Trial in absentia

Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in the absence". Its meaning varies by jurisdiction and legal system.

In common law legal systems, the phrase is more than a spatial description. In these systems it suggests a recognition of a violation to a defendant's right to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).

In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country.

Europe

Signatories to the European Convention on Human Rights

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 states 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. ^[1]

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 an EAW (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.^[2]

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.

There are some guarantees in the legal system that make sure that it's fair, that the rights of the defense are not being violated, while still making sure that justice is being done. In absentia judgments are common[...] you can criticize that, but it's quite common.

— Pieter Cleppe, Open Europe^[3]

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:^[4]

When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge.

— European Court of Human Rights, Colozza vs. Italy^[5]

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 Crown 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.^[6]

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.^[7]

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:^[8]

• 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.^[9]

• 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.^[10]

• 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.^[11] 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.^[12] An attorney must in these circumstances be appointed throughout the entire proceedings, and will have all the defendant's rights.^[13] All documents intended for the defendant will be delivered to the attorney and the court must take "appropriate measures" to announce the trial publicly.^[14] 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.^[15]

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^[16]
  • 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^[16]
• When the defendant is disrupting the proceedings: trial in absentia is possible only on basis of a formal ruling of, and subject to previous warning by, the court, and only for the necessary period of time. Immediately after allowing the defendant back into the courtroom, the presiding judge must convey the essential content of the proceedings taken in the defendant's absence, so as allow them to comment on it.^[17]

Italy

Italy is one of several countries in Europe that allow trials in absentia.^[18]

Trials in absentia are ‘not infrequently held in Italy’.^[19]

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. However the Committee disagreed, describing Italy’s position as

clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia. It was incumbent on the court that tried the case to verify that [Maleki] had been informed of the pending case before proceeding to hold the trial in absentia. Failing evidence that the court did so, the [HRC] is of the opinion that [Maleki's] right to be tried in his presence was violated.^[20]

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 Osama Hassan Mustafa Nasr. The decision meant that 26 Americans tried in absentia for the abduction were found guilty.^[21]

The highly publicised trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher has highlighted the issue of Italy’s willingness to try defendants in absentia. In 2013 the Italy’s highest court, the Court of Cassation decided to annul Knox’s appeal (alongside the co-accused, Italian Raffaele Sollecito) thus overturning their previous acquittals, declaring the acquittal as "full of deficiencies, contradictions and illogical conclusions".^[22]

As Amanda Knox remained at her home in the United States, her appeal was heard in absentia, in Florence, Italy. On 30 January 2014 her guilty verdict was re-instated for the murder of Kercher and her sentence set at 28 years and six months imprisonment.^[23]

In the case of Goddi v. Italy, the Strasbourg Court 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.^[24]

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. ^[25]

United States of America

For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.

In 1884, the United States Supreme Court held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

A similar holding was announced by the Arizona Court of Appeals in 2004 (based on Arizona Rules of Criminal Procedure):

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004) (Depublished Opinion).

Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.

Rule 43 provides that a defendant shall be present

• at the arraignment,
• at the time of the plea,
• at every stage of the trial including the impaneling of the jury and the return of the verdict and
• at the imposition of sentence.

However, the following exceptions are included in the Rule:

• the defendant waives his or her right to be present if he or she voluntarily leaves the trial after it has commenced,
• if he or she persists in disruptive conduct after being warned that such conduct will cause him or her to be removed from the courtroom,
• a corporation need not be present, but may be represented by counsel,
• in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his or her written consent, and
• the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.

Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior,^[26] or through his or her voluntary absence after trial has begun.^[27]

In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States.^[28] The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."

However, the Crosby Court reiterated an 80-year-old precedent that

Where the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).

Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.^[29]

Examples

Examples of people convicted in absentia are:

• Charles I of England was removed from his trial due to his disruptive behavior, and sentenced to death by beheading without being in the room.
• Cesare Battisti, thriller author and former member of the Italian militant group Armed Proletarians for Communism, sentenced to life. (Arrested on March 18, 2007 in Brazil, and then released on 9 June 2011.)
• Adem Jashari, leader of then terrorist Kosovo Liberation Army was convicted in July 1997 of terrorism in absentia by a Yugoslav court after several unsuccessful attempts to capture or kill him.
• Krim Belkacem, Algerian Berber resistance fighter and politician. (Assassinated on October 18, 1970 in West Germany.)
• Heinrich Boere, a Dutch or German convicted by a Dutch court in 1949 of murders on the part of the World War II German occupation authorities in the Netherlands. German courts refused to extradite Boere to the Netherlands due to his possibly having German citizenship.
• Martin Bormann, Nazi official and Hitler's private secretary, convicted of war crimes and crimes against humanity and sentenced to death by hanging at the Nuremberg war crimes trials. (Disappeared on May 2, 1945, his remains were uncovered in late 1972 in West Berlin, and conclusively identified as those of Bormann in 1998.)
• Dési Bouterse, Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking.
• Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
• Bettino Craxi, Italian statesman and former prime minister, sentenced in absentia to 27 years in jail in Italy, who previously fled to Hammamet in Tunisia in 1994, and remained a fugitive there, protected by Ben Ali's regime.^[30]
• Ryszard Kukliński, a Polish colonel, Cold War spy and communist whistleblower, sentenced in absentia to death as a traitor in 1984 by a communist court in the Polish People's Republic. He was finally acquitted in 1997. It was said his activity was in a State of Necessity.
• Ira Einhorn, murderer and anti-war activist, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)
• John Factor, a British-born American gangster and con man, charged with securities fraud in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States.
• Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy regime.
• Oleg Gordievsky, sentenced to death by the Soviet Union for treason after fleeing to the United Kingdom in 1985.
• Boļeslavs Maikovskis, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).^[31]
• Mengistu Haile Mariam, former communist dictator sentenced to death in Ethiopia for genocide in May 2008.
• Jamal Jafaar Mohammed, sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings. He is currently serving in Iraq's parliament as a member of Prime Minister Nouri al-Maliki's Islamic Dawa Party.^[32]
• Abu Musab al-Zarqawi, sentenced to death in Jordan. (Killed on June 7, 2006 in Iraq.)
• Andrew Luster, convicted of rape after fleeing mid-trial.
• Filiberto Ojeda Ríos, convicted in the US after fleeing.
• Zine El Abidine Ben Ali, former president of Tunisia, sentenced to life in prison along with his wife, Leïla Ben Ali.
• Bernardo Provenzano, Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.
• Michael Townley, Chilean DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo Leighton.^[33] (Currently living under the United States Federal Witness Protection Program.)
• Sholam Weiss, sentenced to the longest federal prison term in United States history (835 years) for fraud, money laundering and other crimes, jumped bail mid-trial. (Extradited by Austria on June 20, 2002.)^[34][35]
• Arkady Shevchenko, high ranking SVR official of the USSR, senteneed to death in Moscow in absentia after defecting to the United States.
• Irakli Okruashvili, Defense Minister of Georgia from 2004 to 2006 and a personal friend of Georgian president Mikheil Saakashvili. Okruashvili returned to prominence when he formed an opposition party to the Georgian government and accused it of corruption and plotting assassinations. He was arrested days later on charges of extortion, bribe taking, and abuse of power, and released on $6 million bail pending trial. He flew to Europe, supposedly to seek medical treatment, but tried to find political asylum. He was denied asylum in Germany, but received it in France, which refused an extradition request from Georgia. He was tried in absentia, found guilty, and sentenced to 11 years imprisonment.^[36]
• Alexander Poteyev, ex-colonel of the Russian intelligence agency SVR, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown; presumably he lives in the United States under protection of the US government.
• Kent Kristensen, Danish businessman was sentenced in Romania in absentia to 7 years for not paying an official in a building project. He was arrested in Spain in 2011 when he tried to save his child which was abducted by her mother. He is serving his time at the Giurgiu maximum security prison. In March 2012 it was reported that the Romania denied him his medication ^[37]
• Amanda Knox, tried in absentia and convicted in 2013, for the 2007 murder of Meredith Kercher ^[23]

See also

• Audi alteram partem
• In absentia (disambiguation)
• List of Latin phrases
• Declared death in absentia
• Default judgment (a civil counterpart)

References

1. http://www.openeurope.org.uk/Content/documents/Pdfs/tia.pdf
2. http://www.law.unc.edu/documents/faculty/adversaryconference/profboesepaper.pdf
3. http://www.npr.org/2013/03/26/175374848/knox-faces-a-new-trial-even-if-she-s-not-there
4. Keller, Helen & Sweet, Alec Stone (2008), A Europe of Rights:The Impact of the Echr on National Legal Systems, Oxford University Press
5. Colozza v. Italy (appl. no. 9024/80), Judgement (Chamber), 12 February 1985, Series A, Vol. 89
6. http://justsecurity.org/5839/trials-absentia/
7. "Charter of Fundamental Rights and Basic Freedoms". Collection of the laws of the Czech Republic (in Czech) (Prague) 2 (1993). Retrieved July 9, 2013. |first1= missing |last1= in Authors list (help)
8. Císařová, Dagmar (2006), Trestní právo procesní, Prague: Linde Praha a.s.
9. Šámal, Pavel (2013), Trestní řád I., II., III. (7th ed.), Prague: C. H. Beck, pp. 1977–1983
10. Šámal, Pavel, Trestní zákoník (2nd ed.), Prague: C. H. Beck, pp. 1195–1209
11. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 8, 2013. |first1= missing |last1= in Authors list (help) §302
12. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 8, 2013. |first1= missing |last1= in Authors list (help) §303
13. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 8, 2013. |first1= missing |last1= in Authors list (help) §304
14. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 8, 2013. |first1= missing |last1= in Authors list (help) §306
15. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 8, 2013. |first1= missing |last1= in Authors list (help) §306a
16. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 12, 2013. |first1= missing |last1= in Authors list (help) §202
17. "Criminal Procedural Code of the Czech Republic". Collection of the laws of the Czech Republic (in Czech) (Prague) 141 (1961). Retrieved July 12, 2013. |first1= missing |last1= in Authors list (help) §204
18. http://www.prisonersabroad.org.uk/uploads/documents/prisoners/Trials_in_absentia.pdf
19. http://www.wcl.american.edu/hrbrief/v4i1/schwar41.htm
20. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2176&context=ilj&sei-redir=1&referer=http%3A%2F%2Fwww.google.it%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dcriminal%2520law%2520italy%2520trial%2520in%2520absentia%26source%3Dweb%26cd%3D12%26ved%3D0CCUQFjABOAo%26url%3Dhttp%253A%252F%252Fir.lawnet.fordham.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2176%2526context%253Dilj%26ei%3D8T3OU7rfDOTW0QXR8oCACg%26usg%3DAFQjCNHGRUHPSKrmi9O5R5LvfMXK8KIIxA#search=%22criminal%20law%20italy%20trial%20absentia%22
21. http://www.nydailynews.com/news/world/italian-court-convicts-cia-trio-kidnap-article-1.1253324
22. http://www.nbcnews.com/news/other/amanda-knox-no-show-new-trial-murder-begins-italy-f8C11294149
23. http://abcnews.go.com/International/amanda-knox-jury-prepared-announce-verdict/story?id=22295682
24. http://www.jsijournal.ie/html/Volume%204%20No.%202/4%5B2%5D_Mahoney_Right%20to%20a%20Fair%20Trial%20in%20Criminal%20Matters.pdf
25. http://www.heinonline.org.ezproxy.lib.monash.edu.au/HOL/Page?page=843&handle=hein.journals%2Fshlr39&collection=journals#860
26. Illinois v. Allen, 397 U.S. 337 (1970)
27. Taylor v. United States, 414 U.S. 17 (1973)
28. 506 U.S. 255
29. "Pakistan | Cases against PM’s wife withdrawn by NAB". Dawn.Com. Retrieved 8 November 2010.
30. "Craxi: Fallen kingpin". BBC News. 20 January 2000.
31. Thomas, Robert McG. "Boleslavs Maikovskis, 92; Fled War-Crimes Investigation". The New York Times. 8 May 1996. Retrieved 4 December 2009.
32. U.S. military: Iraqi lawmaker is U.S. Embassy bomber
33. "Agent of Chilean Secret Service Convicted of Murder Attempt". UPI. 11 March 1993.
34. From CNN Correspondent Michael Ware (22 February 2007). "U.S. military: Iraqi lawmaker is U.S. Embassy bomber". CNN.com. Retrieved 8 November 2010.
35. Blair, David (12 April 2008). "Embassy bomber given Iraq coalition seat". Telegraph. Retrieved 8 November 2010.
36. Russia Today – Georgian ex-minister gets 11 year sentence (28 March 2008)
37. Dansker nægtes medicin i rumænsk fængsel, by Michala Rask Mikkelsen, Berlingske Nyhedsbureau, March 7 - 2012