CASE OF SHAHI v. ITALY

FIRST SECTION

CASE OF SHAHI v. ITALY

(Application no. 52638/15)

JUDGMENT
 

STRASBOURG

25 September 2025

This judgment is final but it may be subject to editorial revision.

In the case of Shahi v. Italy,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Frédéric Krenc, President,
 Raffaele Sabato,
 Alain Chablais, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 52638/15) 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”) on 16 October 2015 by an Albanian national, Mr Gazmir Shahi (“the applicant”), who was born in 1982, lives in Montemurlo (Prato) and was represented by Ms D. Paccoi, a lawyer practising in Perugia;

the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia;

the parties’ observations;

Having deliberated in private on 4 September 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns criminal proceedings in which the applicant was declared a “fugitive” (latitante) and tried in absentia.

2.  In 2005 the applicant was stopped by the police multiple times. After one such incident, criminal proceedings were brought against him and he was sentenced to ten months’ house arrest for carrying a fake identity document. In the course of those proceedings, he provided a temporary address and a permanent address to the authorities. He served his house arrest at his sister’s home.

3.  On 3 May 2007, in the context of new criminal proceedings, the preliminary investigation judge ordered that the applicant be placed in pre‑trial detention. On 31 July 2007, since the applicant could not be found and was considered to have no fixed address, he was declared a fugitive and assigned a State‑appointed lawyer.

4.  Subsequently, the applicant was tried in absentia for offences relating to drug trafficking and sentenced to eight years and seven months’ imprisonment. That judgment was upheld by the Brescia Court of Appeal on 3 April 2013.

5.  On 24 August 2013 the applicant was stopped by the police and found in possession of drugs. He was immediately arrested and taken to prison in Perugia, where officers discovered that he was subject to an imprisonment enforcement order issued by the Brescia Court of Appeal on 27 July 2013.

6.  On 12 November 2013, as a result of a request submitted by the applicant, the Brescia Court of Appeal reinstated him within the time-limit to lodge an appeal with the Court of Cassation.

7.  The applicant lodged an appeal against the 2013 Court of Appeal judgment with the Court of Cassation in which he complained of having been convicted in absentia, referring to Article 6 of the Convention.

8.  The Court of Cassation dismissed the appeal, mainly on the assumption that the applicant had deliberately absconded. It concluded that, following the seizure of the substantial amount of cocaine which had been found on him, the applicant should have known that proceedings were going to take place.

9.  The applicant complained under Article 6 § 1 of the Convention that his conviction in absentia and the failure to reopen the proceedings ab initio had deprived him of a fair hearing. He further argued that the judgment of the Court of Cassation had constituted an unjustified denial of his right of access to a new hearing on the merits.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

10.  The relevant domestic law and practice (as in force at the relevant time) have been summarised in Huzuneanu v. Italy (no. 36043/08, §§ 27‑32, 1 September 2016).

11.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12.  The applicant stressed that he had never been present at any of the hearings, which had taken place at two levels of jurisdiction, or been notified that the proceedings were taking place. He emphasised that the authorities which had conducted the search to locate him had not taken into account the fact that he had been identified and detained by police forces multiple times and that he had provided them with different addresses. Before he was declared a fugitive, however, none of those addresses had been checked.

13.  The Government argued that the applicant “could have foreseen the initiation of criminal proceedings” and had “intentionally ignored it”. Furthermore, they stated that he had “voluntarily waived his right to be heard” in the light of the amount of drugs seized at the time and that he had been defended in court at two levels of jurisdiction by a State-appointed lawyer.

14.  They further argued that the applicant must have been aware that proceedings were taking place, given that judgments had been delivered against other defendants who were part of the same criminal organisation with which he was allegedly affiliated. They asserted that the lack of evidence proving the applicant’s involvement with the criminal organisation did not prove that he had no such involvement.

15.  The Government further submitted that the fact that the applicant had provided different addresses at different times and had been under house arrest at his sister’s home for ten months proved that he had no fixed address, making him de facto untraceable at the relevant time.

16.  The Court refers to its judgments in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81-95, ECHR 2006‑II) and Huzuneanu (cited above, §§ 47‑48) for a summary of the relevant principles applicable in the present case.

17.  It notes that it was not contested that the applicant had been tried in absentia or that before his arrest he had not received any official information about the charges or the date of his trial. Moreover, contrary to what the Government argued in their observations, there is no evidence in the case file unequivocally showing that the applicant was aware of the proceedings against him and accordingly that he waived his right to appear in court or sought to escape trial (see Lena Atanasova v. Bulgaria, no. 52009/07, § 52, 26 January 2017). In fact, the arguments on the basis of which the domestic courts maintained that the applicant was a fugitive – that is, the correctness of the search procedures carried out before he was declared a fugitive, the quantity of drugs seized, and the fact that he supposedly had no fixed address – cannot be deemed sufficient in order to prove, in an unequivocal manner, that the applicant sought to escape trial or waived his right to appear at the trial (see Sejdovic, cited above, § 87). Furthermore, the Court notes that there was no evidence before the domestic courts linking the applicant to the criminal organisation in question or any of the members thereof.

18.  In addition, the Court reiterates that being represented by an officially appointed lawyer in proceedings held in absentia is not of itself a sufficient guarantee against the risk of unfairness (see Huzuneanu, cited above, §§ 47‑49).

19.  Having established this, the Court is called upon to examine whether the applicant, convicted in absentia, subsequently had an effective opportunity to obtain a fresh determination of the merits of the charges against him by a court which had heard him in accordance with his defence rights (see Sejdovic, cited above, § 105, and Rizzotto v. Italy (no. 2), no. 20983/12, §§ 53-54, 5 September 2019).

20.  In the present case, in accordance with national law, the applicant only obtained reinstatement of the time-limit to lodge an appeal with the Court of Cassation and he was therefore not granted the opportunity to take part in new hearings or obtain a fresh determination of the merits of the charge against him (see Sanader v. Croatia, no. 66408/12, §§ 67-68, 12 February 2015, and Topi v. Albania, no. 14816/08, § 53, 22 May 2018).

21.  These considerations are sufficient to conclude that, contrary to the Government’s view, the overall fairness of the proceedings was vitiated and the applicant did not obtain an effective fresh determination of the merits of the charges against him in accordance with the requirements of Article 6.

22.  There has accordingly been a violation of Article 6 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant requested the reopening of proceedings. As an alternative if such a remedy was not available, he claimed an overall sum of 1,500,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He further claimed an equitable amount for costs and expenses incurred before the domestic courts.

24.  The Government submitted that the applicant would have the possibility of lodging an extraordinary appeal with the Court of Cassation under Article 628 bis of the Italian Code of Criminal Procedure in order to have the previous decision by the same court quashed and to obtain a “fresh judgment” in his case. They further noted that, if subsequently acquitted, the applicant might also be able to seek redress for a miscarriage of justice under Article 643 of the Italian Code of Criminal Procedure.

25.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the applicant’s claim under this head.

26.  The Court further notes that Article 628 bis of the Italian Code of Criminal Procedure provides a basis for requesting the reopening of proceedings in respect of which the Court has found a violation of the Convention, and considers that this would be the most appropriate form of redress for the violation of the applicant’s right under Article 6 § 1 of the Convention in the present circumstances (see Sejdovic, cited above, § 126, and X v. the Netherlands, no. 72631/17, § 61, 27 July 2021). That being so, the finding of a violation constitutes sufficient just satisfaction in the present case for any non‑pecuniary damage sustained by the applicant.

27.  As regards the applicant’s claim for costs and expenses, the Court notes that it was submitted without any documents, such as invoices, or any proof of payment capable of showing that the claimed costs and expenses had been incurred. The Court therefore rejects the applicant’s claim under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 25 September 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Frédéric Krenc
 Deputy Registrar President