This chapter introduces the idea of the right to be present at trial. It provides some historical context for the right, tracing its origins in domestic law from the first millennium bce. It then discusses how the right to be present was incorporated into international criminal law in the twentieth century. It also takes note of the evolution of the right in international criminal law as more international and internationalised criminal courts and tribunals came into being. The chapter then sets out the structure of the succeeding chapters and the issues surrounding the right to be present each chapter intends to address. It also provides a brief summary of the findings set out in the conclusion.
This chapter discusses whether the accused’s presence at trial is a right, a duty or both under international criminal law. It starts by contextualising presence at trial in the larger framework of the right to a fair trial and defining the terms right and duty. It then separately examines the evidence supporting a finding that the accused has a right to be present at trial and concludes that the right to be present exists and is guaranteed through a number of international and regional conventions and all of the statutes of international or internationalised criminal courts and tribunals. This chapter also finds that there is growing support in primary and secondary sources for the idea that there is a duty to be present at trial obligating the accused to attend trial and permitting the court or tribunal to proceed in the accused’s absence if he or she does not appear. Having established that there is a right to be present and a duty to be present, this chapter also considers whether the right to be present and the duty to be present are co-extensive or if they actually pertain to different aspects of presence. The chapter concludes that the right to be present and the duty to be present can co-exist so long as the precautions are taken to prevent the former from being invalidated by the latter.
This chapter examines how the right to be present developed in international criminal law. It specifically looks at the impact different legal systems, particularly those rooted in the accusatorial and inquisitorial traditions, had on how the right to be present was interpreted during the creation of different international and internationalised criminal courts and tribunals. It conducts an analysis of the formation of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court and the Special Tribunal for Lebanon and the negotiations surrounding the inclusion of the right to be present in the Statutes of each court or tribunal. It concludes that although the differences in the approaches of courts and tribunals to trial in absentia are often attributed to the influences of the accusatorial or inquisitorial legal systems, in reality almost all international and internationalised criminal courts and tribunals allow some portion of trial to take place in the absence of the accused. What really separates the practices of the different courts and tribunals is not whether they permit trial in absentia, but instead, the methods employed to ensure that the decision to continue trial in the absence of the accused complies with the accused’s right to be present at trial.
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.
This chapter examines how the right to be present has continued to evolve since the inclusion of the trial in absentia procedure in the Special Tribunal for Lebanon’s Statute. It studies five international or internationalised criminal courts and tribunals that have been established or proposed since the Special Tribunal for Lebanon and how the right to be present has continued to evolve at those institutions. An examination of the statutes of those tribunals and, where available the case law, indicates that these newer courts and tribunals employ a variety of methods to uphold the right to be present at trial. It finds that the somewhat static attitude to the right to be present that existed before the Special Tribunal for Lebanon has given way to more creative approaches to the right in later courts and tribunals. Instead of closely basing the statutory right to be present on the International Covenant for Civil and Political Rights, the recently introduced and proposed courts and tribunals appear to be trying to identify more dynamic procedures that are designed to address the particular needs of that tribunal. This chapter concludes that this sort of innovation should be encouraged, as it can lead to a more complete application of the right, but that attention must be paid to whether these new procedures are sufficiently protecting the principles underpinning the right to be present.
This book concludes that international criminal law provides the accused with a qualified right to be present at trial. The right confers on the accused the choice to attend trial and is coupled with a duty imposed on the court or tribunal attempting to conduct the trial whereby it cannot prevent the accused from attending trial if he or she so desires. That right can be voluntarily waived by the accused if he or she has received notice sufficient to make an informed decision about whether he or she wishes to appear. There is also growing recognition of the idea that the accused has a duty to be present and that his or her failure to comply with the responsibilities of that duty can result in trial being conducted in his or her absence. Trials in absentia are permissible so long as the accused’s absence is the result of an informed decision on the part of the accused and does not constitute a deprivation of the right to be present. Trials by default may also be conducted, however an accused tried in this manner must have the right to a new trial or some other fresh assessment of the charges after he or she comes under the control of the responsible court or tribunal. This approach creates a balance between respecting the accused’s right to be present, which can be instrumental to preserving the accused’s fair trial rights, and ensuring that the interests of the other trial participants can also be fulfilled.
This chapter introduces the idea of trial in absentia and serves as the starting point for the next four chapters of the book. It separates trial absences into four categories: 1) trial in absentia; 2) trial by default; 3) absences occurring after the start of trial; and 4) situations in which physical presence does not equate to actual presence. This chapter specifically considers trial in absentia, defined as a trial occurring entirely in the absence of the accused where the accused knows the trial is taking place but chooses not to attend. It predominantly discusses the issues of notice and waiver and the role they play in ensuring that the accused’s absence is voluntary. It finds that international criminal law permits the accused to voluntarily waive his or her right to trial but only if he or she has first received notice of the proceedings in a sufficient amount of time to allow him or her to adequately prepare a defence to the charges against them. Additionally, while notice can be express or implied, it must be unequivocal and clearly indicate that the accused wants trial to take place without his or her participation. It then examines the limited instances of trial in absentia conducted by international and internationalised criminal courts and tribunals to determine whether the accused properly waived his or her right to be present before trial continued in their absence.
This chapter follows on from the previous chapter and looks at trials by default, defined as a trial taking place in the accused’s absence, but where the accused either has not received notice about the proceedings or notice is uncertain. This chapter evaluates whether a trial conducted under these circumstances can comply with the right to be present as the voluntariness of the accused’s absence is in doubt. It does this through the lens of the Special Tribunal for Lebanon’s Statute and the decisions of the court that have resulted in the now ongoing trial in absentia. The chapter finds that although the Statute explicitly permits trials in absentia, the language used in the relevant provision is broad enough to also possibly permit trial by default. It then considers whether the trial in absentia being conducted in the Prosecutor v Ayyash et al. comports with the accused’s right to be present. It concludes that there is no per se prohibition against trying an accused that may not have received notice, however to ensure that the right to be present is respected it is necessary to guarantee a new trial for any accused tried in this manner once he or she comes under the control of the court or tribunal conducting the original trial.
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.
This chapter considers how trials in absentia serve the goals of international criminal law with a particular focus on the needs of the different participants in the international criminal process. Numerous different goals have been identified to justify conducting international criminal trials including: accountability, establishing the truth, reconciliation, peace, reinforcing the rule of law and reparations. There is no objective hierarchy to this list and the importance of each goal within the context of a particular trial depends on which group or groups the court or tribunal wants to vindicate. There are three groups international trials are meant to serve: the accused, victims of atrocity crimes and the international community as a whole. This chapter examines each of the above-named goals and considers whether the achievement of that goal will satisfy the needs of each of these groups and whether those desires can still be served in the absence of the accused. It generally concludes that the accused almost always has an interest in being present at trial, particularly when the specific trial goals are taken into consideration. With regard to the other two groups, the chapter finds that they do not necessarily have the same interest in seeing each of these goals accomplished making whether the court should proceed with a trial in absentia dependent on which group, and which goal, it is most interested in satisfying.