The Right of the Accused to be Tried in his or her Presence

by Thilo Marauhn⁽¹⁾

I. Introduction

The right of the accused to appear in person before the court must be considered inherent in the notion of fair trial. However, among the major international human rights instruments it is only the International Covenant which clearly and expressly provides for the right of the accused to be tried in his or her presence.⁽²⁾ The American Convention on Human Rights, under its art. 8, para. 2(d), only refers to "the right of the accused to defend himself personally", a wording parallel to that included in art. 6, para. 3(c), of the European Convention on Human Rights.⁽³⁾ No such provision is included in the African Charter on Human and Peoples' Rights. It seems obvious that the differences between the various provisions bring about different views as to the scope of the accused's right to be present before the court.

On the one hand, the Human Rights Committee has argued that the rights under art. 14 of the Covenant "cannot be construed as invariably rendering proceedings in absentia inadmissible irrespective of the reasons for the accused person's absence."⁽⁴⁾ The same has been suggested for the European Convention on Human Rights: "Naturally, the guarantee under discussion does not exclude the possibility of judgement by default . . . . "⁽⁵⁾. A similar interpretation may apply to the American Convention on Human Rights.

On the other hand, the report of the UN Secretary-General on the Tribunal for former Yugoslavia puts forward some doubts as to whether a trial in absentia really conforms to art. 14 of the International Covenant.⁽⁶⁾ And in regard to the American Convention on Human Rights the view has been put forward that art. 8, para. 2(d), of the Convention excludes trials in absentia.⁽⁷⁾

These divergent understandings as to the scope of the right to be present may be further underlined by a rather diverse practice of States, some prohibiting criminal trials by default,⁽⁸⁾ others permitting trials in absentia under certain (varying) conditions.

It is not the purpose of this brief note to prove a minimum standard in regard to the accused's right to be present. Rather it is intended to attempt to carefully identify various essentials of this right of the accused. This requires that several distinctions be made. First, there is a difference between negative and positive obligations imposed upon a state in this respect. Second, a distinction may be drawn between the exclusion of the accused from the hearing and the failure of the accused to appear before the court. Third, waiver by the accused or his counsel of this right and limitations imposed by the State upon the right to be present must be distinguished. If a trial in absentia is permissible at all it is important to safeguard the rights of the defence in such a case. These issues will be addressed subsequently on the basis of the national reports presented, taking into account also the practice under international human rights instruments. The paper will conclude with a proposal as to the elements of a more precise definition of the right of the accused to be present before the court than those included in existing human rights instruments.

A necessary prerequisite for a discussion of the accused's right to be tried in his or her presence is an analysis of the rationale of such a right. This will assist in the identification of the scope of any relevant provision.

II. Scope and Rationale

A. Trial in absentia before an International Criminal Tribunal

Recently, the issue of whether or not an accused may be tried in absentia was debated in regard to the establishment of the International Tribunal for former Yugoslavia⁽⁹⁾ and also within the International Law Commission (ILC) on its Draft Statute for an International Criminal Tribunal.⁽¹⁰⁾ As may be taken from art. 20, paras. 2 and 3, of the Statute of the Tribunal for former Yugoslavia⁽¹¹⁾ and from various provisions of its Rules of Procedure and Evidence⁽¹²⁾ trials in absentia are excluded before a Trial Chamber. The ILC's Draft Statute takes a different position: its art. 44, para. 1(h), allows trials in absentia without even including guarantees to safeguard the rights of the defence in such a case.⁽¹³⁾

When considering the discussions on the Tribunal for former Yugoslavia various arguments can be identified that are of relevance also when considering the rationale of the accused's right to be present before any other court. Proceedings against defendants in their absence were considered by some as a solution "clearly dictated by realism."⁽¹⁴⁾ Others, in contrast, argued that trials in absentia were "undesirable from both a policy and a political point of view and had no place in an international scheme"; rather it would undermine the legitimacy of the tribunal or court.⁽¹⁵⁾

These are primarily arguments from a public policy perspective, rather than from a viewpoint focusing on the rights and interests of the individual, and both lines of arguments clearly relate to the specific circumstances of the establishment of an international tribunal. It is only the report of the UN Secretary-General on the establishment of the Tribunal for former Yugoslavia which includes a clear reference to the International Covenant: "A trial should not commence until the accused is physically present before the International Tribunal. There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence."⁽¹⁶⁾

B. The Rationale for the Accused's Presence before a National Court

What is the rationale for the presence of the accused before a national court? First, there is a public interest in a correct determination of the case, a case with the accused being "the main subject of the adjudication."⁽¹⁷⁾ The accused's presence is of major importance not only in regard to the establishment of the factual circumstances of the case but also with a view to a correct assessment of the accused's personality. Second, there is the individual interest of the accused to be "able to influence the decision of the court on the criminal charges against him"⁽¹⁸⁾ through his or her presence. Thus, there is a public and an inidividual interest rationale underlying the need for the accused's presence during the hearing.

Looking at the reasons put forward for an exclusion of the accused from the hearing or for a trial in absentia there is merely a public interest rationale: the proper administration of justice. But what is to be understood by the proper administration of justice? Is it the timely conclusion of a trial or is it not the possibility to have the accused put before court at all? This should be kept in mind when turning to the scope and the limitation of the right to be present.

C. The Scope of the Right to be Present: Negative and Positive Obligations Imposed upon the State

Before turning to the details, attention has to be drawn to the fact that there are numerous States which, as a rule, do not permit trials in absentia. This is the case in, inter alia, Malaysia, Mexico, and South Africa. Most other States that permit a trial in absentia make it subject to certain conditions, in particular, that the accused is properly summoned. As a rule a right of appeal is also provided for.

To begin with, obviously, the right to be present first imposes a negative duty upon the state not to arbitrarily exclude the accused from the hearing.⁽¹⁹⁾ However, there also is a positive obligation that may be derived from this right: it is important that the accused has sufficient and real notice of the date of the hearing. In the particular case of a detained accused, the positive obligation may include a real offer to transport the accused to the court.⁽²⁰⁾ As may further be taken from the comparative analysis as well as from international human rights instruments the positive obligation imposed upon the State may include the obligation to adjourn the trial. This may especially be the case if the accused is physically unfit to attend the hearing.⁽²¹⁾

Concerning scope, it is further important to note that even in those countries which do not provide for trials in absentia there is a possibility to exclude the accused from the hearing if the accused "has persisted in disruptive conduct following a warning that he may be removed."⁽²²⁾ This is in fact a limitation imposed on the accused's right to be present. However, it illustrates that the right to be present encompasses two different situations which have to be distinguished, as already indicated in the introductory remarks--on the one hand a trial with the accused being generally absent, and on the other hand his or her exclusion from the hearing.

Another aspect of the scope of the right to be present is the question whether it applies also to regulatory and other administrative proceedings or only to felonies or major offences.⁽²³⁾ It seems that in the latter case there are only few countries providing for trials in absentia.⁽²⁴⁾ As a rule, trials in absentia are considered permissible only if minor sanctions may be imposed, inter alia, only a fine or imprisonment of 30 days at most (Denmark⁽²⁵⁾), a sanction inferior to one year in prison (Spain⁽²⁶⁾), or no imprisonment at all (Israel⁽²⁷⁾). This often also is related to the seriousness of the crime, such as in Uganda where felonies require the presence of the accused,⁽²⁸⁾ or in Israel where only a trial for a minor offence can be held in the absence of the accused. Similar rules apply in England and Wales under the Magistrates' Court Act of 1980.⁽²⁹⁾ In this regard, it may be pointed to the fact that in cases of minor offences where no imprisonment threatened it may even be in the interest of the accused to be tried summarily in his absence.

III. Limitations

A. Exclusion from the Hearing in the Case of Disruptive Conduct

It has already been indicated that it is generally possible to exclude an accused from the hearing in the case of disruptive conduct on his behalf. This limitation on the right of the accused to be present before the court emerges from a comparative analysis of national laws. As an example, the right to be present is forfeited under state and federal law in the United States if the accused disrupts the orderly progress of the trial; however, under US federal law sentencing and commencment of the trial is only possible with the accused present.⁽³⁰⁾ Similar limitations apply, inter alia, under Canadian law⁽³¹⁾ and in England and Wales.⁽³²⁾ What is important in regard to this limitation of the accused's right is that it is applied only in a restrictive way giving due regard to the proportionality principle. An example may be taken from a court decision applying to England and Wales where it was stated that removal from the courtroom only applies if the behaviour of the accused is so unruly as to make it impracticable for the trial to continue.⁽³³⁾

Under the European Convention on Human Rights, the Court in its opinion in Colozza v. Italy indicated that "the absence of the accused may be justified by the attitude he himself adopts at the hearing."⁽³⁴⁾ Similar principles apply to a situation where witnesses must fear intimidation.⁽³⁵⁾ In respect of the International Covenant it is noteworthy that Austria has entered a reservation with regard to the Covenant's art. 14, declaring that legal regulations which permit the exclusion of an accused who disturbs the orderly conduct of the trial are not in conflict with the said provision.⁽³⁶⁾ Hardly any references may be found as to how far these limitations on the right of personal appearance may go, in other words, how broad is the margin of appreciation in deciding on the necessity of excluding the accused. As has recently been argued in respect of the European Convention "[r]eal necessity and proportionality must be shown before concluding that the public interest in securing unreserved statements or orderly proceedings could only be served by the removal of the accused from the courtroom."⁽³⁷⁾ This might be taken as a general restriction on limitations of the accused's right to be present, also under other international agreements.

B. Trial in absentia in Case of a Deliberately Absent or Fugitive Accused

As may be taken from a comparative survey this is the most common reason for trials in absentia where they are permissible under the national law of a country. A distinction may, however, be drawn between cases where the accused absconds during trial, where he fails to appear for sentencing and others where he fails to appear right at the beginning of a trial. Under US law the right to be present is forfeited if the accused absconds during a mid-trial recess; however, only in rare cases may he be tried in absentia if he has fled before the start of the trial.⁽³⁸⁾ Similar rules apply under Canadian law.⁽³⁹⁾ In England and Wales, the judge has discretion to continue with the trial if the accused absconds during the trial. It is interesting to note that in practice the judge will be more reluctant to discharge the jury the longer the trial has lasted. In Morocco, judgement in absentia is possible, if the accused does not appear.⁽⁴⁰⁾ Under the European Convention on Human Rights several cases have been declared inadmissible where fugitive applicants subsequently complained under art. 6 of the Convention that they had been tried in their absence.⁽⁴¹⁾

As a rule, under international human rights law and under national law as illustrated by the various national reports, such a trial in absentia is subject to certain qualifications. It is possible only if the accused has been notified of the trial, including day, hour, place of hearing, offence, date of commitment and articles applied (e.g. as under Moroccan law⁽⁴²⁾) giving him sufficient time before the start of the hearing.⁽⁴³⁾ In a recent case before the European Court on Human Rights it has been made quite clear that indirect knowledge of the trial date does not meet the strict requirements for the State's diligence under art. 6, paras. 1 and 3(c), of the Convention.⁽⁴⁴⁾ As may further be taken from a view adopted by the Human Rights Committee, a trial in absentia is only permissible when the accused was summoned in a timely manner and informed of the proceedings against him:⁽⁴⁵⁾ "[T]he effective exercise of the rights under article 14 presupposes that the necessary steps should be taken to inform the accused beforehand about the proceedings against him . . . judgement in absentia requires that . . . all due notification has been made to inform him of the date and place of his trial and to request his attendance." This also underlines the positive obligations imposed upon a State that may be derived from the accused's right to be present.

C. Other Limitations?

It is hardly conceivable that there are other legitimate limitations upon the right to be present than those outlined above. However, some states have enacted provisions to this end. In the late 1970s a so-called Special Measure Law Concerning Punishment of Anti-Government Activists was enacted in the Republic of Korea,⁽⁴⁶⁾ allowing for the prosecution in absentia of persons accused of anti-government activitiy and who had fled the country. Under Canadian law, it is possible to draw adverse inferences from the absence of the fugitive accused.⁽⁴⁷⁾ Also, Venezuela made a reservation when ratifying the American Convention on Human Rights to the effect that persons accused of an offence against the res publica may be tried in absentia, though with the guarantees and in the manner prescribed by law.⁽⁴⁸⁾ These are only a few examples of further limitations imposed upon the right to be present.

Taking into account generally accepted principles on the limitation of human rights these examples raise numerous doubts. Even if accepting a wide margin of appreciation as to whether or not a legitimate aim is pursued by the State enacting such provisions the question arises whether such further limitations still conform to the principle of proportionality. Offences against the res publica and anti-government activities are a particularly sensitive area as regards human rights violations. Thus, although it may be accepted that the State has a particular interest in prosecuting such activities, the rights of the accused must be scrupulously protected in such proceedings. A general possibility of trials in absentia in these cases attaches priority to a perceived public interest as against the individual interest of the accused in a one-sided way.

In this context, reference may also be made to several views of the Human Rights Committee to the effect that a trial in absentia before a military court raises particular doubts as to its compatibility with art. 14 of the Covenant.⁽⁴⁹⁾ This is all the more important since the Human Rights Committee has usually found an express violation of the right to be present only in extreme cases.⁽⁵⁰⁾

IV. Waiver

The first question to be addressed here is whether or not the accused can at all waive his right to be present at the hearing. From a comparative law perspective several States providing for the possibility of a trial in absentia consider this to be one of the preconditions for such a trial. Thus, in Uganda a trial in absentia is permissible with the accused's consent.⁽⁵¹⁾ Under Canadian law, the accused is deemed to waive the right to be present if he or she absconds during the course of the trial.⁽⁵²⁾ It may be taken from these two examples that there might be a distinction between explicit and implicit waiver.

Looking at the jurisprudence of the European Commission and Court on Human Rights it has been accepted by the Commission that the right of the accused to be present at the hearing can be waived by his counsel without prior authorization.⁽⁵³⁾ This has given rise to criticism since the right to be present must be considered a personal right and thus the waiver must emanate from the accused himself.⁽⁵⁴⁾ While the Commission also tended to accept implicit waiver in cases where the accused failed to request that a procedural right be observed, the Court held that waiver of a right must be established in an unequivocal manner.⁽⁵⁵⁾ This is important since it may be argued that procedural rights should be granted by the court automatically, ex officio.

A difficult question arises in regard to activities of the accused having an impact on his or her ability to attend the hearing, i.e. cases where the accused has absconded, has feigned unfitness to attend, or has intentionally reduced himself to a state of inability to attend. In the absence of other decisions the case law of the organs under the European Convention may again be referred to, in particular a case where accused persons entered into a hunger strike, and subsequently were fit only to attend parts of the trial.⁽⁵⁶⁾ In this case the Commission decision pointed out that the accused persons had brought themselves to a state precluding their attendance at the hearing, thus implicitly waiving their right to be present. The only activitiy that might be required of the State in such a situation is to take positive measures intended to neutralize the accused's tactics. Whether or not a fugitive accused must be considered to have waived his or her right to be present need not be answered here, since those States permitting for a trial in absentia under such circumstances apply specific rules to such a case. This has already been considered above.

V. Safeguarding the Rights of the Defence in Case of a Trial in absentia

Apart from the positive obligation to summon the accused in a timely manner as derived from the accused's right to be present, there are three major safeguards to ensure the protection of the rights of the defence in case of a trial in absentia. These are (1) legal representation by counsel, (2) access to all relevant evidence of the case, and (3) the right to challenge a judgement in default.

A. Legal Representation

Several countries permitting a trial in absentia at least require representation by counsel. This is the case in Denmark,⁽⁵⁷⁾ it also seems to apply under Islamic law,⁽⁵⁸⁾ and, under US law, counsel must be allowed to be heard unless there is a separate waiver of the right to counsel.⁽⁵⁹⁾ Turning to regional and universal human rights instruments, an accused tried in absentia must still be adequately defended under the European Convention, in particular, his counsel wishing to attend the trial must be permitted to do so not merely as a theoretical option but in practice.⁽⁶⁰⁾ Under the Covenant, the court must at least inform the accused of his right to counsel.⁽⁶¹⁾ Nevertheless, it has to be kept in mind, that the presence of the defending lawyer can never wholly replace that of the accused. Hence, it is important that there is a possibility to challenge, seek review of or appeal a judgement in default.

B. Access to Evidence and to verbatim Transcripts of the Trial Proceedings

As has been pointed out in the Human Rights Committee's General Comment 13/21 of 12 April 1984 on Procedural Guarantees in Civil and Criminal Trials, "[w]hen exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary". This includes, in particular, access to evidence as is accepted by various systems of national law.

Inter alia, under Islamic law all evidence should be known to the accused or his counsel. What is particularly interesting is that in Uganda there is a right to a copy of the records of the hearing made by or on behalf of the court and in the United States absent defendants may learn about the evidence considered by means of the verbatim transcript during trial proceedings.

C. Challenge, Review and Appeal

This must be considered an important element of the notion of fair trial if a trial in absentia is permitted. Usually, under national law the right to challenge a judgement by default is subject to certain conditions, in particular that the accused makes it probable that his non-appearance was excusable. This is the case, inter alia, in Denmark,⁽⁶²⁾ in Israel,⁽⁶³⁾ in Uganda,⁽⁶⁴⁾ and in numerous other countries. Differences arise as to whether this is a normal appeal or whether it is a trial de novo. No clear tendency may be taken from the various national reports in this regard.

It is noteworthy in this context that the possibility of a trial de novo was discussed in the context of the establishment of the Tribunal for former Yugoslavia. Although it was considered to be a safeguard in case of a trial in absentia doubts were raised as to whether "a trial de novo could be fair and whether it would respect the right to the presumption of innocence."⁽⁶⁵⁾

VI. Alternatives to a Trial in absentia

Considering the number of countries that do not have provisions for a trial in absentia the question arises whether there really is a need for such a procedural instrument. When and to what end is a trial in absentia conducted? What are the alternatives?

Turning to the first of these two questions, a trial in absentia other than in cases when the accused is removed from the courtroom due to his disruptive behaviour may only be justified with reference to a public policy argument. It may be considered necessary to underline the State's intention to prosecute and penalize certain offences. What must be pointed out is that such a trial in absentia does not necessarily contribute to the proper administration of justice, since the presence of the accused must be considered to be in the public interest with a view to a correct determination of the case. The accused is the main subject of adjudication. Also, since the right to challenge a judgement in default is considered to be of major importance from a human rights perspective there may be need for a new trial anyway if the accused returns. Thus, there may be two trials with the first being only of symbolic value.

How then can the public interest which primarily must be considered the demonstration of the State's intention to prosecute for a certain offence be given due regard in other ways than by a trial in absentia? A first possibility is to issue a warrant to get hold of the accused. If this proves ineffective another possibility would be to publicly announce that service of an indictment against a certain suspect is sought. Another option has been included in Rule 67 of the Rules of Procedure and Evidence of the Tribunal on former Yugoslavia which provides for reciprocal disclosure of proof of the guilt of the accused and of any defence plea. However, what seems to be most important is the need for a special procedure to preserve evidence and to perpetuate testimony. Special procedures in this regard seem to be a fully acceptable alternative to a trial in absentia since they seek a balance between the public and the individual interests involved in a case. They have been adopted, inter alia, in Germany and Malaysia.⁽⁶⁶⁾

VII. Conclusion

As has been shown, there is only a rather limited common minimum standard which all relevant normative systems apply in regard to the right of the accused to be present. The situation de lege lata under the Covenant also has given rise to different interpretations ranging from the permissibility of trials in absentia leaving a wide margin of appreciation for States how to conform with art. 14, para. 3(d), on the one hand⁽⁶⁷⁾ to the position that a trial in absentia may not conform with this provision.⁽⁶⁸⁾ In my view this should give rise to a more precise formulation of the right to be present. Some ideas in this respect have already been included in the Draft Body of Principles on the Right to a Fair Trial and a Remedy included in the 1994 report on a third optional protocol to the Covenant.⁽⁶⁹⁾ This body of principles as a rule excludes trials in absentia, however, it also lists safeguards if an accused is tried in absentia.

I would even go beyond these principles and suggest de lege ferenda the following precisions of the right to be present.

First, there should be a clear distinction between the exclusion of the accused from the hearing (which is permissible in case of disruptive behaviour on the part of the accused) and a trial in absentia which as a rule should only be permissible in case of minor offences not sanctioned with imprisonment. Second, the presence of the accused should be required under all circumstances at the beginning of the trial and when the judgement is pronounced. This, inter alia, avoids the accused being kept secretly by the police and being tried in his absence. Third, the right to be present includes the right to be duly summoned. Fourth, there should be special procedure for the preservation of evidence and the perpetuation of testimony if the presence of the accused cannot be achieved. If the accused is excluded from the hearing and in other cases of a trial in absentia legal representation of the accused must be ensured and there must be a right to challenge a decision. No trials in absentia should be allowed in military courts and for juveniles.