The Right to Be Present and Absences that Occur after the Beginning of Trial

in The Right to Be Present at Trial in International Criminal Law

Abstract

This chapter studies short-term absences from trial and how the perceived voluntariness of those actions impacts whether trial can continue in the accused’s absence. It does this through a close examination of a number of different trial transcripts, judgments and decisions from a variety of international and internationalised criminal courts and tribunals. The chapter divides absences into two categories: voluntary absences and involuntary absences. Voluntary absences occur when: an accused is removed from the courtroom for being disruptive; the accused boycotts trial; the accused absconds during trial; and the court authorised absences. Generally, when an accused voluntarily absences himself or herself from trial, international and internationalised criminal court or tribunal have decided to proceed in their absence on the basis that he or she waived the right to be present. The approach to an accused that is not voluntarily absent from trial has often been quite different. An accused’s absence is involuntary when it results from: illness, death, disappearance and incarceration. When an accused is involuntarily absent from trial, courts and tribunals have been much more willing to halt trial to give the accused the opportunity to return to trial or to find out why the accused is absent. These two different approaches indicate that international and internationalised courts and tribunals view the reason for the absence as significant when deciding whether the right to be present will permit it to proceed outside of the presence of the accused.

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