Since words have been written, positions have been taken, all on a political scene that moreover aims to be presidential. François Bayrou calls for a new trial, Nicolas Sarkozy was at the forefront of the arrest of the writer by some or terrorist by others, and Ségolène Royal has “delicately avoided the subject” while her partner François Hollande was one of the first to visit Battisti during his incarceration in France.
Behind the scenes for some, and showbiz for others, we find the first-day defenders with Fred Vargas and Bernard Henri Levy who continue the fight initiated at the time of the first arrest following the extradition request from a transalpine government which has since changed its political family and is now embarrassed with this poisoned gift from its French neighbors.
Nice Premium therefore asked Maître Clerc to give us his neutral viewpoint on the whole set of facts and possibilities that could arise from this divisive case.
Nice Premium: Maître CLERC, can you give us your legal insights on the BATTISTI affair?
Me Marie-France Clerc: Mr. Cesare BATTISTI was sentenced in absentia to life imprisonment for murder by three judgments rendered respectively in 1988 by the 1st Court of Assizes of Milan, then in 1990 and 1993 by two courts of assizes of appeal. He was absent at all three trials, having fled in 1981 and taken refuge in France in 1990, following François MITTERRAND’s promise not to extradite Italian nationals who had participated in terrorist actions and had renounced violence.
It was in this context that the Indictment Chamber of the Paris Court of Appeal rejected a first extradition request from Italy in 1991. On June 30, 2004, following a favorable opinion this time from the Chamber of Instructions, a decree granted Mr. BATTISTI’s extradition on October 23, 2004. He contested the validity of this decree, before the French Conseil d’État and then the European Court of Human Rights, arguing that he would not benefit from a new trial in Italy. Exiled in Brazil since 2004, and arrested last March 18, it is now up to the Brazilian justice to decide on the extradition request from the Italian authorities.
NP: Why can a person convicted in absentia in Italy not be retried?
MFC: In reality, Italian legislation allows a person tried in absentia to benefit from a new trial, but only if it results from the acts that the accused did not have effective knowledge of the ongoing procedure and did not voluntarily forfeit appearance, and that their lawyer has not already appealed or challenged the decision.
These provisions result from a law of February 21, 2005, which expanded the conditions for opening a new trial for those convicted in absentia, following several condemnations of Italy by the European Court of Human Rights. Indeed, before this law, an accused who had never effectively been informed of the ongoing legal proceedings against them could be deprived of a new trial.
NP: Legally, what does François MITTERRAND’s promise to never extradite Italian penitents from the years of lead amount to?
MFC:The French Conseil d’État, which ruled in a decision dated March 11, 2005, on the validity of the decree granting extradition to the Italian authorities of Mr. BATTISTI, considered that the statements made by the President of the Republic on April 20, 1985, have no legal effect. The Conseil d’État further specified that this promise would not concern Mr. BATTISTI, recalling that François MITTERRAND had, at the time, excluded the case of persons found guilty in their country of blood crimes.
NP: We talk about political asylum in Brazil for Cesare BATTISTI. Do you think that could be possible?
MFC:It is true that the extradition treaty signed between Italy and Brazil on October 17, 1989, provides that extradition will be refused if the acts for which it is requested are considered by the requesting state, in this case, Brazil, as political offenses.
It remains to be seen whether the Brazilian judiciary will assign a strictly political qualification to the acts for which Mr. BATTISTI has been sentenced, which would indeed constitute an obstacle to the extradition request made by Italy. It should be noted that the convention expressly provides, furthermore, that extradition cannot be refused solely on the grounds that the person has been convicted in absentia.
NP: How would this affair proceed if BATTISTI were a French national who had been judged in France?
MFC:In this hypothesis, Mr. BATTISTI would necessarily benefit from a new trial. The current default criminal proceedings, brought about by a law of March 9, 2004, indeed replaced our old in absentia proceedings, in order to bring French legislation into compliance with the requirements of the European Convention on Human Rights. This law, which came into force on October 1, 2004, also applies to individuals convicted in absentia before this date.
Regardless of the reasons for the absence of the accused at his trial, their arrest nullifies the default conviction, and mandates a new trial. In addition, it should be noted that it is impossible for an accused to acquiesce to his conviction, regardless of the penalty imposed, even if a lawyer was present to defend them during the debates.
NP: Finally, can you decode the actions undertaken by the lawyers of Cesare BATTISTI?
MFC:The lawyers of Cesare BATTISTI filed, before the French Conseil d’État and then before the European Court of Human Rights, an appeal against the decree authorizing his extradition. They notably argued that the decree was issued in violation of Article 6 of the European Convention, which guarantees every citizen the right to a fair trial.
They thus contended that Mr. BATTISTI had no guarantee of benefiting from a new trial in Italy, as he had been deprived of the opportunity to discuss the charges against him in a contradictory manner, arising mostly from turncoats.
The Conseil d’État in 2005, like the European Court of Human Rights this year, rejected Mr. BATTISTI’s appeals. Both jurisdictions indeed considered that he had deliberately chosen to remain in a situation of flight, had been represented by lawyers during the proceedings that led to his conviction, and used all possible legal remedies, such as unequivocally renouncing his right to appear at the hearing.
The entire team at Nice Premium would like to thank for their collaboration:
Marie-France CLERC
Lawyer at the Bar of Nice
DEA in Criminal Law and Criminal Policy in Europe
Correspondent of the International Prison Observatory
20, rue Gioffredo – 06000 Nice
