When is Present Not Present: The Right to Be Present and the Ability to Understand and Participate in Proceedings

in The Right to Be Present at Trial in International Criminal Law
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This chapter examines the last of the four categories of absence; situations in which the accused is physically present in the courtroom during trial but unable to understand and participate in the proceedings. It explores the idea that the right to be present requires more than just the physical presence of the accused in the courtroom and instead emphasizes the importance of the accused’s participation in the trial. It specifically considers two instances in which the accused is present in the courtroom but unable to understand and participate in the proceedings. First, it discusses the requirements imposed by different courts and tribunals when trying an accused that does not understand the language in which the trial is being conducted. It finds that the right to be present at trial imposes an obligation on courts and tribunals to guarantee that an accused can understand the proceedings against him or her, although the degree to which he or she must be able to understand remains open to some debate. Next, it considers situations in which the accused is mentally unfit to stand trial and cannot understand or participate in the proceedings. Although a mentally unfit accused may be present in the courtroom, his or her condition will often prevent the accused from being able to participate in the proceedings. This shows that although the accused may be physically present in the courtroom, that sort of presence does not comply with the right to be present. Finally, the chapter looks at the changing use of videoconferencing technology during international criminal trials and the evolution in the law of a variety of different courts and tribunals towards allowing the accused to attend trial remotely. This supports the idea that presence at trial is more closely linked to the accused’s ability to participate in trial than to his or her physical presence. All of these topics, taken together, demonstrate that the accused is present for trial if he or she can understand and participate in the proceedings and that his or her physical presence is of diminishing importance when deciding if the accused is present.

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