Trial in absentia

Member states of the Council of Europe that are party to the European Convention on Human Rights are bound to adhere to Article 6 of the convention, which protects the right to a fair trial. Trials in absentia are banned in some member states of the EU and permitted in others, posing significant problems for the fluidity of mutual recognition of these judicial judgments. The executing member state possesses some degree of discretion, and is not obliged to execute a European Arrest Warrant if the country that is making the request has already tried that person in absentia. Conditions under which trials in absentia must be recognised include: if the person can be said to have been aware of the trial; if a counsellor took their place at the trial; if they do not request an appeal in due time; and if they are to be offered an appeal. The framework decision on the European Arrest Warrant provides for the legal guarantees relevant to trials in absentia. While the framework decision explicitly refers to Article 6 of the European Convention on Human Rights, its purpose is not to harmonise national laws on trials in absentia but to provide terms for the non-recognition of a European Arrest Warrant and other cooperative tools. The framework decision provides detailed conditions and requirements on which a trial in absentia can be considered compatible with Article 6, the right to a fair trial. According to Pieter Cleppe of the think-tank Open Europe, in parts of Europe, in absentia trials essentially give defendants the ability to appeal twice—asking for a retrial at which they would be present and then potentially appealing the second verdict. The Council of Europe has made commentary on judgments that are made in absentia. The Committee of Ministers, in Resolution (75) 11, of 21 May 1975, stated that an individual must first be effectively served with a summons prior to being tried. In this sense, the ministers are emphasizing that it is not the presence of the accused at the hearing that is of importance, rather the focus should be on whether or not the individual was informed of the trial in time. In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings. This entitlement is based on the right to a fair trial and the right to a defence, both of which are required by the convention (articles 6(1) and 6(3)). Furthermore, the court stressed that a person convicted in absentia shall be entitled to a fresh trial once he becomes aware of the proceedings: Belgium The Human Rights Committee (HRC) examined Monguya Mbenge v. Zaire (1990) in which the applicant was sentenced to death while exiled in Belgium and was only able to learn of the case against him through the media. Due to these circumstances, the committee found that a number of the applicant's procedural rights had been violated, especially in consideration of the fact that the Zairean authorities had hardly attempted to contact the applicant despite possible knowledge of the applicant's address. This highly impeded the applicant's capacity to prepare any form of defense. Failed evidence to support the case that a court had tried to inform the accused of proceedings against him/her provides the committee with the opinion that the right to be tried in one's presence was violated. Czech Republic Under Article 8(2) of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, no one may be prosecuted or deprived of their liberty except on grounds and in a manner specified by law. In general, the Czech Criminal Procedural Code requires the presence of the defendant in any criminal proceedings. The code recognizes the following exemptions from this rule, when criminal proceedings may be conducted without the presence of the person charged: • Where a defendant has died (involving the continuation or reopening of proceedings in order to clear a deceased defendant's name). • Where a defendant is unknown: • This may arise before charges against a person are brought, normally in respect of pre-trial proceedings. For example, if police conclude that a crime has been committed and that action needs to be taken to identify the perpetrator, such as the interrogation of a witness or an identity parade, such an action is taken in the presence of a judge because the rights of the (still unidentified) criminal suspect cannot otherwise be adequately protected during the evidence gathering. Normally, a defendant enjoys the right to be present or represented by an attorney during the interrogation or identity parade. But where the defendant is not yet identified, in order to secure full legality and impartiality, a judge is present. This ensures the admissibility of the resulting evidence will not be successfully challenged during the trial. Typically, this situation might involve a dying witness, not expected to be available later for cross-examination at a trial by or on behalf of the defendant. • When confiscating property involved in criminal case from an unknown owner, the property confiscated will remain the property of the unknown owner pending a trial and a court decision to transfer the property confiscated to the state. An example could arise where the property to be confiscated might endanger people, property or society, or might be used for commission of a felony. Typically, this concerns prohibited weapons or ammunition, explosives, narcotics, poisons, etc., seized by the police without, at the time of the seizure, knowing the owner's identity. • Where a defendant is known: • Where an accused person is evading proceedings by being either abroad or in hiding, the proceedings may be conducted in absentia. The proceedings are then officially started by the formal delivery of charges to the defendant's attorney. If the defendant does not have an attorney, the court will appoint one. An attorney must in these circumstances be appointed throughout the entire proceedings, and will have all the defendant's rights. All documents intended for the defendant will be delivered to the attorney and the court must take "appropriate measures" to announce the trial publicly. Where the absent defendant subsequently appears during the trial, the proceedings shall continue in the normal way. The defendant may request that any evidence that had been presented in his absence be presented again; where this is not possible, he will be shown records of it and may comment on it. Where the case has ended with an enforceable judgment, the convicted party may request a fresh trial within eight days of the delivery of the judgment to him. The fresh trial may not lead to an outcome that would be less favorable to the defendant than the outcome of the previous in absentia trial. Apart from the aforementioned cases of in absentia proceedings in the narrow sense, the defendant may also be absent during the trial under following circumstances: • When the defendant fails to appear for the trial: only if • the indictment was duly delivered and • the defendant was duly summoned for the trial (i.e. is not in hiding) and • the defendant has already been formally questioned during pre-trial proceedings (whether or not they elected to remain silent) and • the defendant has been alerted about their right to study the case file and to put forward motions for investigation and • the court determines that, despite the defendant's absence from the trial, the case can be reliably decided and the purposes of the trial achieved. • When the defendant requests that the trial takes place in their absence: if the defendant is being held on remand, a simple failure to appear is not permitted: the defendant must formally request that the proceedings to take place in their absence Italy Italy is one of several countries in Europe that allow trials in absentia, and they are a regular occurrence. In Maleki v Italy (1997), the United Nations Human Rights Committee held that the Italian policy on trials in absentia was a breach of the right to fair trial under Article 14 of the International Covenant on Civil and Political Rights. Italy argued that where a defendant in absentia is represented by court-appointed counsel and where he or she has an opportunity to be re-tried, the right to a fair trial will not be violated. The committee disagreed, describing Italy's position as: In 2009, a former CIA station chief and two other Americans were tried and convicted in absentia by a Milan appeals court for the abduction of Egyptian terror suspect Hassan Mustafa Osama Nasr. In total 26 Americans were tried in absentia for the abduction, and all were found guilty. Nasr himself was tried and convicted in absentia of terror offences by an Italian court in 2013, after Egyptian authorities did not respond to requests for his extradition. The re-trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher highlighted the issue of Italy's willingness to try defendants in absentia. Knox had returned to the United States after winning an appeal against her original conviction , but in 2013 Italy's highest court, the Court of Cassation, annulled the acquittal of Knox and co-accused Italian Raffaele Sollecito, declaring the acquittal as "full of deficiencies, contradictions and illogical conclusions". A re-trial was held, but as Knox remained in the United States and could not be compelled to return to Italy, the trial was held in absentia, in Florence, Italy. On 30 January 2014 she was once again convicted of the murder of Kercher sentenced to 28 years and six months imprisonment, longer than her original sentence. Knox stated she would not return to Italy to serve her sentence In the case of Goddi v. Italy, the European Court of Human Rights held that the failure of Italy's judiciary to inform the officially appointed lawyer of the applicant in regards to the correct date of the trial hearing deprived the applicant of an effective defence, and therefore Article 6 (3) (c) had been violated. Certain case law supports the notion that in some circumstances representation by counsel at the trial will not be enough to make an in absentia conviction conclusive enough for the establishment of probable cause. In Gallina v Fraser, the appellant Vincenzo Gallina was convicted in absentia according to established Italian procedure for two robberies. The verdict in Gallina has been since interpreted to suggest that the presence of legal counsel alone is, in certain cases, insufficient to give an in absentia conviction that establishes probable cause. == China ==