The applicant, Mr. Sejdovic, was accused of murder. As the police authorities could not trace his whereabouts, he was declared a fugitive. A court hearing took place in the absence of the accused. During the trial Mr. Sejdovic was represented by state assigned lawyer. He was found guilty and convicted. The applicant was later fund and arrested in Germany. Since it was not guaranteed that the proceedings conducted in absentia would be reopened, the German authorities refused Italy’s request for his extradition.
Mr. Sejdovic complained that his conviction without having had the opportunity of presenting his defence violated his right to a fair trial.
The Court emphasized that a duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6. However, the proceedings that take place in the accused's absence are not of themselves incompatible with the right to fair trial. Justice will be denied where a person convicted in absentia is unable subsequently to obtain a fresh determination of the merits of the charge, in respect of both law and fact, unless it has been established that he has waived his right to appear and to defend himself or that he intended to escape trial. The Court noted that a court has to have a sufficient factual basis before it to declare that a person has intended to escape the trial or that he has waived his right to appear before the court. A waiver of the right to take part in the trial must be established in an unequivocal manner, it must be attended by minimum safeguards commensurate to its importance and must not be contrary to any important public interest.
In the particular case the Court was unable to conclude that Mr. Sejdovic sought to evade trial or unequivocally waived his right to appear in court, as he was not informed of the time of the hearing and no other facts lead to that conclusion. Finding also that the Italian law did not provide effective mechanism for Mr. Sejdovic to be able to reopen the proceedings, the Court ruled that there has been a violation of his right to fair trial.