specifically, ECtHR jurisprudence holds that trials in absentia are not per se incompatible with the right to a fair trial, provided the following safeguards are in place:
- the accused must have effective knowledge of the proceeding / hearing (the burden is on the State to show that the person concerned was aware);
- the accused must be legally represented in the proceedings and have effective assistance of counsel (State must show that the accused was appointed defence counsel, and that the counsel can effectively fulfil its duties; in particular that counsel did not operate under undue influence or pressure); and
- the accused should have the right to retrial or an ex novo trial in his or her presence (the defendant must be able to obtain a fresh determination on the merits of the charges, both law and fact, even in an appellate review) .
Since 1985  Italian criminal procedure has been under ECtHR’s scrutiny, and has collected many violations’ decisions.
In 2005, following the ECHR First Chamber ruling in Sejdovic , new rules were enacted and the Italian Code for criminal procedure has been modified with Law No. 60 of 22 April 2005.
Even if the procedural code has been modified again in 2014 , the tempus regit actum principle involves that the in absentia convictions which have been pronounced from 2005 to 2014 are still governed by those rules .
The relevant provision governing the right for a retrial of Italian Criminal Procedure Code (It. CPP) is art. 175, which since 2005 rules that the in absentia convicted person would be able, within thirty days, to apply for reinstatement with regard to the time limit for appeal, which, in case of an extradition from abroad, would start to run on the date of surrender; the judge in charge at the time at which the application is submitted would decide on the application and, in case of a conviction, the judge competent for appeals would decide; if the request for reinstating the time limit were rejected, an appeal in a court of cassation could be lodged .
This rule – which is usually quoted in extradition or EAW proceedings by the prosecution, – does in fact meet ECHR standards, since the burden of proof of the knowledge of the proceeding is on the public authority.
"Since in Italian appeal proceedings, according to the text of article 175 of the Italian Code of Criminal Procedure that applies to convictions imposed between 2009 and 2014, a number of conditions included in Italian law have to be fulfilled before deeming whether eligibility exists for re-assessment of the default judgment, there is no unconditional guarantee of appeal of in absetnia convivtions and the Eueopean Arrest Warrant cannot be executed under Dutch law."
District Court of Amsterdam, petition 18/169, decision 5 April 2018
The problem is that this provision does not give any rule about the retrial hearing, which is governed by articles 568 ff. of the Italian Criminal Procedure Code, regarding the appeal procedure.
With regard to the right to obtain a fresh determination on the merits of the charges, both law and fact, even in an appellate review – one of the conditions to be met in order to respect ECHR principles – relevant article is particularly art. 603 It. CPP, which rules that
- If a party has applied, in the brief of appeal or statement of reasons submitted pursuant to Article 585 section 4, for a new hearing of evidence, which had already been heard during the trial at first instance, or for hearing fresh evidence, the court shall order a new hearing of evidence in the main hearing if it is not in a position to decide the case on the basis of the case file.
- If the fresh evidence did not come into existence or was not discovered until after the trial at first instance, the court shall, within the limits provided for in Article 495 section 1, order a new hearing of evidence in the main hearing.
- The court shall order on its own accord a new hearing of evidence in the main hearing if the court considers it to be indispensable.
- The court shall also order a new hearing of evidence, upon request by the accused who had been tried in absentia at the trial at the first instance, if he shows that he was unable to appear due to events of a coincidental nature, or force majeure , or because he was not aware of the decree summoning him to appear, provided that he is not responsible for these circumstances or that he has not deliberately evaded taking note of the trial proceedings if the summons to the first instance was served on the defence counsel in the cases provided for in Article 159, Article 161 section 4 and Article 169.
It seems clear that because of the courts’ limited competence to hear evidence in such cases, the retrial of an in absentia conviction does not, as a rule, meet the ECHR requirements .
Indeed, beside the fact that the burden of proof and the burden of production in the retrial are on the defendant, the court has no obligation to order a new evidence hearing, and in fact, usually, no new evidence is ordered during the appeal stage: the court decides on the basis of the case files only, being the hearing of fresh evidence, included the cross examination of prosecution witnesses already questioned on first stage, only possible in very exceptional cases and totally on courts' discretion .
In other terms, the in-absentia-convicted-defendant who has requested a retrial is not afforded the real opportunity to defend himself effectively, in particular submitting and have examined circumstances that may exonerate her/him because its up to the court’s discretion.
In other words, “pursuant to Art. 603 CPP, a hearing of evidence only takes place if the evidence has come into existence or was discovered after the first instance judgment (sec. 2), if the judge cannot decide on the basis of the case file (sec. 1), or if the judge considers hearing of evidence indispensable (sec. 3). The wording of Art. 603 CPP (..) suggests that the court hearing the appeal has a wide margin of assessment (Beurteilungsspielraum ) regarding the decision to have a new evidentiary hearing. It does, however, not impose an obligation on the appellate court to generally hear evidence upon request of the accused. In view of the unspecific wording of Art. 603 secs. 1 to 3 CPP, it is therefore unclear whether the obligation to establish the truth in criminal proceedings has been duly taken into account.”
Being said that even the new rules, enacted in April 2014, do not grant the right to an effective knowledge of the in absentia trial (because the Italian legislator sadly introduced still irrebuttable presumptions of knowledge of the ongoing trial!), is an easy prediction that the problematic Italian in absentia trial will raise more questions regarding the respect of the right to a fair trial, cornerstone of rule of law and democracy.
(biographical information about Nicola Canestrini)
 It should not be forgotten that a defendant ’s right to be present during trial is fundamental to due process and is encapsulated in the International Covenant on Civil and Political Rights (“ICCPR”), which sub art. 14 provides as follows: “In the determination of any criminal charge against him, everyone shall be entitle d to the following minimum guarantees, in full equality: ....(d) To be tried in his presence (..).”. General Comment No. 13 of the UN Human Rights Committee (“UNHRC”) states, “The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defenses and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defense is all the more necessary.” This Comment does not define “justified reasons.” However, in Mbenge v. Zaire, 11 the UNHRC shed some light on the particular circumstances that could justify a trial in absentia: “According to Article 14(3) of the Covenant, everyone is entitled to be tried in his presence and to defend himself in person or through legal assistance. This provision and other requirements of due process enshrined in Article 14 cannot be construed as invariably rendering proceedings in absentia inadmissible, irrespective of the reasons for the accused person’s absence. Indeed, proceedings in absentia are in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) permissible in the interest of the proper administration of justice” (U.N. Human Rights Comm., Mbenge v. Zaire, U.N. Doc. CCPR/C/OP/2, Mar. 25, 1983). Referring to previous UNHRC decisions, the UNHRC in its General Comment No. 32 has recently set out safeguards that must be met before initiating trials in absentia When a trial in absentia is necessary for the proper administration of justice, to satisfy Article 14(3)(d) of the ICCPR, the prosecution must show that all due steps have been taken to inform the accused of the charges and proceedings. In Maleki v. Italy, the HRC concluded that exercising due diligence when attempting to notify the accused of the proceedings is insufficient to justify commencing a trial in absentia. When the accused otherwise cannot be found, reasonable steps will not be sufficient unless the defendant is afforded the right to a retrial. The prosecution must demonstrate that the defendant had actual knowledge of the proceedings. A failure to show this knowledge results in a violation of the defendant’s right to be present (U.N. Human Rights Comm., Maleki v. Italy, Comm. No. 699/2996, U.N. Doc. CCPR/C/66/D/669/1996 (Jul y 27, 1999).
 Article 6 TEU rules that “1. The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. (..) 3.Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law”. Fundamental rights have been recognized as ‘general principles of law’ (Eg Case 11/70  ECR 1125, Internationale Handelsgesellschaft).
The right to an effective judicial remedy and to a fair trial are provided for in Article 47 of the Charter and from the rights of the defence guaranteed under Article 48(2) of the Charter. As CJEU stated in case Melloni vs. Minsterio fiscal (C‑399/11, 26 February 2013) they are not absolute; consequently the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, but not an absolute right. It can be waived provided that certain safeguards are met, e.g. the waiver must be established in an unequivocal manner, it must be accompanied by minimum safeguards and it should not run counter to any important public interest (para 49); the CJEU indicates that the ECtHR takes the same approach in relation to Article 6(1) and (3) ECHR (para 50, Melloni).
Pursuant to Art. 52 sec. 3 sentence 1 Charter of Fundamental Rights, in so far as the rights in the Charter correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, they shall have the same meaning and scope as those laid down by the said Convention. Union law can provide more extensive protection (cf. Art. 52 sec. 3 sentence 2 of the Charter of Fundamental Rights); the level of protection provided by the Charter of Fundamental Rights may, however, not fall below that of the Convention.
 The European Convention of Human rights, and specifically the right to a fair trial, art. 6, implies the right to participate: “Without being present, it is difficult to see how that person could exercise the specific rights set out in sub-paragraphs (c), (d) d (e) of paragraph 3 of Article 6, i.e. 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”. The duty to guarantee the right of a criminal defendant to be present in the courtroom ranks therefore as one of the essential requirements of Article 6 (Hermi v. Italy [GC], 18114/02, 18 October 2006).
The Convention does allow in absentia trials: “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 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 or that he intended to escape trial but the waiver of right to participate has meet certain strict conditions (without .. presumptions): see Colozza v. Italy, 9024/80, 12 February 1985, Somogyi v. Italy, 67972/01, 18 May 2004; Mariani v. France, 43640/98, 31 March 2005. Effective Legal representation has to be granted even to absent defendant, see Van Geyseghem v. Belgium [GC], 26103/95, 21 January 1999, Krombach v. France, 29731/96, 13 February 2001. The right for retrial is clearly stated by the Strasbourg court in Medenica v. Switzerland, 20491/92, 14 June 2001, Sejdovic v. Italy [GC], 56581/00, 1 March 2006, and Stoichkov v. Bulgaria, 9808/02, 24 March 2005.
 Colozza v. Italy, 9024/80, 12 February 1985.
 ECtHR first section gave its ruling in Sejdovic v. Italy on 10 November 2004, and the Grand Chamber in Sejdovic v. Italy [GC], 56581/00, ruled on 1 March 2006 stated that “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.” (relevant parts of old Article 175 §§ 2 and 3 Italian criminal procedure Code). The Court pointed out that 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 (..) The Court reiterates that, in accordance with its case-law cited above (..), 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.” (Sejdovic, §§ 38, 39, 40).
 Artt. 175 and 603 It. CPP (inter alia) have been modified with Law of 28 April 2014, n. 67.
 Se Italian case law: Corte di Cassazione, Sezioni Unite, decision n. 11971 of November 29, 2007 and Sezioni Unite, July, 17, 2014, n. 36848, both regarding in absentia trials rules.
 Ar. 175, par. 2 It. CPP: “In the event of conviction in absentia ... the time allowed for appeal against the judgment shall be reopened, on an application by the defendant, unless he had effective knowledge of the proceedings [against him] or of the judgment and has deliberately refused to appear or to appeal against the judgment. The judicial authorities shall carry out all necessary checks to that end.” Law no. 60/2005 also added a paragraph 2 bis to Article 175 of the CCP, worded as follows: “An application referred to in paragraph 2 above must be lodged within thirty days of the date on which the defendant had effective knowledge of the judgment, failing which it shall be declared inadmissible. In the event of extradition from another country, the time allowed for making such an application shall run from the point at which the defendant is handed over [to the Italian authorities]. ”.
 Each party must in principle have the opportunity to adduce evidence and to comment on all evidence adduced or observations filed with a view to influencing the court’s decision (ECtHR, Mantovanelli v. France, 18 March 1997, 21497/93, par. 33).
 The provisions on the burden of proof and the burden of production in Art. 603 sec. 4 CPP 1988 are identical with those in the earlier versions of Art. 175 sec. 2 CPP (applicable before 2005). Pursuant to these provisions, the convicted person is subject to the burden of proof and of production with regard to the fact that he or she had not been aware of the proceedings in order to ask for a new evidence hearing.
It should be noted that the prosecution’s assurance, often given during extradition or EAW proceedings, to a retrial hasn’t the necessary binding effect under international or even Italian national; nor can the prosecution decide or grant the conditions of said retrial.
 Litterally, BVerfG, Order of the Second Senate of 15 December 2015 - 2 BvR 2735/14 – par.117 ,
http://www.bverfg.de/e/rs20151215_2bvr273514en.html. The decision of the German Federal Constitutional Court declared that the Italian in absentia trial rules violate “human dignity” as enshrined in art 1 of German Federal Constitution (case of Italian EAW with requests of surrender to Germany: the complainant was a citizen of the United States of America. In 1992, by final judgment of the Florence Corte di Appello, he was sentenced in absence to a custodial sentence of thirty years for participation in a criminal organisation and import and possession of cocaine. In 2014, he was arrested in Germany on the basis of a European arrest warrant. In the context of the extradition procedure, he mainly submitted that he did not have any knowledge of his conviction and that, under Italian law, he would not be able to have a new evidentiary hearing in the appeals proceedings).
Written in March 2018, updated May 2018.