Proceedings in absentia in comparative and international criminal law [1 ed.] 9783428585403, 9783428185405

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Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Band / Volume 50

Proceedings in absentia in comparative and international criminal law

By

Lena Mertins

Duncker & Humblot · Berlin

LENA MERTINS

Proceedings in absentia in comparative and international criminal law

Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Herausgegeben von / Edited by Prof. Dr. Dr. h.c. Kai Ambos, Richter am Kosovo Sondertribunal Berater (amicus curiae) Sondergerichtsbarkeit für den Frieden, Bogotá, Kolumbien

Band / Volume 50

Proceedings in absentia in comparative and international criminal law

By

Lena Mertins

Duncker & Humblot · Berlin

Unter Beteiligung des Göttinger Vereins zur Förderung der Strafrechtswissenschaft und Kriminologie sowie ihrer praktischen Anwendung e. V.

Die Rechts- und Staatswissenschaftliche Fakultät der Rheinischen Friedrich-Wilhelms-Universität Bonn hat diese Arbeit im Jahre 2021 als Dissertation angenommen.

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.

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© 2022 Duncker & Humblot GmbH, Berlin Typesetting: 3w+p GmbH, Rimpar Printing: buchbücher.de GmbH, Birkach Printed in Germany ISSN 1867-5271 ISBN 978-3-428-18540-5 (Print) ISBN 978-3-428-58540-3 (E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706 Internet: http://www.duncker-humblot.de

Meinem Opa Norbert und meinem Patenkind Lasse

Preface “When I came back to Dublin, I was court-martialled in my absence and sentenced to death in my absence, so I said, they could shoot me in my absence.” – Brendan Behan (1923 – 1964), Hostage, London 1958

This thesis was accepted as a dissertation by the Faculty of Law of the University of Bonn in November 2021. Pertinent literature was taken into account up until February 2021. I would like to thank my doctoral supervisor Prof. Dr. Carl-Friedrich Stuckenberg, LL.M for his support. His allowance for comprehensive scientific freedom, as well as his usual sharp and perceptive criticism made this work possible. My sincere thanks also go to Prof. Dr. Martin Böse for the careful and speedy preparation of the second report. I also thank Prof. Dr. Dr. h.c. Kai Ambos for the inclusion in this series of publications. My deepest gratitude also goes to Stefanie Küfner and Christoph Flügge who gave me the opportunity to work with the Trial Chamber I of the ICTY during portions of the Mladic´ trial and sparked my passion for international criminal law. Christoph still greatly inspires me, and I look forward to future gatherings with you and the other past ICTY-Interns. I would also like to express thank to the Studienstiftung des deutschen Volkes (German National Academic Foundation) for its many years of support during my studies in Bonn and Buenos Aires, as well as during my doctorate. The financial support was the foundation for several research stays inter alia at the Lauterpacht Centre for International Law of the University of Cambridge, but the scholarship has given me so much more. Through the numerous events and trips I met some of my closest friends. Special thanks goes to Nikita Parekh, Saskia Cargile, Magnus Krusenotto, Niklas Scheffer and Philip van Griethuijsen, who each warmly welcomed me into their homes during my research stays in Seattle, Bristol, Freiburg, Vienna and The Hague, respectively. I would also like to sincerely thank Rebecca Devaney, David Owen Fisher, Steve Smith and Joshua LaMorey-Salzmann for their time-consuming language revision and Daniel Schumacher for editing the thesis.

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Preface

I am also grateful to Anna Rummel, Arne Ruhwinkel, Lisa Wüstefeld, Dr. Daniel Hahn and Dr. Ömer Keskin for their advice and the many discussions about in absentia proceedings I had with them individually. Many thanks also to Dr. Michael Greßmann and Ulrich Staudigl who introduced me to the German perspective on international criminal law. I am particularly grateful to Dr. Greßmann for his regular updates on current international criminal law cases before German courts. Finally, I would like to thank the best colleagues Anna-Lena Ishorst, Dr. Isabelle Schneider, Marie Braun, Florian Knop, Jacob Wewetzer und Dr. Karl Klöpper who supported me in finalizing this thesis when I started working as a judge. Despite the company of these distinguished people who have earned my deepest admiration, this work would not have been possible without the moral support of my family and friends during the strenuous phase. Thank you! Cologne, November 2021

Lena Mertins

Contents A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 I. Goals and scope of this study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 II. Working Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 B. Proceedings in absentia at ICTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 I. The investigative phase at ICTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 II. IMT and IMTFE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 III. ICTY, ICTR and MICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 1. Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 2. Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 3. Framework of proceedings in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 a) Procedure in absentia at the pre-trial stage . . . . . . . . . . . . . . . . . . . . . . . . . 50 aa) Rule 61 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 bb) Rule 71bis Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 b) Proceedings partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 aa) Pre-trial conferences and technical meetings . . . . . . . . . . . . . . . . . . . . . 56 bb) Waiver of the right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 cc) Refusal to attend trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 dd) Removal due to disruptive behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ee) Temporary inability to stand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ff) Protection of witnesses and victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 4. Video link procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 IV. Hybrid tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 1. SCSL, SPSC, ECCC, BWCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 a) Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 b) Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 c) Framework of trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 2. STL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 a) Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 b) Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

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Contents c) Framework of trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 aa) Legal and virtual presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 bb) Trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 (1) Conditions for the conduction of trials in absentia . . . . . . . . . . . . . 69 (a) Art. 22(1)(a) STLSt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (b) Art. 22(1)(b) STLSt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 (c) Art. 22(1)(c) STLSt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 cc) Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 (1) Proper notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 (2) Representation by defence counsel . . . . . . . . . . . . . . . . . . . . . . . . . 74 (3) Re-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 dd) Partial trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 3. KSC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 a) Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 b) Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 c) Framework of proceedings in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 d) Participation via video link . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 V. ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 1. Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 2. Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 3. Pre-trial proceedings in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 a) Confirmation of charges in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 aa) Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 bb) Confirmation of charges in absentia for fugitive suspects . . . . . . . . . . 85 cc) Role of the confirmation of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 b) Ex-Parte hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 4. Framework of trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 a) Removal of the disruptive defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 b) Rule 134bis, -ter and -quarter ICC-RPE . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 aa) Background of the new regulations – The case against Ruto and Kenyatta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 bb) Developments after the implementation of the new regulations . . . . . . 94 c) De minimis absences after a waiver of the right to be present . . . . . . . . . . . 95 d) Ex-Parte hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 5. Sentencing in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 VI. Appeals Stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 VII. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

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C. Procedural theory: goals of ICTs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 I. Goals of international criminal justice – macro level . . . . . . . . . . . . . . . . . . . . . . 105 1. Systematisation of the goals of international criminal justice . . . . . . . . . . . . . 109 II. Goals of international criminal procedure – micro level . . . . . . . . . . . . . . . . . . . . 112 1. Goals of international criminal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 a) Implementation of substantive criminal law and punishment by convicting the guilty and acquitting the innocent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 b) Further goals of criminal procedure – Rethinking the relation between procedural and substantive law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 aa) Truth and international criminal justice . . . . . . . . . . . . . . . . . . . . . . . . . 115 (1) Procedural truth finding measures . . . . . . . . . . . . . . . . . . . . . . . . . . 117 (2) The truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 bb) Potential victims’ participation during trial . . . . . . . . . . . . . . . . . . . . . . 121 cc) Promotion of the deterrent effect through a criminal trial . . . . . . . . . . . 122 dd) The conflict solving function of the trial . . . . . . . . . . . . . . . . . . . . . . . . 123 ee) The exemplary function of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 ff) The didactic function of the trial and spreading respect for the rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 gg) Fairness, expeditiousness and efficiency of the trial . . . . . . . . . . . . . . . 125 c) Interim findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 2. Compatibility of trials in absentia with the goals of international criminal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 a) Truth-seeking, convicting and condemning of the guilty, acquitting the innocent in a trial held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 b) Potential victims’ participation during a trial in absentia . . . . . . . . . . . . . . 128 c) The deterrent effect of a trial in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 d) The conflict solving potential of a trial in absentia . . . . . . . . . . . . . . . . . . . 132 e) The exemplary function of a trial in absentia . . . . . . . . . . . . . . . . . . . . . . . 132 f) The didactic function of a trial in absentia and its ability to restore the rule of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 g) Interim Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 3. Theories that conceptualise criminal procedure as having a further intrinsic value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 a) Habermas’ discursive theory of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 b) Duff’s communicative theory and Duff and colleagues’ normative theory 138 c) Other normative approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 d) Ohlin’s meta-theory of international criminal procedure . . . . . . . . . . . . . . . 141 III. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

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D. Sources of international criminal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 I. Generally applicable sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 1. Treaties as secondary source for the ICTs’ criminal procedural framework . . 148 2. Customary law as secondary source for the ICTs’ criminal procedural framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 3. General principles as a secondary source for the ICTs’ criminal procedural framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 a) Excursus: Meaning of the term “general principle” . . . . . . . . . . . . . . . . . . . 161 b) The different types of general principles in general international law . . . . . 162 c) Conceptualising the different types of general principles applicable to ICTs 165 d) Hierarchy among the different types of general principles . . . . . . . . . . . . . 170 4. Interim conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 E. Requirements for trials in absentia deriving from human rights law . . . . . . . . . . 172 I. Requirements for the conduction of trials in absentia . . . . . . . . . . . . . . . . . . . . . 172 1. EU requirements regarding criminal procedures in absentia . . . . . . . . . . . . . . 173 2. Human rights bodies’ case law and requirements regarding trials in absentia 179 a) ACHPR framework and requirements regarding trials in absentia . . . . . . . 181 b) IACtHR jurisprudence regarding trials in absentia . . . . . . . . . . . . . . . . . . . 182 c) ECtHR case law and requirements regarding trials in absentia . . . . . . . . . . 183 aa) Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 bb) Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 cc) Conditions under which a hearing in absentia is compatible with Art. 6 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 (1) Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 (a) Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 (b) Unambiguousness of the waiver . . . . . . . . . . . . . . . . . . . . . . . . . 192 (c) Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 (d) Balancing of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 (e) Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 (2) Implicit waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 (3) Evasion of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 (4) Legal representation during the absence . . . . . . . . . . . . . . . . . . . . . 197 (5) Effective Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 dd) Conditions under which judicial hearings can be partially conducted in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 ee) Conditions under which the defendant can participate via video link at judicial hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 d) HRC case law and requirements regarding trials in absentia . . . . . . . . . . . 202

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3. Synopsis of the ACHPR’s, HRC’s and ECtHR’s case law and requirements regarding judicial proceedings in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 II. Adjustment of international human rights standards as response to the needs of international criminal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 III. Compatibility of trials in absentia with the right to a fair trial . . . . . . . . . . . . . . . 209 1. Scope of application and general structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 2. Equality of arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 3. Right to adversarial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 4. Right to participate effectively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 5. The minimum guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 a) Right to be informed promptly and in detail about the charges . . . . . . . . . . 218 b) Right to have adequate time and facilities to prepare the defence . . . . . . . . 220 c) Right to defence by self-representation or representation through legal assistance of one’s own choosing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 aa) Right to defend oneself in person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 bb) Right to formal defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 cc) Ratio of the two components of the right to defence . . . . . . . . . . . . . . . 229 dd) Right to counsel paid by the state respectively the registry . . . . . . . . . 232 d) Right to examine and present witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 6. Impairment of the defence and participation rights enshrined in the right to a fair trial in the defendant’s absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240 a) Rights the defendant retains when being tried in absentia . . . . . . . . . . . . . . 241 b) A third party exercising the defendant’s rights . . . . . . . . . . . . . . . . . . . . . . . 242 c) Paternalistic action taken by the court to exercising the defendant’s rights 243 d) A defence counsel exercising the defendant’s rights . . . . . . . . . . . . . . . . . . 244 aa) Right to an adversarial hearing and right to confront witnesses . . . . . . 245 bb) Equality of arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 cc) Right to be informed of the charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 dd) Right to have adequate time and facilities to prepare the defence . . . . 246 ee) Right to defence through counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 ff) Interim Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 e) Obligation to appoint ex officio counsel to the defendant tried in absentia 247 aa) Obligation to appoint ex officio counsel to the defendant tried in absentia based on the legal aid scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 (1) Financial necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 (2) Interests of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 bb) ICTs’ practice with regards to the appointment of ex officio counsel

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cc) Other aspects for the obligation to appoint counsel ex officio to the defendant tried in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

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Contents dd) Rebuttal of counter-arguments that could be stipulated against the obligation to appoint counsel ex officio to the defendant tried in absentia 257 ee) Exercising the defendant’s rights by appointing a standby counsel or amicus curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 f) Implementation of the obligation to appoint ex officio counsel to the defendant tried in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 IV. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

F. Trials in absentia as general principle? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 I. Determination of general principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 1. General principles recognised by the major legal systems of the world . . . . . 270 a) Comparative Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 b) Extraction of principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 c) Transposition to the international sphere . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 II. Reports on foreign law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 1. Adversarial and inquisitorial model of criminal procedure . . . . . . . . . . . . . . . 275 2. Continental-Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 a) Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 283 bb) Procedures in absentia against the ‘absent defendant’ . . . . . . . . . . . . . 284 (1) Security of evidence for future proceedings . . . . . . . . . . . . . . . . . . 286 (2) Seizure of the absent defendant’s property . . . . . . . . . . . . . . . . . . . 286 (3) Granting safe conduct to the absent defendant . . . . . . . . . . . . . . . . 286 (4) Safeguards during the procedures against the absent defendant . . . 287 cc) Intermediate procedure in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 dd) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . 288 (1) Trial entirely held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 (2) Deliberately bringing about the unfitness to stand trial – Section 231a StPO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 (3) Remedies against judgments rendered in absentia . . . . . . . . . . . . . 293 (4) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 (a) Semel praesens semper praesens – Section 231(2) StPO . . . . . 294 (b) Misconduct by the defendant – Section 231b StPO . . . . . . . . . . 295 (c) Trial against several defendants – Section 231c StPO . . . . . . . . 295 (d) Witness protection and importance as to the establishment of substantive truth – Section 247 StPO . . . . . . . . . . . . . . . . . . . . . 296 (e) Safeguards during trial partially held in absentia . . . . . . . . . . . 296 ee) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 296 (1) Appeal on grounds of fact and law – Berufung . . . . . . . . . . . . . . . . 296

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(2) Appeal on grounds of law – Revision . . . . . . . . . . . . . . . . . . . . . . . 298 ff) Video link procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 gg) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 300 (1) Private prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 (2) Penal order procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 hh) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 b) Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 302 (1) Proceedings in absentia against the defendant whose whereabouts are unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 (2) Proceedings in absentia during the taking of evidence by the prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 (3) Private settlement hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 bb) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . 309 (1) Trial entirely held in absentia – Kontumazialverfahren . . . . . . . . . 309 (a) Proper summons and summoning to a second hearing . . . . . . . 310 (b) Prior statement by the defendant and sufficient evidence . . . . . 311 (c) Court’s discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 (d) Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 (e) Remedies against in absentia judgments . . . . . . . . . . . . . . . . . . 312 (2) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 (a) Preliminary hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 (b) Semel praesens semper praesens . . . . . . . . . . . . . . . . . . . . . . . . 313 (c) Protective measures for witnesses and victims . . . . . . . . . . . . . 314 (d) Defendant’s request to remain absent . . . . . . . . . . . . . . . . . . . . 314 (e) Misconduct by the defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 cc) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 315 (1) Appeals on points of fact and law – Berufung . . . . . . . . . . . . . . . . . 315 (2) Objection before the BGer – Beschwerde in Strafsachen . . . . . . . . 317 dd) Video link procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 ee) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 318 (1) Summary penalty order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 (2) Separate subsequent decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 (3) Contravention procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 (4) Procedure where the accused is not legally responsible due to a mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 ff) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 c) Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 320 bb) Investigations against the untraceable defendant . . . . . . . . . . . . . . . . . . 322

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Contents cc) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . 323 (1) Rescheduling of the hearing if the defendant is hindered to appear 324 (2) Trial in absentia at the Landesgericht . . . . . . . . . . . . . . . . . . . . . . . 325 (3) Trial in absentia at the Bezirksgericht . . . . . . . . . . . . . . . . . . . . . . . 327 (4) Remedies against in absentia judgments . . . . . . . . . . . . . . . . . . . . . 328 (a) Objection – Einspruch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 (b) Appeal on points of law – Nichtigkeitsbeschwerde . . . . . . . . . . 329 (5) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 (a) Removal due to misconduct by the defendant . . . . . . . . . . . . . . 329 (b) Trial against several defendants and witness protection . . . . . . 330 (c) Nonappearance at a trial for minor offences after personal summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330 (d) Absence during the delivery of the judgment . . . . . . . . . . . . . . 330 (e) Safeguards during trial partially held in absentia . . . . . . . . . . . 331 (6) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . 331 (a) Appeals on point of fact and law – Berufung . . . . . . . . . . . . . . 331 (b) Appeals on points of law – Nichtigkeitsbeschwerde . . . . . . . . . 332 dd) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 332 (1) Penal order procedure – Mandatsverfahren . . . . . . . . . . . . . . . . . . . 332 (2) Procedure where the accused is not legally responsible due to a mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332 ee) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 d) Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 334 bb) Right and duty to be present during judicial proceedings . . . . . . . . . . . 336 cc) Pre-trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 337 dd) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . 337 (1) Trial entirely held in absentia – dibattimento in assenza . . . . . . . . 338 (a) Waiver of the right to be present or presumed knowledge of the proceedings and nonappearance at the hearing . . . . . . . . . . . . . 339 (aa) Proper notification – vocatio in iudicium or summons . . . 340 (bb) Regulation on the service of notifications and summons 341 (b) No absolute impossibility to appear . . . . . . . . . . . . . . . . . . . . . . 342 (c) No suspension of the trial due to the defendant’s untraceability 343 (d) Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344 (e) Reception of the new in absentia rules by the doctrine . . . . . . . 344 (2) Remedies against judgments rendered in absentia . . . . . . . . . . . . . 345 ee) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 (1) Semel praesens semper praesens . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 (2) Removal of the defendant due to his misconduct . . . . . . . . . . . . . . 348

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ff) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 348 gg) Video link procedure – dibattimento a distanza . . . . . . . . . . . . . . . . . . 349 hh) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 351 (1) Accelerated procedure – giudizio abbreviato . . . . . . . . . . . . . . . . . . 351 (2) Penal order procedure – procedimento per decreto . . . . . . . . . . . . . 351 ii) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 e) The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 aa) Pre-trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 353 bb) Trial and appeals stage and their in absentia framework . . . . . . . . . . . 355 (1) Trial or appeals entirely held in absentia – Verstekbehandeling . . . 357 (a) Nonappearance of the defendant or an empowered counsel upon opening of the hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357 (b) Proper summons or notice of the proceedings – Daagvarding

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(c) Court’s decision to proceed in absentia . . . . . . . . . . . . . . . . . . . 360 (d) Safeguards during the verstekbehandeling . . . . . . . . . . . . . . . . . 361 (e) Remedies against judgments in absentia . . . . . . . . . . . . . . . . . . 362 (2) Trial and appeal partially held in absentia . . . . . . . . . . . . . . . . . . . . 364 (a) Semel praesens semper praesens . . . . . . . . . . . . . . . . . . . . . . . . 364 (b) Removal due to misconduct by the defendant . . . . . . . . . . . . . . 365 (c) Trial against several defendants . . . . . . . . . . . . . . . . . . . . . . . . . 365 (d) Protection of witnesses and the reliability of their testimony 365 (3) Safeguards during trial partially held in absentia . . . . . . . . . . . . . . 366 cc) Video link procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 dd) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 366 (1) Procedure against defendants who are believed to be suffering from a mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 (2) Penal order procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 ee) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 3. Common law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 a) USA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 368 bb) Pre-trial procedure and its in absentia framework . . . . . . . . . . . . . . . . . 369 cc) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . 371 (1) Trials held entirely in absentia – initiation of the trial in absentia 374 (2) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 (a) Commencement of the trial in absentia after the defendant’s initial appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 (b) Proceedings regarding questions of law . . . . . . . . . . . . . . . . . . . 379 (c) Removal of the disruptive defendant . . . . . . . . . . . . . . . . . . . . . 380 dd) Sentencing stage and its in absentia framework . . . . . . . . . . . . . . . . . . 381

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Contents ee) Remedies against the in absentia conviction . . . . . . . . . . . . . . . . . . . . . 382 ff) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 383 gg) Video link procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384 hh) Special procedure and its in absentia framework . . . . . . . . . . . . . . . . . 385 ii) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 b) England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 aa) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . 386 bb) Judicial proceedings and their in absentia framework . . . . . . . . . . . . . . 387 (1) Proceedings in absentia at the Magistrates’ Court . . . . . . . . . . . . . 388 (a) Preliminary procedure at the Magistrates’ Court . . . . . . . . . . . . 388 (b) Plea before venue and allocation (mode of trial) procedure . . . 390 (c) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . 391 (aa) Proper summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 (bb) Guilty plea in absence via post . . . . . . . . . . . . . . . . . . . . . . 392 (cc) Trial in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 (dd) Sentencing procedure in absentia . . . . . . . . . . . . . . . . . . . . 395 (d) Special remedies against the in absentia conviction . . . . . . . . . 395 (2) Proceedings in absentia at the Crown Court . . . . . . . . . . . . . . . . . . 396 (a) Pre-trial procedure and its in absentia framework . . . . . . . . . . . 396 (aa) Plea procedure – arraignment . . . . . . . . . . . . . . . . . . . . . . . 397 (b) Trial in absentia at the Crown Court . . . . . . . . . . . . . . . . . . . . . 398 (c) Guidelines for the court to use their discretion on whether to proceed in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 (d) Safeguards for trials held in absentia at the Crown Court . . . . . 400 (e) Sentencing procedure and its in absentia framework . . . . . . . . 401 cc) Judicial proceedings partially held in absentia . . . . . . . . . . . . . . . . . . . 402 dd) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . 402 (1) Appeal procedure at the Crown Court . . . . . . . . . . . . . . . . . . . . . . . 403 (2) Appeal procedure at the High Court (Divisional Court) by way of case stated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 (3) Appeal procedure at the High Court (Queen’s Bench Division) by way of application for judicial review . . . . . . . . . . . . . . . . . . . . . . . 404 (4) Appeal procedure at the Court of Appeal (Criminal Division) . . . . 404 (5) Appeal procedure at the Supreme Court . . . . . . . . . . . . . . . . . . . . . 406 ee) Video link procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 ff) Special procedures and their in absentia framework . . . . . . . . . . . . . . . 407 gg) Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 III. Comparison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 1. Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408 2. Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409

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3. In absentia framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 a) Proceedings in writing – inaudito reo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410 b) Investigative stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . 410 c) Procedures in absentia against the untraceable defendant . . . . . . . . . . . . . . 412 d) Intermediate or pre-trial stage and its in absentia framework . . . . . . . . . . . 413 e) Trial stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 f) Trial held partially in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 aa) Misconduct by the defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 bb) Request to remain absent by the defendant . . . . . . . . . . . . . . . . . . . . . . 417 cc) Questioning of witnesses or co-defendant . . . . . . . . . . . . . . . . . . . . . . . 417 dd) Parts of the trial that concern questions of law . . . . . . . . . . . . . . . . . . . 417 ee) Semel praesens semper praesens maxim . . . . . . . . . . . . . . . . . . . . . . . . 417 ff) Presence and consequences of the defence counsel’s participation . . . . 418 g) Remedies against in absentia judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 h) Appeals stage and its in absentia framework . . . . . . . . . . . . . . . . . . . . . . . . 420 aa) Appeal on points of fact and law and its in absentia framework . . . . . 420 bb) Appeal on points of law and its in absentia framework . . . . . . . . . . . . 421 4. Presence via video link . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 IV. Determination of general principles with regards to proceedings in absentia . . . 422 1. The right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 2. Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 3. Investigations in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 4. Trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 a) Inaudito reo proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 b) Trials entirely held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 c) Trial partially held in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426 aa) Exclusion of the defendant due to his disruptive behaviour . . . . . . . . . 427 bb) Semel praesens semper praesens maxim . . . . . . . . . . . . . . . . . . . . . . . . 428 cc) De minimis absences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 d) Participation via video link . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 5. Appeal procedures in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 6. The conceptions of trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 V. Conclusions and interim findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 G. Conceptualising trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431 I. ICTs’ and human rights supervisory bodies’ practice . . . . . . . . . . . . . . . . . . . . . . 431 II. Theoretical considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433 1. Right to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433

20

Contents 2. Duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 a) Justification of a duty to be present . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 b) Parameters for the justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 aa) Public interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 bb) The defendant’s interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 cc) The potential victims’ interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 dd) Common interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 c) Interim findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 III. Concepts for trials in absentia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444 1. Limitations on the defendant’s right to be present . . . . . . . . . . . . . . . . . . . . . . 445 a) The concept of waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445 aa) Absence of the defendant who has expressively waived his right to be present or has initially appeared . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 bb) Absence of the defendant who has absconded or otherwise cannot be found . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 cc) Absence of the obstreperous defendant . . . . . . . . . . . . . . . . . . . . . . . . . 448 b) The alternative concept of waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 c) The concept of forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450 aa) Absence of the defendant who has absconded . . . . . . . . . . . . . . . . . . . . 451 bb) Absence of the obstreperous defendant . . . . . . . . . . . . . . . . . . . . . . . . . 452 d) Necessity of the concept of forfeiture? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 e) Interim findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 2. Limitations on the defendant’s duty to be present . . . . . . . . . . . . . . . . . . . . . . 454 IV. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

H. Final thoughts and conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 I. Results and prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

Abbreviations A.2d A.C.D. AA AC ACHPR ACHR ACtHPR AIDP AJIL AJP AK All ER Am J Comp L Am U Int’l L Rev AöR AP App. DC App.3d Appl. ARIEL ARSP Art. ASP AT-StGB AT-StPO AU AustYBIL AVR BayObLG BBl BeckOK BeckRs BGBl BGE BGer BGG BGH BGHSt BiH BSK

Atlantic Reporter, Second Series Administrative Court Digest Ars Aequi Appeals Chamber African Convention on Human and Peoples’ Rights (Banjul Charter) American Convention on Human Rights (Pact of San José) African Court on Human and Peoples’ Rights Association Internationale de Droit Pénal American Journal of International Law Aktuelle Juristische Praxis Alternativkommentar All England Law Reports American Journal of Comparative Law American University International Law Review Archiv des öffentlichen Rechts Archivo Penale Appeal Cases, District Columbia California Courts of Appeal Cases, Third Series Application Austrian Review of International and European Law Archiv für Rechts- und Sozialphilosophie Article Assembly of the State Parties to the RomeSt Austrian Criminal Code (Strafprozessordnung) Austrian Code of Criminal Procedure (Strafprozessordnung) African Union Australian Yearbook of International Law Archiv für Völkerrecht Bayerisches Oberstes Landesgericht Bundesblatt Beck’scher Online Kommentar Beck-Online Rechtsprechung Bundesgesetztblatt Sammlung der Bundesgerichtsentscheidungen Schweizerisches Bundesgericht Schweizerisches Bundesgerichtsgesetz Bundesgerichtshof Entscheidungen des Bundesgerichtshofs in Strafsachen Bosnia and Herzegovina Basler Kommentar zur Strafprozessordnung

22 BT-Drs. BV BVerfG BVerfGE BWCC CAA CAJA Cal.App.3rd Cal.App.4th CAR CCP CDA ChiJIntlL ChiKentLRev CH-StPO CIC CIJ Cir. CJA CJIA CJPA COD ColumJTransnatlL CPC CPIA CPP CPR CPS Crim App R CrimLF CrimLR CrimPR Curt CC DD Doc. DPC DPP DRC DRiZ DukeJComp&IntlL e. g. ECCC ECHR ECJ ECMACM ECtHR EGMR EGStGB

Abbreviations Bundestag Drucksache Schweizerische Bundesverfassung Bundesverfassungsgericht Entscheidungen des Bundesverfassungsgerichts War Crimes Section of the Court of Bosnia and Herzegovina Criminal Appeal Act Coroners and Justice Act California Appellate Reports, Third Series California Appellate Reports, Forth Series Central African Republic Court of Criminal Procedure Crime and Disorder Act Chicago Journal of International Law Chicago-Kent Law Review Schweizerische Strafprozessordnung Code d’Instruction Criminelle, 1808 Co-Investigating Judges at the ECCC Circuit Criminal Justice Act Criminal Justice and Immigration Act Criminal Justice and Police Act Crown Office Digest Columbia Journal of Transnational Law Criminal Procedural Code Criminal Procedure and Investigations Act Codice di Procedura Penale Italiano The Criminal Procedure Rules Crown Prosecution Service The Criminal Appeal Reports Criminal Law Forum Criminal Law Review Criminal Procedure Rules Curtis’ United States Circuits Court Reports Delikt en Delinkwent Document(s) Diritto Penale Contemporeano Diritto Penale Procedurale Democratic Republic of Congo Deutsche Richterzeitung Duke Journal of Comparative and International Law for example Extraordinary Chambers in the Courts of Cambodia European Convention on Human Rights European Court of Justice European Convention on Mutual Assistance in Criminal Matters European Court of Human Rights Europäischer Gerichtshof für Menschenrechte Einführungsgesetz zum Strafgesetzbuch

Abbreviations EMRK et al. et seq. etc. EU EU FRCh EuCLR EuGRZ EULEX EurJIntlL EvBl EWCA Crim EWHC (Admin) F&F F.2d F.3d F.Cas F.Supp. FCJ Fed.Appex FG FlaLRev FordhamIntlLJ FordhamLRev FRCrP FRD FS GA GaJIntl&CompL GeoWashIntlLRev GG GS GVG GYIL HarvIntlLJ HarvJL& PubPoly HastingsLJ HR HR&IntlLegalDiscourse HRA HRC HRLR HumRtsQ i. e. IACtHR ICC ICCPR ICJ

Europäische Menschenrechtskonvention et alii, et aliae or et alia and the following et cetera European Union Charter of Fundamental Rights of the European Union European Criminal Law Review Europäische Grundrechte Zeitschrift European Union Rule of Law Mission in Kosovo European Journal of International Law Evidenzblatt der Rechtsmittelentscheidungen Court of Appeal (Criminal Division) High Court (Administrative Court) Foster and Finlayson’s Nisi Prius Reports (1858 – 1868) Federal Reporter, Second Series Federal Reporter, Third Series Federal Cases Federal Supplement Federal Court of Justice Federal Appendix Festgabe Florida Law Review Fordham International Law Journal Fordham Law Review Federal Rules of Criminal Procedure Federal Rules Decisions Festschrift Goltdammers Archiv Georgia Journal of International and Comparative Law George Washington International Law Review Grundgesetz Gedächtnisschrift Gerichtsverfassungsgesetz German Yearbook of International Law Harvard International Law Journal Harvard Journal of Law & Public Policy Hastings Law Journal Hoge Raad Human Rights & International Legal Discourse Human Rights Act Human Rights Committee Human Rights Law Review Human Rights Quarterly id est Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights International Court of Justice

23

24 ICJSt ICL ICLR ICT ICTR ICTRSt ICTY ICTYSt Imm AR IMT IMTCh IMTFE IMTFECh IntKommEMRK Intl&CompLQ Intl&CompLRev IntlLRev IPBPR IR IRG JA JBl JCE JCrimL JCrimL&Criminology JICJ JICL JOC JP JR JSt JuS JZ KB KG KK KMR KRT KSC Law&ContempProbs Law&Soc’yRev LCCP LG LJIL

Abbreviations Statute of the International Court of Justice International Criminal Law International Criminal Law Review International(ised) Courts and Tribunals International Criminal Tribunal for Rwanda Statute of the International Criminal Tribunal for Rwanda International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Statute of the International Criminal Tribunal for the Former Yugoslavia Immigration Appeal Reports International Military Tribunal at Nuremberg Charter of the International Military Tribunal at Nuremberg International Military Tribunal for the Far East Charter of the International Military Tribunal for the Far East Internationaler Kommentar zur Europäischen Menschenrechtskonvention International and Comparative Law Quarterly International and Comparative Law Review International Law Review Internationaler Pakt über bürgerliche und politische Rechte Internal Rule Gesetz über die internationale Rechtshilfe Juristische Ausbildung Juristische Blätter Joint Criminal Enterprise Journal of Criminal Law Journal of Criminal Law and Criminology Journal of International Criminal Justice Journal of International Criminal Law The Journal of Criminal Law Justice of the Peace Reports Juristische Rundschau Journal für Strafrecht Juristische Schulung Juristen Zeitung Law Reports, King’s Bench Kammergericht Karlsruher Kommentar zur StPO Kommentar zur Strafprozessordnung Khmer Rouge Tribunal Kosovo Specialist Chambers Law and Contemporary Problems Law and Society Review Lebanese Code of Criminal Procedure Landgericht Leiden Journal of International Law

Abbreviations LoyUChiLJ LPICT LR LR PC LSK MCA MCR MDR MichJIntlL MichLRev MICT Minn. Misc.2d MPEPIL MvT N.E.2d N.Y.2d N.Y.S.2d NCJIintlL & Com Reg NewEngLRev NewJEuropeanCrimL NGO NJ NJB NJW No. NordicJIL Nos NotreDameILJ Nr. NStZ NStZ-RR NVwZ NW.2d NYIL NYU JIL OCIJ OCLICC OGH OJ OJLS ÖJZ OLG ÖRZ Os OTP OWiG

25

Loyola University of Chicago Law Journal Law & Practice of International Courts and Tribunals Löwe-Rosenberg Kommentar zur StPO The Law Reports of Privy Council Appeals Leitsatzkartei des deutschen Rechts Magistrates’ Courts Act Magistrates’ Court Rules Monatsschrift für Deutsches Recht Michigan Journal of International Law Michigan Law Review Mechanism for International Criminal Tribunals Minnesota Law Reports New York Miscellaneous Reports, Second Series Max Planck Encyclopedia of Public International Law Memorie van Toelichting North Eastern Reporter, Second Series New York Reports, Second Series New York Supplement, Second Series North Carolina Journal of International Law and Commercial Regulation New England Law Review New Journal of European Criminal Law None Governmental Organisation Nederlandse Jurisprudentie Nederlands Juristenblad Neue Juristische Wochenschrift Number Nordic Journal of International Law Numbers Notre Dame International Law Journal Nummer Neue Zeitschrift für Strafrecht Neue Zeitschrift für Strafrecht – Rechtssprechungsübersicht Neue Zeitschrift für Verwaltungsrecht North Western Reporter, Second Series Netherlands Yearbook of International Law New York University Journal of International Law and Politics Office of the Co-Investigating Judges at the ECCC Online Commentary on the Law of the International Criminal Court Österreichischer Oberster Gerichtshof Official Journal of the European Union Oxford Journal of Legal Studies Österreichische Juristenzeitung Oberlandesgericht Österreichische Richterzeitung Orientierungssatz Office of the Prosecutor Gesetz über Ordnungswidrigkeiten

26 p. P.2d Para. Paras. PCC(S)A PCIJ PC-OC Committee PK pp. PTC PTJ QB RAF RCADI RCCJ Report RDTL Reg RG RGSt RLLu RO RomeSt RPE RSCSL RStPO RZ S.Ct S.W.3d SCC SCCC SCLRev SCSL SCSLSt SeattleULRev Sez. SG SJZ SK So.2d So.3d SPSC SSt SSW St StanJIntlL

Abbreviations Page Pacific Reporter, Second Series Paragraph Paragraphs Power of Courts (Sentencing) Act Permanent Court of International Justice Council of Europe’s Committee of Experts on the Operation of European Conventions on Co-operation in Criminal Matters Praxiskommentar Pages Pre-Trial Chamber Pre-Trial Judge Law Reports, Queen’s Bench (1891 – 1901 and 1952; today) Rote Armee Fraktion Recueil de Cours de l’Académie de Droit International The Royal Commission on Criminal Justice Report of 1993 República Democrática de Timor-Leste Regulation Reichsgericht Rechtsprechungssammlung des Reichsgerichts Rechtspleging bij de Land- en Luchtmacht Wet op Rechterlijke Organisatie Rome Statute Rules of Procedure and Evidence Residual Special Court for Sierra Leone Reichsstrafprozessordnung Richterzeitung Supreme Court Reporter South Western Reporter, Third Series Supreme Court Chambers of the ECCC Specialist Constitutional Court Chamber within the KSC South Carolina Law Review Special Court for Sierra Leone Statute of the Special Court for Sierra Leone Seattle University Law Review Sezione Secretary-General Schweizerische Juristen Zeitung Systematischer Kommentar zur StPO Southern Report, Second Series Southern Report, Third Series Special Panel for Serious Crimes of the District Court in Dili Entscheidungen des Österreichischem Obersten Gerichtshofes in Strafsachen und Disziplinarangelegenheiten Satzger – Schluckebier – Widmaier, Strafprozessordnung Kommentar Statute Stanford Journal of International Law

Abbreviations Stb StJohn’sLRev STL STLSt StPÄG

27

Staatsblad St. John’s Law Review Special Tribunal for Lebanon Statute of the Special Tribunal for Lebanon Gesetz zur Änderung der Strafprozessordnung und des Gerichtsverfassungsgesetzes StPO Strafprozessordnung StraFo Strafverteidiger Forum StV Strafverteidiger Sv Wetboek van Strafvordering TC Trial Chamber TEU Treaty on European Union UCLAJIntlL&ForeignAff UCLA Journal of International Law and Foreign Affairs UDHR Universal Declaration of Human Rights UK United Kingdom UKHL United Kingdom House of Lords UN United Nations UNCh Charter of the United Nations UNMIK United Nations Interim Administration Mission in Kosovo UNTAET United Nations Transitional Administration in East Timor UPaLRev University of Pennsylvania Law Review US United States Supreme Court Reports USA United States of America USC United States Code v. versus VaJIntlL Virginia Journal of International Law VCLT Vienna Convention on the Law of Treaties VfGH Verfassungsgerichtshof VfSlg Sammlung der Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes VLR Victorian Law Reports Vol. Volume VRS Verkehrsrechtliche Rechtsprechung Wash. Washington WHO World Health Organisation Wistra Zeitschrift für Wirtschafts- und Steuerstrafrecht WK Wiener Kommentar zur Strafprozessordnung WL Westlaw WLR Weekly Law Reports YaleJIntlL Yale Journal of International Law YaleJWorldPubOrd Yale Journal of World Public Order YJCEA Youth Justice and Criminal Evidence Act ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht ZEE Zeitschrift für Evangelische Ethik ZfRV Zeitschrift für Europarecht, Internationales Privatrecht & Rechtsvergleichung Ziff. Ziffer ZIS Zeitschrift für Internationale Strafrechtsdogmatik

28 ZPO ZRP ZStR ZStW ZVglRWiss

Abbreviations Zivilprozessordnung Zeitschrift für Rechtspolitik Schweizerische Zeitschrift für Strafrecht Zeitschrift für die gesamte Strafrechtswissenschaft Zeitschrift für Vergleichende Rechtswissenschaft

A. Introduction There exists a scattered history of trials in absentia conducted with regard to core international crimes. Among others, these include the 1966 Russell Tribunal, conducted by European intellectuals such as Bertrand Russell and Jean-Paul Sartre, convicting US officials for war crimes in Vietnam and the 1979 trial held in absentia by the People’s Revolutionary Tribunal against Pol Pot and Ieng Sary, however, the latter did not prevent the ECCC’s Pre-Trial Chamber from opening prosecution against Ieng Sary.1 Also, the International Crimes Tribunal of Bangladesh, which effectively started working in 2010 after having been established as early as 1973, convicted three defendants in absentia, although the defendants still have not been effectively notified nor did the legal framework foresee the possibility of a re-trial.2 Then there is the fact that the Bangladeshi International Crimes Tribunal3 – still in the 2010’s – regularly imposes the death penalty. Most of these trials have a negative connotation attached to them. However, the negative flavour with regard to these trials arises not because the defendants were tried in absentia, but because they were tried by “kangaroo courts”4 which conducted very brief farcical trials that did not abide by international fair trial standards. Considering these circumstances, the tribunals have forgone any possibility of apprehending the convicts – if their whereabouts are in a foreign territory – be it by mutual assistance or extradition by another country.5 1

ECCC, Prosecutor v. Ieng Sary, 2, PTC, Decision on Ieng Sary’s Appeal Against the Closing Order, Doc. No. D427/1/30. Pol Pot has deceased in 1998 and Ieng Sary has been given amnesty by the Cambodian King in 1996, which similarly did not bar prosecution. 2 Robertson, Report on the International Crimes Tribunal of Bangladesh, 84. The cases were: Bangladeshi International Crimes Tribunal, Prosecutor v. Abul Kalam Azad and Prosecutor v. Ashrefuzzaman Khan and Chowdhury Mueen Uddin, 3 November 2013, ICT-BD Case No. 01 of 2013. 3 Although the title suggests that the Tribunal is of international nature, there is nothing international about it. None of the judges, prosecutors or staff members are international and defence counsel from abroad have been abandoned. Also UN legal advisers withdrew due to the court’s ability to impose the death penalty. See as for the details: Robertson, Report on the International Crimes Tribunal of Bangladesh, 12. Accordingly the Tribunal will not be object of further investigation. 4 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 119. 5 Cf. inter alia EU Council Framework Decision 2009/299/JHA; BVerfG, Second Senate, Order, 15 December 2015, 2 BvR 2735/1, para. 48 et seq. rejecting the decision of the Düsseldorf Higher Regional Court to comply with a request for extradition of a defendant that has been tried in absentia, because the principle of guilt rooted in the human dignity was not recognised during the trial; neither was it established with certainty that the defendant was aware of the proceedings instituted against him nor was there an opportunity for re-trial nor did

30

A. Introduction

In light of this, it might seem astonishing to dedicate a study to the question of whether trial in absentia is a suitable procedure for ICTs. There are several reasons that make the undertaking of such a study worthwhile, nonetheless: ICTs do not have their own police forces or other agents of law enforcement. Therefore, ICTs crucially depend on the state’s cooperation. States that are looked to for cooperation are often the very jurisdiction where the conflict situation under investigation occurred. As a result, if the affected state did not cooperate when the ICT was set up, had not ratified the RomeSt or did not support the referral of a situation to the ICC, the state has been ousted of its sovereignty of criminal prosecution by the imposition of an ICT or the obligation to cooperate with the ICC. In this context, dependence on state cooperation can be particularly difficult. In fact, only 87 out of 370 indictees have been prosecuted in East Timor. The other defendants remain at large and many of them live unaffected in Indonesia.6 Nine ICTR fugitives remain at large, even after the tribunal’s doors have been closed. The MICT is now the relevant authority to arrest and surrender these nine individuals, but so far without success. The ICC also faces notorious problems with state cooperation in order to have suspects arrested and surrendered to the Hague. 147 outstanding arrest warrants against 13 individuals remain, among them two arrest warrants against the ICC’s high-profile suspect Al Bashir.8 As far as the latter suspect is concerned, cooperation issues have become especially obvious. There have been at least ten cases of non-cooperation with the ICC with regard to Al Bashir’s arrest by predominately African States, despite their status as party to the RomeSt.9 Even after his fall as president, he has so far not been handed over to the ICC, though the intention to extradite him was recently an-

he have the opportunity to make himself heard and defend himself effectively in front of a court; Bicioc v. Romania [2014] EWHC 628 (Admin); Cretu v. Romania [2016] EWHC 353 (Admin); UK Extradition Act 2003, Sections 20, 86. See further Davidson/Lloyd/Payter, The Criminal Law Review 2016, 757, who assess potential changes to the UK extradition law following Brexit. 6 Drumbl, Atrocity, Punishment, and International Law, 170. 7 One of the suspects, Vincent Otti who is warranted for alleged war crimes and crimes against humanity in Uganda is presumed to have deceased in 2008. The ICC is awaiting official notification before the arrest warrant will be withdrawn: Coalition for the ICC, 2017 at a Glance, 23 November 2017, p. 6, http://www.coalitionfortheicc.org/sites/default/files/cicc_documents/2 017%20At%20a%20Glance.pdf (last accessed: 7 February 2021). 8 The first arrest warrant: ICC, Situation in Darfur, Sudan: Prosecutor v. Al Bashir, PTC I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 4 March 2009, Case No. 02/05-01/09 included war crimes and crimes against humanity, whereas the second arrest warrant was extended to include counts of genocide: ICC, Situation in Darfur, Sudan: Prosecutor v. Al Bashir, PTC I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 12 July 2010, Case No. 02/05-01/09. 9 Tladi, ZIS 2015, 493, ibid. mentions 7 incidents. However, since June 2015 at least three incidents have occurred that add to the list where state parties to the RomeSt did not arrest the Sudanese president: Al Bashir’s visit to the African Union Summit in June 2015 in South Africa, his visit to the Arab League Summit in Amman in March 2017 and his visit to Uganda in November 2017.

I. Goals and scope of this study

31

nounced.10 Moreover, the STL has recently pronounced the trial judgment against Ayyash and three co-defendants in absentia.11 Apart from this, the ICTs’ objective is to conduct a prompt reappraisal of a conflict situation to prevent the loss of evidence and bring justice to the victims. Hence, it might be in the interests of justice to conduct trials in absentia. That is especially true since many ICTs have a temporary mandate. ICTs, however, must respect the fair trial right and other fundamental rights of the defendant. This is particularly important since proceedings take place in the public spotlight and can, to some extent, be seen as model for domestic proceedings for international crimes in post-conflict countries.

I. Goals and scope of this study Much has been written12 about whether trial in absentia is suitable for ICTs and a regular set of arguments is exchanged between opponents and promoters of proceedings in absentia. Naturally, these arguments cannot simply be put aside, they are imperative to present a picture of what issues may arise when conducting procedures in absentia. Nonetheless, this study tries to approach the question from a different viewpoint. It tries to find a normative approach by applying classical sources of international law and combining institutional aspects of the procedural theory, specifically the goals of a criminal trial, with the individual frameworks of fundamental rights, namely the right to be present. Moreover, concepts presented as models for trial in absentia shall be critically assessed. The goal of the present study is to discuss whether trials in absentia are suitable for ICTs. The study consists of nine chapters. The chapter following this introduction provides a background to proceedings in absentia at ICTs and describes the different types of procedures held in absence at the different courts. It surveys the different statutory regulations and practices of the courts with regards to procedures in absentia at the different phases of the criminal process: the investigations, the trial and the appeals stage. Concluding that the only controversial part with regard to a procedure in absence of the defendant is the trial phase, the next chapter delves into questions of procedural theory and assesses whether the conduction of trials in absentia is compatible with the goals of international criminal procedure. It suggests 10

https://www.faz.net/aktuell/politik/ausland/voelkermord-sudan-liefert-ex-praesident-albaschir-an-den-haag-aus-17480428.html (last accessed: 29. October 2021). 11 In June the commencement of another trial in absentia against Ayyash has been canceled due to lack of funding: https://www.stl-tsl.org/en/the-cases/stl-18-10 (last accessed: 29. October 2021). 12 See inter alia Elberling, The Defendant in International Criminal Proceedings, 36 et seq.; Friman, Trying Cases in the Absence of the Accused?; Gaeta, Trial in Absentia; Gaeta, 5 JICL 2007, 1165; Gardner, 43 GeoWashIntlLRev 2011, 91; Hoven, Rechtsstaatliche Anforderungen, 438 et seq.; Oehmichen, FS-Kühne; Pons, 8 JICJ 2010, 1307; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181.

32

A. Introduction

that the absence of the defendant during trial does not thwart the goals a criminal trial at ICTs aims to pursue. The following chapter deals with the sources of international criminal procedure. It shows that human rights treaties and general principles of law are the relevant sources for testing whether trials in absentia can be conducted at ICTs. Chapter five examines the requirements for trials in absentia deriving from the source treaty, namely human rights law. The next chapter addresses the existence of one general principle of law that criminal proceedings can be conducted in the absence of the defendant. It presents foreign law reports of seven different legal orders and searches for common denominators with regard to proceedings in absentia. Chapter seven of the study surveys the different theoretical concepts that trials in absentia can be based on and discusses their persuasiveness. Finally, chapter eight concludes the discussion with an overall assessment of whether proceedings in the absence of the defendant are a reasonable option to overcome the persistent problems that ICTs face with regard to arresting suspects or accused. The final chapter summarises the results and gives prospects for the issue of trials in absentia at ICTs. The objective of the present study is not simply to repeat common arguments exchanged by opponents and supporters of proceedings in absentia. In spite of this, the study will start with an outline of these exact arguments. It is seen to enlighten the problems the study is faced with, as well as the positive and negative consequences proceedings in absentia have. The most obvious benefit of allowing proceedings in absentia is to prevent obstruction of justice.13 The suspect does not have the ability to hamper the prosecution of his case by fleeing justice. Not only is the prosecution of the particular case of the fugitive hampered by flight, it in turn affects the institution of international criminal justice as a whole. The ability to flee from justice diminishes the credibility and effectiveness of the criminal justice system.14 A point often brought in favour of conducting a trial in absentia is that statutes of limitation can be overcome where the statute of limitation for prosecution is shorter than the time limit for the execution.15 However, for the issue at hand, this argument is not relevant. Most of the crimes that ICTs are concerned with do not have a statute of limitation. Nonetheless, an important feature is that evidence may diminish over time, either due to the fading memory of witnesses or the decay of crime scenes and other evidentiary material, can be preserved.16 In addition, due to the ICTs temporary mandate, save for the ICC, a 13 Friman, Trying Cases in the Absence of the Accused?, 334; Gaeta, Trial in Absentia, 250; Gardner, 43 GeoWashIntlLRev 2011, 91, 134; Pons, 8 JICJ 2010, 1307, 1309. See as for national jurisdictions: Swoboda, Verfahrens- und Beweisstrategien, 397. 14 Friman, Trying Cases in the Absence of the Accused?, 334; Pons, 8 JICJ 2010, 1307, 1320; cf. also Hoven, Rechtsstaatliche Anforderungen, 438. 15 Friman, Trying Cases in the Absence of the Accused?, 334. 16 Oehmichen, FS-Kühne, 620.

I. Goals and scope of this study

33

timely prosecution of the accused of atrocities is necessary in order to do justice.17 Moreover, the procedure and the judgment create a historical record of atrocities that occurred. Said establishment of a factual record can be used by future generations and might also lead to deterrence of similar occurrences in future.18 Both from an individual and societal viewpoint the completion of the criminal prosecutions has benefits. It brings closure to injustice for both the affected society19 and also the individual potential victims. Similarly, the defendant will obtain certainty as to whether he20 was in fact criminally responsible for the atrocities that are under prosecution. Finally, the opportunity to testify and make claims can have rehabilitative effects for both potential victims and witnesses.21 Finally, the conviction of a war crime criminal by an international tribunal may put pressure on the state authorities and might have a positive effect on the state’s cooperation with regard to arresting the convictee.22 The starting point of the counter arguments is similarly obvious: it is preferable to have the defendant present and participating in proceedings. It is submitted that the defendant’s absence hampers truth-finding.23 Moreover, it is also important for the morale of potential victims and witnesses to personally face the defendant.24 Trials in absentia are seen to affect the legitimacy of international criminal tribunals and their perception of doing justice.25 They are often affiliated with show trials.26 Finally, 17

Hoven, Rechtsstaatliche Anforderungen, 438, 441. Gardner, 43 GeoWashIntlLRev 2011, 91, 134; Hoven, Rechtsstaatliche Anforderungen, 438; Pons, 8 JICJ 2010, 1307, 1320 et seq. 19 Gardner, 43 GeoWashIntlLRev 2011, 91, 134; Hoven, Rechtsstaatliche Anforderungen, 438. 20 For reasons of readability the present study will use the singular male pronoun collectively, which is understood to include the female pronoun. 21 Friman, Trying Cases in the Absence of the Accused?, 334; Hoven, Rechtsstaatliche Anforderungen, 438, 441; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 189. 22 Hoven, Rechtsstaatliche Anforderungen, 439; Stankovic´, Guilty Until Proven Guilty, 21 et seq.; Trendafilova, Fairness and Expeditiousness, 449 with footnote 11, 457. 23 Friman, Trying Cases in the Absence of the Accused?, 334; Hoven, Rechtsstaatliche Anforderungen, 441; Pons, 8 JICJ 2010, 1307, 1320; e contrario BVerfG, StraFo 2007, 190 (191 et seq.). See for a detailed elaboration of this argument below I. II. 2. b) aa). 24 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’, Case No. ICC-01/09-01/11-1066, 25 October 2013, para. 49; Hoven, Rechtsstaatliche Anforderungen, 440; Pons, 8 JICJ 2010, 1307, 1320. 25 UN SG, Note, Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, UN Doc. A/54/850, para. 10; Gardner, 43 GeoWashIntlLRev 2011, 91, 134; Knottnerus, 13 LPICT 2014, 261, 285; Oehmichen, FS-Kühne, 620; Pons, 8 JICJ 2010, 1307, 1320; Skilbeck, 8 JICJ 2010, 451, 461; Swoboda, Verfahrens- und Beweisstrategien, 398; cf. also Jenks, 33 FordhamIntlLJ 2009, 56, 97. 18

34

A. Introduction

practical concerns speak against a trial in absentia. At least where the defendant is a fugitive there will be no possibility of enforcing the sentence, if one was imposed upon the defendant.27 Upon apprehension of the defendant the courts are on many occasions also concerned with the need for a re-trial, which increases both costs and workload.28 Ultimately, trials in absentia are a waste of resources.29

II. Working Definitions As repeatedly asserted by a number of scholars, the meaning of in absentia proceedings is not entirely clear.30 Before conducting a thorough assessment of the concept of criminal proceedings in absentia in comparative and international criminal law, the term needs further clarification. It is necessary to establish genuine working definitions as regards the central term in absentia or (procedure) in the absence of the defendant respectively. For the purposes of this work the words “proceeding” or “procedure” are understood as criminal proceedings as a whole, including the investigation phase to the point of sentencing. The legal literature usually refers to the concept of proceedings in absentia as trial in absentia, a term which can lead to even more incoherence as it is unclear whether it refers to the criminal proceedings as a whole or solely refers to a hearing during the trial phase. To avoid these misunderstandings whenever the author uses the term “trial” it refers to the hearing in front of a court during the trial phase.31 Notably, this study increasingly focuses on the criminal procedure sensu stricto, or in other words, the judicial trial phase. 26

ICTY, Prosecutor v. Nikolic´, TC II, Transcript, 9 October 1995, Case No. IT-94-2-R61, p. 54. In a similar vein: Frisch, FS-Paeffgen, 606; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 119; Skilbeck, 8 JICJ 2010, 451, 461 et seq.; Swoboda, Verfahrens- und Beweisstrategien, 399. 27 Caprioli, 24 Legislazione Penale 2004, 586, 591; Friman, Trying Cases in the Absence of the Accused?, 335; Hoven, Rechtsstaatliche Anforderungen, 440; Pons, 8 JICJ 2010, 1307, 1320; Swoboda, Verfahrens- und Beweisstrategien, 398. 28 UN SG, Note, Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, UN Doc. A/54/850, para. 11; UN SG, Letter Dated 7 September 2000 from the Secretary-General Addressed to the President of the General Assembly and the President of the Security Council, 14 September 2000, UN Doc. A/55/382-S/2000/865, para. 83; ICTY, Prosecutor v. Nikolic´, TC II, Transcript, 9 October 1995, Case No. IT-94-2-R61, p. 54; Gardner, 43 GeoWashIntlLRev 2011, 91, 133; cf. Skilbeck, 8 JICJ 2010, 451, 461. 29 Caprioli, 24 Legislazione Penale 2004, 586, 591; cf. also Swoboda, Verfahrens- und Beweisstrategien, 398. 30 Jenks, 33 FordhamIntlLJ 2009, 56, 68; Pons, 8 JICJ 2010, 1307, 1309; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 812 et seq. 31 However, not all authors have the same understanding. When quoting scholarly publications, case law or statutory regulations the term trial may be interpreted in a broader sense to refer to criminal proceedings as a whole.

II. Working Definitions

35

‘In absentia’ literally means “in the absence of” and in the context of criminal proceedings it is usually used in the context of the defendant not being physically present during the proceeding(s) instituted against him.32 However, the notion of in absentia in a legal context needs further differentiation. Taking for granted that in absentia requires the physical absence of the person concerned, it seems useful to distinguish between a total and a partial absence.33 The former refers, following the genuine meaning of the word total, to proceedings where the defendant is prosecuted entirely in his absence. The entire absence of the defendant during criminal proceedings includes two cases. Firstly, the case where the suspect is entirely absent from (one step of) the proceedings against him and has not been personally informed about the proceedings instituted against him. This would include the case of a fugitive from justice.34 Secondly, the defendant may be fully tried in his absence but has been properly informed and personally summoned to the proceedings. Partial in absentia procedure, on the other hand, refers to all kinds of cases where the accused is partially absent. This can occur for different reasons such as his physical unfitness to participate, the plain decision not to participate during the entirety of the procedure, or the disruption of the trial by the defendant that leads to his removal. However, the main determinative factor for the distinction between total and partial absence is not the quantity of the accused’s physical presence, but rather that in the case of partial in absentia, the accused is, or has been, within the premises, or precisely speaking, within the court’s effective control. The defendant can at least be reached by personal summons or subpoena, whereas during proceedings conducted fully in absentia the defendants may be at large and their whereabouts are usually unknown.35 Finally, it is to be noted that there is a normative understanding of absence and in absentia. Following the rule semel praesens semper praesens some jurisdictions deem the defendant is present for the entirety of his trial when he, for whichever reason, remains absent after having initially appeared. Thus, no in absentia procedure is conducted. In a similar vein, a defendant who is virtually present by participating via video link is often deemed to be present. Again, the in absentia framework does usually not apply. However, as the present study tries to unveil a full picture of the 32

Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 183. See for this distinction Elberling, The Defendant in International Criminal Proceedings, 36; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 182 et seq. In a similar vein Gaeta, Trial in Absentia, 230 et seq. 34 Some scholars refer to these as trial in absentia sensu stricto or true in absentia procedure. Gaeta, 5 JICL 2007, 1165, 230 et seq.; Gaeta, Trial in Absentia, 229; Triffterer/AmbosSchabas/Caruana, Art. 63 marginal no. 3 speak of trial by default. Cf. also ICTY, First Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violation of International Humanitarian Law in the Territory of the Former Yugoslavia, 29 August 1994, UN Doc. A/49/342-S/1994/1007, para. 90. 35 See for this distinction: Hoven, Rechtsstaatliche Anforderungen, 426. 33

36

A. Introduction

options available to try defendants despite their physical absence, these cases will be included. It follows that the defendant can only be deemed to participate and be fully present when he is able to hear and follow the proceedings.36 The defendant must be “able to meaningfully exercise his or her right to a fair trial”37 and understand the procedure. The fact that the defendant is unfit to stand trial has been acknowledged as a reason to adjourn, subject to any future improvement of the defendant’s condition, or even a reason to fully stay the proceedings, by all ICTs starting with Nuremberg.38 For the purpose of this study, whenever a right to be present or the defendant’s presence is referred to this implies that the defendant is fit to stand trial without always referring to such a requirement. In a similar vein, it is necessary to have interpretation and translation provided for the defendant who does not speak the court’s working language in order to allow him to follow and participate in the proceedings. This has never been an issue and all criminal tribunals have broadly provided or provide for such measures.

36 ECtHR, SC v. the United Kingdom, Judgment, 15 June 2004, Appl. No. 60958/00, para. 28; ICC, Situation in Côte d’Ivore: Prosecutor v. Gbagbo, PTC I, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings Before this Court, 2 November 2012, Case No. ICC-02/11-01/11-286-Red, para. 46. 37 ICTY, Prosecutor v. Strugar, TC, Decision re the Defence Motion to Terminate Proceedings, 26 May 2004, Case No. IT-01-04-T, para. 32; ICC, Situation in Côte d’Ivore: Prosecutor v. Gbagbo, PTC I, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings Before this Court, 2 November 2012, Case No. ICC-02/11-01/11-286-Red, para. 43. 38 IMT, Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September and 1st October 1946 in regard to the fitness of Hess and Streicher to stand trial, which was answered in the affirmative; Krupp was found not to be fit to stand trial. ICTY, Prosecutor v. Erdemovic´, Judgment, TC, 29 November 1996, Case No. IT-96-22, para. 5 et seq.; Prosecutor v. Strugar, TC, Decision re the Defence Motion to Terminate Proceedings, 26 May 2004, Case No. IT-01-04-T, para. 32; Prosecutor v. Kovacˇ evic´, TC, Public Version of the Decision on Accused’s Fitness to Enter a Plea to Stand Trial, 12 April 2006, Case No. IT-01-42/2; ICTR, Prosecutor v. Karemera et al., TC III, Decision on Remand Regarding Continuation of Trial, 10 September 2009, Case No. ICTR-98-44-T, para. 18; ECCC, Prosecutor v. Ieng Tirith, Case 002, TC, Decision on Ieng Tirith’s Fitness to Stand Trial, 17 November 2001, Case No. 002/19-09-2007/ ECCC/TC, paras. 27, 59; Prosecutor v. Ieng Tirith, Case 002, SCC, Decision on Immediate Appeal Against the Trial Chamber’s Order to Unconditionally Release the Accused Ieng Thirith, 15 December 2012, Case No. E138/1/10/1/5/7. She, in fact, died on 22 August 2015. ICC, Situation in Côte d’Ivore: Prosecutor v. Gbagbo, PTC I, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings before this Court, 2 November 2012, Case No. ICC-02/ 11-01/11-286-Red. See also Elberling, The Defendant in International Criminal Proceedings, 18 et seq. for an overview regarding the regime of fitness to stand trial in domestic and international criminal procedure. As for the latter also: Knoops, The Pionieering Role of Defense Counsel, 24 et seq.

B. Proceedings in absentia at ICTs The need to consider proceedings in absentia ignites in the practice of ICTs. Given the ICC’s current issues with arresting suspects, transferring them to The Hague and conducting proceedings against them, it is particularly worthwhile to investigate whether there are mechanisms to conduct proceedings in absence of the defendant. It seems suitable to approach the study with an overview of the different international and hybrid criminal courts that existed or still exist as of the second half of the 20th century. Starting with the War Crimes Tribunals IMT, and IMTFE, followed by the ad hoc Tribunals, other, internationalised courts installed with the involvement of the UN and the KSC that were recently established following investigations in the 2001 Council of Europe Report alleging serious violation of international law, and ending with the permanent institution, ICC, legal framework and practice of said judicial institutions will be examined.

I. The investigative phase at ICTs The investigative phase is often seen as a more secretive part of the criminal proceedings.1 In fact, the investigative phase in international criminal law, across all tribunals takes a similar approach, so that a general finding for all tribunals taken together seems suitable, save for the conduction of trial-like confirmation hearings, which will be discussed under the section concerning the respective tribunals.2 As an overall assessment it can be said that the investigative and pre-trial phase at ICTs are generally secret and not designed to give the defendant broad participation rights.3 A lack of regulation of defence investigative powers is a characteristic for all ICTs.4 1 See e. g. Jackson/Summers, The Internationalisation of Criminal Evidence, 96. In fact, the concept of a secret investigation goes beyond the adversarial-inquisitorial dichotomy. Historically, both in the Continental European inquisition and in the Anglo-American system, investigations are conducted secretly. Although in the latter case the parties are concerned with the collection of evidence they sit on the collected material secretly and only lay it open in the process of disclosure. However, on the domestic level there is a new trend of increased participation already in the investigative phase. Some jurisdictions, as will be shown below H. II., have even changed their focus from the judicially controlled trial phase to a participatory pretrial phase. 2 See below B. I. 3 Naturally participation occurs during the defendant’s questioning if there is one. This is not relevant to the issue at stake as an absent suspect cannot be questioned. When analysing the investigative phase in international criminal proceedings, studies often focus on exactly this

38

B. Proceedings in absentia at ICTs

The investigation proper, meaning the phase of investigations by the prosecution before an arrest warrant by a chamber that assessed that there are reasonable grounds that an individual has committed a crime falling within the court’s jurisdiction,5 or an indictment is issued, made public and the defendant formally charged, is genuinely conducted secretly at ICTs.6 Still, the procedure to confirm the charges as for most tribunals7 – and at the SPSC and ICC the request of an arrest warrant before the charges are confirmed8 – are held ex parte; the decision is solely based on the indictment and supporting material submitted by the prosecution. Hence, it is often a written procedure. The confirmation of charges is a procedure where a judge confirms the indictment, issues an arrest warrant and the suspect’s status is changed to ‘accused’. At the ECCC, the procedure of formal charging is, contrary to the other tribunals and in line with the ICC,9 generally carried out in the defendant’s presence. The Rule in question demands that an initial appearance of the suspect is required to notify him of the charges, after which he can be declared ‘the person charged’.10 Regardless of this, the Co-Investigating Judges found, after clarifying that all reasonable steps to ensure the suspect’s appearance before the court had been taken, that “a wilful failure by Meas Muth to appear at an initial appearance or a failure by the Judicial Police, without undue delay, to execute an arrest warrant to bring him before matter, the questioning of the suspect. See inter alia de Meester, The Investigation Phase, 327 et seq.; Heeck, Die Weiterentwicklung des formellen Völkerstrafrechts, 255 et seq. 4 de Meester, The Investigation Phase, 884; cf. also Heeck, Die Weiterentwicklung des formellen Völkerstrafrechts, 201. 5 Art. 58 RomeSt. The ICC is the first ICT that foresees the confirmation of charges to be conducted not ex parte but in public and with presence of the defence, although there are exceptions to be discussed further below, see B. V. 3. Nonetheless, the assessment by the PTC as to whether there are reasonable grounds that an individual has committed a crime falling in the courts jurisdiction, so in essence whether a prima facie case exists, is held ex parte when an arrest warrant is requested by the prosecution before the confirmation of charges. 6 See for example as for the ICTY: The ICTY later on took the approach of sealed indictments rather than early publication of the indictment and reliance on Rule 61 hearings: UN SG, Note, Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, UN Doc. A/54/850, paras. 13, 15; the ECCC: Rule 5 ECCC Practice Direction on Classification and Management of Case-Related Information, as for the Pre-trial Chamber Proceedings: e contrario Rule 77(6) IR; ECCC, Prosecutor v. Nuon Chea et al., Case 002/01, PTC, Decision on Khieu Samphan’s Request for a Public Hearing, 4 November 2008, Case No. A190/I/8. See also Rule 68 STL-RPE; Art. 39 KSCSt; Rule 85(3), (4) KSC-RPE. See as for the details of the confirmation of charges or formal charging: Dieckmann/O’Leary, The Role of Defense Counsel in Pre-Trial, 238 et seq. 7 Art. 18,19 ICTYSt; Art. 17 ICTRSt; Common Rule 47 ICTR-, ICTY-, SCSL-RPE; Rule 68 STL-RPE; Rule 86(2) KSC-RPE. Greer, 23 OJLS 2003, 405; Khan/Buisman, Sitting on Evidence?; Úbeda de Torres, The Right to Due Process. See as for the ICTY also Ambos/ Bock, Procedural Regimes, 505. 8 Art. 58 RomeSt; Section 19 UNTAET/Reg/2000/15. See also Art. 39(3) KSCSt. 9 To be discussed further below B. V. 3. a). 10 Rule 57 ECCC-IR. Accused and person charged are different terms for the same status of a person related to criminal investigations after some type of confirmation of the charges.

I. The investigative phase at ICTs

39

the ECCC could not be allowed to bring the judicial investigative process to a standstill, thus preventing the CIJs from fulfilling their responsibility to complete the investigation of Case 003”.11 The decision was, therefore, taken to charge Meas Muth in absentia. Subsequently, the decision to formally charge a suspect at all tribunals is generally made by a pre-trial judge, who will issue summonses to appear or arrest warrants and decide on the documents’ availability to the public eye. Decisions as to the scope of investigations, investigative measures and the decision to indict belong almost exclusively with the prosecution.12 Considering the number of atrocities, the fact that conflict is often still ongoing and society is usually far from healed, ICL must balance the defendant’s protection against the risk of interference with investigations and the need to protect potential witnesses. The latter two make a secret investigation almost necessary.13 Names of suspects are regularly kept secret and indictments often issued ex parte in order to give the relevant authorities a better chance to arrest the accused. The fear is, and this has proven correct on several occasions,14 that the accused goes on the run when he knows of the indictment. It is usually for the pre-trial judge or chamber to make the indictment public or to reclassify relevant documents.15

11 ECCC, Prosecutor v. Meas Muth, Case 003, OCIJ, Decision to Charge Meas Muth in Absentia, 3 March 2015, Case No. 003/07-09-2009-ECCC-OCIJ, para. 69. As for the reasonable steps taken to ensure Meas Muth appearance: ibid. para. 60 et seq. 12 Art. 16(1), 18(1) ICTYSt; Art. 15(1), 17(1) ICTRSt; Art. 15 SCSLSt; Section 13.3 UNTAET/Reg/2000/15; Art. 15(1), 42(1) RomeSt; Art. 15(1) STLSt; Art. 38(1) KSCSt. It is to be noted that Art. 38(4) KSCSt read together with Rule 47 KSC-RPE provide for the possibility to request a termination of the proceedings, where no indictment has been submitted within a reasonable time after the person became a suspect. See also ICC, Situation in CAR: Prosecutor v. Bemba, TC III, Public Redacted Version of Defence Request for Leave to Reply to ‘Defence Request for Interim Relief’, 18 February 2014, Case No. ICC-01/05-01/08, para. 57; ICTR, Prosecutor v. Barayagwiza, AC, Decision, 3 November 1999, para. 92: The prosecutor “has been linked [to] the ‘engine’ driving the work of the tribunal”. Even though the powers of the Pre-Trial Chamber were increased at the ICC, as it needs to confirm a proprio motu investigation as well as the decision not to indict, its powers remain minimal and are more of observing nature: Art. 13, 15 RomeSt; Boas/Bischoff/Reid/Taylor III, International Criminal Law Practitioner Library, 104 et seq. 13 See similarly: Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 56; cf. also for the prosecutor’s duty to protect witnesses and victims throughout the procedure: Namakula, 17 ICLR 2017, 935, 954 et seq. 14 Relevant avenues are Al Bashir, Mladic´ and Karadzˇic´ to name only a few. 15 See for example the regulation at the ECCC: Rule 56(2) ECCC-IR. See also Rule 54 ECCC-IR; Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 57 et seq. for the misconduct of the parties on several occasions that have led to the rather strict framework. As for the STL see Rule 96 STL-RPE. In the case of Ayyash et al. the indictment has been made public only about thirty days after its confirmation by a Pre-Trial Judge. Currently, there is another indictment, which has been submitted confidentially, with the Pre-Trial Judge for secret confirmation. It is uncertain whether there are other secret indictments or investigations in the same case or for different cases at the STL.

40

B. Proceedings in absentia at ICTs

The defence only gets involved after proactive investigations by the prosecution and the publication of the indictment. Defence counsel is assigned when the accused is in need of legal representation. This is usually the case upon arrest.16 A (duty) defence counsel will be assigned at the latest for the initial appearance.17 Only then can investigations on behalf of the defendant begin. Once involved, it is not only the prosecution which conducts investigations. Clearly the defence to a large extent relies on material disclosed by the prosecution. Nonetheless, following the adversarial approach of the investigative phase, the parties, except for the clearly civil-law shaped ECCC where the co-investigating judges are responsible for the investigation proper, are required to independently conduct the collection of evidence for their respective case.18 As far as the STL is concerned, they are assisted by an autonomous pre-trial judge19, who can in certain exceptional circumstances upon request, where the parties are unable to do so, proprio motu or where an anonymous witness is concerned, question witnesses himself.20 Most ICTs allow for the involvement of the pre-trial chamber or judge when questioning witnesses when it is feared that the evidence will not be available later to the court; the parties can participate at the witness questioning.21 From the 16 If the accused is arrested in a different country from the location of a tribunal there might be need for legal representation for the transfer proceedings – that is the case at the STL: Art. 4(2) STLSt; Rules 17(G), 63 STL-RPE -, unless no extradition is concerned, which is the case for the ICTY and ICTR detainees. Also upon arrest the suspect’s rights, especially the right against self-incrimination, right to assistance of counsel during interrogations, right to be informed of these rights and the charges in a language he understands, attach. Of course they are to be respected throughout the entirety of the investigation but as long as the prosecution acts in secret, the suspect will not be concerned or confronted with any of the charges. So the defence rights do not come into play at that early stage. 17 See e. g. Rule 92(1) KSC-RPE. 18 de Meester, The Investigation Phase, 885; Fedorova, The Principle of Equality of Arms, 186; Sluiter, 6 ICLR 2006, 605, 616; see in regard to the STL: Oehmichen, FS-Kühne, 625; cf. also Karnavas, The Role of the Defense in the Trial Stage, 300. Whilst the prosecutor’s powers to conduct onsite investigations, question witnesses, victims and suspects and collect evidence are broadly regulated (see Art. 54(3)(a) RomeSt; Art. 18(2) ICTYSt; Art. 17(2) ICTRSt; Art. 15(2) SCSLSt), none of the statutes provide for an express power of the defence to question witnesses. Such right is, however, derived from the rights to have adequate facilities to prepare the defence and the right to examine witnesses and the equality of arms: de Meester, The Investigation Phase, 410, 423, 457. The defence can request the necessary orders or seek state cooperation in order to allow investigations to be conducted and, subsequently, trial to take place: Rule 47(H)(ii), 54, 54bis ICTY-, ICTR-RPE; Art. 57(3)(b) RomeSt; Art. 38(10) KSCSt; Wladimiroff, Rights of Suspects and Accused, 445. 19 de Meester, The Investigation Phase, 435. 20 Rules 92, 93, 123 STL-RPE. Where an anonymous witness is concerned, the parties can submit questions that will be asked by the judge: Rule 93(C), (D) STL-RPE. Similar regulations can be found in Rule 71 ICTR-, ICTY- and SCSL-RPE, which make the chamber’s deposition subject to the interests of justice. 21 Rule 71 ICTR-, ICTY-, SCSL-RPE; Rule 124 STL-RPE; Art. 56 RomeSt. Further, save for the International Military Tribunals, severe investigative measures and the suspect’s rights

I. The investigative phase at ICTs

41

regulation of the RomeSt it clearly emerges that it presupposes that a defence counsel will represent the defence’s interest and not the defendant personally.22 The defence investigations and collection of evidence are generally conducted by the defence team rather than the defendant personally.23 This is not surprising considering that the pre-trial detention of suspects at ICTs is considered “condicio sine qua non in respect of reaching subsequent stages in international criminal proceedings”.24 Thus, pretrial detention is the rule rather than the exception25 as long as the suspect has surrendered, could successfully be arrested, or has followed a chamber’s summons to appear. The defendant is physically and practically hindered in his ability to conduct investigations on his behalf while in detention. Of course there are instances where these measures have failed, otherwise this study would be of mere theoretical nature and have no practical purpose. It is to be noted that the principle of objectivity applies to the ICC, SPSC and ECCC, so that the prosecution or, in case of the ECCC, the co-investigating judges also investigate exonerating evidence.26 The prosecutor of the other tribunals have at least been seen as “agents of justice”27, “organ[s] of international criminal justice”28,

are subject to judicial control by the pre-trial chamber: Art. 39 et seq. ICTY-RPE; Rule 54 et seq. ICTR-RPE; Section 9 UNTAET/2000/15; Ambos/Bock, Procedural Regimes, 505. 22 Art. 56(2)(d) RomeSt. 23 This becomes clear in the assertion of the TC in ICTY, Prosecutor v. Kristic´, AC, Decision on Application for Subpoenas, 1 July 2003, Case No. IT-98-33-A, para. 8: “where the defence is unaware of the precise nature of the evidence which a prospective witness can give it would not be reasonable […] to force the witness to give evidence ‘cold’ in court without first knowing what he will say. That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.” See also ICTY, Prosecutor v. Aleksovski, AC, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, Case No. IT-95-14-1, para. 18. 24 de Meester/Pitcher/Rastan/Sluiter, Investigation, Coercive Measures, Arrest, and Surrender, 312. Similarly Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 65. 25 Boas, et al., International Criminal Law Practitioner Library, 104; de Meester, The Investigation Phase, 885; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 65. De Meester, The Investigation Phase, 893 et seq. is, however, critical in this regard and recommends a change in the opposite direction. 26 Art 54(1)(a) RomeSt; Section 7.2 UNTAET/Reg/2000/15; Rule 55(5) ECCC-IR, Art. 5(2), (3), 19(2) ECCCSt; de Meester, The Investigation Phase, 324. Boas, et al., International Criminal Law Practitioner Library, 106 submit that there is no substantial difference in expressly asserting such duty as it was sound investigative practice to consider conflicting evidence. Consequently, also at the ad hoc Tribunals exonerating evidence was to be investigated. 27 STL, PTJ, Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack against Prime Minister Rafiq Hariri and Others, Case No. CH/PTJ/ 2009/06, 29 April 2009, para. 25. 28 ICTY, Prosecutor v. Kupresˇkic´ et al., TC II, Decision on Communication Between the Parties and their Witnesses, 21 September 1998, Case No. IT-95-16-T, p. 3.

42

B. Proceedings in absentia at ICTs

“officer[s] to the court”29 or “minister[s] of justice”30 and, therefore, obliged to investigate and present “not only inculpatory, but also exculpatory evidence”.31 According to the STL’s and KSC’s legal framework, the prosecutor is to assist the tribunal in establishing the truth.32 A similar provision can be found in the RomeSt.33 It is, therefore, fundamental for the preparation of the defence case to have all material evidence disclosed to the defence. Even more so, when the defendant is not present to instruct counsel as to possible witnesses, evidence and defences. The prosecutor is not only to investigate exculpatory and inculpatory evidence but also to conduct investigations in a manner that respects the defendant’s – and other participants – rights.34 One particularity of the STL’s framework needs to be highlighted. Since the STL permits trials in absentia, problems for the defence side can occur in cases where investigations and pre-trial proceedings are followed by a trial in absentia. If the defendant is not under the tribunal’s authority within 30 days after the advertisement 29 SCSL, Prosecutor v. Sesay, Kallon, and Gbao, TC I, Decision on Application to Withdraw Counsel, 6 July 2004, Case No. SCSL-04-15-PT-180, para. 17; Prosecutor v. Sesay, Kallon, and Gbao, TC I, Trial Record Tape 1, 11 January 2005, Case No. SCSL-04-15. 30 ICTY, Prosecutor v. Slobodan Milosˇevic´ et al., AC, Decision on Admissibility of Prosecution Investigator’s Evidence, 30 September 2000, Case No. IT-02-54-AR73.2, Partial Dissenting Opinion of Judge Shahabuddeen, para. 18; ICTR, Prosecutor v. Barayagwiza, AC, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, Case No. ICTR-97-19-AR72, Separate Opinion of Judge Shahabuddeen, para. 67 et seq.; SCSL, Prosecutor v. Sesay, Kallon, and Gbao, President, Decision on complaint Pursuant to Article 32 of the Code of Professional Conduct for Counsel with the Right to Audience before the Special Court for Sierra Leone, 20 February 2006, SCSL-04/15-CCC32, para. 30. See also Art. 24(B) Code of Professional Conduct for Counsel with the Right to Audience before the Special Court of Sierra Leone. 31 ICTY, Prosecutor v. Kupresˇkic´ et al., TC II, Decision on Communication Between the Parties and their Witnesses, 21 September 1998, Case No. IT-95-16-T, p. 3; expressly Art. 54(1) RomeSt. de Meester, The Investigation Phase, 324 criticises that this means little as long as there is no legal obligation. He suggests the installation of such obligation. Similarly: Ambos/Bock, Procedural Regimes, 504. Karnavas, The Role of the Defense in the Trial Stage, 300 is of the view that the prosecutor at the ICTY and ICTR has no obligation to investigate exonerating evidence. 32 Rule 55(C) STL-RPE; Rule 62 KSC-RPE. STL, Prosecutor v. Ayyash et al., PTJ, Decision on the Sabra Defence’s First, Second, Third, Fourth, Fifth and Sixth Motions for Disclosure, 8 November 2012, Case No. STL-11-01/PT/PTJ, para. 32. Also ICTY and ICTR acknowledged this duty of the prosecutor: ICTY, Prosecutor v. Stakic´, Transcript, 25 November 2002, Case No. IT-97-24, p. 9437; ICTR, Prosecutor v. Karemera et al., AC, Decision on Interlocutory Appeals Regarding the Role of the Prosecutor’s Disclosure Suite in Discharging Disclosure, 30 June 2006, Case No. ICTR-98-44-AR73.7, para. 9. 33 Art. 54(1) RomeSt. 34 Art 54(1)(c) RomeSt; Namakula, 17 ICLR 2017, 935, 941, 945; cf. Schabas, Introduction, 250 et seq. See also expressly referring to the protection of the defendant’s rights for unique investigation opportunities: Art. 56(1)(b) RomeSt. The prosecution also has to ensure that these standards are abided by when carried out by officials of a domestic criminal justice system upon request of the court: ibid.

II. IMT and IMTFE

43

of the indictment, the pre-trial judge is to ask the trial chamber to initiate a trial in absentia.35 After the trial chamber finds the requirements for a trial in absentia36 to be met and answers the request in the affirmative, the pre-trial judge is to assign defence counsel to the absent accused and proceed with the pre-trial proceedings.37 Only then does the defence get the opportunity to start their investigation. This, however, does not lead to a significant disadvantage, as it is usually in the pre-trial judge’s discretion when to make the indictment and arrest warrant public. In the case of Ayyash et al. the respective defence teams were assigned to the defendants approximately two years before the start of the trial.38 Several STL defence counsel confirmed that the time for preparing a defence case was reasonable.39 In conclusion, the investigative phase is in large part a procedure conducted in secret. Once the defendant is arrested, or in cases of an absent defendant, a defence counsel appointed, the defence team starts their investigations but heavily rely on evidence disclosed by the prosecution, who also investigate exonerating evidence.

II. IMT and IMTFE The Charter of the IMTexpressly allowed for proceedings in absentia, because not all the whereabouts of potential accused were known during the time of the drafting process.40 The Statute of the IMTFE, on the other hand, remained silent about the possibility of a trial in absence of the accused. For trial in absentia to proceed, Art. 12 IMTCh required that the accused was not found or that it was in the interests of justice to conduct hearings in the absence of the accused.41 The Rules of Procedure specified that ‘any individual defendant not in 35

Rule 105bis(A) STL-RPE. See below B. IV. 2. c) bb) (1). 37 Rule 105bis(B) STL-RPE. 38 The defence counsel were assigned on 2 February 2012: STL, Prosecutor v. Ayyash et al., Head of the Defence Office before the Pre-Trial Judge, Assignment of Counsel for the Proceedings Held in Absentia Pursuant to Rule 106 of the Rules, 2 February 2012, Case No. STL11-01/I/PTJ. The Trial started on 16 January 2014. 39 But the defence have certainly faced other challenges. See below G. III. 6. e) dd) for the disadvantages when defending an absentee. The defence is, as a result, broadly based on the evidence disclosed by the prosecution. To that extent, the efficient implementation of the disclosure regime is a necessity to ensure a proper defence. 40 Cassese, et al., Cassese’s International Criminal Law, 359 with footnote 61; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 184 et seq. 41 Article 12: The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. See for the details of the genesis of this Article: Eibach, Abwesenheitsverfahren, 85 et seq. 36

44

B. Proceedings in absentia at ICTs

custody shall be informed about the indictment’.42 Unlike Anglo-American practice, Art. 16 IMTCh required the indictment, including the notification of the accused, to contain ‘full particulars specifying in detail the charges against the Defendants’.43 In fact, one defendant, Martin Bormann, was convicted in absentia to death by hanging in Nuremberg.44 Fulfilling the requirement of notification of the accused, the indictment against Bormann was made public in newspapers and the radio prior to the beginning of his trial.45 During his trial, Bormann was represented by defence counsel, Friedrich Bergold, who on several occasions expressed the difficulties he faced in investigating exculpatory evidence without the accused’s instructions.46 Bergold also challenged the proceedings in absentia by claiming they were not necessary due to the death of his client.47 It was found out years after the conviction that Bormann was indeed dead at the time of his trial.48 Nevertheless, the IMT decided to try Bormann in his absence as his death was not conclusive at the time of the initiation of trial.49 The judgment, indeed, acknowledged the difficulties that counsel faced but found that the documentary evidence, which bore Bormann’s signature, sufficient to convict him.50 Yet the tribunal expressed, “if Bormann is not dead and 42

Rule 2(b) IMT-RPE. Art. 16 IMTCh; Jackson, Report of Robert H. Jackson, 78 – 82; Murray/Larin, International Criminal Procedure, 71, 81. Great Britain Deputy Chief Prosecutor even asserted that “the Indictment contains more full particulars than probably any indictment in the history of jurisprudence”: ibid., 80; The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. VII, 80. 44 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September and 1st October 1946, 131; Cassese, et al., Cassese’s International Criminal Law, 359 with footnote 61. 45 Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 186; Yale Law School, Lillian Goldmann Law Library, The Avalon Project Vol. II, 17 November 1945, http://avalon.law.yale.edu/ imt/11-17-45.asp (last accessed: 7 February 2021); Yale Law School, Lillian Goldmann Law Library, The Avalon Project Vol. I, Order of the Tribunal Regarding Notice to Defendant Bormann, 18 October 1945, http://avalon.law.yale.edu/imt/v1-04.asp (last accessed: 7 February 2021). 46 Safferling, International Criminal Procedure, 396; see e. g.: The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. XVII, 318; see also: Das Urteil von Nürnberg 1946, 14. 47 Safferling, International Criminal Procedure, 396; The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. XVII, 318 et seq.; The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. XVIII, 74. 48 Safferling, International Criminal Procedure, 396. 49 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September and 1st October 1946, 130. See also for a detailed description of the decision to try Bormann in absentia and the strategy of his defence counsel: Eibach, Abwesenheitsverfahren, 92 et seq. 50 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September 43

II. IMT and IMTFE

45

later apprehended, the Control Council for Germany may under article 29 of the charter, consider any facts in mitigation, and alter or reduce his sentence, if deemed proper”.51 A certain weakness of the in absentia conviction is, hence, acknowledged. This shows the difficulty the IMT had in determining an appropriate sentence for a defendant that was never present before the adjudicators. In the case against Gustav Krupp von Bohlen the Tribunal decided against a trial in absentia and dropped the charges due to Krupp’s age and illness.52 It was held that where “nature rather than flight or contumacy” prevents the defendant’s attendance in court, the conduction of a trial was not “in accordance with justice”.53 This shows that the underlying purpose behind allowing trial in absentia at Nuremberg was to prevent the obstruction of justice. Especially, the reference to contumacy shows that the sanctioning character of the in absentia trial is central to the Nuremberg Charter. For example in France, in those days, contumacy was a common way of sanctioning the defendant for his absence by restricting his rights and trying him in absentia regardless of his physical nonappearance.54 No counsel was appointed and the absentee forfeited his civil rights, especially his right to appeal.55 The term flight indicates that the tribunal assumed the defendant to have taken a deliberate decision to not appear for trial. Some scholars seem to conclude from the silence of the IMTFE Charter regarding a right to be present at one’s trial that a trial in absentia was theoretically allowed.56 Similarly, Cassese stated that “trials in absentia were, at least in the post-Second World War period, held to be acceptable.”57 In any event, the IMTFE never considered a total trial in absentia. and 1st October 1946, 130; Cassese, et al., Cassese’s International Criminal Law, 359 footnote 61. 51 Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September and 1st October 1946, 130. 52 The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. II, 21; Safferling, International Criminal Procedure, 399. See as for the details of the defense of unfitness to stand trial raised by Krupp’s counsel: Eibach, Abwesenheitsverfahren, 97 et seq.; Knoops, The Pionieering Role of Defense Counsel, 23. 53 The Trial of German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, Vol. II, 21. 54 STL, Annual Report 2009-2010, https://www.stl-tsl.org/en/documents/president-s-re ports-and-memoranda/226-Annual-Report-2009-2010 (last accessed: 7 February 2021). See also Riachy, 8 JICJ 2010, 1295, 1299. 55 Ibid. 56 Friman, Trying Cases in the Absence of the Accused?, 335; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 187. This is surprising as regards Zakerhossein/De Brouwer considering that the same authors conclude from the silence of the ICTY- and ICTRSt that in absentia proceedings were not allowed: ibid. Of other opinion with convincing arguments: Eibach, Abwesenheitsverfahren, 107. 57 Cassese, et al., Cassese’s International Criminal Law, 359 footnote 61.

46

B. Proceedings in absentia at ICTs

The statutes of both International Military Tribunals provided for partial trials in the accused’s absence due to contumacy, where the defendant behaved obstreperous.58 According to the court records, however, neither of the two tribunals made use of this provision. In contrast, both tribunals regularly conducted proceedings in the partial absence of the defendant. Although there was no express provision for this in the Statute, many of the defendants were temporarily absent, either because they were not fit to stand trial or because they had voluntarily waived their right to attend parts of the trial in person.59

III. ICTY, ICTR and MICT Both the statutes of the UN ad hoc Tribunals, ICTY and ICTR, as well as their consecutive successor, MICT, do not formally provide for a trial in absentia, but an in absentia procedure in the pre-trial stage. The respective statutes instead guarantee that the accused be tried in his presence.60 Nevertheless, some sort of in absentia proceeding can be found in all stages of the criminal procedure.

1. Right to be present As previously mentioned, the ad hoc Tribunals enshrine a right of the defendant to be present by importing Art. 14 ICCPR almost verbatim into the respective statute. Art. 21 ICTYSt, 20 ICTRSt and 19 MICTSt entitle the defendant to be tried in his presence. The use of the term ‘entitlement’ gives the defendant a comprehensive right to be present when his case is heard.61 That is also reflected in the case law.62

2. Duty to be present An explicit duty to be present cannot be found in the respective statute and RPE. The wording – especially of the ICTY’s material – suggests only a right to presence. However, Rule 82bis ICTR-RPE allows to try a defendant who refuses to appear before the chamber after he has initially appeared and has been duly informed by the Registrar ‘that he is required to be present for trial’. Also the ad hoc Tribunals case 58

Art. 18(c) IMTCh, Rule 5 IMT-RPE; Article 12(c) IMTFECh, Rule 3 IMTFE-RPE. See also Eibach, Abwesenheitsverfahren, 91. 59 See for details ibid., 101 et seq., 108 et seq. 60 Art. 21(4)(d) ICTYSt; Art. 20(4)(d) ICTRSt; Art. 19(4)(d) MICTSt. 61 Wheeler, 28 CrimLF 2017, 99, 105. 62 See inter alia ICTR, Prosecutor v. Nahimana et al., AC, Judgment, 28 November 2007, Case No. ICTR-99-52-A, para. 109.

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47

law unveils that a certain duty to be present at trial exists. The ICTR Appeals Chamber in Prosecutor v. Barayagwiza found that the defendant, beyond being informed of his right to be present, had to be informed “that his or her presence is required at trial”.63 This suggests that there is a duty to be present corresponding with the right to be present.64 In the same vein, the ICTY Trial Chamber found in Prosecutor v. Blasˇkic´ that it was “extremely difficult or even impossible for an international criminal court to determine the innocence or guilt of [an absent] accused.”65 This indicates that there is an objective reason for the defendant’s presence that might make his presence a requirement. Thus, the defendant’s appearance is more closely aligned with a duty. Moreover, the ICTYSt, by its own plain wording, declares that the presence of the accused is necessary before a trial date can be set and trial proceedings may begin.66 Again, this suggests that the defendant needs to be present before a trial can be initiated.

3. Framework of proceedings in absentia Despite the existence of both a right and a duty to be present, some scholars conclude from the silence in various statutes concerning in absentia trials that such proceedings are possible.67 This seems to be in line with the view of the Expert Group mandated by the General Assembly to conduct a review of the operation and functioning of both ICTYand ICTR, which submits that in the case of an accused who has been provisionally released, a trial in absentia might be an option.68 In this regard, it is important to note that the judges discussed but did not agree upon the im63 Ibid. Wheeler, however, rightly asserts that the finding in Barayagwiza comes from a faulty transposition of the HRC case law by carelessly using slightly different language: Wheeler, 28 CrimLF 2017, 99, 109. 64 Ibid. 65 ICTY, Prosecutor v. Blasˇkic´, AC, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, Case No. IT-9514, para. 59. 66 Art. 20 ICTYSt. Morris/Scharf, The International Criminal Tribunal for Rwanda, Vol. I, 503, therefore, conclude that trials in absentia are prohibited. 67 Schwartz, 4 The Human Rights Brief 1996, 1; cf. also Schabas, RomeSt Commentary, p. 958. See also Zappalà, Human Rights in International Criminal Proceedings, 127, who at least considers a trial in absentia appropriate after a Rule 61 Procedure was held as the accused, following the public review of the indictment and issuing of an international arrest warrant, can be considered informed about the indictment and his nonappearance interpreted as a waiver of his right to be present. Similar Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 3 who assert that trials in absentia were not ruled out. Of other opinion: Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 187. 68 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 22 November 1999, UN Doc. A/54/643, para. 54.

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B. Proceedings in absentia at ICTs

plementation of this proposal because the ad hoc Tribunals’ workload and the need for resources would have increased, due to potential de novo trials that would become necessary upon arrest of an accused tried in absentia, and due to the risk that the ICTY’s standing would be diminished in the public view.69 During the drafting procedures of the statute, the implementation of a trial in absentia was discussed controversially. France, in particular proposed the allowance of trials similar to their national procédure par contumace with a re-trial when the accused is arrested.70 A majority of states declined the French proposal.71 The decision taken against the possibility of conducting trial proceedings in the absence of the defendant is supported by the case law. Admittedly, the ICTYAppeals Chamber held that “in absentia proceedings should not be ruled out”.72 This was, however, related to a contempt procedure, which falls within the ancillary jurisdiction of the court and can be opened when a person did not comply with the tribunal’s subpoena.73 By contrast, with regard to regular in absentia trials, the Appeals Chamber clarified “that, generally speaking, it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal (i. e., persons accused of crimes provided for in Articles 2 – 5 of the Statute). Indeed, even when the accused has clearly waived his right to be tried in his presence (Article 21, paragraph 4 (d), of the Statute)”.74

69

UN SG, Note, Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, UN Doc. A/54/850, para. 10 et seq.; UN SG, Letter Dated 7 September 2000 from the Secretary-General Addressed to President of the General Assembly and the President of the Security Council, 14 September 2000, UN Doc. A/55/382-S/2000/865, para. 83; UN, Comprehensive Report on the Results of the Implementations of the Recommendations of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 4 March 2002, UN Doc. A/56/853, para. 17; ICTY, First Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 29 August 1994, UN Doc. A/49/342-S/1994/ 1007, para. 90. 70 As for the ICTY: Hoss, ZaöRV 2002, 809, 823; Hoven, Rechtsstaatliche Anforderungen, 426; Morris/Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. II, 506 et seq.; Stankovic´, Guilty Until Proven Guilty, 19; Human Rights Watch, Paper to: Secretariat of the Rules and Procedure Committee Extraordinary Chambers of the Courts of Cambodia, 17 November 2006; as for the ICTR: Morris/Scharf, The International Criminal Tribunal for Rwanda, Vol. I, 414. 71 Hoven, Rechtsstaatliche Anforderungen, 426. 72 ICTY, Prosecutor v. Blasˇkic´, AC, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, Case No. IT-9514, para. 59. 73 Ibid.; Cassese, et al., Cassese’s International Criminal Law, 362. 74 ICTY, Prosecutor v. Blasˇkic´, AC, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, Case No. IT-95-

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49

Moreover, the Trial Chamber in the case Prosecutor v. Mucic´ et al. adjourned the hearings due to one of the accused, Landzo, being absent and not having expressly waived his right to be present, indicating that the presence of the accused is necessary.75 Furthermore, the RPE implicitly require the presence of the accused.76 In this regard, Rule 62 ICTR/ICTY-RPE/Rule 65 MICT-RPE provide for an initial appearance of the suspect, Rule 100(B) ICTR/ICTY-RPE/Rule 124(B) MICT-RPE assert that the sentence shall be announced in the presence of the accused, Rule 65(C) ICTR/ICTY-RPE/Rule 68(C) MICT-RPE allow to impose conditions to a provisional release to ensure the accused’s presence and Rule 84bis ICTR/ICTY-RPE/Rule 100 MICT-RPE allows the accused to give an opening statement. Finally, argumentum e contrario Rule 65bis ICTR-RPE/Rule 65ter ICTY-RPE/Rule 69(C) MICT-RPE, which deems the accused’s presence at meetings concerning the preparation of the case unnecessary, suggests that his presence is usually required. Lastly, the statute already provides in Article 20(2) ICTR/ICTYSt/Art. 18(2) MICTSt that a trial will proceed once the defendant is “taken into custody”.77 Additionally, the Secretary General at the time expressed that “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 as this would be inconsistent with Article 14 International Covenant of Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence.”78 Hence, considering especially the system (Systematik) of the ad hoc Tribunals’ law, their drafting history and practice, it cannot be concluded that full in absentia trials, other than in contempt cases79, are admissible before the ad hoc Tribunals or the UN Mechanism.80 In any case, thus far none of the Tribunals have held a full trial

14, para. 59. Friman, Trying Cases in the Absence of the Accused?, 340 concludes that trial in absentia have been ruled out for reasons of appropriateness rather than reasons of principle. 75 ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 4 November 1997, Case No. IT-96-29, pp. 8967 – 8976. 76 Hoven, Rechtsstaatliche Anforderungen, 427; Murphy, 93 AJIL 1999, 57, 75. 77 Murphy, 93 AJIL 1999, 57, 75. 78 UN SG, Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808, 3 May 1993, UN Doc. S/25704, para. 101. 79 In this regard one has to note that the AC made clear that safeguards have to be provided for: ICTY, Prosecutor v. Blasˇkic´, AC, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, Case No. IT-9514, para. 59. 80 Of that same view: Hoven, Rechtsstaatliche Anforderungen, 427. Zappalà, Human Rights in International Criminal Proceedings, 126 submits that trials in absentia were rejected for reasons of appropriateness. He is generally of the view that the decision as to whether to include trials in absentia is a mere policy choice.

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in absentia.81 However, a compromise resulting from the different state views of trials in absentia arising from their respective legal traditions82 was reached, following which ICTR, ICTYand the MICT allow in their respective RPE the so-called Rule 61 Procedure83 in absence of the suspect at the pre-trial stage, which leads to the issuance of an international arrest warrant.84 Moreover, there are provisions for proceedings where the accused is partially absent. a) Procedure in absentia at the pre-trial stage aa) Rule 61 Procedure Common Rule 61 ICTR/ICTY-RPE and Rule 63 MICT-RPE provide for a procedure in the absence of the accused, in case an arrest warrant was not executed. The regulation can be seen as a last resort in exceptional cases.85 Both the ICTR and the MICT never applied Rule 61,86 whereas the ICTY, especially in its early years, held five Rule 61 Procedures87 as only seven out of numerous indictees were in the tribunal’s custody.88 81 As for the ICTY and ICTR that finished their mandates this assertion is certain. Three suspects in MICT cases are currently fugitives. Thus, theoretically, a trial in absence of them might be considered. 82 See Quintal, 36 ColumJTransnatlL 1998, 723, 747; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 187. Although one has to note that the general perception that the common law does not recognise trials in absentia whereas the civil law tradition does, is not quite true as will be shown below in chapter H. 83 As the MICT has not yet conducted a proceeding pursuant to Art. 63 MICT-RPE and Art. 61 ICTR/ICTY-RPE verbatim mirrors the MICT provision, to simplify matters, the term Rule 61 Procedure will be used. References will predominately concern the ICTY as it is the only tribunal that has used the procedure. 84 Rule 61 ICTY-RPE; Rule 63 MICT-RPE; Safferling, Towards, 243; Stankovic´, Guilty Until Proven Guilty, 1. 85 Morris/Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. II, 506. 86 Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 187; cf. Jones/Powles, International Criminal Practice, 568; Safferling, International Criminal Procedure, 399; Zappalà, Human Rights in International Criminal Proceedings, 128. 87 Rule 61 Procedures conducted by the ICTY in chronological order: Prosecutor v. Dragan Nikolic´, TC II, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence 20 October 1995, Case No. IT-94-2-2R61; Prosecutor v. Martic´, TC I, Decision, 8 March 1996, Case No. IT-95-11-R61; Prosecutor v. Mrksˇic´ et al., TC I, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996, Case No. IT-95-13R61; Prosecutor v. Rajic´, TC II, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12-R61; Prosecutor v. Karadzˇic´ and Mladic´, TC I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, Case Nos. IT-95-5-R61, IT-95-18-R61. See also Eibach, Abwesenheitsverfahren, 116 et seq. 88 ICTY, Report of the President of the ICTY to the United Nations General Assembly, 16 August 1996, UN Doc. A/51/292, S/1996/665, para. 8; Friman, Trying Cases in the Absence of

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The Rule 61 Procedure is sometimes referred to as an in absentia trial89 or quasi trial.90 To assess this qualification, light has to be shed on the content and function of the Rule 61 Procedure. The Rule 61 Procedure solely applies in cases where there has been a failure to execute an arrest warrant within a reasonable time and the judge who confirmed the indictment is satisfied that the registrar and the prosecution have taken reasonable measures to arrest the suspect and to serve him the indictment.91 Finally, the whereabouts of the fugitive need to be unknown for Rule 61 Procedure to apply.92 In this case a public ex-parte hearing may be held in which ‘the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence’.93 The prosecution is further entitled to call and examine witnesses,94 a measure which in fact was used in all five cases.95 Also, amicus curiae have been admitted on different occasions.96 The outcome of the Rule 61 Procedure is a determination by the Trial Chamber pursuant to Rule 60(C) whether it is ‘satisfied [….] that there are reasonable grounds for believing that the accessed has committed all or any of the crimes charged’. In other words, the determination as to whether a prima facie case against the accused exists and whether an international arrest warrant should be issued, which will be submitted to all states.97 The Chamber can, further, order states

the Accused?, 343; Greenwood, 2 Max Planck Year-Book of United Nations Law 1998, 97. Later on the procedure’s use diminished, which is not least due to a policy choice by the new head of prosecution’s opposition to the Rule 61 hearings and introduction of sealed indictments as new solution to face the challenges: UN SG, Note, Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, UN Doc. A/54/850, paras. 13, 15. 89 Schabas, UN Tribunals, 420; Schabas, Introduction4th, 289. 90 Stankovic´, Guilty Until Proven Guilty, 21. See also Elberling, The Defendant in International Criminal Proceedings, 47; Paulussen, Male Captus Bene Detentus?, 366. 91 Rule 60(A) ICTR/ICTY-RPE; Rule 61(A) MICT-RPE. 92 Ibid. 93 Rule 60(B) ICTR/ICTY-RPE; Rule 61(B) MICT-RPE; Friman, Trying Cases in the Absence of the Accused?, 343; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 188. 94 Rule 60(B) ICTR/ICTY-RPE; Rule 61(C) MICT-RPE. 95 Friman, Trying Cases in the Absence of the Accused?, 343. 96 ICTY, Prosecutor v. Karadzˇic´ and Mladic´, TC I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, Case Nos. IT-95-5-R61, IT-9518-R61, para. 2. On other occasions amicus curiae applications have been rejected, see in regard to the Republic of Croatia’s application to appear as amicus curiae: ICTY, Prosecutor v. Rajic´, TC, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12-R61; Jones/Powles, International Criminal Practice, 570 et seq.; Quintal, 36 ColumJTransnatlL 1998, 723, 757. 97 Rule 60(D) ICTY/ICTR-RPE; Rule 61(D) MICT-RPE; Ambos/Bock, Procedural Regimes, 506.

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to take measures to freeze the assets of the accused and notify the Security Council about the failure of a certain state to execute a warrant of arrest.98 Considering the fact that the prosecution presents (incriminating) evidence and can cross-examine witness, at first sight it seems understandable to call this procedure trial-like.99 Nevertheless, the Trial Chamber does not rule on the accused’s criminal responsibility.100 It is rather a repeated confirmation of the indictment in the pre-trial stage in the spotlight and with greater authority as it is reviewed by a chamber rather than a single judge.101 In the words of the STL “it is a procedure in absentia but not a trial in absentia”.102 This view is supported by the fact that the prosecution is unlikely to present the entirety of the evidence,103 especially since the whole procedure takes place under the presumption that there could be, and ideally will be, a proper trial determining the accused’s guilt or innocence of the crimes charged. As the prosecutor Goldmann in the Nikolic´ opening statement to the first Rule 61 hearing stated, the goal of the procedure “is to achieve the very objective of bringing the accused for trial.”104 Moreover, the defence does not participate during the Rule 61 procedure which further diminishes its trial character. It, thus, can be seen as a full procedure in absentia at the pre-trial stage. Although the Rule 61 Procedure cannot be considered a proper trial and the criticism as to missing protections of the

98 Rule 60(D), (E) ICTY/ICTR-RPE; Rule 61(D), (E) MICT-RPE. The former has never been applied, whereas the Security Council has been notified in all five cases: Jones/Powles, International Criminal Practice, 573. 99 See e. g. Stankovic´, Guilty Until Proven Guilty, 23; Thieroff/Amley, 23 YaleJIntlL 1998, 231, 259, who attribute Rule 61 trial-like quality. 100 ICTY, Prosecutor v. Nikolic´, TC II, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, Case No. IT-94-2-2R61, para. 3; Prosecutor v. Rajic´, TC II, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12-R61, para. 3; see also Ambos/Bock, Procedural Regimes, 506; Quintal, 36 ColumJTransnatlL 1998, 723, 747; Reisinger-Coracini, Cooperation from States and Other Entities, 108. 101 Cf. ICTY, Prosecutor v. Nikolic´, TC II, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995, Case No. IT-94-2-2R61, para. 3; Prosecutor v. Rajic´, TC II, Decision on Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12, Separate Opinion of Judge Sidhwa, para. 7; cf. Hoss, ZaöRV 2002, 809, 824; Morris/Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. II, 508; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 188. 102 STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-11/01/I/TC, para. 37. 103 In fact, prosecutor Louise Arbour feared the Rule 61 Procedure would reveal much of the evidence before the defendant’s arrest: Arbour, 2 JICJ 2004, 396, 398 et seq. Consequently, under her ruling the procedure has been abandoned: Friman, Trying Cases in the Absence of the Accused?, 344. 104 ICTY, Prosecutor v. Dragan Nikolic´, TC II, Transcript, 5 October 1995, Case No. IT-942-R61, p. 59. Similarly Eibach, Abwesenheitsverfahren, 115 et seq.

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accused in the quasi trial105 should accordingly not be convincing. However, there is no harm in respecting the accused’s due process rights and allowing him to be represented by counsel already at this stage.106 Let alone the fact that the charges that are confirmed in the Rule 61 Procedure significantly shape the scope and content of the subsequent trial. The de novo review of the indictment through Rule 61 at the pre-trial stage was appropriately titled the “voice of the victims”107 as the potential victims get the opportunity to tell their story in a public court, which can help their rehabilitation and, at the very least, is a sign of action to render justice to them.108 Another main objective of the regulation was to put pressure on states to arrest and extradite the accused.109 In the same vein, the completion of the proceedings in public and the arrest warrant put pressure on the accused to face a trial. Incriminating evidence against him alleging responsibility for the most serious crimes is circulating in public and he might want to defend himself.110 Moreover, as Judge Sidhwa asserted due to the missing cooperation of certain states, it is further “the International Tribunal’s painful and regrettable duty to adopt the next effective procedure to inform the World, through open public hearings, of the terrible crimes with which the accused is charged and the evidence against the accused that would support his conviction at trial.”111 This further shows the tribunals willingness to bring justice to the respective conflict regions.112 These various objectives are by all means legitimate. However, the issuing of an arrest warrant would similarly put pressure on the states when the defendant is represented during the public and open court. The same applies for the healing 105 See Quintal, 36 ColumJTransnatlL 1998, 723, 757 submitting that otherwise the procedure would come to close to a proper trial. Nonetheless, criticising the missing trial features: Stankovic´, Guilty Until Proven Guilty, 33 et seq. 106 Cf. Hoven, Rechtsstaatliche Anforderungen, 428. 107 Quintal, 36 ColumJTransnatlL 1998, 723; similar Zappalà, Human Rights in International Criminal Proceedings, 127. See also ICTY, Prosecutor v. Karadzˇic´ and Mladic´, TC I, Decision, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, Case Nos. IT-95-5-R61, IT-95-18-R61, para. 3. 108 Friman, Trying Cases in the Absence of the Accused?, 343; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 189; cf. Thieroff/Amley, 23 YaleJIntlL 1998, 231, 244 et seq. 109 ICTY, Prosecutor v. Karadzˇic´ and Mladic´, TC I, Decision, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, Case Nos. IT-95-5R61, IT-95-18-R61, para. 3. Hoven, Rechtsstaatliche Anforderungen, 428; Thieroff/Amley, 23 YaleJIntlL 1998, 231, 239 et seq. 110 Cf. Morris/Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. II, 506; Zappalà, Human Rights in International Criminal Proceedings, 127. 111 ICTY, Prosecutor v. Rajic´, TC II, Decision on Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12, Separate Opinion of Judge Sidhwa, para. 7. 112 Elberling, The Defendant in International Criminal Proceedings, 47; Hoss, ZaöRV 2002, 809, 824.

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process of the potential victims. Therefore, a de novo confirmation of the indictment pursuant to Rule 61 should be conducted with the necessary safeguards for the accused, namely the guarantee of his due process rights.113 To instruct the defence counsel that he “may observe the hearing from the public gallery”114 and reject his presence in court,115 does not fulfil these preferable requirements. It has been rightly pointed out, there is a danger that the records of evidence taken in the Rule 61 Procedure will be used at the trial without freshly introducing them. This would be a gross violation of the defendant’s rights to cross-examine witnesses and the principle of equality of arms.116 Having said that, the ICTY’s practice finds this concern to be unsubstantiated. A witness statement taken during the Rule 61 Procedure has to be introduced in the same manner as any other witness statement. That is according to Rule 92 ICTY-RPE by live testimony and in (exceptional cases) through Rule 92bis ICTY-RPE as a written statement, in which case a cross-examination by the defence will follow and which is only possible for evidence which does not relate to acts and conduct of the accused as charged in the indictment.117 In any event, the material used during Rule 61 Proceedings needs to be disclosed to the defence.118 Similarly, the criticism as to the Rule 61 Procedure being a substitute for a trial that might never occur119 is unconvincing since in all five cases an actual trial has been conducted. bb) Rule 71bis Procedure As seen above neither the ICTR nor the MICT have applied Rule 61/63 ICTR/ MICT-RPE, however, the ICTR-RPE were amended in October 2009 to include Rule 71bis and the MICT-RPE contain almost identical Rule 78 from the beginning, providing for a special deposition recorded in a proceeding conducted by a single 113

Hoss, ZaöRV 2002, 809, 825; Hoven, Rechtsstaatliche Anforderungen, 428. ICTY, Prosecutor v. Rajic´, Note from Registrar in: Jones/Powles, International Criminal Practice, 570. 115 ICTY, Prosecutor v. Karadzˇic´ and Mladic´, TC I, Decision Rejecting the Request Submitted by Mr. Medvene and Mr. Hanley III, Defence Counsels for Radovan Karadzˇ ic´, 5 July 1996, Case Nos. IT-95-5, IT-95-18; Prosecutor v. Karadzˇic´ and Mladic´, TC I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, Case Nos. IT-95-5-R61, IT-95-18-R61, para. 4; Jones/Powles, International Criminal Practice, 570. 116 Quintal, 36 ColumJTransnatlL 1998, 723, 752; Safferling, Towards, 243 et seq.; Stankovic´, Guilty Until Proven Guilty, 27. 117 UN, Comprehensive Report on the Results of the Implementations of the Recommendations of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 4 March 2002, UN Doc. A/56/853, para. 23 et seq. 118 The chamber for example ordered the prosecution to disclose said material: ICTY, Prosecutor v. Mladic´, TC I, Initial Appearance, Transcript, 3 June 2011, Case No. IT-09-92, p. 22. 119 Safferling, Towards, 244. 114

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judge to secure evidence relating to an indictment for a future trial upon request of the prosecution or an accused’s defence counsel.120 The Rule 71bis/78 Procedure is conducted without the defendant being present.121 It has been applied in three cases.122 The chamber in Kabuga found the Rule 71bis Procedure not to be a trial in absentia and its purpose was “to prevent fugitive accused from avoiding effective prosecution and obstructing the proper administration of justice”.123 The procedure also applies in case of the failure to execute an arrest warrant within a reasonable time and unlike the Rule 61 Procedure in exceptional circumstances in the time during an arrest and the transfer to the tribunal.124 If the chamber is satisfied that all reasonable steps to execute the arrest warrant have been taken or is it unlikely to be executed within a reasonable time and finds it necessary in the interests of justice, the decision on holding special depositions will be made public, where possible, especially to the accused’s family and in the alleged whereabouts of the accused.125 In contrast to the Rule 61 Procedure, this procedure meets the safeguards proposed above. The accused is represented by a duty counsel, who has the same ability to request the taking of depositions and represents the defendant’s interests during the deposition conducted by a single judge.126 Moreover, the requirements to tender evidence from the special depositions in lieu of a life testimony in a subsequent trial are considerably high.127 However, as none of the three defendants against whom Rule 71bis Procedures have been conducted has been found, the rules have never been applied.128

120 The latter only in case of the successful application of an arrest warrant where the defendant has not yet been transferred to the respective institution. 121 ICTR, Newsletter October 2009, p. 1. 122 ICTR, Prosecutor v. Mpiranya, TC III, Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial, Rule 71bis of the Rules of Procedure and Evidence, 3 March 2011, Case No. ICTR-00-56A-R71bis; Prosecutor v. Kabuga, TC, Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis), 15 March 2011, Case No. ICTR-99-44BR71bis; Prosecutor v. Bizimana, TC III, Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis), 5 May 2011, Case No. ICTR-99-44F-R71bis. 123 ICTR, Prosecutor v. Kabuga, TC, Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis), 15 March 2011, Case No. ICTR-99-44B-R71bis, para. 15. 124 Rule 71bis(A), (B) ICTR-RPE; Rule 78(A), (B) MICT-RPE. 125 Rule 71bis(E), (G), (H) ICTR-RPE; Rule 78(E), (G), (H) MICT-RPE. 126 Rule 71bis(C), (D), (G), (I), (J) ICTR-RPE; Rule 78(C), (D), (G), (I), (J) MICT-RPE; ICTR, Newsletter, October 2009, p. 1. 127 Rule 71bis(O) ICTR-RPE; Rule 78(N) MICT-RPE. 128 See also Eibach, Abwesenheitsverfahren, 139 et seq.

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b) Proceedings partially held in absentia All three Tribunals provide for the possibility of holding proceedings in the partial absence of the accused. Also at the trial stage there are exceptions to the respective statute’s provisions that the trial shall be held in presence of the accused. aa) Pre-trial conferences and technical meetings In the pre-trial stage a status conference to prepare the trial and review the status of the accused’s case can be held in the defendant’s physical absence when he, after receiving advice from his defence counsel, consented in writing beforehand.129 However, he can participate via video link or telephone conference if he so wishes.130 By all means, the defence counsel has to participate either via video link, telephone conference or in person.131 Further, the accused does not need to be present in certain technical meetings between the parties and the judge’s senior legal officer at the pretrial stage.132 bb) Waiver of the right to be present On several occasions, both the ICTY and ICTR made clear that the defendant has the power to waive his right to be present at trial.133 There are, however, prerequisites for such a waiver. The accused needs to be duly notified of the proceedings and his decision needs to be free and unequivocal.134 Yet, the waiver can be implicit. This happened when Barayagwiza boycotted the tribunal by declaring the ICTR was not independent and impartial and consequently did not attend the proceedings.135 Fi129

Common Rule 65bis(C) ICTY/ICTR-RPE, Rule 69(C) MICT-RPE. Ibid. 131 Ibid. 132 Rule 65ter (D)(vi) ICTY-RPE; Elberling, The Defendant in International Criminal Proceedings, 51. 133 ICTY, Prosecutor v. Simic´, TC II, Sentencing Judgment, 17 October 2002, Case No. IT95-9/2-S, para. 8 and footnote 18 (Due to medical reasons he did not attend trial and notified the chamber of each waiver explicitly.); Prosecutor v. Mucic´ et al., TC, Transcript, 4 November 1997, Case No. IT-96-21, p. 8973; ICTR, Prosecutor v. Karemera et al., AC, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007, Case No. ICTR-98-44-Ar73.10, para. 11; Prosecutor v. Zigiranyirazo, AC, Decision on Interlocutory Appeal, 30 October 2006, Case No. ICTR-2001-73-AR73, para. 14; ICTR, Prosecutor v. Nahimana et al., AC, Judgment, 28 November 2007, Case No. ICTR-99-52-A, para. 99. See for exact numbers Eibach, Abwesenheitsverfahren, 119. 134 ICTR, Prosecutor v. Nahimana et al., AC, Judgment, 28 November 2007, Case No. ICTR 99-52-A, para. 109; ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 6. 135 ICTR, Prosecutor v. Nahimana et al., AC, Judgment, 28 November 2007, Case No. ICTR 99-52-A, para. 110 et seq.; Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 14. 130

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nally, the absentee needs to be represented by a defence counsel “to guarantee the effective exercise of […] [his] rights”.136 At the ICTR some accused were not present for the majority of their trial due to their deliberate decision to boycott proceedings.137 Also at the ICTY, in Stanisˇic´ and Simatovic´ as well as in Mucic´ et al. respectively, one of the accused did not appear at the hearing and the respective defence counsels expressly asserted that they had not waived their rights to be present. The respective Trial Chamber did adjourn the hearings until the accused were again physically present.138 However, in the latter proceedings, the same Chamber almost half a year after this oral ruling found the missing waiver and express assertion by the defendant that he did not waive his right to be present a reason to either forcibly bring him to court or to proceed in his absence notwithstanding that the defendant did not waive his right to be present.139 The court based this decision on the chamber’s “moral and legal obligation to your client, to the country, and to the universe at large and to all involving the administration of justice.”140 It was not within the ability of the defendant to control the proceedings and put the proper administration of justice on hold.141 cc) Refusal to attend trial Furthermore, in May 2003 Rule 82bis ICTR-RPE introduced a partial trial in absentia142 if the accused refuses to attend trial after his initial appearance, he has been notified that his presence was required and counsel represents his interests.143

136 ICTR, Prosecutor v. Nahimana et al., AC, Judgment, 28 November 2007, Case No. ICTR 99-52-A, para. 109. See also ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 23; ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 4 November 1997, Case No. IT-96-21, p. 8973. 137 E. g.: Barayagwiza did not attend his trial from 23 October 2000 – 22 August 2003: Prosecutor v. Barayagwiza, AC, Judgment, 28 November 2007, ICTR-99-52-A, para. 95; Rwamakuba was not present during the entire defence case: ICTR, Prosecutor v. Rwamakuba, Judgment, 20 September 2006, Case No. ICTR-98-44C-T, para. 9. 138 ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 4 November 1997, Case No. IT-96-21, p. 8973 et seq.; Prosecutor v. Stanisˇic´ and Simatovic´, TC I, Transcript, 18 March 2008, Case No. IT-03-69, p. 701 et seq. 139 ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 17 April 1998, Case No. IT-96-21, p. 11261 et seq. 140 ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 16 April 1998, Case No. IT-96-21, p. 11377. 141 ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 17 April 1998, Case No. IT-96-21, p. 11262. See also Zappalà, Human Rights in International Criminal Proceedings, 128. 142 The MICT-RPE have the same provision in Rule 98. 143 This Rule was e. g. applied in: ICTR, Prosecutor v. Rwamakuba, TC III, Judgment, 20 September 2006, Case No. ICTR-98-44C-T, para. 9.

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dd) Removal due to disruptive behaviour Another possibility of partially conducting trials in absence of the accused is pursuant to Rule 80(B) ICTR/ICTY-RPE. This allows for the removal of the defendant if he has persisted in disruptive conduct and has been warned that he might be removed from the trial.144 The accused’s right to be present can only be restricted “on the basis of substantial trial disruption”.145 There are numerous examples where the accused was removed from the courtroom when he made insults or interrupted the judges.146 The Trial Chamber in Mladic´ made it clear that it sees the defendant’s disruptive behaviour as a waiver of his right to be present.147 As the defendant did not express his waiver, it was rather deduced from his conduct, and the chamber appears to presume an implied waiver.148 ee) Temporary inability to stand trial An unintentional long-term disruption can occur due to the defendant’s health.149 The hearings are usually delayed until the accused has overcome his illness.150 However, the principle of conducting an expeditious trial presupposes that the procedure continues in the accused’s absence, if the disruption is substantial.151 In the majority of the cases, the chambers also referred to the co-defendant’s right to a

144

Rule 80(B) ICTY/ICTR-RPE; Rule 94 MICT-RPE. ICTY, Prosecutor v. Milosˇevic´, AC, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, Case No. IT02-54-AR73.7, para. 13. 146 E. g.: ICTY, Prosecutor v. Stankovic´ and Jankovic´, TC (Referral Bench), Transcript, 4 March 2005, Case No. IT-96-23/2, p. 235 et seq.; Prosecutor v. Mladic´, TC I, Transcript, 4 July 2011, Case No. IT-09-92, p. 44 et seq. and Transcript, 14 September 2006, p. 573 et seq.; Prosecutor v. Sˇ esˇelj, TC III, Transcript, 1 November 2006, Case No. IT-03.67. 147 ICTY, Prosecutor v. Mladic´, TC I, Transcript, 8 October 2012, Case No. IT-09-92, p. 3730. 148 Similarly Wheeler, 28 CrimLF 2017, 99, 114. 149 Elberling, The Defendant in International Criminal Proceedings, 49 et seq.; Safferling, International Criminal Procedure, 398. See also for an analysis of the cases conducted at the ad hoc Tribunals: Eibach, Abwesenheitsverfahren, 121 et seq., 137 et seq. 150 ICTY, Prosecutor v. Stanisˇic´ and Simatovic´, TC I, Transcript, 18 March 2008, Case No. IT-03-69, p. 701 et seq. A different approach was taken in Prosecutor v. Slobodan Milosˇevic´, TC, Transcript, 19 April 2005, Case No. IT-02-54s, p. 38577 et seq., where the judges decided to proceed with the witness’ cross-examination although the accused was not present. The ICTR AC, nevertheless, held that the continuation of the cross-examination without all the accused being present, though the delay would have been only three days, is not proportional: ICTR, Prosecutor v. Karemera et al., AC, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007, Case No. ICTR-98-44-Ar73.10, paras. 15, 17. 151 ICTY, Prosecutor v. Stanisˇic´ and Simatovic´, TC I, Decision on Future Course of Proceedings, 09 April 2009, Case No. IT-03-69-PT, para. 11 et seq. 145

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speedy trial.152 To ensure that the accused can follow and participate at the trial, and to give him the possibility of instructing his counsel and addressing the court, a video link and phone line must be installed.153 In Zigiranyirazo a video link was installed as the defendant was hindered by the Dutch authorities from entering the country for a trial hearing in The Hague.154 It did not matter that the obstacle was beyond the defendant’s control; the trial continued. ff) Protection of witnesses and victims Moreover, ex-parte proceedings (e. g. particular motions or hearings) are possible at all stages of the procedure within narrow limits, one of the main reasons for such proceeding being the protection of victims and witnesses.155

4. Video link procedures The ICTR’s and ICTY’s case law makes clear that parts of the trial may exceptionally be held via video link. At the same time all decisions regarding this point out that the virtual presence is not equal to physical participation in the trial.156 The right to be present enshrines a guarantee to be physically present in the courtroom.157 Only where all other measures have been taken that “potentially secure the accused ability

152 Ibid.; ICTR, Prosecutor v. Bagosora et al., TC I, Decision on Nsengiyumva Motion for Adjournment due to Illness of the Accused, 17 November 2006, Case No. ICTR-98-41-T, para. 12; Prosecutor v. Karemera et al., AC, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007, Case No. ICTR-98-44-AR73.10, para. 15. The AC found a delay of three days was not outweighed by the right to an expeditious trial of the co-accused and found that the TC erred in proceeding with the cross-examination of a witness in absence of one of the accused due to his poor health. 153 ICTY, Prosecutor v. Stanisˇic´ and Simatovic´, TC I, Decision on Future Course of Proceedings, 09 April 2009, Case No. IT-03-69-PT; cf. ICTY, Prosecutor v. Milan Simic´, TC II, Sentencing Judgment, 17 October 2002, Case No. IT-95-9/2-S, para. 8 with footnote 18. 154 ICTR, Prosecutor v. Zigiranyirazo, AC, Decision on Interlocutory Appeal, 30 October 2006, Case No. ICTR-01-73-AR73. See for the details: Eibach, Abwesenheitsverfahren, 132 et seq. 155 Cf. ICTY, Prosecutor v. Simic´ et al., TC II, Decision on (1) Application by Stevan Todorovic´ to Re-Open the Decision of 27 July 1999, (2) Motions by ICRC to Re-Open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material, 28 February 2000, Case No. IT-95-9, para. 39 et seq. 156 ICTR, Prosecutor v. Zigiranyirazo, AC, Decision on Interlocutory Appeal, 30 October 2006, Case No. ICTR-01-73-AR73, para. 12. 157 Ibid., para. 10 et seq.; ICTR, Prosecutor v. Karemera, AC, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007, ICTR-98-44AR73/10, para. 11.

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to fully exercise his right to be present at trial”, can the trial proceed with the defendant participating via video link.158 The ICTY in Stanisˇic´ and Simatovic´ further set forth certain technical requirements that need to be met by the video link. In this regard, it is necessary that the video link is reciprocal, enabling all actors in court to see the defendant and vice versa; the defendant has a secured telephone line for the purpose of communicating with his counsel, the accused needs to have access to the relevant court management system that contains the evidence for the case and finally, he can have someone of his defence team at his side while being remotely present.159

IV. Hybrid tribunals The framework of in absentia proceedings at hybrid tribunals, also known as internationalised tribunals, will be outlined here. The term hybrid tribunal is understood to include all tribunals whose judges, prosecutors and staff are composed internationally and that apply the respective state’s law and/or international law. They are often part of the respective state’s jurisdiction160 but they work with international participation and apply international standards.

1. SCSL, SPSC, ECCC, BWCC This analysis will start with hybrid tribunals that were established with the support of the UN. These include the SCSL in Freetown and The Hague, which is mandated to try those bearing the greatest responsibility for crimes committed in Sierra Leone against civilians and UN peace-keepers in the civil war after the failure of the Abidjan Peace Accord on 30 November 1996; the SPSC in Dili concerned with the prosecution of international and national crimes committed during January and October 1999 towards the end of the Indonesian occupation of East Timor; the ECCC in Phnom Penh taking account of the atrocities committed during the Khmer Rouge regime in Cambodia; and the War Crimes Section of the Court of Bosnia and Herzegovina seised with the complementation and continuance of the work of the ICTY. It is to be noted that the involvement of international judges and prosecutors at the BWCC was designed to be an interim solution, so that domestic Bosnian Law, which includes international law as far as it is ratified in Bosnia, was applied through 158 ICTY, Prosecutor v. Stanisˇic´ and Simatovic´, AC, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008, Case No. IT-03-69-AR73.2, para. 19. 159 ICTY, Prosecutor v. Stanisˇic´ and Simatovic´, TC I, Corrigendum to Second Decision Amending Modalities for Trial, 07 September 2009, Case No. IT-03-69-T, Annex B, para. 5. 160 That is true for the ECCC which is a Cambodian court, the KSC considered to be part of the judicial system of Kosovo.

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international participation. However, the procedure is similar to that at the ICTY.161 The SPSC similarly stopped its investigation when the UN terminated their engagement in 2005.162 Due to their interim nature and rather limited international character, they will not be dealt with in the same depth as the other tribunals. During the establishment of some of the hybrid courts, the discussion as to whether to allow for trials in absentia has concerned the drafters of the respective legal frameworks. This is especially true for the ECCC since Cambodian domestic criminal law permits trials in absentia.163 Ultimately full trials in absentia were rejected for there was neither a competent chamber nor the necessary budget to conduct a re-trial after a defendant surrenders himself after his potential conviction in absentia.164 Generally, most modern tribunals rejected the idea of trials held fully in absentia for the concern that the public would regard such trial as sham proceeding and not take it as a serious effort to do justice.165 a) Right to be present The legal framework of all hybrid tribunals enshrines the right to be present at one’s trial. Most of the regulations either refer to Art. 14 ICCPR166 or mirror the wording verbatim in the respective legal framework.167 b) Duty to be present A corresponding duty to be present is expressly laid down in the ECCC-IR168 and can also be inferred from the court’s practice. Whenever one of the defendants waived his right to be present at trial, the chamber was required to accept that waiver. This indicates that the right to be present does not fully stand in the defendant’s disposition since without the acceptance by the Trial Chamber the waiver takes no effect. Similarly the statute provides for the possibility of forcibly bringing the defendant to court,169 again indicating a duty to be present. The duty generally exists, especially 161

Ambos/Bock, Procedural Regimes, 519. Ibid., 517. 163 Skilbeck, 8 JICJ 2010, 451, 460. 164 Ibid. 165 Ibid., 460 et seq. 166 In this way: Art. 12 ECCC-Agreement; Art. 33 Law on the Establishment of the ECCC; Section 9 RDTL Constitution, Section 2 UNTAET/Reg/1999/1, Sections 2, 3 UNTAET/Reg/ 2000/15. 167 In this way: ECCC: Art. 35(d) Law on the Establishment of the ECCC; Rule 81 ECCCIR; Art. 17(4)(d) SCSLSt. 168 Rule 81(1) ECCC-IR. See also Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 68. 169 Rule 81(2), (3) ECCC-IR. 162

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for crucial parts of procedure such as the initial appearance where the defendant is obliged to be present.170 The IR name several exceptions to this rule. In a similar vein, the SCSL Trial Chamber in the CDF case found that “any deliberate absence from the trial proceedings will certainly undermine the integrity of the trial and will not be in the interests of justice.”171 This indicates that the defendant is generally required to be present. Where there is a lack of an express duty to be present in the legal framework of the SCSP, case law regarding the absence of the defendant provides no concrete conclusions as to an existing duty. As for the BWCC, the legal framework expressly excludes full trials in absentia.172 Here, it can be concluded that the defendant not only has a right, but is also obliged, to be present at the criminal trial held against him. c) Framework of trials in absentia The SPSC has never conducted a total proceeding in absence of the accused and no further inferences can be drawn from its case law as regards to in absentia proceedings. The other hybrid tribunals solely provide for trials that are held partially in absence of the defendant. Following the principle semel praesens semper praesens the SCSL, the SPSC and the ECCC all provide for trial in absentia after the defendant has initially appeared and he (voluntarily) refuses to be present or is at large – in other words, fled – after his initial appearance.173 Both the regulations of the SCSL and the ECCC expressly state that the accused needs to be represented by defence counsel if he is absent. Where the defence counsel unjustifiably fails to appear, it is at the discretion of the ECCC Chamber to adjourn the hearing for the time being or to proceed with the trial.174 It may also assign a duty counsel to the defendant.175 The SCSL regulation further specifies that the trial can proceed where ‘the Trial Chamber is satisfied that the accused has, expressly or impliedly, waived his right to be present.’176 The SCSL notoriously held that a trial in absentia was acceptable 170 KRT Trial Monitor, Case 002/01, Issue No. 14, Hearing on Evidence Week 9, 12 – 15 March 2012, p. 4. 171 SCSL, Prosecutor v. Norman et al., TC I, Ruling on the Issue of Non-Appearance of the First Accused, Samuel Hinga Norman, The Second Accused, Moinina Fofana and the Third Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004, Case No. SCSL-04-14-PT, para. 22. 172 Art. 247 BiH CPC; see also Art. 246 BiH CPC. 173 SPSC: Section 5.2 UNTAET/REG/2000/30 on Regulation on Transnational Rules of Criminal Procedure, 25 September 2000; SCSL: Rule 60 SCSL-RPE and ECCC: Rule 81(4) ECCC-IR. 174 Rule 87(7) ECCC-IR. 175 Ibid. 176 Rule 60(B) SCSL-RPE.

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under this regulation as many defendants boycotted the proceedings. In the RUF case, the Trial Chamber interpreted Gbao’s assertion that he did not recognise the tribunal and subsequent refused to attend the trial as a waiver and found “though in essence trial in the absence of an accused person is an extraordinary mode of trial, yet it is clearly permissible and lawful in very limited circumstances” and, consequently, held the trial in his absence.177 After attending the first two trial sessions, the coaccused Kallon and Sesay joined Gbao and waived their right to be present.178 Although the SPSC and ECCC legal frameworks do not expressly say so, the refusal to attend trial is also interpreted as an (implicit) waiver of the right to be present.179 The chief of the detention unit notified the court on a daily basis whether the accused continued to waive their right to be present or had decided to participate at trial.180 Beyond the waiver of the right to be present, the SCSL adds a different layer for the justification of the proceeding in absentia, i. e. the administration of justice: “The Chamber opines that it is a clear indication that it is not the policy of the criminal law to allow the absence of an accused person or his disruptive conduct to impede the administration of justice or frustrate the ends of justice. To allow such an eventuality to prevail is tantamount to judicial abdication of the principle of legality and a capitulation to a frustration of the ends of justice without justification”.181 On another occasion it found “it is our considered judgment, therefore, that in the absence of any lawful excuse, and we find that there exists no such excuse, it would not be in the interests of justice to allow the Accused’s deliberate absence from the courtroom to interrupt the trial.”182 There were, however, other occasions on which the trial was held in partial absence of the accused. De minimis absences occurred regularly when the defendants did not wish to attend the proceedings due to health reasons and agreed to the trial’s

177 SCSL, Prosecutor v. Sesay et al., TC I, Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearings of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, Case No. SCSL-04-15-T, para. 8. 178 SCSL, Prosecutor v. Sesay et al., TC I, Ruling on the Issue of the Refusal of the Accused Sesay and Kallon to Appear for their Trial, 19 January 2005, Case No. SCSL-04-15-T, para. 16. See for further cases Eibach, Abwesenheitsverfahren, 143 et seq. 179 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 69; Hoven, Rechtsstaatliche Anforderungen, 430 et seq.; cf. also Safferling, International Criminal Procedure, 398. 180 SCSL, Prosecutor v. Sesay et al., TC I, Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearings of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, Case No. SCSL-04-15-T, para. 12. 181 Ibid., para. 8. 182 SCSL, Prosecutor v. Norman et al., TC I, Ruling on the Issue of Non-Appearance of the First Accused, Samuel Hinga Norman, The Second Accused, Moinina Fofana and the Third Accused, Allieu Kondewa at the Trial Proceedings, 1 October 2004, Case No. SCSL-04-14-PT, para. 22.

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continuance.183 On one occasion, Taylor appeared late to the trial hearing because the registry failed to transfer him in time from the detention centre. The court recognised that this impediment was beyond Taylor’s control and, nonetheless, quite astonishingly found this to be an implicit waiver of his right to be present.184 The ECCC regulation on proceedings in absentia after the initial appearance points out that the accused’s presence is crucial as it provides for the possibility to forcibly transfer the defendant to the hearing.185 If the defendant forcibly appearing at the hearing refuses to participate at the trial, the trial may proceed while he is absent from the courtroom although the defendant is generally within the court’s premises.186 Similarly, the trial can continue in the accused’s absence if a health condition prevents him from attending and he consents with the continuation in his absence.187 Again the notion of a waiver is the underlying concept.188 However, where the disruption due to health reasons is so substantial that a severe delay is feared, the chamber can also proceed without the defendant’s consent where continuance is in the interests of justice.189 Where there are permanent disruptions due to illness, the ECCC Rules require that a video link be installed. This regulation was applied in Case 002 on a daily basis, since the respective defendants, Ieng Sary and Nuon Chea, waived their right to be present in the courtroom, which is usually granted by the Trial Chamber. The defendants instead followed the proceedings via video link in the holding cell.190 From the fact that the chamber is required to allow for absence and submission of the video link, it can be concluded that physical presence and virtual presence are not seen to be equal.191 183

Ibid., paras. 3, 7; SCSL, Prosecutor v. Norman et al., TC I, Transcript, 20 September 2004, SCSL-04-14, pp. 114 – 116, Transcript, 21 September 2004, Case No. SCSL-04-14, pp. 3 – 4. 184 SCSL, Prosecutor v. Taylor, TC I, Transcript, 3 July 2007, Case No. SCSL-03-01, pp. 1, 8. 185 Rule 81(2) and (3) ECCC-IR. Critically: Hoven, Rechtsstaatliche Anforderungen, 231; Schwartz, 4 The Human Rights Brief 1996, 1, who take the view that in the context of international criminal law, due to the broad coverage in media and general public awareness, it is most unlikely that an accused has no knowledge of an indictment, hence, “there is no reason to insist on the formality of an initial appearance”. 186 KRT Trial Monitor, Case 002/01, Issue No. 28, Hearing on Evidence Week 28, 18 – 20 July 2012, p. 12. Still the general conditions apply: prerequisite is that the defendant is represented by counsel. 187 Rule 81(5) ECCC-IR. See also KRT Trial Monitor, Case 002/01, Issue No. 1, Initial Hearing, 27 – 30 June 2011, p. 7. 188 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 69. 189 Rule 81(5) ECCC-IR. 190 See inter alia ECCC, Prosecutor v. Nuon Chea et al., Case 002/02, Transcript, 27 July 2015, Case No. 002/19-09-2007-ECCC/TC, pp. 2 – 3; KRT Trial Monitor, Case 002/01, Issue No. 14, Hearing on Evidence Week 9, 12 – 15 March 2012, p. 4. See for the excat numbers: Eibach, Abwesenheitsverfahren, 149. 191 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 69.

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Defence counsel has represented the accused in proceedings in absentia at both the ECCC and SCSL. Based on Art. 17(4)(d)(ii) SCSLSt, the accused has the right to have legal assistance assigned to him, where the interests of justice so require. The SCSL Appeals Chamber concluded that even “where an accused is present in court but refuses to participate in the proceedings […] the court should treat the accused as an absent accused and […] ensure that the accused is represented”.192 All hybrid tribunals’ procedural rules also include regulations for partial in absentia proceedings where the accused disrupts the hearing after having been warned that he might be removed from the courtroom.193 The SCSL-RPE and ECCC-IR require that the accused follow the proceedings via video link.194 At the ECCC the accused has the possibility of instructing his counsel by phone if needed.195 This implies that defence counsel needs to be present. The BWCC also require a representation by defence counsel during the absence of the accused.196 The defendant may also be removed for a short period in order to protect witnesses or victims and guarantee a truthful testimony.197

2. STL The STL is mandated to prosecute people accused of carrying out an attack on 14 February 2005 in Beirut killing 22 people and leaving many others injured, including the former Prime Minister of Lebanon, Rafik Hariri.198 The STL is an international court but applies Lebanese law199 and suits, therefore, the above definition of a hybrid court, i. e. an internationalised court that was established by a UN Resolution. Notwithstanding, it will be assessed separately. The distinction stems from the fact that the STL is the first ICT since Nuremberg to allow trial proceedings in absentia to 192 SCSL, Prosecutor v. Sesay et al., AC, Decision on Appeal against Decision on Withdrawal of Counsel, 23 November 2004, Case No. SCSL-04-15-AR73, para. 52. See also SCSL, Prosecutor v. Brima et al., Decision on the Confidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 20 May 2005, SCSL-04-16-T, para. 67. 193 SPSC: Sections 48.2, 5.1, 5.3 UNTAET/REG/2000/30 on Regulation on Transnational Rules of Criminal Procedure, 25 September 2000; SCSL: Rule 80(B) SCSL-RPE; ECCC: Rule 37(2) and 81(5) ECCC-IR; BWCC: Art. 242(2) BiH CPC. This rule was for example used in SCSL, Prosecutor v. Sesay, Kallon and Gbao, TC I, Trial Records Tape 1, 11 January 2005, SCSL-04-15. 194 Rule 37(2) (voluntary disruption); Rule 81(5) (disruption due to illness) ECCC-IR; Rule 80(B) SCSL-RPE. 195 Rule 37(2) (voluntary disruption); Rule 81(5) (disruption due to illness) ECCC-IR. 196 Art. 242(2) BiH CPC. 197 Art. 365 BiH CPC. 198 Art. 1(a) Agreement between the UN and Lebanese Republic on the Establishment of a Special Tribunal for Lebanon; Art. 1 STLSt. 199 Art. 2 STLSt.

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be conducted entirely in the absence of the defendant under strict conditions200 at all procedural stages.201 One can only speculate about the reasons for this departure from the norm. Considering that the statute urged the judges to seek guidance in Lebanese criminal procedure when drafting the RPE,202 it is certainly an important factor that Lebanese law allows for trials in absentia.203 This reasoning is mirrored in the UN Secretary General’s assertion that “the Lebanon Tribunal was the first to draw substantially on civil law traditions, and the introduction of in absentia trials was the most notable manifestations of civil law elements.”204 Moreover, the implementation of trials in absentia was driven by the fear that suspects may not be apprehended.205 Kofi Annan also found trials in absentia “crucial to ensure that the legal process is not unduly or indefinitely delayed because of the absence of some accused”.206 Considering that so far none of the indictees have been found or otherwise brought before the tribunal, this fear of delay and obstruction of justice has proven true. a) Right to be present Art. 16(4)(d) STLSt guarantees the accused’s right to be present at trial. However, the right is not guaranteed without restriction. The right to be present is disregarded where the provision of Art. 22 STLSt – the statutory provision that permits trials in absentia – applies. b) Duty to be present Whether there is also a duty to be present cannot be identified in a straightforward manner. The Trial Chamber held that “a trial in an accused’s presence is pref-

200

Gaeta, 5 JICL 2007, 1165, 1166; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 194. Cf. Rule 107 STL-RPE. 202 Art. 28(2) STLSt. 203 Cf. also Friman, Trying Cases in the Absence of the Accused?, 342. See as for the in absentia framework of Lebanese law: Art. 165 and 166 LCCP provide for the possibility to try a defendant charged with a misdemeanour not exceeding one year imprisonment; see as for the objection to a judgment in absentia: Art. 171 et seq. LCCP; Art. 282 et seq. LCCP allowing for the in absentia trial against a fugitive of justice, also concerning felonies. See also outlining the particularities of the Lebanese in absentia framework: Pons, 8 JICJ 2010, 1307, 1307 et seq.; Riachy, 8 JICJ 2010, 1295, 1299 et seq. 204 UN SG, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, 15 November 2006, UN Doc. S/2006/893, para. 9. 205 Gardner, 43 GeoWashIntlLRev 2011, 91, 107. 206 UN SG, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, 15 November 2006, UN Doc. S/2006/893, para. 32. 201

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erable”.207 Basing a duty corresponding with the defendant’s right to be present on this finding would overexpand the assertion. The regulations on trials in absentia do not clearly address whether a duty to be present exists. As will be shown further below, the concept of trying a defendant in absentia by the STL is mainly based on the concept of a waiver of the right to be present. It follows that the possibility of a waiver is seen to be inherent in the concept of a right. However, it does not suggest that there is a duty to be present. In a similar vein, Rule 104 STL-RPE inter alia deems the defendant that participates via video link or has initially appeared to be present. As a consequence no in absentia trial in the technical sense is conducted. A regular adversarial trial is held despite the defendant’s physical absence, so that an obligation to be physically present seems not to exist. Only where the in absentia framework is also based on the idea that the defendant be sanctioned for his nonappearance, might a duty to be present be inferred from the regulation. As will be shown shortly, such reasoning has to date not been applied in the case law and is similarly not indicated in the STLSt or RPE. It will be assessed later whether it is in fact true that there is no duty to be present.208 c) Framework of trials in absentia Art. 22 STLSt which is operationalised in Rule 106 STL-RPE states that proceedings in absentia shall be held in cases in which (a) the accused waived his right to be present; (b) the state authorities concerned failed to hand the accused over; or (c) the defendant has absconded or otherwise cannot be found and all reasonable measures to inform him about the charges have been taken. Taking the beginning of the regulation ‘shall be held’ and Rule 105bis RPE-STL into account, which instructs the initiation of in absentia trial within 30 days starting with the advertisement of the indictment, if the accused is not under the tribunal’s authority, it is clear that the STL regulations not only allow for a procedure in the accused’s absence but establish a mandatory proceeding in absentia.209 This stands in stark contrast to the former President’s view that the statute aims to make “resort to in absentia proceedings exceptional”.210

207

STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-11-01/I/TC, para. 20. 208 See below G. II. 2. 209 The word ‘shall’ in Art. 22 STLSt and Rule 106 STL-RPE is an unequivocal indication of this bond. See also Jordash/Parker, 8 JICJ 2010, 487, 495; Oehmichen, FS-Kühne, 627; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 196. More reluctant: Eibach, Abwesenheitsverfahren, 151 et seq. The Trial Chamber has also taken this view: STL, Prosecutor v. Ayyash et al., TC, Decision on the Reconsideration of the Trial in Absentia Decision, 1 July 2012, Case No. STL-11-01/PT/TC, para. 42. 210 STL, RPE – Explanatory Memorandum by the Tribunal’s President, 25 November 2010, https://www.stl-tsl.org/en/documents/rules-of-procedure-and-evidence/explanatory-memo

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aa) Legal and virtual presence The former president’s assertion, however, gains substantial underpinning support when considering that the RPE indicate three cases in which a trial is deemed not to be held in absentia despite the defendant’s physical absence from the courtroom. Firstly, where the defendant participates via video link and his defence counsel is present in the courtroom.211 Secondly, where the defendant is willing to participate but prevented from doing so and appoints counsel to represent him during his absence at the STL, a procedure might reasonably be initiated although the defendant is not physically present.212 Arguably this is then a case of an implicit waiver of the defendant’s right to participate and be present at the STL proceedings and the waiver requirement to conduct a trial in absentia would be fulfilled. Nevertheless, the STL’s legal framework treats this case as a proper adversarial trial; no in absentia procedure is conducted where the defendant sends counsel or requests the appointment of counsel in order to represent him during his absence.213 He is deemed to be legally present. Lastly, the defendant is deemed to be present when he initially participated at trial, following the principle semel praesens semper praesens.214 A consequence of the fiction of presence is that none of the safeguards for trials in absentia apply, i. e. especially the right to re-trial.215 bb) Trials in absentia Beyond this fiction of a proper adversarial trial with a legally or virtually present defendant, the STL regulations contemplate both full and partial trials in absentia. In fact, the first trial in absentia started in early 2014 in the case Prosecutor v. Ayyash et al.,216 after decisions to hold a trial in absentia were made when the defendants absconded or otherwise could not be found and all reasonable steps were taken to secure the defendants appearance and to inform them of the charges pursuant to Art. 22(1)(c) STLSt were taken in February 2012 and December 2013.217 In August

randa/216-rules-of-procedure-and-evidence-explanatory-memorandum-by-the-tribunal-s-presi dent-25-november-2010, para. 39 (last accessed: 7 February 2021). 211 Rule 104 STL-RPE. 212 Gaeta, Trial in Absentia, 236 with footnote 31; Pons, 8 JICJ 2010, 1307, 1313. 213 Rule 104 STL-RPE. 214 Gaeta, Trial in Absentia, 236 with footnote 31; Pons, 8 JICJ 2010, 1307, 1313. 215 Critically, therefore: Gardner, 43 GeoWashIntlLRev 2011, 91, 123 et seq. 216 On 11 February 2014 the TC decided on the joinder of the case Prosecutor v. Merhi, so a fifth accused, who has been absent as well, was tried in the Ayyash et al. case. However, coaccused Badreddine has deceased and the proceedings against him were terminated in July 2016. 217 STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-11-01/I/TC; STL, Prosecutor v. Merhi, TC, Decision to Hold Trial in Absentia, 20 December 2013, Case No. STL-13-04/I/TC. See as for the details that led to the

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2020, almost six and a half years later after a long trial during which none of the defendants appeared, the STL pronounced the first judgment in absentia and acquitted three of the four defendants whereas Ayyash has been found guilty of all counts.218 (1) Conditions for the conduction of trials in absentia The requirements to hold trial in absentia are to be interpreted as follows. (a) Art. 22(1)(a) STLSt Art. 22(1)(a) STLSt requires that the defendant has waived his right to be present, so the defendant’s knowledge of the procedure instituted against him is certain and he knowingly and deliberately decides not to attend. (b) Art. 22(1)(b) STLSt The scenario contemplated by Art. 22(1)(b) STLSt, where state authorities fail to hand the defendant over, cannot be seen without objection to be based on waiver by the defendant.219 The regulation seems to be troublesome at the outset.220 Most scholars disapprove of initiating a trial in absentia if the defendant is willing to participate but detained in a state that refuses to hand him over as he did not take a conscious choice to be absent; rather his absence is justified and his rights flagrantly denied when tried nonetheless.221 Accordingly, the rule is difficult to justify. No waiver – not even a tacit waiver – can be inferred from the defendant’s failure to appear as ultimately it is a third authority that prevents the defendant from attending. The conduct of a third person cannot be the basis for inferences of the defendant’s will.222 Even where it is possible to establish that the defendant has been notified personally, it is problematic to infer a waiver as it is unclear whether the state trial in absentia: Eibach, Abwesenheitsverfahren, 166 et seq.; Wheeler, The Right to be Present at Trial, 136 et seq. 218 STL, Prosecutor v. Ayyash et al., TC, Judgment, 18 August 2020, Case No. STL-11-01/ T/TC. As seen above fn. 11 the commencement of the second case against Ayyash – this time as the only accused – where the Trial Chamber II had also decided try him in absentia (STL, Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/TC) has been canceled. 219 Cf. also Gaeta, Trial in Absentia, 236. 220 Eibach, Abwesenheitsverfahren, 152; Pons, 8 JICJ 2010, 1307, 1311; Wheeler, The Right to be Present at Trial, 144. 221 Gaeta, Trial in Absentia, 236; Gardner, 43 GeoWashIntlLRev 2011, 91, 118; Jordash/ Parker, 8 JICJ 2010, 487, 497; Pons, 8 JICJ 2010, 1307, 1311 et seq.; cf. also Eibach, Abwesenheitsverfahren, 152; of other opinion: Elberling, 21 LJIL 2008, 529, 537. 222 That might be different if the defendant expressly waived his right to be present and, in addition, is prevented from attending trial by a state that refuses to hand him over. In that case the procedure in absentia is justified already by Art. 22(1)(a) STLSt. The waiver by the defendant is clear and further reference to the state refusing to hand the defendant over is superfluous.

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concerned forcefully prevented the accused from appearing before the STL or the failure to hand the defendant over correspond to the defendant’s will. This is supported by the Lebanese system of in absentia proceedings that only allows trying a defendant in absence where the absence is not justified by obstacles beyond the defendant’s control or other valid reasons.223 If the notion of allowing a defendant to be tried in his absence is seen as waiver of the right to be present, this interpretation is inevitable. Staying or adjourning the proceedings is the tribunal’s only option.224 The judges seem to have been aware of the borderline nature of the regulation. This finds expression in Rule 104(B) RPE-STL, which cautions the Trial Chamber to carefully ensure that the requirements for trials in absentia are met and to ‘consult with the President and ensure that all necessary steps have been taken with a view to ensuring that the accused may, in the most appropriate way, participate in the proceedings’.225 Ultimately, a scenario can only amount to this when the defendant expressly waived his right to be present or is unwilling to be present at trial and, in addition, is prevented from attending trial by a state that refuses to hand him over.226 Similar applies when the defendant deliberately causes the obstacle, e. g. by causing the detention, he can be seen to evade justice and to have absconded. Then an implied waiver can be inferred from the decision to refuse to hand himself over. In spite of this, it is not necessary to refer to the state’s failure in order to justify proceeding in the defendant’s absence. This scenario is covered by Art. 22(1)(a) or (c) STLSt. The regulation is, hence, redundant and there are grounds for wondering in which cases Art. 22(1)(b) STLSt will be applicable. Accordingly, the regulation will not be part of further assessment. (c) Art. 22(1)(c) STLSt Art. 22(1)(c) STLSt addresses two types of absences: the defendant who absconds and the one that cannot otherwise be found. As for the first option, the decisive element of ‘absconding’ indicates that the defendant needs to actively flee to avoid arrest or prosecution or to clandestinely hide or conceal in order to avoid legal process.227 The need for a conscious choice indicates that the defendant was aware of the proceedings instituted against him. Some conclude that the defendant, who absconded has deliberately decided to flee from the pending prosecution and an 223

Gaeta, Trial in Absentia, 236 with footnote 31; Riachy, 8 JICJ 2010, 1295, 1299. Gardner, 43 GeoWashIntlLRev 2011, 91, 121. 225 Jordash/Parker, 8 JICJ 2010, 487, 497 submit that exactly this rule shows that the judges are willing to try a defendant in absence, although he is willing to participate but has been prevented from attending for it omits reference and restriction with regards to this scenario. Of other opinion: Gardner, 43 GeoWashIntlLRev 2011, 91, 122 submitting that the judges clearly indicated to abide by international human rights standards when interpreting the legal framework of the STL. 226 Gardner, 43 GeoWashIntlLRev 2011, 91, 119. 227 Garner (ed.), Black’s Law Dictionary, 8. Similarly: Gardner, 43 GeoWashIntlLRev 2011, 91, 115; Wheeler, The Right to be Present at Trial, 135. 224

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implied waiver of the right to be present and participate can be inferred from his absence.228 However, the assumption of a waiver is at best a fiction. The second option is concerned with the clause, ‘whereabouts are unknown and reasonable steps have been taken to notify the accused’. Reasonable steps must be taken with view to informing the defendant of the charges and the date and venue of the trial. This ultimately amounts to nothing more than the exhaustion of the possibilities to personally or indirectly notify the defendant if a personal summons has failed, including by advertisement in newspaper and broadcast in media such as radio, internet and television.229 It cannot be clearly concluded that the concept behind this notion is also a waiver of the right to be present, as a waiver always requires knowledge. However, the Trial Chamber did not distinguish between the two options and in Ayyash et al. found – and this was later confirmed by the Appeals Chamber230 – that due to the specific knowledge of the proceedings held against them the defendants “[do] not wish to participate”231 and, even more unambiguously, in Prosecutor v. Merhi – whose procedure was later consolidated with the Ayyash et al. trial – that “absence means that he must have elected not to attend the trial and has therefore waived his right to be present”.232 Similarly, Trial Chamber II concludes in the second case against Ayyash “that Mr Ayyash has knowingly waived his right to be present during the proceedings against him, and therefore that he has absconded”.233 Whether this is, in fact, correct conceptualisation will be assessed further below.234 cc) Safeguards Additional requirements – or rather safeguards – to allow for a trial in absentia, valid for all three scenarios, can be found in Art. 22(2) STLSt according to which the court needs to satisfy itself that the defendant was duly informed of the indictment and ensure representation by counsel throughout his absence.

228

135. 229

Gardner, 43 GeoWashIntlLRev 2011, 91, 115; Wheeler, The Right to be Present at Trial,

Art. 76bis STL-RPE. STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1. 231 STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-11-01/I/TC, para. 111. 232 STL, Prosecutor v. Mehri, TC, Decision to Hold Trial in Absentia, 20 December 2013, Case No. STL-13-04/I/TC, para. 109. Wheeler, The Right to be Present at Trial, 158 et seq. concludes that the Trial Chamber relied on the first option. 233 STL, Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/TC, para. 122. 234 See below G. III. 1. 230

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(1) Proper notification The initiation of a procedure in absentia, presupposes that the indictment was served to the accused or that it was made public through the media or communication to the state of residence or nationality in case the submission to the indictee failed.235 The latter possibility of commencing a trial despite the fact that the defendant has not been notified personally and notice has been ‘otherwise given’ is the instance most scholars who are critical of the STL’s in absentia framework take issue with.236 It is submitted that the knowledge of the defendant is only assumed and actual notice is not required and this would violate international human rights standards.237 The Appeals Chamber, in spite of highlighting the importance of the defendant’s notification by stipulating that “[t]he prejudice to the accused resulting from the violation of [notification] rights could not be cured by a re[-]trial”238, rebutted this criticism in a decision issued in November 2012239 upon the defence’s appeal240 against Trial Chamber’s decision not to reconsider its decision to try Ayyash et al. in absentia. The Appeals Chamber admits that the English version, requiring ‘notice otherwise given’, may not be very precise; “the French and Arabic versions, however, made clear that in all scenarios addressed by the Statute the accused themselves need to be notified”.241 The Chamber went on, as will be shown further below, carefully abiding by the 235

Art. 22(2)(a) STLSt, read with Rule 76, 76bis STL-RPE. See inter alia Elberling, 21 LJIL 2008, 529, 537; Jenks, 33 FordhamIntlLJ 2009, 56. 237 Jenks, 33 FordhamIntlLJ 2009, 56, 81 et seq., 96; Jordash/Parker, 8 JICJ 2010, 487, 496 et seq. In a similar vein, although not rejecting this interpretation: Gaeta, 5 JICL 2007, 1165, 1168 et seq., who submits that publication or submission to the relevant state of residence suffice. 238 STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 15. 239 Ibid. 240 STL, Prosecutor v. Ayyash et al., TC, Decision on Reconsideration of the Trial in Absentia Decision, 11 July 2012, Case No. STL-11-01/PT/TC. The Decision was issued upon request of reconsideration of the respective defence counsel of the co-accused: STL, Prosecutor v. Ayyash et al., Badreddine Defence, Request of the Defence for Mr. Badreddine for Reconsideration of the ‘Decision To Hold Trial in Absentia’ Rendered by the Trial Chamber on 1 February 2012, 22 May 2012, Case No. STL-11-01/PT/TC; Prosecutor v. Ayyash et al., Oneissi Defence, Request by the Oneissi Defence for Reconsideration of the Decision to Hold Trial in Absentia of 1 February 2012, 24 May 2012, Case No. STL-11-01/PT/TC; Prosecutor v. Ayyash et al., Sabra Defence, Sabra Motion for Reconsideration of the Trial Chamber’s Order To Hold a Trial in Absentia, 23 May 2012, Case No. STL-11-01/PT/TC; Prosecutor v. Ayyash et al., Ayyash Defence, Ayyash Motion Joining Sabra Motion for Reconsideration of the Trial Chamber’s Order To Hold a Trial in Absentia, 24 May 2012, Case No. STL-11-01/PT/TC inter alia on the ground of violation of fundamental rights of the accused. 241 STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 25. The French version reads as follows: “introuvable, et tout ce qui était raisonnablement possible a été fait pour garantir sa comparution devant le Tribunal et l’informer des charges confirmées par le juge de la mise en état.” 236

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standards set forth by the ECtHR as regards trial in absentia, by stating that in absentia trials are lawful only when “i) reasonable efforts have been taken to notify the accused personally; ii) the evidence as to notification satisfies the Trial Chamber that the accused actually knew of the proceedings against them; and that iii) it does so with such degree of specificity that the accused’s absence means they must have elected not to attend the hearing and therefore have waived the right to be present.”242 The Appeals Chamber then pointed to the high evidentiary standard that was necessary by requiring that the chamber be satisfied through the evidence before it that the above requirements were fulfilled.243 Hence, actual notice is required. Nonetheless, serving notice in person is not necessary. Notice can result from other channels of notification. Knowledge of the proceedings can, thus, be established indirectly.244 According to the Appeals Chamber, the Trial Chamber in the Ayyash et al. case abided by these standards and proved the accused had received sufficient notification.245 Firstly, “all reasonable attempts to serve the relevant documents personally and, exceptionally, through advertisement in the Lebanese media”.246 Following widespread publication in the media, the only reasonable conclusion was that “[e]ach of the four Accused must have known, from the extent of the media coverage that he was a possible accused.”247 That included both the charges and consequences of their nonappearance, which both have been subject to “near saturation” media coverage.248 The Appeals Chamber found it to be unequivocally established that the accused had 242 STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 31. 243 Ibid., para. 32 et seq. Similarly: STL, Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/TC, para. 120. 244 Gardner, 43 GeoWashIntlLRev 2011, 91, 125; Wheeler, The Right to be Present at Trial, 149. 245 STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, paras. 37, 40 et seq. See also Wheeler, The Right to be Present at Trial, 150 et seq. 246 STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 41. 247 STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-11-01/I/TC, paras. 63, 67. Similarly STL, Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/TC, paras. 115 et seq., 122. 248 Ibid., paras. 67, 70, 106, 111. See also STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 42 et seq., 45. The notion of the consequence of their absence has been based on a statement by the president of the STL explaining the STL’s in absentia framework that has similarly been subject to broad media coverage.

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knowledge of the charges and proceedings instituted against them and by absconding had waived their right to be present.249 (2) Representation by defence counsel Beyond notification, another safeguard is that the accused needs to be represented by defence counsel of his choosing or, in case he fails to appoint his own counsel, the STL must ensure that he is assigned defence counsel who exercises the accused’s procedural rights.250 The wording thereby suggests that the defence counsel who has not been appointed upon the defendant’s request, does not conduct a proper defence on behalf of his client, much rather he ensures ‘full representation of the interests and rights of the accused’. He is to act in the perceived best interest of the accused and needs to carefully balance the effects of his action for the accused in current or future proceedings.251 In fact, all defendants tried in their absence have been represented by counsel.252 (3) Re-trial Finally, a trial in absentia is accompanied by another safeguard to the defendant’s rights provided for in Art. 22(3) STLSt, which ensures that a defendant has a right to re-trial, if he was not assigned a counsel of his choosing.253 Rule 109(E) and (C) STLRPE specify in this regard that the defendant concerned can accept his conviction and sentence, he can request a re-trial or can request to be heard for a new sentencing of both an appeal or trial judgment, unless he was represented by a defence counsel of his choosing. The rationale behind this is that the defendant certainly knew of the proceedings instituted against him when he appointed a counsel.254 Similarly, when the defendant accepts the judgment, absence is not sufficient reason to grant him a retrial.255 Despite these two exceptions to the right to a re-trial, Gaeta submits that the STL’s legal framework goes beyond what internationally recognised human rights 249

See also STL, Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, para. 34 et seq.; Gaeta, Trial in Absentia, 246. 250 Art. 22(2)(b), (c) STLSt; Rule 57(D)(viii) STL-RPE. 251 Art. 8(D), (E) Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon. 252 STL, Prosecutor v. Ayyash et al., Head of the Defence Office, Assignment of Counsel for the Proceedings held in Absentia Pursuant to Rule 106 of the Rules, 2 February 2012, Case No. STL-11-01/I/PTJ; Prosecutor v. Ayyash, Head of the Defence Office, Assignment of Counsel for the Proceedings In Absentia Conducted Pursuant to Rule 106 of the Rules, 6 February 2020, Case No. STL-18-10/I/PTJ. 253 Fuhrmann, Der Beitrag des Libanontribunals zur Weiterentwicklung des Völkerrechts, 211. 254 Gaeta, Trial in Absentia, 247; Gardner, 43 GeoWashIntlLRev 2011, 91, 129. 255 Wheeler, The Right to be Present at Trial, 144.

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instruments require as a re-trial is granted in all scenarios and not only where the defendant’s fundamental right, especially the right to notification, has been violated.256 Other scholars are more critical in this regard. They submit that RPE do not give the defendant a full right to re-trial but allow for the request to be retried, thereby making it dependent on the tribunal’s decision.257 On the same token, if the accused appears during an ongoing in absentia trial, the trial starts ex novo, except in circumstances where the accused declares that he does not seek a new trial.258 If the accused absconds after a re-trial started, he has no right to another re-trial.259 Gaeta correctly pointed out that interpreting the provision to exclude a re-trial only where the accused appointed a lawyer of his own choosing, literally comes to the illogical result that a person that implicitly waived his right to be present by appointing a lawyer has no right to an ex novo trial, whereas the accused expressly waiving his right does.260 Hence, considering the purpose of the regulation, it should be interpreted to exclude re-trial in the case of an express waiver.261 She also sees no logical explanation in allowing the fugitive a re-trial even though he deliberately decided to evade justice.262 However, in later publications, she seems to see no fault in the extensive right to a re-trial, but rather sees an additional justification for conducting trials in absentia.263 Considering that it is uncertain whether the defendant has in fact been notified where the defendant is a fugitive, a re-trial is a necessary safeguard and other interpretations should be abandoned.264 With regards to the re-trial, Jordash/Parker raised the concern that no effective retrial can be held when the STL’s mandate has concluded. National Lebanese courts cannot conduct the de novo trial since Art. 5(1) STLSt contains the principle of non bis in idem, preventing other courts from trying a person who has been tried by the STL.265 This literal interpretation is, however, not the only possible way to interpret the STL’s non bis in idem rule. To ensure an effective right for re-trial, it is necessary to apply Art. 5(1) STLSt only to trials concluded with a final judgment constituting 256

Gaeta, Trial in Absentia, 247. Oehmichen, FS-Kühne, 621 258 Rule 108(A) STL-RPE. 259 Rule 108(D) STL-RPE. 260 Gaeta, 5 JICL 2007, 1165, 1171. 261 See also Eibach, Abwesenheitsverfahren, 156 and based on Gaeta, 5 JICL 2007, 1165, 1171, Hoven, Rechtsstaatliche Anforderungen, p. 433, who uses the German methodological instrument of a teleological diminution (teleologische Reduktion). 262 Gaeta, 5 JICL 2007, 1165, 1171. 263 Gaeta, Trial in Absentia, 247 et seq. 264 Hoven, Rechtsstaatliche Anforderungen, p. 443; Skilbeck, 8 JICJ 2010, 451, 460. 265 Jordash/Parker, 8 JICJ 2010, 487, 498 et seq.; Wheeler, The Right to be Present at Trial, 146; in a similar vein: Eibach, Abwesenheitsverfahren, 158; Oehmichen, FS-Kühne, 624; Skilbeck, 8 JICJ 2010, 451, 460. 257

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res judicata, which is in line with the general interpretation of non bis in idem; only where the decision is final, the principle takes effect.266 It could be argued that judgments in absentia which give the accused the right for a re-trial in the circumstances that he was not properly informed of the charges, consequently did not waive his right to be present, did not accept the judgment or was represented by defence counsel of his choosing, do not constitute res judicata.267 The re-trial is, hence, interpreted as a remedy. Put differently, where a violation of the right to be present can be claimed by the defendant, he can, according to human rights law, claim a re-trial that cures the breach of his fundamental fair trial right, as will be shown below, no matter whether the STL or a possible successor is still in operation.268 The extensive right for a re-trial vis-à-vis the STL can, however, only be claimed as long as it has not closed its doors.269 Since the STL enjoys primary jurisdiction over national Lebanese courts, while still operative it can conduct the re-trial itself no matter whether the right to re-trial stems from the right vis-à-vis the STL or a violation of human rights.270 After that the Lebanese judicial institutions will be the competent addressee for a re-trial claim based on human rights.271 On the other hand, the broader right to a re-trial in Art. 20(3) STLSt is according to its wording – ‘before the Special Tribunal’ – cannot be held in national courts.272 In that case, the right to retrial could indeed become ineffective. It is to be seen whether these concerns apply in practice, since as far as other ICTs, namely the SCSL and the ad hoc Tribunals, are concerned, residual mechanisms have been established to solve legal and executive matters for their respective successor.273 dd) Partial trials in absentia As with all other ICTs, the STL-RPE provide for the possibility of partial in absentia proceedings due to the accused’s misconduct in the courtroom, after he has been warned that removal is impending.274 To date, not a single defendant charged 266 Gaeta, 5 JICL 2007, 1165, 1173; see e. g. for the general understanding of non bis in idem: LR-Kühne, Introduction H marginal no. 74; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 1021, 1033; Art. 14(7) ICCPR; Art. 4(1) Protocol 7 ECHR; Art. 50 CPR and Art 54 Schengen Convention. Of other opinion Wheeler, The Right to be Present at Trial, 146 et seq. finding a different meaning for ICL’s non bis in idem rule. 267 Gaeta, 5 JICL 2007, 1165, 1173; Gaeta, Trial in Absentia, 249. Of different opinion: Eibach, Abwesenheitsverfahren, 159; Wheeler, The Right to be Present at Trial, 146 et seq. 268 Gaeta, Trial in Absentia, 249. 269 Ibid.; Wheeler, The Right to be Present at Trial, 145. 270 Gaeta, 5 JICL 2007, 1165, 1173; Gaeta, Trial in Absentia, 249. 271 Gaeta, Trial in Absentia, 249. 272 Eibach, Abwesenheitsverfahren, 158; Wheeler, The Right to be Present at Trial, 146. 273 Eibach, Abwesenheitsverfahren, 159 does not expect such a measure to be introduced because of the high costs. Of other opinion: Wheeler, The Right to be Present at Trial, 145. 274 Rule 138(B) STL-RPE.

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with international crimes has been transferred to the STL. Thus, the provisions on the temporary absence of the accused could not yet be applied in practice. However, in a contempt case against Akhbar Beirut S.A.L. and Mr Al Amin the contempt judge allowed the accused to choose whether they would appear for trial or waived their right to be present.275

3. KSC Finally the KSC’s legal framework as regards trial in absentia will be outlined. It is the first hybrid ICT not to be supported by the UN but instead by the EU and five contributing countries. However, the UNMIK, which was invested with the authority to help ensure conditions for peaceful and normal life for all inhabitants in Kosovo and incorporated international judges and prosecutors into the legal system of Kosovo, preceded the EULEX mission that has led to the establishment of the KSC. The KSC is invested with authority over certain crimes against humanity, war crimes and other crimes under Kosovo law, which allegedly occurred between 1 January 1998 and 31 December 2000. Since 5 July 2017, when the RPE-KSC entered into force, the Specialist Chambers became fully judicially functional as part of the Kosovo judicial system. However, only a few cases are pending. So far, all of the defendants appeared at the respective court hearings. The following overview of the in absentia framework is confined, therefore, to a mere analysis of the legal framework. No practical impact will be assessed. a) Right to be present In line with the other tribunals the KSC provides for right to be present at one’s trial.276 This is operationalised by Rule 68(1) KSC-RPE which repeats that the defendant shall be tried in his or her presence, safe for other provisions that explicitly state otherwise. Additionally, in Art. 37(2) KSCSt, it is highlighted that the evidence shall generally be produced in the defendant’s presence. b) Duty to be present Rule 68(1) KSC-RPE clearly establishes a duty to be present upon the defendant by stipulating that the accused ‘shall’ be tried in his or her presence, unless otherwise provided for. The relation between Art. 21(4)(d) KSCSt, establishing a right to be present, and Rule 68(1) KSC-RPE, imposing a duty to be present upon the defendant, 275

STL, Akhbar Beirut S.A.L. and Mr Al Amin, CJ, Decision on Request for in Absentia Procedure and Other Matters Related to the Legal Representation of the Accused and their Presence at Trial, 11 February 2016, Case No. STL-14-06/PT/CJ, para. 55 et seq. 276 Art. 21(4)(d) KSCSt.

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is akin to the RomeSt’s framework,277 except that it regulates both right and duty already within the statute. That the defendant has a duty to be present is further highlighted by Rule 68(4)(b) KSC-RPE requiring that the defendant ‘has been duly notified that he or she is required to be present at the proceedings’, before the chamber may proceed with the trial in the defendant’s absence. The duty to be present attaches up until the delivery of the judgment.278 c) Framework of proceedings in absentia First of all, where a unique investigative opportunity of preserving evidence, such as examining witnesses who are later not available occurs, this step might be taken without the defendant’s involvement, following a decision by the pre-trial judge upon the request of the parties or proprio motu. However, a duty counsel represents the defence’s interests.279 During the pre-trial phase status conferences may be held without the defendant being present when he consents in writing and has consulted his counsel.280 Upon first sight, the KSC have a rather strict framework with regard to the defendant’s presence at trial. The chamber is to adjourn the trial proceedings and issue an arrest warrant if the defendant does not appear in spite of a proper summons.281 However, for the detained defendant a different procedure applies after he has initially appeared. Where the defendant refuses to appear after having been informed of his obligation to appear and having waived or forfeited his right to be present, it is up to the panel’s determination that the accused’s presence is not necessary and that a specific hearing can proceed in the defendant’s absence.282 Two safeguards are established to secure the defendant’s rights. Firstly, he must be represented by counsel283 and secondly, the adherence to the waiver of his right to be present is to be verified every week.284 Whether the chamber needs to satisfy itself on a regular basis whether the forfeiture continues is not expressly provided for, nor is it clear when such forfeiture exists.

277

See below B. V. 2. Rule 159(2) KSC-RPE. 279 Rule 99(3)(d) KSC-RPE. 280 Rule 96(2)(c) KSC-RPE. 281 Rule 49 KSC-RPE regulates the notification process. Generally the summons is to be served in person. However, when the address is known and service attempts have failed, two attempts of informing the defendant at this address about a specific time and date to receive the summons shall be made. Upon failure of these attempts, the summons is deemed to be properly served by leaving the document at the address in question. 282 Rule 68(4) KSC-RPE. 283 Rule 68(4)(d) KSC-RPE. 284 Rule 68(5) KSC-RPE. 278

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Both the pronouncement of the judgment and sentencing judgment shall take place in the defendant’s presence unless exceptional circumstances apply.285 Finally, as usual, it lies in the court’s discretion to temporarily remove the defendant from the courtroom when he engages in disruptive conduct and has been warned about the possibility to be removed.286 The defendant needs to be represented by counsel meanwhile and mechanisms shall be installed which ensure that the defendant can follow the proceedings and instruct his counsel. Further, in camera proceedings are permissible in exceptional circumstances, e. g. in order to protect witnesses or potential victims.287 d) Participation via video link Participation via video link is provided for in relation to several procedures. The defendant may initially appear via video link when no arrest warrant has been issued and he is at liberty.288 Status conferences can take place in the virtual presence of the defendant with his written consent.289 In instances when he falls ill during the trial phase, he can also have a video link set up, accompanied by measures to give him the possibility of instructing counsel.290 No waiver is necessary to proceed with the trial.291 Disruption due to the illness is sufficient for the chamber to proceed in absentia, but the chamber must ensure that the defendant can follow the proceedings and instruct counsel. Moreover, after having initially appeared, presence via video link is provided for.292 This indicates that virtual presence equals physical presence. This becomes particularly clear in the regulations of Art. 41(12) KSCSt which enumerates measures that can be taken in order to ‘ensure presence of the accused (including by video-teleconference “VTC”)’. It is unclear, however, whether initial appearance via video link is sufficient to fulfil the initial appearance requirement that allows the defendant to appear throughout the entire procedure via video link. As the 285

Rules 159(2), 164(2) KSC-RPE. Rule 61(2) KSC-RPE. 287 Rule 80(4) KSC-RPE. 288 Art. 39(4) KSCSt. 289 Rule 96(2)(b) KSC-RPE. 290 Rule 68(6) KSC-RPE. It is to be noted that the SCCC stipulated that the relevant TC is to determine whether the accused remains fit to stand trial before proceeding in his absence, KSC, SCCC, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017, KSC-CC-PR-2017-01, para. 128. 291 E contrario KSC, SCCC, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017, Case No. KSC-CC-PR-2017-01, para. 128. 292 Rule 68(2) KSC-RPE. 286

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statute does not distinguish between the virtual initial appearance and a physically present defendant, there is nothing to suggest that it does not suffice. One safeguard of the defendant’s right is that a defence counsel needs to be present in the courtroom wherever he appears via video link.293 The SCCC further highlighted that the participation via video link is only suitable where “such an alternative form of an accused person’s participation in proceedings serves a legitimate aim and that the accused is able to follow the proceedings, to be heard without technical impediments and to have the benefit of effective and confidential communication with his or her counsel.”294

V. ICC During the drafting process of the RomeSt, a discussion about the implementation of trials in absentia was, once again, held.295 France was repeatedly among the delegations that plead for the possibility of a trial in absentia. However, the majority of the states agreed that trials in the entire absence of the accused would not generally be allowed.296 Regardless of this, there are mechanisms to conduct proceedings in absentia.

1. Right to be present The RomeSt states, in rather strong language, in Art. 63(1) that ‘[t]he accused shall be present during his trial’. The wording alone does not indicate that this embodies the defendant’s right to be present. However, its position under the heading ‘right of the accused’ extrapolates that a comprehensive right to be present is granted 293 See Rules 68(2), (6), 96(2) KSC-RPE. As for the initial appearance this is not expressly provided for. Since counsel is assigned at the latest at this stage, most likely this is an editorial oversight or due to the fact that the drafters of statute did not want to go into detail and leave it up to the judges when drafting the RPE. 294 KSC, SCCC, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law No. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017, Case No. KSC-CC-PR-2017-01, para. 127. 295 Eibach, Abwesenheitsverfahren, 178 et seq.; Friman, Rights of Persons Suspected or Accused of a Crime, 255 et seq., especially 259 et seq.; Trendafilova, Fairness and Expeditiousness, 452; UN Press Release, Trial in Absentia Among Issues Discussed by Preparatory Committee Establishment Of Criminal Court, 16 August 1996, No. L/2798; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, 13 September 1996, UN Doc. A/51/522, para. 253 et seq.; see also Triffterer/Ambos-Schabas/ Caruana, Art. 63 marginal no. 4 et seq. for an detailed overview of the different viewpoints. 296 Hoven, Rechtsstaatliche Anforderungen, 429; Schabas, Introduction, 286; Trendafilova, Fairness and Expeditiousness, 452.

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to the defendant.297 Additionally, Art. 67(1)(d) RomeSt, the central fair trial guarantor “without doubt”298 entails a right to be present as it is based on the general fair trial provision as known to the ICCPR and ECHR. Art. 63(1) RomeSt could be interpreted to further underline the provision of the right to be present.299 Case law endorses this finding and recognises a right of the defendant to be present at his trial.300 The Trial Chamber in Prosecutor v. Ruto and Sang had “no doubt that presence at trial is a right for the accused”.301

2. Duty to be present Beyond the right to be present at one’s trial, the respective Trial Chamber in Prosecutor v. Ruto and Sang and Kenyatta expressly found that Art. 63(1) RomeSt laid down a duty to be present.302 Firstly, the wording, ‘shall’, clearly points in this direction.303 Moreover, by applying the principle ut res magis valeat quam pereat, the Chamber found that Art. 63(1) RomeSt must be interpreted to enshrine a duty as otherwise the article was redundant and only repeated the right to be present enshrined in Art. 67 RomeSt.304 The Trial Chamber further supported its view by pointing at Art. 58 RomeSt305, which gives the court the tool of an arrest warrant or

297

Wheeler, 28 CrimLF 2017, 99, 105. ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, ICC01/09-01/11, para. 35; Ambos, Treatise Vol. III, 162. 299 Cf. ibid., 164; Safferling, Towards, 241. 300 See for this interpretation: ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, para. 35; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Public Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 124. 301 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, para. 35. 302 Ibid., para. 40; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Public Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 124. This is endorsed by the literature: Ambos, Treatise Vol. III, 164; Knottnerus, 13 LPICT 2014, 261, 263; Safferling, International Criminal Procedure, 399 et seq.; Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 23; Triffterer/Ambos-Schabas/McDermott, Art. 67 marginal no. 28; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 220 et seq. Arguably of other opinion: Wheeler, 28 CrimLF 2017, 99, 111. 303 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, para. 42. 304 Ibid., para. 39. 305 Art. 58 (1)(b)(i), (7) RomeSt. 298

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summons to appear to ensure the defendant’s presence at trial.306 Enforcement by coercive means underlines that the defendant’s presence is an obligation and not a mere right. Moreover, where a waiver of the right to be present is mentioned in the legal framework, a requirement is the chamber’s acceptance of such waiver.307 Suggesting that there is no full disposability as to the presence at trial this can be seen as indication that a duty to be present exists. Notably, the Trial Chamber in Prosecutor v. Kenyatta even found presence to be a “default duty […] of an accused.”308 When overturning the Ruto and Sang decision for other reasons, the Appeals Chamber did not touch upon the assertion that the defendant has both right and duty to be present.309 It, however, asserted that the Art. 63 RomeSt was intended to protect the integrity of the court and that excusal from the general principle of the defendant’s presence could only be made in specific exceptional circumstances.310 Finally, the duty is derived from “the ‘superior demands of justice’ for victims of atrocities”.311 Although both a right and duty to be present at trial exists, there are exceptions to the rule that the defendant should generally be present.312

3. Pre-trial proceedings in absentia First of all, in pre-trial, mechanisms for proceedings in the suspect’s absence are provided for.

306

ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, para. 39. 307 Rule 125(1) and (4) ICC-RPE. 308 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Public Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 124. 309 See also Wheeler, 28 CrimLF 2017, 99, 110. He, however asserts that the AC did prefer an interpretation that no obligation to be present exists but did not want to entirely rule this option out: ibid., 112 et seq. 310 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’, 25 October 2013, Case No. ICC-01/09-01/11-1066, paras. 49, 52 et seq., 62. 311 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Public Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 108. See in a similar vein ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, para. 42. 312 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Public Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 124.

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a) Confirmation of charges in absentia According to Art. 61(2) RomeSt, which again can be seen as compromise in order to satisfy the different views on in absentia trials,313 the confirmation hearing can take place in the absence of the accused upon the request of the prosecutor or the chamber’s motion if the suspect fled or cannot be found and all reasonable steps have been taken to secure his appearance at the confirmation314 and to inform him about the charges and the hearing to be held, if necessary, in his absence. The same applies for the person charged, who is within the court’s power and has waived his right to be present by a written request to the pre-trial chamber.315 It lies within the chamber’s discretion to decide whether to grant the waiver.316 Nevertheless, the chamber may consult with the prosecution and, if already appointed, the defence counsel of the suspect.317 Against that framework, the Pre-Trial Chamber in Prosecutor v. Katanga and Chui decided to reschedule the consultations as the defence counsel could not participate on the original date scheduled.318 In any event, the pre-trial chamber has to be ‘satisfied that […] [the suspect] understands the right to be present at the hearing and the consequences of waiving this right’.319 The waiver of their right to be present has been given effect at the confirmation hearing of several defendants.320 It is 313 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Prosecution Appeal Against the “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 29 July 2013, Case No. ICC-01/09-01/11, para. 15. See also Eibach, Abwesenheitsverfahren, 196: “Kuhhandel”. 314 Some of these measures are further specified in Rule 123 ICC-RPE. 315 Art. 61(2)(a) RomeSt, Rule 124(1) ICC-RPE. Katanga for instance waived his right to be present during the confirmation hearing in a letter to the Pre-Trial Chamber: ICC, Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, Mr. Katanga’s Waiver of his Right to be Present at the Confirmation Hearing Pursuant to Rule 124 of the Rules of Procedure and Evidence, 9 July 2008, Case No. ICC-01/04-01/07-670(Anxa). In ICC, Situation in Darfur: Prosecutor v. Banda and Jerbo, PTC I, Decision Postponing the Confirmation Hearing and Setting a Deadline for the Submissions of the Suspects’ Written Request to Waive their Right to Attend the Confirmation Hearing, 22 October 2010, Case No. ICC-02/05-03/09-8122, para. 9, it was stipulated that the counsel’s assertion that the suspects would like to waive their right to be present was not sufficient. A written request issued by the suspects needs to be submitted to the PTC: ibid., para. 10. 316 Rule 125(1), (4) ICC-RPE. 317 Rule 124(1) ICC-RPE. Note that the RomeSt uses the term ‘the person charged’, which by definition means the same as the term suspect used more commonly in other legal frameworks. For reasons of consistency the term suspect will generally be used during this study. 318 ICC, Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, Decision on the consultations under rule 124(1) of the Rules, 9 July 2008, Case No. ICC-01/04-01/07. 319 Rule 124(2) ICC-RPE; in the case of Katanga the PTC was satisfied that this prerequisites were fulfilled and gave effect to his waiver: ICC, Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, Transcript of Hearing, 11 July 2008, Case No. ICC-01/04-01/07-T46, p. 24. 320 ICC, Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, Transcript of Hearing, 11 July 2008, Case No. ICC-01/04-01/07-T-46, p. 1, Transcript of Hearing, 15 July 2008, Case No. ICC-01/04-01/07-T-49, p. 1; Transcript of Hearing, 16 July 2008, Case No.

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worthwhile to note that the waiver of presence includes the entirety of the confirmation hearing. The Pre-Trial Chamber rejected the idea that a suspect can cherry pick certain dates at which he will attend before the confirmation has started.321 However, Katanga was permitted to waive his right to be present midway through the confirmation procedure after he had participated at the outset.322 The court can also arrange for the accused to observe the hearings through technical means.323 The suspect may subsequently inform the chamber of his observations on certain issues that have occurred in the confirmation hearing in writing.324 aa) Safeguards The regulation also provides for the procedural safeguard of defence counsel representing the absent suspect, if the interests of justice so require, this applies to both the fugitive and the suspect who waived his right to be present.325 As shown above with regard to the Rule 61 Procedure at the ad hoc Tribunals, the notion of proper representation of the accused during a confirmation hearing will be, as a general rule, in the interests of justice.326 Considering the high importance the PreTrial Chamber attached to the participation of Katanga’s defence counsel during the confirmation hearing, the court’s practice endorses this view. Moreover, in the case Prosecutor v. Nourain and Jamus the confirmation hearing took place without the indictees, who have waived their right to be present in writing, but each individual was represented by defence counsel.327 As for the suspect at large, a de novo confirmation upon his arrest is not provided for. However, Ru1e 126(3) ICC-RPE guarantees that he can ‘request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber’s effective and fair functioning’. ICC-01/04-01/07-T-50, p. 1; Situation in Darfur, Sudan: Prosecutor v. Garda, PTC, Transcript of Heraing, 18 May 2009, Case No. ICC-02/05-02/09-T-2, p. 8 and Transcript of Hearing, 26 August 2009, Case No. ICC-02/05-02/09-T-6, p. 6; Situation in Darfur, Sudan: Prosecutor v. Banda and Jerbo, PTC I, Decision on Issues Related to the Hearing on the Confirmation of Charges, Case No. ICC-02/05-03/09, 17 November 2010 and 8 December 2010, p. 1. 321 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto et al., PTC II, Decision on the ‘Defence Request Pursuant to Rule 124(1) for Mr. William Ruto to Waive his Right to be Present for part of the Confirmation of Charges Hearing’, 29 August 2011, Case No. ICC-01/0901/11-302, para. 12. 322 ICC, Situation in the DRC: Prosecutor v. Katanga and Ngudjolo Chui, PTC I, Transcript of Hearing, 11 July 2008, Case No. ICC-01/04-01/07-T-46-ENG, pp. 1, 24. 323 Rule 124(3) ICC-RPE. 324 Rule 124(4) ICC-RPE. 325 Art. 61(2) RomeSt. 326 See above B. III. 3. a) aa). Of the same view: Safferling, Towards, 249. 327 Cf. ICC, Situation in Darfur, Sudan: Prosecutor v. Banda and Jerbo, PTC I, Decision on Issue Related to the Hearing on Confirmation of Charges, 17 November 2010, Case No. ICC-02/ 05-03/09.

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bb) Confirmation of charges in absentia for fugitive suspects Nevertheless, it is subject to debate whether Art. 61(2)(b) RomeSt is applicable when the accused is a fugitive and has never appeared before the ICC. Some scholars are of the view that the surrender and initial appearance of the accused in line with Art. 60 RomeSt is required before the confirmation hearing can be held.328 Taking Rule 123(3) ICC-RPE into account, which seems to clearly imply that cases of fugitives who have never been in the court’s power are included, as it refers to the situation where a ‘warrant of arrest has not been executed within a reasonable period of time’, this view is not convincing.329 The Rules use almost the exact same wording as the above-analysed ICTY’s Rule 61 Procedure, which was without doubt a procedure in absentia against a defendant who has never appeared.330 It is conceivable that the drafting of the confirmation hearings regulations was made in the spirit of the ICTY’s procedure and because of the same concerns that led to the Rule 61 Procedure.331 However, Elberling correctly pointed out that there is not much won with this reference as the rule could be interpreted as referencing a second arrest warrant issued to secure the return after the initial appearance.332 Thus, the reference to Rule 123 RPE-ICC does not help solve the issue and it is not as clear as the scholars speaking against the view of a procedure in absentia where the defendant never appeared proclaim. Further light should be shed on this issue. The wording of Rule 61 ICC-RPE points in that same direction; ‘fled’ seems to apply to accused who have made their initial appearance and fled after, whereas ‘cannot be found’ implies that they were never on the court’s premises.333 The regulation on the confirmation hearing further obliges the chamber to inform the person of the charges and that a hearing to confirm those charges will be held. This is a requirement that would be redundant if the accused has had his initial appearance and accordingly knew about both the charges and a confirmation hearing to be held.334 Further, Rule 125(1) RomeSt obliges the chamber to set a date for the confirmation hearing and make it public. Had the defendant initially appeared, the date for the confirmation hearing would have been set, according to Rule 121(1) RomeSt, already during the initial 328

Marchesiello, Proceedings before the Pre-Trial Chamber, 1241 et seq., 1244; Schabas, Introduction4th, 275 et seq., who seems to have changed his view point in a later edition: Schabas, Introduction, 272; of other opinion: Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 199 with footnote 186; Terrier, The Procedure before the Trial Chamber, 1283; Triffterer/AmbosSchabas/Chatidiou/Zeidy, Art. 61 marginal no. 19. 329 Rule 123(3) ICC-RPE: ‘When the person concerned has a counsel known to the Court’. Counsel most likely will be known to the court after the initial appearance. Rule 123(4) ICCRPE applies to the case where an arrest warrant has not been executed, thus, the person never appeared before the ICC. See also Schabas, RomeSt Commentary, 962. 330 See above B. III. 3. a) aa). In a similar vein: Trendafilova, Fairness and Expeditiousness, 453. 331 Ibid. 332 Elberling, The Defendant in International Criminal Proceedings, 52. 333 Ibid.; Trendafilova, Fairness and Expeditiousness, 454 et seq. 334 Elberling, The Defendant in International Criminal Proceedings, 53.

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appearance. Rule 125(1) is, hence, superfluous if it does not concern an in absentia confirmation regardless of whether the defendant has appeared before the court beforehand.335 Its drafting history336 neither elucidates the issue in question as it has not been discussed whether an initial appearance is mandatory before conducting the confirmation of charges in absentia.337 However, the last draft echos the wording of current Rule 123 ICC-RPE concerning the failure to arrest and which clearly refers to the an accused party that has absconded and never appeared.338 Moreover, Art. 61(2) RomeSt can be interpreted as lex specialis to Art. 61(1) RomeSt; already the wording of paragraph one ‘subject to’ suggests that there are other instances besides the confirmation in the defendant’s presence.339 Clarification can, finally, be found in the court’s practice. The pre-trial chamber has never conducted a confirmation of charges hearing of a suspect who has not had his initial appearance. The pre-trial chamber’s hesitancy, solely in the situation of Darfur with regard to four suspects who remain at large, following arrest warrants issued up to ten years ago, and another nine suspects at large in other situations, might point in the direction that a proper initial appearance is a requirement to conduct the confirmation of charges hearing, as this time period certainly exceeds a ‘reasonable amount of time’. Also in the case of Gaddafi, the Pre-Trial Chamber rejected a request of the defence to initiate the confirmation of charges in absentia after the transfer from Libya to the Hague was not made after more than two years.340 The PreTrial Chamber argued that it would not be efficient to conduct the complex preliminary proceedings, as there was no prospect of being able to start trial proceedings in the foreseeable future.341 However, in the course of the surrender and preparation of the confirmation hearing against Ongwen, the Pre-Trial Chamber considered, on its own initiative, whether it was suitable to also hold confirmation hearings pursuant to Art. 61(2)(b) RomeSt against the three co-suspects Kony et al., who remain at 335

Trendafilova, Fairness and Expeditiousness, 455. The subsidiary character of this means of interpretation should be noted: Art. 32 VCLT provides that it may only be used supplementary in order to confirm a finding resulting from the other means of interpretation or where these left the meaning of the regulation in question ambiguous. 337 See for the drafting history of Rule 123 ICC-RPE: Friman, Investigation and Prosecution, 527 et seq. 338 UN, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Draft Statute for the International Criminal Court, UN Doc. A/ CONF 183/2/Add 1, p. 96. See for the same conclusion: Elberling, The Defendant in International Criminal Proceedings, 53; Trendafilova, Fairness and Expeditiousness, 455. 339 Trendafilova, Fairness and Expeditiousness, 453. 340 ICC, Situation in Lybia: Prosecutor v. Gaddafi, PTC I, Decision on the “Request for an Order for the Commencement of the Pre-Confirmation Phase” by the Defence of Saif Als-Isalm Gaddafi, 10 September 2013, Case No. ICC-01/1-01/11-440, para. 5. 341 Ibid., para. 32. 336

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large, in absentia at the same time.342 Judge Trendafilova decided not to hold proceedings in absentia against the other co-suspects in this case. Budgetary concerns were decisive as she feared that the court simply lacked the resources to proceed against the co-suspects in absentia.343 Beyond that, she was mindful of the possibility of a high rate of disappointment among victims linked to the charges concerning Ongwen’s co-suspects, who would not continue to participate in any trial proceedings as opposed to victims participating because of the charges Ongwen is faced with, if they were to be confirmed.344 No matter how persuasive this latter highly hypothetical rationale is considered to be, particularly the “significant, but unjustified budgetary implications”345 confirms that there is no legal bar to holding confirmation hearings in absentia no matter whether the suspect has appeared before the ICC before.346 cc) Role of the confirmation of charges Having confirmed that the legal framework for a full in absentia procedure exists, consideration is required regarding what purpose and impact the confirmation hearing has within the overall criminal procedure. Initially the procedure was seen to have a purely “gatekeeper function”347 and “a limited scope and by no means can it be seen as an end in itself, but it must be seen as a means to distinguish those cases that should go to trial from those that should not go to trial”348. However, it turned out to be a lengthy procedure that significantly shapes the scope of the facts the subsequent trial would be concerned with.349

342 Both the Prosecution (ICC, Situation in Uganda: Prosecutor v. Kony et al., Transcript of Hearing, 28 January 2015, Case No. ICC-02/04-01/15-T-5, p. 25 et seq.) as well as the PTC itself assreted resevrations: ICC, Situation in Uganda: Prosecutor v. Kony et al., PTC II, Decision Severing the Case Against Dominic Ongwen, 6 February 2015, Case No. ICC-02/0401/05-424, para. 5. 343 Ibid., para. 7. 344 Ibid. 345 Ibid. 346 Similarly Schabas, Introduction, 272. 347 ICC, Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, 30 September 2008, Case No. ICC-01/04-01/07-717, para. 39; Situation in Darfur, Sudan: Prosecutor v. Banda and Jerbo, PTC I, 7 March 2011, Case No. ICC-02/05-03/09-121-Corr-Red, para. 31. 348 ICC, Situation in the DRC: Prosecutor v. Katanga et al., PTC II, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, 25 April 2008, Case No. ICC-01/04-01/07, para. 6. 349 Karnavas, The Role of the Defense in the Trial Stage, 305; Schabas, Introduction, 267; Triffterer/Ambos-Schabas/Chatidiou/Zeidy, Art. 61 marginal no. 7 et seq. See also Jacobs, A Tale of Four Illusions, 569 et seq. generally confirming this but critically pointing to the new established practice of applying Regulation 55 Regulations of the Court to change modes of liability in the trial judgment that have been expressly rejected during the confirmation of charges.

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b) Ex-Parte hearings Beyond the confirmation hearing, it is in the nature of the pre-trial stage that some proceedings take place without the suspect’s presence. This can include the issuance of a summons or arrest warrant to ensure the suspect’s appearance at court, to take evidence in a unique opportunity and the decision of the prosecutor not to initiate investigations.350 However, any evidence relevant to the case that has been discussed in an ex-parte proceeding at the pre-trial stage will be revisited during the actual trial.351

4. Framework of trials in absentia At the trial stage, on the other hand, as the prosecutor asserted in the case against Ruto and Sang “the [RomeSt] drafters considered an accused’s presence to be a central requirement of the trial.”352 This, as seen above, is also reflected in Art. 63(1) and 67(1)(d) RomeSt encompassing both right and duty to be present for the defendant. a) Removal of the disruptive defendant By the same token, the prerequisites to proceed in the accused’s absence when the accused disrupted the proceedings are remarkably higher than in the other ICTs’ regulations. The accused can only be excluded from trial in exceptional circumstances of repetitive disruption and where other measures have proved ineffective.353 During his removal, which is also restricted to an unavoidable duration, measures have to be taken that give the accused the possibility to follow the trial and instruct his counsel.354 In the case of an obstreperous defendant, “the requirement that the accused be present during the trial is superseded by the duty of the Court to ensure that proceedings are carried out in an orderly manner in the interests of the fair and proper administration of justice. In such cases, the continuously disruptive behaviour of the accused may be construed as an implicit waiver of his or her right to be present.”355 350

Art. 53(3), 56, 58 RomeSt. See also Schabas, RomeSt Commentary, 961. Elberling, The Defendant in International Criminal Proceedings, 55. 352 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Prosecution Appeal Against the “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 29 July 2013, Case No. ICC-01/09-01/11, para. 15. 353 Art. 63(2) RomeSt. 354 Ibid. See for a recent example where Ongwen has been removed from the courtroom on 19 March 2018 due to his disruptive behaviour during the testimony of an expert witness: https: //www.ijmonitor.org/2018/03/judges-remove-ongwen-from-court-for-disrupting-hearing/ (last accessed: 7 February 2021). 355 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(A) of 18 June 2013 351

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The underlying concept of this limitation of the right to be present is, thus, an implicit waiver and to ensure a proper administration of justice. b) Rule 134bis, -ter and -quarter ICC-RPE However, where the regulations of the statute seem to be somewhat strict with regard to the accused’s absence, the changes recently made to the RPE show a different, considerably less restrictive, approach. The ASP adopted new Rules with regard to the defendant’s excusal from the presence at trial, namely Rule 134bis, -ter and -quarter ICC-RPE, at the end of its twelfth session in November 2013.356 These changes have received mixed reviews among scholars and received severe criticism.357 Others dismissed any criticism as to the incompatibility with the RomeSt, namely Art. 63, 21(3) and 27(1) RomeSt.358 At the outset, one has to note that all three implementations only apply for the accused ‘subject to a summons to appear’.359 Additionally, the written request to be absent from the procedure must be submitted by the defendant personally.360 Hence, the new regulations do not provide for a trial in absentia against a fugitive defendant who has never appeared. It was also confirmed in an obiter dictum that the accused who has absconded after having initially appeared does not fall under the regulations that relax the presence at trial.361 Further, the Appeals Chamber stipulated “part of the rationale for including article 63(1) of the Statute was […] to preclude any interpretation of article 67(1)(d) of the Statute

Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11-1066, para. 51. 356 ICC, ASP/12/Res.7, 27 November 2013. 357 See among many: Ambos, Treatise Vol. III, 164; Heller, Will the New RPE 134 Provisions Survive Judicial Review?; Knottnerus, Emerging Voices; Knottnerus, The International Criminal Court on Presence at Trial; Knottnerus, 13 LPICT 2014, 261, 275-277, 283 et seq.; Wheeler, 28 CrimLF 2017, 99, 121 et seq. 358 Karnavas, The New RPE 134 Provisions. Consider also dismissing the criticism of Rule 134quater ICC-RPE for inconsistency with other provisions of the RomeSt: ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater, 18 February 2014, Case No. Case No. ICC-01/09-01/11-1186, paras. 55, 59 et seq.; Floch/Lemey/Paiola, 14 LPICT 2015, 171, 227; Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 58 et seq. 359 The introductory words of each of the Rules 134bis, -ter and -quarter RPE-ICC. 360 Rules 134ter(1), 134quater(1) RPE-ICC. 361 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, paras. 44 – 46, 75; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Decision on Defence Request for Conditional Excusal from the Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, paras. 64, 83, 90, 108. See also ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), 27 November 2013, Case No. ICC-01-09-02/11-863-Anx-Corr, Dissenting Opinion of Judge Osuji, para. 37 et seq., who sees this as a weakness in the fight against impunity.

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that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial.”362 The three newly introduced regulations mirror three different stages of absence363 with increasing degrees of being absent while simultaneously having increasing conditions under which a procedure without the defendant can be conducted. Stage one, a virtual absence,364 can be found in Rule 134bis ICC-RPE. This rule allows the accused to request in writing to be present at parts of his trial through video technology. According to most scholars, an unwritten requirement is that the defendant has good reasons for his request to be only virtually present.365 Ultimately, however, it lies with the trial chamber’s discretion. It is upon the trial chamber to decide upon such request on a case-by-case basis and to have due regard to the subject matter of the hearing in question.366 The regulation implies that it is not possible to have the entire trial conducted via video technology.367 This is confirmed by the wording of Rule 124 ICC-RPE allowing the defendant to observe the confirmation hearing via video link from outside the courtroom, which implies that virtual presence does not equal actual physical attendance and participation in court.368 In practice, the videotechnology is often used for the testimony of witnesses. Conversely, defendants usually physically appear to proceedings held against them. In Kenyatta the Chamber made clear that the privilege of appearing via video link is available only if there are very substantial reasons for its use as the installation of video technology requires a high financial, technical and human effort.369 However, during one status confer-

362 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’, 25 October 2013, Case No. ICC-01/09-01/11 OA 5, para. 54. 363 Ambos, Treatise Vol. III, 163. 364 Ibid., 164. 365 Ibid.; Heller, Will the New RPE 134 Provisions Survive Judicial Review?; cf. Triffterer/ Ambos-Schabas/Caruana, Art. 63 marginal no. 29 et seq. 366 Rule 134bis(2) ICC-RPE. 367 Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 30. 368 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, OTP, Prosecution’s Observations in Joint Defence Submissions on Legal Basis for the Accused’s Presence at Trial via Video-Link, 22 March 2013, Case No. ICC-01/09-01/11-660, para. 7; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, OTP, Prosecution’s Response to the Defence Request for Mr. Kenyatta to be Present during Trial via Video-Link, 22 March 2013, Case No. ICC-01/09-02/11-703, para. 7. Cf. also Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 25. 369 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC, Decision on Defence Request for Conditional Ex- cusal from Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11, para. 127.

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ence – i. e. administrative meetings – Kenyatta was allowed to appear via video link.370 The following Rule, mirroring the second stage, extends the written request to the possibility to request ‘to be excused and to be represented by counsel only during part or parts of his […] trial’. The trial chamber’s ruling, however, is determined by the following prerequisites and depends on whether ‘(i) exceptional circumstances exist to justify such an absence, (ii) alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate, (iii) the accused has explicitly waived his or her right to be present at the trial, and (iv) the rights of the accused will be fully ensured in his […] absence.’ Again, the Trial Chamber shall decide on either request on a case-by-case basis.371 As for the latter, it is highlighted that ‘any absence must be limited to what is strictly necessary and must not become the rule.’372 Finally, 134quater ICC-RPE submits that an accused, ‘mandated to fulfil extraordinary public duties at the highest national level’ can be excused from trial and solely defended by defence counsel upon a request which includes the explicit waiver of his right to be present at trial, granting full absence from trial for high state officials. The request shall be granted where it is in the interests of justice and the rights of the defendant are secured.373 Both the normative clause of the interest of justice such as the qualification of a high level accused gives the trial chamber discretion on when a (full) trial without the defendant’s physical presence may occur.374 It is important to note that Rule 134quater ICC-RPE does not provide for any time limitations and is less strict on the prerequisites required to grant such requests. The clear wording of the rule precludes any attempt at a stricter interpretation.375 Thus, it can be seen as an evidentiary presumption that the situation is exceptional where defendants fulfil national extraordinary duties at a high level.376 However, although Rule 134quater ICC-RPE does not oblige the trial chamber to conduct a case-by-case assessment, it implies it is in the interest of justice to do so as “the continuous absence of […] [the accused] throughout the entire remainder of the trial may indeed be

370

See e. g. before the ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, Transcript of Hearing, 14 February 2013, Case No. ICC-01/09-02/11-T-22-ENG, p. 7. The was before the introduction of Rule 134bis ICC-RPE. 371 Rules 134bis(2), 134ter(2) ICC-RPE. 372 Rule 134ter(3) ICC-RPE. 373 Rule 134quater(2) ICC-RPE. 374 Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 54. 375 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 51. Critically in this regard: Eibach, Abwesenheitsverfahren, 192 et seq., 215. 376 Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 217.

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incompatible with the interests of justice, given the active participation of victims in the proceedings”.377 It is noteworthy that the exceptions of Rule 134ter and -quarter ICC-RPE, essentially leading to a trial being (partially) conducted without the defendant but in presence of counsel, both rely on the concept of the waiver of the right to be present. This is both to safeguard the integrity of the trial and the defendant’s rights.378 Moreover, the defendant by waiving his right “forego[s] every complaint and every appeal against any natural consequence of […] voluntary absences from the courtroom.”379 Further, both discretionary elements, the case-by-case assessment in Rule 134ter ICC-RPE and the interest of justice test to be conducted according to Rule 134quater ICC-RPE requests the chamber to weigh the importance of the presence in the interests of the victims and witnesses.380 Also, the evidentiary value of the accused’s presence is to be considered. Finally, the chamber is to consider whether an adjournment of the trial is an appropriate measure to ensure the defendant’s presence at trial.381 However, Trial Chamber V(A) stipulated that “it would not be desirable to adjourn the hearing each time”, as the frequent adjournments adversely affect a witness’s interest in concluding the testimony without interruptions, the quality of the evidence, the well-being of witnesses and the efficiency and expeditiousness of the trial.382

377 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 73. 378 Cf. Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 50. 379 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Decision on Defence Request for Conditional Excusal from the Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11. 380 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11, Dissenting Opinion of Judge Caebuccia, paras. 8, 11; Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/ 09-01/11 OA 5, para. 49; Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 72 et seq. 381 So expressly Rule 134ter(2)(b),134quater(2) RPE-ICC. 382 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 68.

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aa) Background of the new regulations – The case against Ruto and Kenyatta The history of changing the strict regulations on in absentia trials, started before the adoption of the amendments to the RPE, when Ruto and Kenyatta, at that time President and deputy head of state in Kenya, requested through their respective defence team to be excused from continuous presence at trial.383 Both requests were conditionally granted. The Trial Chamber obliged the accused to be present during opening and closing statements, when victims present their views and concerns in person and suspect to any other direction by the Trial Chamber.384 The Appeals Chamber overruled the decision in its interlocutory appeals judgment supporting the Trial Chamber’s view that Art. 63(1) RomeSt gives the chamber discretion to exempt the defendant from the duty to be present but highlighting that this discretion is “limited and must be exercised with caution”.385 The Trial Chamber, however, “exceeded the limits of its discretionary power […] [by giving] Mr Ruto […] a blanket excusal before the trial had even commenced, effectively making his absence the general rule and his presence an exception.”386 The ASP, by implementing Rule 134ter ICC-RPE, reverted to the Appeals Chamber’s language. The regulations nearly read as a copy of its judgment.387 The Trial Chamber also reconsidered the decision to excuse Kenyatta from being present at trial and implemented a case-bycase review, with consideration given to the standards the Appeals Chamber set forth, on whether exceptional circumstances have been submitted by the accused which

383

ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, Defence Request Pursuant to Article 63(1) of the Rome Statute, 17 April 2013, Case No. ICC-01/09-01/11; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, Defence Request for Conditional Excusal from Continuous Presence at Trial, 23 September 2013, Case No. ICC-01/09-02/11. See also for the course of the procedure: Eibach, Abwesenheitsverfahren, 201 et seq. 384 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial, 18 June 2013, Case No. ICC-01/09-01/11; Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC, Decision on Defence Request for Conditional Excusal from the Continuous Presence at Trial, 18 October 2013, Case No. ICC-01/09-02/11. 385 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11 OA 5, paras. 56, 61. 386 Ibid., para. 63. 387 Compare in this regard: ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Arap Sang, AC, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11 OA 5, paras. 2, 62. See also Ambos, Treatise Vol. III, 163; Oclicc-Pérez-León-Aceved/Elberling, Art. 67(1)(d)-1; Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 44; Schabas, RomeSt Commentary, 966.

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make his absence necessary.388 By all means, the Trial Chamber did not allow his absence during a second status conference.389 bb) Developments after the implementation of the new regulations Shortly after the implementation of the new regulation, Ruto’s defence requested that the defendant be excused pursuant to Rule 134quater ICC-RPE and Art. 61(1) RomeSt from attending his trial.390 The Trial Chamber conditionally granted this request by essentially repeating its earlier overruled decision and setting crucial trial hearings, including the first five hearings after the judicial recess, where the victims present their views, the closing statements and the delivery of the judgment, at which Mr Ruto is required to be present.391 The Chamber thereby found “that Rule 134quater of the Rules provides an objective and reasonable justification. For these reasons, the Chamber is not persuaded that there is any conflict between Rule 134quater of the Rules and Article 21(3) of the Statute”392 and regarded the new rule “as a ‘subsequent agreement’ about the scope and application of Article 63(1) of the Statute.”393 As the Trial Chamber did not grant an interlocutory appeal with regard to the above decision, scholars’ doubt whether Rule 134quater indeed complies with the RomeSt’s requirements, will not be reviewed in near future. Especially since the case against Kenyatta who in January 2014 requested to be excused from attending the trial394, was terminated in the end of 2014. 388

Cf. ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Decision on the Prosecution’s Motion for Reconsideration of the Decision Excusing Mr. Kenyatta from Continuous Presence at Trial, 26 November 2013, Case No. ICC-01/09-02/11, para. 16. 389 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Decision on Defence Request for Excusal from Attendance at, or for Adjournment of, the Status Conference Scheduled for 8 October 2014, 30 September 2014, Case No. ICC-01/09-02/1-960. 390 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, Defence Request Pursuant to Article 63(1) of the Rome Statute and Rule 134quater of the Rules of Procedure and Evidence to Excuse Mr. William Samoei Ruto from Attendance at Trial, 16 December 2013, Case No. ICC-01/09-01/11. 391 First, orally at a status conference on 15 January 2014. The written reasons followed in due course: ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 79. The chamber, however, requires Ruto additionally to be present on basis of a request of other participants, upon which the chamber can direct the accused appearance subject to its discretion. See as for the details: Eibach, Abwesenheitsverfahren, 211 et seq. 392 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Reasons for the Decision on Excusal from the Presence at Trial under Rule 134quater, 18 February 2014, Case No. ICC-01-09-01/011, para. 60. 393 Ibid., para. 56. 394 ICC, Situation in the Republic of Kenya: Prosecutor v. Kenyatta, TC V(B), Defence Request Pursuant to Art. 63(1) of the Rome Sttaute and Rule 134quater of the Rules of Procedure and Evidence to excuse Uhuru Muigai Kenyatta from Continious Attendance at Trial, 24 January 2014, Case No. ICC-01/09-02/11-882-Red.

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c) De minimis absences after a waiver of the right to be present Already before the change of the Rules, the absence of the accused has been accepted during trial. A considerably short absence, “amounting, at most, to a few hours over the course of criminal trials spanning years”,395 of several accused took place.396 This, however, can be seen to be de minimis in the context of the overall trial.397 Occasions where the accused has been temporarily absent involve moments where they felt unwell and waived their right to be present. The Trial Chamber, relying on the waiver, continued the trial in the defendant’s absence.398 However, the Chamber has always stressed the clearly exceptional character of that decision.399 d) Ex-Parte hearings The Statute and the RPE also provide for ex-parte hearings under certain specific circumstances, such as the protection of national security information that may be produced in the absence of one of the parties, the assurance given to a witness that his self-incriminating evidence will not be disclosed and used against him, or the decision on whether to take special measures to protect traumatised witnesses or victims during their testimony to facilitate the process of testifying.400 These hearings may, however, only be conducted where they are “truly necessary” and no other possibilities are available and the prejudice for the accused is proportionate.401 395 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Joint Separate Opinion to Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2015, Case No. ICC-01/09-01/11 OA 5, para. 2. 396 See e. g.: ICC, Situation in the CAR: Prosecutor v. Bemba, TC III, Transcript of Hearing, 12 April 2013, ICC-01/05-01/08, p. 62; Transcript of Hearing, 17 June 2013, Case No. ICC-01/ 05-01/08, pp. 16 – 17; Situation in the DRC: Prosecutor v. Lubanga, TC II, Transcript of Hearing, 12 May 2009, Case No. ICC-01/04-01/06-T-172-Red3-ENG CT WT, pp. 1 – 2 and for a comprehensive list: Eibach, Abwesenheitsverfahren, 424. 397 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Joint Separate Opinion of Judges Kourula and Usˇacka to Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2015, Case No. ICC-01/09-01/11 OA 5, para. 3. Supporting the existence of said category for any type of absence of the accused: Knottnerus, 13 LPICT 2014, 261, 269. 398 See e. g.: ICC, Situation in the DRC: Prosecutor v. Lubanga, TC II, Transcript of Hearing, 12 May 2009, Case No. ICC-01/04-01/06-T-172-Red3-ENG CT WT, pp. 1 – 2. 399 ICC, Situation in the CAR: Prosecutor v. Bemba et al., TC III, Transcript of Hearing, 21 October April 2015, Case No. ICC-01/05-01/13, p. 2 and Transcript of Heraing, 4 November 2015, Case No. ICC-01/05-01/13-T-35-Red-ENG, p. 41. 400 Art. 72(7) RomeSt; Rules 74(4), 88(2) RPE-ICC. 401 ICC, Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision on the Procedures to be Adopted for Ex Parte Proceedings, 6 December 2007, Case No. ICC-01/04-01/06-1058, para. 12 et seq.

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5. Sentencing in absentia Finally, Art. 76(4) RomeSt states that ‘the sentence shall be pronounced in public and, wherever possible, in the presence of the accused’.402 Schabas noted that the ancillary ‘wherever possible’ was inserted during the discussion on trials in absentia and never deleted.403 The Drafting Committee in its report to the Committee of the Whole even stated that the above sentence was adopted without the ancillary.404 Hence, it can be seen as editorial oversight.405 Following the travaux préparatoires no conclusion as to the possibility of being absent from the delivery of the sentence can be drawn. However, the recent changes made to the RPE suggest a more flexible in absentia approach. At least where the exception for extraordinary duties apply and the entire absence from the trial is seen to be possible, the same pattern must apply to the pronouncement of the sentence.406

VI. Appeals Stage Comparable to the investigative phase, there are similarities in the appeals stage concerning the issue in question, proceedings in the absence of the accused. That is not to say that the appeals regimes at ICTs are identical. They significantly vary across the tribunals.407 Nonetheless, a general pattern can be found as regards the possibility of conducting appeal procedures in the absence of the defendant, save for in the case of the Military Tribunals, which did not foresee an appellate stage. First of all, as a general rule, the regulations applicable to trial proceedings apply mutatis mutandis to the appeals procedure,408 so that where in absentia trials are possible at trial they are similarly during an appeal. For the STL that means that the same in absentia regime is applicable in the appellate stage. Hence, a full trial in absentia is provided for. Nevertheless, Rule 189(B) STL-RPE clarifies that the appeal judgment may be delivered in absence of the accused. Following the first in absentia conviction of Ayyash, the appeals chamber decided that it is not possible for

402

Italics not in the original. The same applies for Rule 144 ICC-RPE containing the same wording. 403 Triffterer-Schabas RomeSt-Schabas, Art. 76 marginal no. 29. 404 Report of the Drafting Committee to the Committee of the Whole, 16 July 1998, UN Doc. A/Conf.183/C.1/C.88, p. 14; it was, however, mentioned in: Report of the Working Group on Procedural Matters, 15 July 1998, UN Doc. A/CONF.183/C.1/WGPM/L.2/Add.8, p. 10. 405 Elberling, The Defendant in International Criminal Proceedings, 55; Oclicc-PérezLeón-Aceved/Elberling, Art. 67(1)(d)-1. 406 Triffterer/Ambos-Schabas/Ambos, Art. 76 marginal no. 12. 407 Rohan/Ackerman, The Role of Defense Counsel on Appeal, 313. 408 Rule 107 ICTY, ICTR-, SCSL-RPE; Rule 131 MICT-RPE; Rule 104bis ECCC-IR; Rule 176(B) STL-RPE; Art. 83(5) RomeSt; Rule 149 ICC-RPE; Rule 173(3) KSC-RPE.

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a defence counsel to lodge an appeal on behalf of the absent defendant.409 According to the Chamber the defendant must in writing personally choose between appealing the judgment or using his right for a retrial.410 Hence, only after the defendant has personally waived his right to re-trial can an appeal be lodged against the in absentia judgment by the defence. Appeals procedures are not considered to be a de novo trial and are imperatively based on the written appeal briefs, although the same rules as in the trial phase apply.411 Nonetheless, oral arguments are also provided for – aside from for interlocutory appeals – but are generally conducted by counsel,412 so the defendant’s presence is not imperative. On the other hand, Krajisˇnik was granted his request to defend himself in person and was not assigned counsel during the appeal proceedings.413 Then again, the defendant asked to be assisted by counsel for certain rather sophisticated lines of arguments regarding the JCE; a request which was granted.414 In a similar vein, the Appeals Chamber in Tolimir found that “both he [Tolimir] and the Appeals Chamber would benefit from Gajic´’s [Tolimir’s defence counsel] assistance in presenting the legal issues at the appeals hearing”.415 At all courts, except BWCC and SPSC, which remain silent in this regard, the appeals judgment can be delivered in the accused’s absence,416 if he is not present when the pronouncement is due.417 The defendant is, hence, entitled but not required to be present. This can be explained against the background of the Anglo-American approach: the presence of the defendant is not necessary during the mere judicial review without fact-finding during an appeals hearing.418

409 See STL, Prosecutor v. Ayyash et al., AC, Decision on Admissibility of “Notice of Appeal on behalf of Mr Ayyash against conviction and sentence”, 29 March 2021, Case No. STL-11-01/A-1/AC. 410 Ibid., paras. 52 et seq., 69 et seq., 95 et seq. 411 See inter alia Art. 46(2) KSCSt; cf. also Rohan/Ackerman, The Role of Defense Counsel on Appeal, 324 et seq. 412 Cf. ibid., 322, 327, 335. 413 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to SelfRepresent, 11 May 2007, Case No. IT-00-39-A, para. 12. 414 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 28 February 2008, Case No. IT-00-39-A, para. 8. 415 ICTY, Prosecutor v. Tolimir, AC, Decision on Tolimir’s Request to Grant a Right of Audience to Mr. Aleksandar Gajic´, 20 June 2014, Case No. IT-05-88/2-A. 416 Rule 118(B) ICTY-RPE, Rule 119(B) ICTR-RPE; Rule 145(B) MICT-RPE; Rule 119(B) SCSL-RPE; Rule 111(5) ECCC-IR; Art. 83(5) RomeSt; Rules 183(2),185(2) KSC-RPE. 417 Rule 118(B) ICTY-RPE, Rule 119(B) ICTR-RPE; Rule 145(B) MICT-RPE; Rule 119(B) SCSL-RPE. 418 Hoven, Rechtsstaatliche Anforderungen, 430.

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VII. Conclusions The defendant “is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein”.419 Across all ICTs this general principle is abided by through the implementation of a comprehensive right to be present at trial. Said right, however, only attaches at the trial phase and is seldom guaranteed prior to trial, save for certain pre-trial hearings. Not least because “the fullest and most comprehensive record of the relevant events may be formed”420 when the defendant is present in most of the ICTs, with the exception of the SCSP, where due to a lack of precedents no conclusion can be drawn, and the STL, where the framework is ambiguous, also impose a corresponding duty to be present upon the defendant. However, the legal basis and courts fail to give a reasonable explanation as to why the presence of the accused is necessary. This question will be addressed later in this study.421 The existence of a duty to be present does not mean that there are no trials in absentia. In fact, there are several scenarios where the defendant is relieved from his obligation to be present. The presence of the defendant at his own trial is more a general principle that does not exclude well-founded exceptions.422 Although only the IMT and the STL are known for holding proceedings in the absence of accused, a closer look at the mechanism used at other ICTs, shows that at all – with only the exception of the BWCC – substantial parts of criminal proceedings can be conducted through an in absentia procedure of some sort. This is especially true for the confirmation of charges or similar proceedings giving the indictment or arrest warrant further strength. First of all, the investigations are regularly conducted without the presence of the defendant. Secrecy is necessary in order to preserve the investigative interests, protect witnesses and potential victims, and to make the defendant’s presence at trial more probable. Indeed, the strongest precedents for in absentia trials can be found at the IMT and STL, which both allow for, and in the cases of Bormann and Ayyash et al. also practice, trials in absentia where the defendants have never appeared. In both cases, 419 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, Case No. ICC-01/09-01/11 OA 5, 25 October 2013, para. 49. 420 Ibid. 421 See below G. II. 2. 422 Ambos, Treatise Vol. III, 165; cf. ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’, Case No. ICC-01/09-01/11-1066, 25 October 2013, para. 49; Boas, et al., International Criminal Law Practitioner Library, 272; Friman, Trying Cases in the Absence of the Accused?, 334 et seq.; Safferling, International Criminal Procedure, 400.

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however, the Chamber was satisfied that the defendants were aware of the proceedings held against them. In Blasˇkic´, it was stipulated that it was extremely difficult for a chamber to determine a verdict where the defendant is absent. In fact, both the trials conducted in full absence confirmed those difficulties and installed safeguards for the defendant. For once, the absent defendants are represented by counsel. Also the IMT provided for the adjustment of the sentence upon apprehension of the convicted absentee. In a similar vein, the STL grants the defendant a re-trial upon arrival. The other tribunals provide for trial-like procedures fully in absentia; although not a true trial procedure, they significantly shape the subsequent trial. The Rule 61 Procedure provided for by the ad hoc Tribunals and the MICT have only been used by the ICTY in its early years, when it was required to show activity, because only a few unimportant suspects where in the court’s custody.423 The ICTR apprehended its suspects early and did not need to make use of the Rule 61 Procedure. This similarly applies to the MICT, being merely responsible for the appeal procedures from its predecessors whose mandates have ended and has been seised with only one re-trial procedure so far. However, the possibility of conducting special depositions to secure evidence for a future trial was instead introduced by the ICTR and the MICT. Also the ICC allows for a similar procedure. Then again, the ICC, also facing apprehension issues, is hesitant in confirming charges in the absence of the accused who is at large. Nonetheless, the possibility exists. It is noteworthy that the influence of the confirmation hearing to the subsequent trial hearing is seen to be particularly strong in the RomeSt’s framework. Then again, the ICC in improving on the ad hoc Tribunals’ precedents allows for the representation by counsel during the confirmation of charges in absentia. This is also true for the Rule 71 Procedure introduced by ICTR and MICT. Whereas a while ago with the ICTY conducting Rule 61 Procedures and the STL, where the political situation at the outset made trials in absentia a likely option, a nexus could be seen between the court’s failure to apprehend defendants, often caused by a lack of state cooperation, and the conduction of a procedure in absentia.424 However, the ICC’s hesitant use of the confirmation hearings in the Situation of Darfur and Uganda points in another direction. In the same vein, the SCSL, SCSP and ECCC strictly require that the defendant initially appeared before some sort of in absentia procedure may be conducted. No full in absentia procedure has, therefore, been conducted. A similar forecast can be made for the KSC, which also requires the initial appearance of the accused. However, in light of the positive effect the ICTY had with the Rule 61 Procedure, it seems advisable for the ICC to confirm charges of fugitives or defendants whose whereabouts are unknown in order to compel states’

423 Arbour, 2 JICJ 2004, 396, 399; Elberling, The Defendant in International Criminal Proceedings, 47, 60. 424 See also Elberling, The Defendant in International Criminal Proceedings, 60.

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cooperation. Despite political interests, which played a significant role for states cooperation at the ICTY, any judicial control strengthens the indictment. Beyond the trial like confirmation procedure provided for at the ad hoc Tribunals and ICC in absentia, most of the ICTs’ regulations provide for a procedure against the accused at large at the pre-trial phase, i. e. the charging of the suspect at the ECCC, SPSC and SCSL or the regular confirmation of the charges at the ad hoc Tribunals and the procedure to seek an arrest warrant at the ICC, which take place ex-parte. At all ICTs both the formal charging or application for an arrest warrant and the subsequent investigations by the prosecution are secret. While the new flexible and pragmatic approach of the ICC regarding the trial phase, allowing the defendant to request absence from certain trial proceedings, would theoretically allow for full in absentia trial, the court’s case law shows that it does not tend to give the defendant a blanket excusal and requires his presence for crucial trial hearings. Conversely, the newly introduced in absentia regulations reveal that the ICC is not hesitant in allowing for partial in absentia trials. Essentially, all tribunals allow for and practice trial procedures with the partial absence of the defendant. At the outset it should be noted that the underlying principle is an (implied) waiver of the defendant’s right to be present. Both the ad hoc Tribunals and the ICC’s recently changed framework as well as the KSC’s recently adopted legal basis make clear that where there is no valid waiver of the defendant’s right to be present, the trial generally needs to be adjourned. That is not to say that such a waiver cannot be inferred from the defendant’s behaviour or certain circumstances. The first scenario where a waiver is inferred is from the defendant’s conduct and, hence, the trial can proceed partially in absentia when the accused abuses his right to be present by being disruptive. However, it is to be seen whether this is in fact the right conceptualisation.425 The removal of the obstreperous defendant is common among all international(ised) criminal institutions. The threshold for this ultima ratio measure is, however, quite high as it requires repeated disruption and the prior warning as to the possibility of removal if the defendant repeatedly engages in disruptive conduct. There is no general rule for other potential ways to proceed in absentia. The scenarios where a waiver has been inferred or accepted by the Trial Chamber range from a waiver of the right to be present at parts of the trial, the absence after an initial appearance and exceptional circumstances, which can especially be found where the defendant fulfils duties at the highest national level. However, three types of cases can be identified where an (implied) waiver of the accused’s right to be present is assumed by the ICTs. 1) Most of the chambers accepted de minimis absences due to temporary health reasons where the defendant waived his right to be present and asserted his consent to the continuation of trial. 425

See below G. III. 1. a) cc) and G. III. 1. c) bb).

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2) It is worth pointing out that de minimis absences have also been accepted where an obstacle beyond the defendant’s control prevented him from being present. 3) Finally, when defendants boycotted the proceedings they, as a general rule, were partially tried in absentia. The latest ICT, the KSC, expressly foresees such possibility in its legal framework after the initial appearance. In this type of cases another concept, beyond the waiver, is relevant for the acceptance of proceedings in absentia, i. e. the proper administration of justice. The ICC’s framework, on the other hand, does not allow for the excusal of the defendant from the continued presence at trial solely upon his or her boycott, Rule 134ter and -quarter ICCRPE rather request exceptional reasons for the absence. Save for the Rule 61 Procedure at the ICTY, all legal frameworks and practices carefully abide by the standard that the defendant’s interests should be represented by counsel during his entire or partial absence from trial. Then again, under strict conditions, ex-parte trial hearings can be conducted where the defence as a whole will be excluded. These are especially held for reasons of potential victims’ and witnesses’ safety or national security concerns. As for the appeals stage, save for the Military Tribunals that did not foresee an appellate stage, the same rules that are relevant at both trial and pre-trial stage shall apply. However, presence of the defendant is not generally attached great importance; the procedure is designed for a defence counsel to take charge of the appeal. The different courts, except BWCC and SPSC, which remain silent in this regard, provide for a possibility for the appeals judgment to be delivered in the accused’s absence. Differences can be found in the treatment of video link procedures. The ad hoc Tribunals’ case law makes clear that virtual presence is not seen to equal physical presence. Thus, a full procedure via video link is inconceivable and has never occurred. The ICC does not generally allow for the defendant to participate via video link, procedures are by default conducted in the defendant’s physical presence. However, the defendant can request to be virtually present and the chamber needs to decide this on a case-by-case basis. The KSC’s legal framework points in the same direction, although, it needs to be seen, how and if, this will be implemented in practice. It should be emphasised that scholars and SCCC add the (unwritten) prerequisite that there be good reasons for the defendant’s virtual presence before attendance via video link is allowed. The STL on the other hand does not treat the virtually present defendant differently from the physically present accused. The requirements established in Stanisˇic´ and Simatovic´ and in a similar vein stipulated by the SCCC when revising the KSC-RPE, i. e. inter alia reciprocity of the video link, connection without technical impediments, a secured telephone line for communication between defendant and counsel and access to the relevant court management system, seem reasonable to ensure a proper participation via video link. Still many questions go along with attendance via video link. In light of the technical progress, face-to-face communication might have changed in a way that virtual and physical

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presence converge.426 The trend of ICTs allowing more often for the defendant’s virtual presence point in this direction. In sum, it can be concluded that the different in absentia mechanisms show the most diversity at the trial stage. There is no general practice of full trials in absentia at the ICTs, whereas partial trials in absentia are held at all the international criminal law bodies, first and foremost where the accused disrupts the proceedings. Confirmation hearings without the defendant are also regularly conducted. The investigative phase is generally held secretly and the defendant has no possibility of participating. Appeal procedures, broadly held in writing, similarly do not necessarily require the defendant’s participation. It is apparent that the question of whether proceedings in absentia are an acceptable alternative for ICTs will mainly affect the trial stage.

426

Cf. Duff/Farmer/Marshall/Tadros, The Trial on Trial, 117 with footnote 67.

C. Procedural theory: goals of ICTs Having outlined the problematic of trials in absentia and the legal framework of ICTs in this regard, teleological considerations have to be incorporated at the beginning of the assessment of whether a trial can be conducted in absentia. From the viewpoint of procedural theory, it shall be assessed if the conduction of trials in absentia is in line with the goals ICTs set out to achieve.1 For the purposes of the present study, a careful delineation is to be drawn between the goals of international criminal justice on the macro level and the specific aims of a particular international criminal trial. Whereas the former concern the broader consequences of the institution of international criminal courts and international criminal justice as such, the latter concerns the micro level of criminal procedure: the criminal trial.2 The latter is of special importance in identifying the proper form a criminal procedure should take.3 Accordingly, it shall first be analysed which goals exist on the macro level in order to determine the goals a trial pursues on the micro level.4 In a second step the procedural set-up of the ICTs will be tested against the 1

One could argue, as Hoven, Rechtsstaatliche Anforderungen, 441 does, that the standard of comparison for the ability to fulfil the goals of international criminal justice should not be the trial in the defendant’s presence. Rather the fulfilment of the goals of international criminal justice in a trial in absentia must be compared with the opposing option of not conducting a trial at all. In the latter case none of the goals of international criminal justice will be achieved, whereas trying a defendant in absentia at least pursues the goals to some extent. This would make the assessment of procedural goals and procedural theory obsolete at the outset. However, the reasoning is incompatible with the acceptance of human rights minimum guarantees as setting a standard of what the trial should look like. See as for this further below G. Further, the argument falls short when it suggests that the undesirable option of not having a trial at all leads to the assumption that the pursuit of procedural goals follows a lower standard when the defendant is tried in absentia. Rather, should the goals of international criminal justice be frustrated by trying a defendant in his absence, trials in absentia could not be considered to be in the interests of justice. 2 See for a similar distinction: Klamberg, 79 NordicJIL 2010, 279, 301; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 83; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 55; Swart, International Criminal Justice and Models of the Judicial Process, 103; Safferling, International Criminal Procedure, 64 et seq.; of other opinion concerning only the overarching goals of international criminal justice to be of importance: Damasˇka, 83 ChiKentLRev 2008, 329, 331 et seq. 3 Swart, International Criminal Justice and Models of the Judicial Process, 103. Wheeler, The Right to be Present at Trial, 67 et seq., on the other hand, tests the compatibility of trials in absentia with the goals that are here identified as goals on the macro level of international criminal justice. 4 In a similar vein Krack, Rehabilitierung, 32 distinguishes the ultimate goals of criminal (procedural) law from the intermediate goals (= means) of the criminal process.

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possibility of conducting trials in absentia in light of the procedural goals they aim to pursue. However, the aims of punishment5 – which partly overlap with the goals on the macro level – will not be tested against the compatibility of trials in absentia. Unlike in the study of Eibach6 – who focuses on applying the goals of punishment to convictions in absentia – the independence and the intrinsic value of the criminal trial shall be emphasised.7 For this reason, and because the presumption of innocence prohibits recourse the goals of punishment to contour the trial8, the criminal process shall be strictly separated from the punishment that may follow after the conviction in a trial. As will be shown below, a criminal trial naturally has the function of implementing substantive international criminal law – or rather is a necessary condition for the imposition of punishment9 – but this does not allow the conclusion that criminal proceedings have a purely servant function and are primarily influenced by the aims of punishment.10 Conversely, some normative procedural theories and their compatibility with trials in absentia will be analysed at the end of this chapter. These theories highlight the intrinsic character of the criminal trial.

5 The theories of punishment in ICL have been eloquently explored elsewhere: Ambos, Treatise Vol. I, 67 et seq.; Drumbl, Atrocity, Punishment, and International Law; Why Punish Perpetrators of Mass Atrocities?; Werkmeister, Straftheorien im Völkerstrafrecht. See for the issue of trials in absentia Eibach, Abwesenheitsverfahren, 285 et seq. 6 Eibach, Abwesenheitsverfahren, 285 et seq. 7 Also emphasising the independence of criminal proceedings – albeit in different forms: Goldschmidt, Der Prozess als Rechtslage, 146 et seq.; Luhmann, Legitimation durch Verfahren2nd; Murmann, GA 2004, 65. 8 Also Eibach, Abwesenheitsverfahren, 371. 9 Weigend, Deliktsopfer und Strafverfahren, 193. 10 Similarly Krack, Rehabilitierung, 32 et seq. This is all the more so given that substantive law can only be implemented if the courts convicts the defendant: Paeffgen, Vorüberlegungen zu einer Dogmatik des Untersuchungshaft-Rechts, 15. Of other opinion Eibach, Abwesenheitsverfahren, 270 et seq. with further references Also Eibach’s argument that international criminal law scholars regularly refer to the aims of punishment is not convincing in so far as the investigation of sentencing of ICTs conducted by Nemitz (Nemitz, Strafzumessung im Völkerstrafrecht, 160 et seq., 268 et seq.) and Melloh (Melloh, Einheitliche Strafzumessung, 75 et seq., 103 et seq., 405 et seq.) and the study regarding renunciation of punishment by Zimmermann (Zimmermann, ZIS 2013, 102) are clearly connected with the aims of punishment. After all, these are questions of substantive international criminal law. Swoboda, Verfahrensund Beweisstrategien, 224 et seq., 398, in fact, deals with trials in absentia but refers to the procedural aims on the macro-level. Finally, Hoven, Rechtsstaatliche Anforderungen, 441 notes very briefly that the aims of punishment can be partially pursued by trials in absentia. However, her key argument is the one laid down in footnote 1. However, she does not actually test the compatibility of trials in absentia with the aims of punishment.

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I. Goals of international criminal justice – macro level International criminal justice pursues a myriad assortment of goals.11 One could assume that it would be easy to shorten the list of goals the ICTs are set to achieve on the macro level by only considering goals the institutions themselves proclaim to aspire to.12 This view would probably satisfy commentators who have identified an “overabundance” of goals.13 However, many of the goals outlined in long lists are imposed upon the institution of the courts themselves in their legal framework, including statutes, especially their preambles, and RPE, constitutive resolutions or public appearance on web sites and other official material such as UN reports; such matters do not genuinely relate to the court’s framework but are intertwined with their establishment and with their assessment as mandate provider and must therefore be taken into account. These goals, made in official contexts, include: (i) to bring those responsible for (atrocity) crimes to justice;14 (ii) effectively redress such violations;15 (iii) bring justice and dignity to the victims;16 (iv) deter future violations of international crimes;17 (v) halt violations of international criminal law (where a conflict is 11 Schrag, 2 JICJ 2004, 427, 428 for example identifies 15 goals of the ICTY; referring to this list as starting point for his study: Eser, Procedural Structure and Features, 110. See for a comprehensive list also Wheeler, The Right to be Present at Trial, 67 et seq. 12 Posing the same question and answering it in the negative: Eser, Procedural Structure and Features, 114. See also de Meester, The Investigation Phase, 94. 13 Damasˇka, 83 ChiKentLRev 2008, 329, 331; in a similar vein: Bonomy, 5 JICJ 2007, 348, 353; Hoon, 17 ICLR 2017, 591 – 614, 598 et seq. Similarly with regards to the Eichmann process: Arendt, Eichmann in Jerusalem, 301. 14 Principle I of the Nuremberg Principles. UN Security Council, Resolution 808, 3 May 1993, UN Doc. S/RES/808, para. 8 et seq.; Resolution 1315, 14 August 2000, UN Doc. S/RES/ 1315; UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; Art. 1 ICTYSt; ICTY, First Annual Report, 29 August 1994, UN Doc. A/49/342-S/1994/1007, para. 12 et seq.; Achievements http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021); ASP, 5th Session, Strategic Plan of the International Criminal Court, 4 August 2006, Doc. ICC-ASP/5/6, Part III; ICC, About, https://www.icc-cpi.int/about#learnmore (last accessed: 7 February 2021); ICTY, Prosecutor v. Nikolic´, TC I(A) Sentencing Judgment, 2 December 2003, Case No. IT-02-60/1-S, para. 59. 15 UN SG, Resolution 827, 25 May 1993, UN Doc. S/RES/827; Rules 105, 106 ICTY-, ICTR-RPE; Art. 75 RomeSt. 16 UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; ICTY, Achievements, http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021); ICC, About, https://www.icc-cpi.int/about#learnmore (last accessed: 7 February 2021); Preamble ECCC-IR. See also for the phrase “doing justice” UN, Security Council, Resolution 808, 3 May 1993, UN Doc. S/RES/808; Resolution 955, 8 November 1994, UN Doc. S/Res/955; ICTY, Prosecutor v. Nikolic´, TC I(A), Sentencing Judgment, 2 December 2003, Case No. IT-0260/1-S, para. 59. 17 UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; Preamble para. 6 RomeSt; ASP, Strategic Plan of the International Criminal Court, 5th Session, 4 August

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still ongoing during the prosecution);18 (vi) give a voice to the victims;19 (vii) contribute to national reconciliation;20 (viii) to end impunity and restore the rule of law;21 (ix) bring stability and equitable development to war-torn places and post-conflict societies;22 (x) aspire to the restoration and maintenance of peace and security;23 (xi) 2006, Doc. ICC-ASP/5/6, Part III; ICC, About, https://www.icc-cpi.int/about#learnmore (last accessed: 7 February 2021); ICTY, Prosecutor v. Nikolic´, TC I(A), Sentencing Judgment, 2 December 2003, Case No. IT-02-60/1-S, para. 59. The Security Counsel’s Resolution setting up the ICTY, however, does not mention deterrence as an objective. Similarly critical to the deterrent effect at least of tribunals that were established after the committal of the crimes they are to prosecute: Schabas, UN Tribunals, 70. Generally critical with regard to the deterrent effect in international criminal law: Ambos, Treatise Vol. III, 47 with further references; Fedorova, The Principle of Equality of Arms, 135; Hoon, 17 ICLR 2017, 591 – 614, 601 et seq. Dancy, 17 ICLR 2017, 625 observes unambiguousness with regard to special deterrence but sees a positive devolvement with regard to general deterrence. 18 UN, Security Council, Resolution 827, 25 May 1993, UN Doc. S/RES/827; UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; ICTY, First Annual Report, 29 August 1994, UN Doc. A/49/342-S/1994/1007, para. 12 et seq.; cf. also Shany, 106 AJIL 2012, 225, 244 et seq. This is also known as compellence. See for details of investigations in situation where the conflict is still ongoing and its effects: Dancy, 17 ICLR 2017, 625, 636 et seq.; Kersten, Justice in Conflict, 5. 19 ICTY, Achievements, http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021). 20 UN, Security Council, Resolution 955, 8 November 1994, UN Doc. S/Res/955. The goal of reconciliation was not mentioned in the ICTY’s founding resolution, but has been mentioned in: ICTY, First Annual Report, 29 August 1994, UN Doc. A/49/342-S/1994/1007, para. 12 et seq. Similarly, it was asserted in: UN, Security Council, Resolution 1315, 14 August 2000, UN Doc. S/RES/1315; UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; Preamble ECCC-IR. As for the case law see instead of many: ICTY, Prosecutor v. Erdemovic´, TC, Sentencing Judgment, 5 March 1998, Case No. IT-96-22-Tbis, para. 21. 21 ICTY, First Annual Report, UN Doc. A/49/342-S/1994/1007, 29 August 1994, para. 12 et seq.; UN SG, Resolution 1315, 14 August 2000, UN Doc. S/RES/1315; UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; ASP, 5th Session, Strategic Plan of the International Criminal Court, 4 August 2006, Doc. ICC-ASP/5/6; ICTY, Achievements http: //www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021); ICC, About, https://www.icc-cpi.int/about (last accessed: 7 February 2021); cf. also ICTY, Prosecutor v. Nikolic´, TC I(A), Sentencing Judgment, 2 December 2003, Case No. IT-02-60/1-S, para. 59. 22 ASP, Strategic Plan of the International Criminal Court, 5th Session, 4 August 2006, Doc. ICC-ASP/5/6, Part III; Preamble ECCC-IR. 23 ICTY, First Annual Report, 29 August 1994, UN Doc. A/49/342-S/1994/1007, para. 12 et seq.; UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; ICTY, Achievements, http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021), ICC, About, https://www.icc-cpi.int/about#learnmore (last accessed: 7 February 2021). It also becomes clear when considering that the Security Council acted under Chapter VII UNCh when establishing the ICTY and ICTR; Preamble ECCC-IR. This goal of ICTs is crucial especially for tribunals where the Security Council or the UN in general is involved in their establishment and/or maintenance: Schabas, UN Tribunals, 68 et seq.

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spread respect and enforce international criminal justice,24 not least in order to achieve a positive preventive effect by demonstrating that the legal system is upheld;25 (xii) develop international law;26 (xiii) establish an inclusive historical record of past events.27 Most of the commentators include some or all of these goals – although not always in the exact same wordings – set by the tribunals themselves as standards to be achieved, in their lists.28 However, many goals are proclaimed beyond what is found in this list. For one thing, ICTs are seen to occupy an exemplary function.29 In that respect (xiv) international criminal justice is a model for (re)establishing a proper criminal justice system in the affected region.30 This finds expression, not least, in the complementarity of some of the ICTs. The standard setting function is also closely linked to another aim – the (xv) didactic function of international criminal justice.31 This aim pursues, on the one hand, the teaching of a history lesson32 and, on the other, the establishment of a general consciousness of human rights values and the rule of law, ultimately leading to a legal order based on these common values and a sense of 24

ASP, 5th Session, Strategic Plan of the International Criminal Court, ICC-ASP/5/6, 4 August 2006, Part III; Shany, 106 AJIL 2012, 225, 246; cf. also ICTY, Prosecutor v. Nikolic´, TC I(A), Sentencing Judgment, 2 December 2003, Case No. IT-02-60/1-S, para. 59. 25 ICTY, Prosecutor v. Rajic´, TC I, Sentencing Judgment, 8 May 2006, Case No. IT-95-12-S, para. 69. 26 ICTY, Achievements, http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021); cf. also Shany, 106 AJIL 2012, 225, 229, 246. 27 UN SG, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 26 August 2004, UN Doc. S/2004/616, para. 38; ICTY, Achievements, http://www.icty.org/en/about/tribunal/achievements (last accessed: 7 February 2021). 28 See e. g. Schabas, UN Tribunals, 68; Schrag, 2 JICJ 2004, 427; Swart, International Criminal Justice and Models of the Judicial Process, 102 et seq. agreeing to almost all the outlined goals; Eser, Procedural Structure and Features, 115 et seq. Douglas, Perpetrator Proceedings and Didactic Trials and Galbraith, 31 MichJIntlL 2009, 79, 84 et seq. agree to roughly half of these goals. Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 56 et seq. agrees only to the restoration of international peace and security, strengthening of the human rights and humanitarian law protections, the punishment of perpetrators of international crimes and the creation of an inclusive historical record. Safferling, International Criminal Procedure, 65 et seq. mentions, deterrence, positive preventive aspects and justice for the victims and the enforcement and development of the international legal order. Cf. also Shany, 106 AJIL 2012, 225, 247. 29 Schrag, 2 JICJ 2004, 427, 428; more critical Eser, Procedural Structure and Features, 111, who sees this merely as an by-product. But see ibid., 116 where he asserts that the model function is one of the ultimate objectives of international criminal justice. 30 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 66; Schrag, 2 JICJ 2004, 427, 428. 31 Ambos, Treatise Vol. I, 72; Damasˇka, 83 ChiKentLRev 2008, 329, 345 et seq.; Douglas, Perpetrator Proceedings and Didactic Trials, 192. Especially the latter two see this goal as priority of all the different goals that are pursued by ICTs. See also Drumbl, Atrocity, Punishment, and International Law, 173 et seq. 32 Douglas, Perpetrator Proceedings and Didactic Trials, 192.

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accountability for the gravest crimes of mankind.33 The idea is that eventually a moral climate spreads where even powerful actors can be held by society to abide by the human rights values they propagate.34 Only where a “culture of accountability for human rights violations”35 has established a real threat of prosecution exists and a deterrent effect, which prevents the reoccurrence of horrific human rights violations, can occur.36 Further, references to general aims of punishment that are intrinsic to any criminal justice system and not specific for international criminal justice, although their weighing is different on the international level,37 is common.38 These include absolute, preventive and expressive goals of punishment. From the above list no. (iv) which concerns the deterrence both of the specific defendant and the public, known as general deterrence, which aims to discourage the general public from committing international crimes should be mentioned.39 Beyond that, the aims of punishment sensu stricto include (xvi) retribution in the Kantian sense, as in that offenders deserve punishment,40 as the absolute goal of punishment, which is especially under33 Cf. Ambos, Treatise Vol. I, 72 et seq.; Ambos, Treatise Vol. III, 48; Damasˇka, 83 ChiKentLRev 2008, 329, 345 et seq.; Safferling, International Criminal Procedure, 68. See also ICTY, Prosecutor v. Erdemovic´, TC, Sentencing Judgment, 5 March 1998, Case No. IT-96-22Tbis, para. 21: “wider issues of accountability”. 34 Damasˇka, 83 ChiKentLRev 2008, 329, 363. 35 ICC, Situation in the Republic of Kenya: Prosecutor v. Katanga and Chui, PTC I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victims at the Pre-Trial Stage of the Case, 13 May 2008, Case No. ICC-01/04-01/07-474, para. 163. 36 See as for this circularity of tangible threat of prosecution and deterrence with further references: Braithwaite, Crime, Shame and Reintegration, 69; Duff, et al., The Trial on Trial, 228; Drumbl, Atrocity, Punishment, and International Law, 170; Hörnle, Straftheorien, 24; Safferling, International Criminal Procedure, 67. 37 Golash, Punishment and Reconciliation; Werkmeister, Straftheorien im Völkerstrafrecht. The appraisal and credibility of these goals of punishment for international criminal justice has also been addressed by these scholars and I will leave it to these experts. See also Burghardt/ Epik, ZIS 2019, 286 on the underestimated importance of special prevention in international criminal law. 38 Ambos, Treatise Vol. III, 46 et seq.; Damasˇka, 83 ChiKentLRev 2008, 329, 381; Eser, Procedural Structure and Features, 116; Galbraith, 31 MichJIntlL 2009, 79, 84 et seq.; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 59; Safferling, International Criminal Procedure, 65; Werle/Jessberger, Völkerstrafrecht, para. 123. 39 Swart, 6 JICJ 2008, 87, 100; ICTR, Prosecutor v. Kamhanda, TC, Sentencing Judgment, 4 September 1998, Case No. ICTR-97-23-S, para. 28. Critically to the deterrent effect due to the special historical context in which international crimes occur: Ambos, Treatise Vol. III, 47 with further references; Hoon, 17 ICLR 2017, 591 – 614, 601 et seq.; Fedorova, The Principle of Equality of Arms, 135. 40 Ambos, Treatise Vol. III, 46; Heinze, International Criminal Procedure and Disclosure, 2012; Safferling, International Criminal Procedure, 65; Swart, International Criminal Justice and Models of the Judicial Process, 102, 106 even observes a strong emphasis on retribution as goal for punishment. It should be noted that retribution is seen to give vengeance to the victims, but also the public as the offender has disturbed the societal peace. Going back to Hegel, it is also possible to understand retribution more absolute as in being an end in itself: such as in Kant’s

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lined by the ICTs case law,41 (xvii) stigmatization42 and the (xviii) preventive considerations of incapacitation43 in order to protect society against the specific perpetrator and (xix) rehabilitation,44 as well as expressive functions such as (xx) reconfirmation of the law with its positive preventive effects.45 All these are named as aims for punishment.46

1. Systematisation of the goals of international criminal justice Having identified the long list of rationales for international criminal justice it seems useful to structure the list.47 Damasˇka has offered a differentiation of goals that are the standard objectives of criminal law, regardless of whether they occur on the national or international level, and additional special aims of the international legal order.48 The former category includes aims (i) – (iv) and the traditional goals of proclamation that the criminal deserves punishment, because he offended, Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Rights, translated by W. Hasting, 331 et seq. See for details: Safferling, International Criminal Procedure, 65 et seq. Drumbl, Atrocity, Punishment, and International Law, 150 et seq. eloquently appraises that the retributive effect of international criminal justice is very limited due to the selectivity of prosecution, the rather slight severity of punishment and the diverging sentences at different ICTs. Finally, he sees plea bargaining to be diametral to retribution. 41 Instead of many see: ICTY, Prosecutor v. Aleksovski, AC, Judgment, 24 March 2000, Case No. IT-95-14/1-A, para. 185; ICTR, Prosecutor v. Serushago, TC, Sentence, 5 February 1999, Case No. ICTR 98-39-S, para. 20; further references in Ambos, Treatise Vol. III, 46 fn. no. 503. 42 ICTY, Prosecutor v. Todorovic´, TC, Sentencing Judgment, 31 July 2001, Case No. IT-959/S-1, para. 29. 43 Critically as to the effect of social incapacitation of the offender since the prosecution only takes place when circumstances and society have changed and the setting for the particular context of international crimes generally no longer exists, or at least exists in a different pattern: Safferling, International Criminal Procedure, 68. He, however, admits that with establishment of the ICC and the prosecution of ongoing situations of denial of human rights, the individual aspect of positive prevention may be strengthened. On the other hand, the ICTY is a vivid example that atrocities occur even after the institution of an ICT has been established. 44 Heinze, International Criminal Procedure and Disclosure, 215; Swart, 6 JICJ 2008, 87, 100; ICTY, Prosecutor v. Tadic´, TC, Sentencing Judgment, 14 July 1997, Case No. IT-94-1-T, para. 61. 45 ICTY, Prosecutor v. Rajic´, TC I, Sentencing Judgment, 8 May 2006, Case No. IT-95-12-S, paras. 69, 108; Golash, Punishment and Reconciliation, 117 et seq. 46 Damasˇka, 83 ChiKentLRev 2008, 329, 381; Eser, Procedural Structure and Features, 116; Galbraith, 31 MichJIntlL 2009, 79, 85; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 59; Safferling, International Criminal Procedure, 65. 47 See also: Eser, Procedural Structure and Features, 115; de Meester, The Investigation Phase, 97. 48 Damasˇka, 83 ChiKentLRev 2008, 329, 331; likewise: Ambos, Treatise Vol. III, 46; Galbraith, 31 MichJIntlL 2009, 79, 85; Heinze, International Criminal Procedure and Disclosure, 211 et seq.; Swart, International Criminal Justice and Models of the Judicial Process,

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punishment listed as (xiv) – (xviii). Galbraith, in order to give the proposed distinction further structuring capacity, describes the additional goals as “forwardlooking goals of social transformation”.49 The special focus of the international criminal order contributes to the (re)establishment of a functioning society and domestic justice system by promoting human rights values. In doing so, the victims’ interests and satisfaction become of particular importance for preventive50 and transformative aims. The list of these preventive goals then includes goals (v) – (xi) and (xiv) – (xv). Set within the context of international criminal justice the traditional goals of criminal law, including the goals of punishment – except for the deterrent effect – could be described as more backward-looking and retributive.51 Aims no. (xii), the development of international law, and (xiii), the establishment of a historical record, fall outside the systematisation of traditional and forwardlooking goals transforming the society. As regards the former (xii) it is questionable whether it is reasonable to consider it a goal in and of itself. The further development of international law is a natural consequence of the establishment of an institution that applies international criminal law. It is a mere side effect that the case law by interpreting and applying the legal framework of ICTs contributes to the development of international (criminal) law. Beyond the scope of enforcing and sowing respect for international criminal justice, the development of that branch of law adds nothing. It cannot be seen as a goal in itself. Rather it is a by-product of the establishment of ICTs and their actions.52 There remains the idiosyncratic goal of establishing an inclusive historical record, which is often contested as a goal in and of itself. It has been doubted that a criminal trial is the right forum to establish a historical account of atrocities that have occurred

101, 103. See also Werle/Jessberger, Völkerstrafrecht, para. 123 et seq. who see the domestic concepts of punishment and criminal law to its full extent applicable to ICL. 49 Galbraith, 31 MichJIntlL 2009, 79, 85. See in a similar vein: Safferling, International Criminal Procedure, 75 et seq. preventive goals that match several of the goals, which are related to the transnational justice process. Pawlik, 1 ZIS 2006, 276, 291 goes even further by seeing the concept of international criminal law solely in the preventive effect: “präventionsorientierte Sonderdogmatik”. 50 Cf. Werkmeister, Straftheorien im Völkerstrafrecht, 334 et seq., 370 et seq. 51 The acceptance of special goals of international criminal justice has now been advanced to a point where few opponents, such as Bonomy, 5 JICJ 2007, 348, 217, remain. Drumbl, Atrocity, Punishment, and International Law, 194 et seq. even suggests that ICTs should abandon the traditional aims of criminal justice altogether and focus on the specific international goals. Traditional aims, however, including backward looking goals, are a necessary precondition for the building of a peaceful, stabile and functioning post-conflict society, in order to prevent the reoccurrence of such crimes and, with the specific goals of international criminal justice, transition the affected society to a functioning society adherent to the rule of law and human rights. Only where justice has been done and the chapter of atrocities reappraised can preventive aims begin to work. 52 Similarly Schabas, UN Tribunals, 73.

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in the past.53 Indeed, a historian works quite differently from a court.54 The court’s purpose is to determine individual guilt and not necessarily to accurately capture mass human rights violations that often require collective responsibility.55 However, the historical record function of ICTs is widely recognised.56 Already the elements of crimes presuppose a wider focus in order to establish the collective context of groups. International crimes are based on the premise of contextualisation. In course of the procedure far more evidence than necessary to establish the responsibility of the individual defendant is collected and this larger context sheds much light on the individual incidents that occurred, as only then can the necessary link of the specific defendant to the events on the ground be established.57 The cases prosecuted at ICTs are complex and produce myriad evidence that carry an enormous historical value.58 Judgments rendered by ICTs to a large extent capture the overall context before – comparatively briefly – exploring the individual accused’s responsibility.59 Naturally, courts stay within their mandate to prosecute those responsible for atrocities and do not engage in historical fact-finding beyond that scope. Notwithstanding taking all the different proceedings and judgments of one situation together, a comprehensive record of the events has been and will in future be established. This judicial historical record can be used as a starting point for further and more detailed historical re-

53

Ambos, Treatise Vol. III, 53; Hoon, 17 ICLR 2017, 591-614, 604; Osiel, Mass Atrocity, Collective Memory and the Law, 79 et seq.; Swart, International Criminal Justice and Models of the Judicial Process, 111; cf. also Bloxham, Genocide on Trial, 185 et seq. 54 Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 44. But see Ambos, Treatise Vol. III, 53; Wilson, 27 HumRtsQ 2005, 908, 918 who see broad similarities between historical research and criminal trials. Numerous references for the comparison of a historian with a court are also found in Paulus, FS-Spendel, 689 footnote 12. 55 Damasˇka, 83 ChiKentLRev 2008, 329, 332; Hoon, 17 ICLR 2017, 591 – 614, 604, 612. Although generally in favour of the historical record function: Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 95; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 60. See also Wheeler, The Right to be Present at Trial, 85 et seq., who identifies that ICTs do not establish the full and complete truth as they often focus on one party, which was involved in the conflict. 56 See inter alia Cassese, 9 EurJIntlL 1998, 2; Swoboda, Verfahrens- und Beweisstrategien, 225; Zimmermann, ZIS 2013, 102, 114. 57 Galbraith, 31 MichJIntlL 2009, 79, 90; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 96; Wald, 1 ChiJIntlL 2000, 189, 192; cf. also Schabas, UN Tribunals, 72. 58 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 60; Safferling, International Criminal Procedure, 79. 59 See for example: ICTY, Prosecutor v. Krstic´, TC II, Judgment, 2 August 2001, Case No. IT-98-33 where the fact-finding and legal qualification make up the first 212 pages and Krstic´’s responsibility is established on 28 pages; ICTR, Prosecutor v. Akayesu, TC I, Judgment, 2 September 1998, Case No. ICTR-96-4-T, where 122 pages concern the historical background and fact-finding; only 33 pages regard the accused’s responsibility; SCSL, Prosecutor v. Brima et al., TC II, Judgment, 20 June 2007, Case No. SCSL-04-16-T considering historical background and facts on 242 pages, the defendants’ responsibility on 115 pages. See also Galbraith, 31 MichJIntlL 2009, 79, 90.

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appraisal.60 Further, one should not underestimate the supplementary legitimacy and reliability that judicial fact-finding gives the historical events.61 This can also help prevent denials of atrocities.62 The historical record function is still to be systematised. At first sight it does not seem to fit either the traditional goals of criminal law, nor the forward-looking transitional goals idiosyncratic to international criminal justice. In spite of this, it can be seen as an imperative precondition for the transition of a society to a human rights value based society. It is essential to any reconciling or forward-looking goal that the facts, circumstances and the main actors responsible for the atrocities have been determined.63 This demonstrates a perforce connection to truth, which will be dealt with further below. The historical narrative established during trial is also to be accepted as truth in order to display its full pedagogical function.

II. Goals of international criminal procedure – micro level Having identified the aims of international criminal justice the focus will now turn to the micro level goals of criminal procedure, more specifically the criminal trial.64 In a second step it will be identified whether the procedural device of a trial in absentia supports the achievement of these genuine procedural goals or at least whether it is obstructive to achieving them. The goals of international criminal procedure sensu stricto can be classified in two groups. Firstly, the goals that are instrumental to substantive international criminal law and procedural goals that are intermediate goals geared to the greater goals on the

60 In fact, historians have largely benefitted from documents and fact-finding in criminal proceedings. See e. g.: Browning, Ordinary Men; Douglas, Perpetrator Proceedings and Didactic Trials, 196, both with further references. 61 In a similar vein: Safferling, International Criminal Procedure, 79; Wald, 1 ChiJIntlL 2000, 189, 192. 62 Schabas, UN Tribunals, 72. Schrag, 2 JICJ 2004, 427, 428; likewise: Eser, Procedural Structure and Features, 116 even see it as goal of international criminal justice to forestall any attempted denial of the atrocities that occurred. However, it seems to be merely a by-product of the ICTs function in creating a historical record. Where an inclusive historical record has been established with judicial authority, there is no more room for denial. 63 Golash, Punishment and Reconciliation, 217; Schabas, UN Tribunals, 72. Cf. also Drumbl, Atrocity, Punishment, and International Law, 173. 64 Luhmann, Legitimation durch Verfahren2nd; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 77; Safferling, Towards, 18. When inquiring into the goals of international criminal procedure it should be noted that the asserted rationales may be weighed differently depending on the stage of the criminal procedure: Eser, Procedural Structure and Features, 114; Klamberg, 79 NordicJIL 2010, 279, 294; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 67; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 84.

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macro level, i. e. the goals of international criminal justice.65 Finally, theories that highlight the intrinsic value of criminal procedure will be discussed.66

1. Goals of international criminal procedure The following explores firstly on the uncontested instrumental goal of implementing substantive international criminal law, and secondly, the goals that ultimately serve the international criminal justice as such. a) Implementation of substantive criminal law and punishment by convicting the guilty and acquitting the innocent Clearly criminal procedure always carries an instrumental function since the trial is a necessary precondition for the implementation and execution of substantive international criminal law.67 Such an aim can be described as the central procedural aim.68 Criminal procedure thereby effectuates a rationale of international criminal justice that is broadly recognised as an important aim across all tribunals and among scholars and has been identified above: punishing perpetrators of international crimes in order to end “impunity for the most heinous crimes of international concern”.69 This primary goal has to be taken into account when considering the other 65

These instrumental goals of criminal procedure are widely recognised. See for example Eser, Procedural Structure and Features, 114, 120 et seq., who asserts that the procedural structure must be adjusted to the ultimate goals of international criminal justice. 66 Intrinsic goals have not yet reached the status of full acceptance. This is illustrated by the fact, that only one comprehensive theory of international criminal procedure, which regards the procedure’s intrinsic value, has been developed: see Ohlin’s Meta Theory of international criminal procedure: Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77; Ohlin, Goals of International Criminal Justice and International Criminal Procedure. 67 de Meester, The Investigation Phase, 100; Safferling, International Criminal Procedure, 64, 74. See also Duff, Trials and Punishment, 110; Duff, et al., The Trial on Trial, 61; Eser, Procedural Structure and Features, 111; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 82, 99. Jung, Nothing but the Truth?, 148 identifies this as a typical German view. See also with further references Weigend, Deliktsopfer und Strafverfahren, 193. 68 Duff, et al., The Trial on Trial, 61; Safferling, International Criminal Procedure, 74 et seq. the latter speaks of a direct aim. Some scholars recognise solely the servant function of the criminal process: see the references at Weigend, Deliktsopfer und Strafverfahren, 191 footnote 62. 69 ICC, Situation in the Republic of Kenya: Prosecutor v. Katanga and Chui, PTC I, Decision on Art 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence’s Preparation for the Confirmation Hearing, 20 June 2008, Case No. ICC-01/0401/07, para. 49; see also: Preamble of the RomeSt; ICTR, Prosecutor v. Rugambarara, TC, Sentencing Judgment, 16 November 2007, Case No. ICTR-00-50-T, para. 11; ICTY, Prosecutor v. Tadic´, AC, Judgment, 15 July 1999, Case No. IT-94-1-A, para. 190; UN, Security Council, Resolution 808, 3 May 1993, UN Doc. S/RES/808; UN, Security Council, Resolution 827, 25 May 1993, UN Doc. S/RES/827; UN, Security Council, Resolution 955, 8 November 1994, UN

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aims, as it might limit their scope.70 Other goals can be achieved as long as they do not run counter to the possibility of convicting the guilty and letting the innocent go. Clearly, a precondition to attaining this is to unveil the truth.71 As will be shown in the following there is more to the truth-finding than this simple instrumentalist function of finding the true offender. Notwithstanding, the endeavour to ascertain substantive truth clearly manifests itself in the aim of implementing substantive criminal law. b) Further goals of criminal procedure – Rethinking the relation between procedural and substantive law International criminal procedure goes beyond the sole implementation of international criminal law and the support to end “the era of impunity”.72 Criminal procedure also has an autonomous function by serving the other goals of international criminal justice.73 Conceptualising procedure as having a value in and for itself changes the traditional relation between procedural and substantial norms. By giving the procedure an intrinsic value criminal procedure is no longer overshadowed by its substantive law counterpart. Rather it is the “process that makes international trials important”.74 There are, however, theories that seem to contradict this approach. For example Rawls’ theory of justice could be understood as objecting to the idea that procedure can have an intrinsic value, as, according to him, procedure is always measured against its just outcome.75 He conceptualises criminal procedure as ‘imperfect procedural justice’ since there is an independent criterion to measure the just outcome of a criminal trial, i. e. whether the truly guilty has been convicted, but the criminal procedure does not necessarily lead to the right outcome; wrongful convictions unquestionably occur.76 In fact, the distinction of the culpable from the nonDoc. S/Res/955; Trendafilova, Fairness and Expeditiousness, 451; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 85; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 59. See also Art. 1 ICTYSt aiming to ‘prosecute persons responsible for serious violations of international humanitarian law’. 70 Safferling, International Criminal Procedure, 77. 71 Duff, et al., The Trial on Trial, 61 et seq.; Safferling, International Criminal Procedure, 74; cf. also Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 61. 72 ICC, OTP, Speech of Luis Moreno-Ocampo at the Review Conference in Kampala, 31 May 2010. 73 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 55; see also Eser, Procedural Structure and Features, 115 who uses slightly differing terminology and sees criminal procedure as means to achieve the goals of international criminal justice. 74 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 106. 75 Rawls, A Theory of Justice, 85 et seq. He distinguishes between perfect and imperfect procedural justice, which are tested against their just outcomes. 76 Ibid., 85 – 86. “Perfect procedural justice”, on the other hand, has a criterion to measure its outcome as just and there is a procedure that is guaranteed to lead to the just outcome. The

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culpable defendant has been identified as direct goal of international criminal procedure. By definition procedure is instrumental in so far as it justly convicts the guilty defendant and acquits the innocent. Notwithstanding, Rawls’ theory accepts the category of ‘pure procedural justice’ where only procedural conditions must be met in order to generate just outcomes. In this category just procedures necessarily lead to just outcomes. The example Rawls employs here – gambling – is quite distant from criminal procedure and cannot be used to justify a theory of criminal procedure, which ascribes the trial an intrinsic value. However, as Ohlin77 eloquently shows, Rawls himself admits that notwithstanding the connection of substantial and procedural aspects, “fair procedures have values intrinsic to them, for example, a procedure having the value of impartiality by giving all an equal chance to present their case”.78 Hence, international criminal procedure can still have an intrinsic value, beyond its instrumental function to correctly implement substantive criminal law, convict the guilty, and let the innocent go; or, in other words, come to a just verdict and pursue the other goals serving international criminal justice as such. Moreover, despite the foregoing classification of criminal procedure as instrumental for the implementation of substantive international criminal law, on the other side of the coin, criminal procedure has clearly an intrinsic value: substantive international criminal law can only be applied and legitimised in a criminal process. “So to speak, criminal procedure constitutes substantive law”.79 Having clarified that there is no general objection to conceptualising the criminal process and particularly the criminal trial as having an intrinsic value, it is to be clarified what this value is by exploring the goals the criminal trial pursues. aa) Truth and international criminal justice There is one condition underpinning all the aims of the institution of ICTs and international criminal justice in general – “the truth”. It is a necessary precondition for all the substantive goals ICTs have been designed to achieve that the true offender has been found guilty or not guilty in the criminal trial issued against him.80 Truth is a example he offers is the equal splitting of a cake, which unveils two components of perfect procedural justice: an external criterion to measure the just outcome (equal slices) and a procedure that with certainty causes this just outcome (dividing the cake equally). Both perfect and imperfect justice share the first feature: there is an independent criterion to measure its outcome as just. 77 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 110. 78 Rawls, Political Liberalism, 82. 79 LR-Kühne, Introduction H marginal no. 8. 80 Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 16 et seq.; Eser, Procedural Structure and Features, 116, 121 et seq.; Safferling, Towards, 17; Safferling, International Criminal Procedure, 74. See also for domestic criminal trials: Weigend, 26 HarvJL& PubPoly 2003, 157, 158 and for German domestic procedure: Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 101, 287.

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precondition in rendering justice, establishing a historical record, achieving retribution and allowing catharsis to the potential victims, restoring the rule of law and contributing to reconciliation and restoration of peace and security.81 However, the assertion of truth is not generally discussed as a genuine procedural aim among scholars of international criminal law, rather it is, if at all, introduced in parallel with the aim of establishing an accurate record of the atrocities that occurred. A connection between the two is inevitable, however, truth has an outstanding function especially when it comes to criminal procedure and accordingly this will be discussed in the following. At the same time, there is no common understanding of truth. Eser identifies the search for truth not to be “an ultimate end of international criminal justice per se, but rather a means” to the other ends ICTs are designed to achieve.82 This, however, does not mean that it is not an end at the micro level of international criminal procedure, i. e. a goal in a particular criminal trial. Considering the instrumental function international criminal procedure has for the achievement of the greater goals of international criminal justice, it is reasonable to assume that the endeavour of getting to the truth is a goal of international criminal procedure.83 At the very least truth can be seen as an indispensable “intermediate goal”84 in achieving the other substantive and procedural goals, in particular bringing justice to war-torn places and having a meaningful pedagogical impact. Having demonstrated the search for truth as an aim of the criminal trial, one carries the burden of exploring what such a search entails. There is no longer any doubt that a criminal trial aims for the assertion of truth with regard to the historical facts of the

81 Eser, Procedural Structure and Features, 121 et seq.; cf. also Duff, et al., The Trial on Trial, 63; Golash, Punishment and Reconciliation, 117; Schabas, UN Tribunals, 72. See also for German domestic procedure: Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 101, 287; Weigend, 26 HarvJL& PubPoly 2003, 157, 158; Wheeler, The Right to be Present at Trial, 84. See also in regard to justice: LR-Kühne, Introduction H marginal no. 43 et seq. 82 Eser, Procedural Structure and Features, 121; see also Jung, Nothing but the Truth?, 149; Volk, Prozeßvoraussetzungen, 193 with further references; Weigend, Deliktsopfer und Strafverfahren, 178; Weigend, 26 HarvJL& PubPoly 2003, 157, 170. The PTC’s assertion in ICC, Situation in the CAR: Prosecutor v. Bemba, PTC III, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the parties, 31 July 2008, Case No. ICC01/05-01/08-55, para. 11, that “the search for truth is the principal goal of the court as a whole” could speak against that assumption. However, the PTC rendered this decision in order to emphasis its own role as finder of truth in relation to the guilt or innocence of a specific defendant. The court as a whole does not pay regard to the macro level of international criminal justice much rather to the micro level of the criminal procedure instituted against a specific defendant starting in the pre-trial phase. This merely confirms the view taken here: the assertion of truth is an aim of international criminal procedure. 83 Fedorova, The Principle of Equality of Arms, 134; Safferling, Towards, 18; Safferling, International Criminal Procedure, 74. For domestic criminal procedure: LR-Kühne, Introduction H marginal no. 20 et seq. 84 Radtke, FS-Schreiber, 376; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 50; Volk, FS-Salger; Weigend, 26 HarvJL& PubPoly 2003, 157, 158, 172.

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offence that occurred.85 It is also a “principal goal” in international criminal procedure as emphasised by the Pre Trial Chamber in the Bemba case.86 Thus, there is little to be gained by entering deeply into discussions concerning different philosophical conceptions of truth.87 Having said that, different epistemological concepts of what truth is exist. Similarly, the method of achieving truth – namely the modes of collecting evidence during trial – differs. Thus, it needs to be clarified what the truth to be searched for constitutes. (1) Procedural truth finding measures The inquisitorial model strives to establish substantive truth88 and is in principle founded on the correspondence theory of truth – adaequatio rei et intellectus.89 This procedural model is based upon the idea that a third neutral party can detect and adequately describe an objective reality – substantive truth.90 Accordingly the enquiry to pursue truth was historically assigned to non-partisan judges that were to ascertain truth unilaterally in a pro-active manner. However, the European search for substantive truth has been transformed “from an official unilateral enquiry into a pluralistic one, accomplished by increasing the plurality of perspectives”,91 i. e. perspectives of all criminal justice actors, not only the neutral and impartial judge, the – supposedly objective – prosecution, the defence and, in recent times, potential victims by increasingly vesting them with participation and application rights.92 At the same time, along the lines of fairness, the rights of the actors of justice, pre85 Ambos, 3 ICLR 2003, 1, 21; Eser, Procedural Structure and Features, 122; McEwan, Rituals, Fairness and Truth, 63; Safferling, Towards, 19; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 39; cf. also Damasˇka, 49 HastingsLJ 1997, 289, 289. But see Luhmann, Legitimation durch Verfahren2nd, 20. 86 ICC, Situation in the CAR: Prosecutor v. Bemba, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the parties, 31 July 2008, Case No. ICC01/05-01/08-55, para. 11. 87 See for an overview of the different theories: Aoi, et al., 25 Beiheft ARSP 1983, 136; Kaufmann, Rechtsphilosophie, 283 et seq.; Kühne, GA 2008, 361; Poscher, 83 ARSP 2003, 200; Stamp, Die Wahrheit im Strafverfahren, 30 et seq.; Stübinger, Das ”idealiserte” Strafrecht, p. 391 et seq.; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 39 et seq.; Volk, Prozeßvoraussetzungen, 913 et seq. 88 Ambos, 3 ICLR 2003, 1, 21; Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 43; Damasˇka, 121 UPaLRev 1972, 506, 581. See also for the different ideas of formal and substantive truth: Volk, Wahrheit und materielles Recht, 15 et seq. See for detailed comparative analysis: Damasˇka, 121 UPaLRev 1972, 506. 89 Stamp, Die Wahrheit im Strafverfahren, 49; Volk, Wahrheit und materielles Recht, 7. It should be noted that also Damasˇka, 49 HastingsLJ 1997, 289 eloquently argues for the correspondence theory of truth although he comes from an common law background. 90 Grande, FS-Damasˇka, 146 et seq.; Safferling, Towards, 18; Weigend, 26 HarvJL& PubPoly 2003, 157, 157, 162. 91 Grande, FS-Damasˇka, 155. 92 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 46 et seq.; Grande, FS-Damasˇka, 154 et seq.; Weigend, 26 HarvJL& PubPoly 2003, 157.

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dominately the defendant and witnesses and victims, have been strengthened.93 However, the notion of justice continues to conceptually presuppose the search for substantive truth94 and the final assessment still remains with the judge. On the other hand, in the adversarial system the concept of justice is inevitably linked with fairness, which is the hallmark of an adversarial trial.95 Scepticism exists towards the ability of a human being to reconstruct objective truth.96 The method to best unveil, or at least approximate, the truth is through a discourse between opposing parties that challenge their respective versions of reality.97 However, it is crucial that the contest between the parties meets the standards of fairness, as only then can the criminal trial result in a just and reliable verdict.98 Notwithstanding, adversarialism should not be grouped with the consensus theory of truth as Damasˇka99 has eloquently shown.100 Also a discursive mode to reach the truth is open to a truth based on the correspondence of reality and the facts found in the trial.101 The characteristic feature of the adversarial procedure is not the consensus, but the dialogical method of collecting the evidence during trial.102 Nor should the adversarial process model be misunderstood as merely striving for a “formalised procedural truth”.103 It is substantive truth that shall be sought in an adversarial criminal trial.104

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Jung, Nothing but the Truth?, 153; cf. LR-Kühne, Introduction H marginal no. 45. Grande, FS-Damasˇka, 147; Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 101; Müller-Dietz, 15 ZEE 1971, 257, 101; Neumann, 101 ZStW 1989, 52; Riess, JR 2006, 269, 273; Weigend, 26 HarvJL& PubPoly 2003, 157, 158, 172. More reluctant towards substantive truth but seeing truth as “indispensable requirement of criminal justice”: Eser, Procedural Structure and Features, 123. 95 Eser, Procedural Structure and Features, 122; Grande, FS-Damasˇka, 148. 96 Grande, FS-Damasˇka, 147. 97 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 44; Jung, Nothing but the Truth?, 151; Safferling, Towards, 18; Weigend, 26 HarvJL& PubPoly 2003, 157, 159. 98 Grande, FS-Damasˇka, 148. 99 Damasˇka, 49 HastingsLJ 1997, 289. 100 See also Jung, Nothing but the Truth?, 151, 154; Wesslau, ZIS 2014, 558, 562; ibid. Radtke, FS-Schreiber, 382 et seq. has also shown that a pure discursive theory is not suitable for the criminal process, however, discursive elements that underline the participation rights of the justice actors (as they exists in the adversarial model) may still be part of the criminal procedure. Generally rejecting epistemic theories of truth for the criminal process: Toepel, Grundstrukturen des Sachverständigenbeweises, 69 et seq. Of the opinion that the adversarial system presupposes formal truth found in a discursive way: Carofiglio, Questione Giustizia 1992, 323; Honert, 106 ZStW 1994, 427, 441 et seq. 101 Jung, Nothing but the Truth?, 151, 156. See also Volk, Wahrheit und materielles Recht, 15, also where formal truth would be the aim, truth is only ideally carried by the parties consensus; decisive is the discursive mode not consensus in the outcome. 102 Wesslau, ZIS 2014, 558, 562. 103 So however with different terminology Grande, FS-Damasˇka, 147; Stamp, Die Wahrheit im Strafverfahren, 30 et seq.; Volk, FS-Salger, 412; Weigend, 26 HarvJL& PubPoly 2003, 157, 160. 94

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Neither concept in its purity is convincing and both have their weaknesses, as has been eloquently appraised elsewhere.105 Considering that ICTs work in a very particular context, with sui generis procedural rules, the search for truth in an international criminal trial cannot simply be reduced to one of the ideal-typical process models. It has already been identified that the trial phase of ICTs is broadly adversarial, but one that increasingly leaves room for pro-active interventions from the bench106 and the participatory action of potential victims. Both modes of striving for truth – the more discursive and more diagnostic – are, therefore, conceivable and perhaps the modus used at criminal proceedings would be best described as a mixed method of unveiling the truth. Considering that both the adversarial and the inquisitorial process model strive to establish substantive truth, it is a reasonable assumption that international criminal trials are also aimed at finding substantive truth. (2) The truth The often cited assertion of the German Federal Court of Justice – “truth should not be sought at any price”107 – makes clear that there are other interests that may curtail the truth-finding. There are competing interests that can restrict the search for truth, which could speak against the possibility of establishing substantive truth. These “collateral values”108 are, among others, privacy – which finds expression in the defendant’s right to remain silent but also in various privileges granted witnesses and victims, as well as in the maintenance of state secrets – expediency, fairness and the additional human rights of the various justice actors.109 Moreover, evidentiary and exclusionary rules of evidence distort the establishment of truth.110 The criminal trial is also very limited as regards its subject matter. It naturally concerns only the ac104

See e. g.: Jones v. National Coal Board [1957] QB 55, 63; Williams v. Florida, 399 US 78, 82 (1970); Damasˇka, 49 HastingsLJ 1997, 289, 301 et seq.; with convincing arguments Wesslau, ZIS 2014, 558, 558 et seq. See also Schünemann, FS-Fezer, 562; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 46. 105 See e. g.: McEwan, Rituals, Fairness and Truth, 63 et seq.; Weigend, 26 HarvJL& PubPoly 2003, 157, 160 et seq. and as for the criticism of the discursive concept of formal truth: Volk, Wahrheit und materielles Recht, 15 et seq. 106 See especially regarding the search for truth and identifying that the procedural framework of ICTs allows for judicial intervention: Eser, Procedural Structure and Features, 124 et seq. 107 BGHSt 14, 358 (365). 108 Damasˇka, 49 HastingsLJ 1997, 289, 301. 109 Ibid., 301, 305; Eser, Procedural Structure and Features, 122; Jung, Nothing but the Truth?, 149; LR-Kühne, Introduction H marginal no. 33 et seq.; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 45; Weigend, 26 HarvJL& PubPoly 2003, 157, 168; cf. also Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 101. See also Douglas, Perpetrator Proceedings and Didactic Trials, 195 in regard to the historical record function. 110 Jung, Nothing but the Truth?, 149; Radtke, FS-Schreiber, 379; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 44 et seq.; Weigend, 26 HarvJL& PubPoly 2003, 157, 168; see also Volk, Wahrheit und materielles Recht, 9 et seq.

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cused and the accused’s alleged criminal behaviour and the facts will be framed accordingly.111 Another, less legal impediment, is that human understanding is limited.112 Admittedly, to strive for substantive truth is more of an ideal perspective rather than an epistemologically reasonable undertaking. Thus, the limitations outlined here could perhaps lead to an understanding that the search for substantive truth is impossible. However, as far as epistemological doubts about the ability to discern objective truth are concerned, it should be noted that a criminal court does not seek to establish metaphysical truth independent from the social context.113 Instead a criminal trial attempts to describe the facts in the social context created by humans. In other words, “ontologically subjective matter can be epistemically objective.”114 Surely, interests of the different justice actors and the public must be balanced against the aim of striving for truth, which may place restrictions on the truth-finding. The verdict cannot be based on a fiction, notwithstanding.115 Would the verdict regularly be based on the probability that the defendant was in fact not guilty, then the verdict could not be perceived as true or just.116 In the long term, this would deprive ICTs of their legitimacy. The court’s perception is crucial for the functioning of ICTs.117 Additionally, victims strive for the conviction of the truly guilty, not the conviction of a person whose guilt is probable.118 Even if in the short-term the rendering of a verdict against any accused can offer satisfaction, reconciliation can only be permanently achieved when the true offender has been found guilty – or in other words, when the truth has been unveiled. Especially when considering that international crimes are frequently committed in the particular context of using propaganda based on false legends about the conflicting parties, material truth needs to be established in order to achieve reconciliation and restore and maintain peace.119 As long as justice and truth 111 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 38; Hoon, 17 ICLR 2017, 591 – 614, 612; Paeffgen, Vorüberlegungen zu einer Dogmatik des UntersuchungshaftRechts, 18, 23; Safferling, International Criminal Procedure, 78; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 44. 112 Ambos, 3 ICLR 2003, 1, 21; Eser, Procedural Structure and Features, 122; Grande, FSDamasˇka, 147; Jung, Nothing but the Truth?, 148; LR-Kühne, Introduction H marginal no. 30; ibid., marginal no. 14 et seq. Damasˇka, 49 HastingsLJ 1997, 289, 292 persuasively rebuts epistemological doubts about the ability to identify objective truth since adjudication does not seek to unveil metaphysical truth independent from the social context. 113 Damasˇka, 49 HastingsLJ 1997, 289, 292. 114 Ibid. 115 Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 102; see also McEwan, Rituals, Fairness and Truth, 69: “the public has a keen interest in the accuracy of the outcome”. 116 Neumann, 101 ZStW 1989, 52, 52; Volk, Wahrheit und materielles Recht, 11; Weigend, Deliktsopfer und Strafverfahren, 183; Weigend, 26 HarvJL& PubPoly 2003, 157, 171 et seq.; in the same direction: Jung, Nothing but the Truth?, 156; LR-Kühne, Introduction H marginal no. 23; Löffelmann, Die normativen Grenzen der Wahrheitsforschung, 102. 117 See below G. II. 118 Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 16. 119 Similarly: Eser, FS-Jung, 187.

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are “intimately intertwined”120 it is necessary to honestly strive for the best possible truth.121 Moreover, as analysed above, the prosecution has a duty to establish truth. Although – except for in the case of the ECCC122 – it has not been expanded to a judicial commitment to establish truth, provisions such as the newly introduced possibility for the judges to ask for additional presentation of evidence even when the defendant has pleaded guilty,123 point in the direction of a more material approach to truth. Likewise the general possibility to ask for additional evidence underlines that assumption.124 Similarly, the RPE of ICTYand ICTR underline the importance of the assertion of substantive truth.125 This also finds support in the ICTs’ case law.126 It should also be noted that procedural and evidentiary rules, such as the prohibition of the use of hearsay evidence have been more relaxed by ICTs, so that the selectivity of evidence is not as radical as one would expect.127 Thus, one of the objectives of criminal proceedings – establishing substantive truth – has been determined. bb) Potential victims’ participation during trial Another aim of the criminal trial is to entitle the potential victims of a crime to actively participate in order to enable them to leave their status of victimisation128 and begin the process of reconciliation.129 At the ad hoc Tribunals potential victims’ participation was confined to giving testimony as a witness. Whether it was necessary and suitable to further active participation rights has been contested among scholars.130 However, the development of international criminal procedure looms as a clear

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Weigend, 26 HarvJL& PubPoly 2003, 157, 172; in as similar vein: Eser, FS-Jung, 185. Duff, et al., The Trial on Trial, 68, 83; Eser, Procedural Structure and Features, 122; LRKühne, Introduction H marginal no. 23, 32; Radtke, GA 2012, 187, 201; Stuckenberg, Die Erforschung der materiellen Wahrheit im Strafprozess, 51 et seq.; Weigend, 26 HarvJL& PubPoly 2003, 157, 173. 122 Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal, 49. 123 Art. 65(4) RomeSt. 124 Art. 69(3) RomeSt. 125 Rules 90(B) (F), 91(A) ICTY-, ICTR-RPE urging the witnesses to speak the truth; Rule 90(F)(i) ICTY-, ICTR-RPE tasking the chamber to question the witnesses in order to ascertain the truth. 126 See e. g.: ICTY, Prosecutor v. Erdemovic´, TC, Sentencing Judgment, 5 March 1998, Case No. IT-96-22-Tbis, para. 21. 127 Douglas, Perpetrator Proceedings and Didactic Trials, 196. 128 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 64; Safferling, International Criminal Procedure, 76. 129 Eser, Procedural Structure and Features, 144. 130 Zappalà, Human Rights in International Criminal Proceedings, 222. See also for an overview of the discussion with further references: Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 64 et seq. Critically, since with a higher degree of 121

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endorsement for direct and active participation of potential victims.131 The potential victims are legally represented in proceedings before the ICC,132 STL133 and KSC;134 at the ECCC135 they even occupy the status of a party following the French model of partie civile. No matter whether the potential victims participate in a more structured manner, whether they are legally represented or they can solely testify as a witness, the trial is the central medium where they can tell their version of the horrific experiences they had. A crucial aim of the trial procedure is therefore to give the potential victims a voice136 and thereby allow them public acknowledgement of their suffering.137 This enables the greater goal of international criminal justice to redress victims, give them satisfaction, justice and dignity. Aside from the possibility of testifying during trial, forensic evidence of victims of particular incidents are presented at trial.138 In this regard, the trial procedure can offer justice and dignity to the surviving relatives while serving the function of creating a historical record. cc) Promotion of the deterrent effect through a criminal trial Furthermore, criminal procedure runs parallel to the more preventive aims of criminal justice that have a transitional-societal aspiration. The simple establishment of a legal framework able to identify international crimes has no deterrent effect in itself. Only when these norms are enforced can deterrence occur.139 Already the trial is said to have a deterrent effect.140 This view is clearly expressed in judges PowerForde and Nussberger’s observation in their concurrent opinion: “a personal confrontation with and awareness of the public discussion on the defendant’s crime and guilt must be seen as a precondition for effective rehabilitation and reintegration into society […] If the accused does not attend the trial, where all the questions of fact and participation the expectations rise and the disappointment to follow is even higher: Safferling, International Criminal Procedure, 70. 131 In a similar vein: Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 65. 132 Art. 68(3) RomeSt, Rule 89 et seq. ICC-RPE. It should also be note that the public counsel for victims’ has been established. 133 Art. 17 STLSt. 134 Art. 22 KSCSt. 135 Rule 23 ECCC-IR. 136 Bonomy, 5 JICJ 2007, 348, 353; Jackson, 7 JICJ 2009, 17, 21; Safferling, International Criminal Procedure, 76. 137 Ambos, Treatise Vol. III, 52. 138 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 86. 139 Safferling, International Criminal Procedure, 76; cf. also Duff, et al., The Trial on Trial, 291, who see this as an incidental consequence. Criticism of the deterrent effect of ICTs that have been established subsequent to the commission of crimes within the respective conflict: Schabas, UN Tribunals, 70. 140 Douglas, Perpetrator Proceedings and Didactic Trials, 192; Gollwitzer, FS-Tröndle, 456; cf. also Krüger, FS-Kielwein, 93; Stahn, ZaöRV 2017, 371, 398.

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law are discussed, the trial loses its main purpose.”141 In light of the presumption of innocence, this assertion cannot be followed. The trial itself does not have a deterrent effect, as this would blatantly run counter to the presumption of innocence. General and special preventive effects may only be pursued after the trial has been concluded and the defendant found guilty.142 However, the trial publicly demonstrates that great human rights violations do not remain unpunished and will be prosecuted. The possible punishment following the trial is what causes the deterrent effect. In this regard a trial can serve crime-control purposes.143 Due to the actual threat of prosecution during trial and the possible determination of punishment at the end of the trial it may deter future offenders, as well as specific defendants, from engaging in future criminal conduct. dd) The conflict solving function of the trial The trial procedure also aims to pursue peace under the law by solving the conflict that has arisen between the offender and society.144 It is necessary to redress the imbalance that occurred in the international community and among the group of the victims particularly affected by the evils perpetrated by specific defendants. Moreover, serving the greater goal of bringing stability and development to war-torn places, criminal procedure is seen to have a stabilizing effect between the parties of the conflict.145 The specific criminal trial individualises both the perpetrator(s) and victims, which enables both sides of the conflict to channel their negative feelings towards the other group. If no individualisation takes place “feelings of hatred and resentment seething below the surface will, sooner or later, erupt and lead to renewed violence”.146 It is questionable whether the criminal prosecution does indeed have a stabilizing effect, as other conditions, such as economical gains, need to occur simultaneously in order to have an enduring positive effect.147 Notwithstanding this, a certain contribution will be made to individualisation and this is important as it acts to 141 ECtHR, Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, Joint Concurring Opinion of Judges Power-Forde and Nussberger. 142 Krauss, Der Grundsatz der Unschuldsvermutung im Strafverfahren, 161; Schorn, Der Schutz der Menschenwürde im Strafverfahren, 23 et seq.; Weigend, FS-Kühl, 959; cf. Eisenberg, NStZ 2012, 63, 64; Kamp, FS-Rudolphi, 663; Volk, FS-Böttcher, 217 et seq. See also Stuckenberg, Untersuchungen zur Unschuldsvermutung, 530 et seq. Completely against the basis of preventive deterrence: Wohlers, FS-Paeffgen, 630. 143 Klamberg, 79 NordicJIL 2010, 279, 285. 144 Safferling, International Criminal Procedure, 75; Jung, Nothing but the Truth?, 149 the truth-finding might also take the second place behind the solution of a social conflict. See also Krack, Rehabilitierung, 33 et seq.; LR-Kühne, Introduction H marginal no. 51. 145 Safferling, International Criminal Procedure, 75. 146 ICTY, Annual Report 1994, UN Doc. A749/159, para. 15; ICTY, Prosecutor v. Nikolic´, TC I(A), Sentencing Judgment, 2 December 2003, Case No. IT-02-60/1-S, para. 59. See in a similar vein: Schabas, UN Tribunals, 70. 147 Safferling, International Criminal Procedure, 77 et seq.

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distinguish the opposing ethnic, religious, regionally or otherwise determined groups of belligerents as a collective from the individuals that carry the most responsibility for the evils perpetrated. ee) The exemplary function of the trial As has been mentioned, within the listed goals that ICTs proclaim to achieve is the standard setting role. It seems more accurate to conceptualise this as a goal on the micro level.148 ICTs either act solely within a specific situation, such as the ad hoc and hybrid Tribunals, or occupy a complementary function. In addition, they are only set up to prosecute the senior leaders responsible for atrocities. Consequently, domestic criminal procedural law cannot borrow much of the procedural structure of ICTs since the scope of a functional domestic criminal justice system goes beyond the prosecution of international crimes. On the other hand, seeking guidance from the specific proceedings seems appropriate. ICTs exemplify the implementation of internationally recognised human rights standards, especially the right to a fair trial, by demonstrating best practice.149 A domestic court can try to implement this standard. At the same time, specific procedural elements may be copied and transported into the domestic system in order to (re)establish a functioning judiciary.150 Outreach programs strengthen the model function the procedures at ICTs serve. Capacity building by training local legal professionals is one branch of this programme that tries to help develop best practices within the local judiciaries.151 ff) The didactic function of the trial and spreading respect for the rule of law With Douglas the overall purpose of the trial can be described as didactic in nature.152 The trial is the setting where “justice is seen to be done”153 and the public learns that the rule of law is restored.154 By spreading consciousness of the fact that human rights values are effectively protected and violations punished respect for the rule of law is promoted among the general public, including among the directly

148 Also only mentioning it as goal of criminal procedure: Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 66. 149 Ibid.; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71; Schomburg/Nemitz, FS-Laïty Kama, 108. 150 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 66. 151 See e. g.: ICTY, Outreach Programme, http://www.icty.org/en/outreach/capacity-build ing (last accessed: 7 February 2021). 152 Cf. Douglas, Perpetrator Proceedings and Didactic Trials, 192. 153 Rex v. Sussex Justices, Ex parte McCarthy, 1 KB 256, 259 [1925]. 154 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 68; Safferling, International Criminal Procedure, 76.

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affected community and the international community.155 This can also lead to a reinvigoration of the domestic legal institutions.156 The strengthening of the faith in the rule of law also serves the greater didactic mandate ICTs fulfil for the public.157 gg) Fairness, expeditiousness and efficiency of the trial Finally, the conduction of fair, expeditious and efficient trials is seen to be a goal of criminal procedure.158 It is questionable whether these notions can in fact be claimed as goals in and of themselves.159 A criminal trial is not conducted for the sake of expeditiousness, fairness or efficiency, but where the decision to conduct a trial has already been made, the task should be fulfilled fairly, expeditiously and efficiently.160 Following Eser this can be described as conceptual category of modes, i. e. describing the manner in which the different goals – the endpoints of the actions – are to be fulfilled.161 The former two notions in particular must be regarded in light of internationally recognised human rights standards when conducting criminal trials. Fairness is without doubt an important value underlying the criminal trial,162 but not a goal in and of itself. c) Interim findings Seven different goals of international criminal procedure have been identified. These are, first and foremost, the instrumental goal of the implementation of substantive international criminal law, as well as the procedural aims of the aspiration to find the truth, participation of potential victims, special and general deterrence, the solving of a conflict, the exemplary functions, the spreading of respect for the rule of 155 Safferling, International Criminal Procedure, 76; Drumbl, Atrocity, Punishment, and International Law, 173 speaks of the expressive function. See also McDermott, Fairness in International Criminal Trials, 147; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71. 156 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 68. 157 de Meester, The Investigation Phase, 101; Drumbl, Atrocity, Punishment, and International Law, 173. 158 Klamberg, 79 NordicJIL 2010, 279, 289; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 63, 66 sees fairness as normal goal but efficiency as background goal as in at cannot stand alone as goal much rather a certain feature must be conducted efficiently. 159 de Meester, The Investigation Phase, 101; Eser, Procedural Structure and Features, 111, 132; Murmann, GA 2004, 65, 67. Of other opinion Schrag, 2 JICJ 2004, 427, who submitts that international criminal justice is designed to demonstrate the highest standards of fairness and needs to function with maxim transparency and public scrutiny. 160 Eser, Procedural Structure and Features, 111, 132. 161 Ibid., 115; Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 55 speaks of function instead of mode. 162 Fedorova, The Principle of Equality of Arms, 134; Jackson, 7 JICJ 2009, 17, 22; Safferling, Towards, 21.

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law and the socio-pedagogical function professed when conducting a trial. Unlike the servant function with regard to substantive international criminal law, the latter procedural goals – as intermediate goals on the way to the goals on the macro level – nourish the autonomy and intrinsic value of criminal proceedings.

2. Compatibility of trials in absentia with the goals of international criminal procedure Having identified the goals and values of international criminal procedure, it is necessary to apprise whether these goals are thwarted when the defendant is not present at the trial hearing. a) Truth-seeking, convicting and condemning of the guilty, acquitting the innocent in a trial held in absentia The endeavour to get to the truth has been identified as one goal of the criminal trial. It is obvious and often asserted that the judgment and fact-finding are better informed when the defendant is present.163 Not only are instructions by the defendant crucial for proper cross-examination by defence counsel,164 it is also said to help the court in finding the truth.165 Considering that the defendant can make use of his right to remain silent, it is questionable whether the presence of the accused does actually serve the establishment of the facts and assertion of truth. Where there is no need for the defendant to actively support the fact-finding, it cannot be assumed that his absence would hamper the fact-finding. The accused as a passive or mute presence does not help to establish any facts.166 In this case objective truth needs similarly be established without direct knowledge of the defendant’s motives.167 163 ICTY, Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2005, Case No. IT-95-518-T, para. 20; Ambos, Treatise Vol. III, 165; LR-Becker, Section 231 marginal no. 1; Fezer, Strafprozessrecht, Chapter 11 marginal no. 60; Friman, Trying Cases in the Absence of the Accused?, 334; KK-Gmel, Section 230 marginal no. 1; Donatsch/Hansjakob/Lieber-Gut/Fingerhuth, Art. 336 marginal no. 5; Hassemer, JuS 1986, 25, 27 et seq.; Kamp, FS-Rudolphi, 664; Krüger, FS-Kielwein, 90; Lampe, MDR 1974, 535, 539; Maatz, DRiZ 1991, 200, 201; Roxin/Schünemann, Strafverfahrensrecht, § 44 marginal no. 42; Safferling, International Criminal Procedure, 397; MeyerGossner/Schmitt-Schmitt, Section 338 marginal no. 3. Cf. also Hoven, Rechtsstaatliche Anforderungen, 441; Pons, 8 JICJ 2010, 1307, 1320; e contrario BVerfG, StraFo 2007, 190 (191 et seq.). 164 SCSL, Prosecutor v. Sesay et al., Transcript, 11 January 2005, Case No. SCSL-2004-15T p. 43; Friman, Trying Cases in the Absence of the Accused?, 340; cf. Hoven, Rechtsstaatliche Anforderungen, 441. 165 Friman, Trying Cases in the Absence of the Accused?, 340; Pons, 8 JICJ 2010, 1307, 1310. 166 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl No. 26103/95, Concurring Opinion of Judge Bonello.

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Furthermore, where the defendant is in fact guilty, he has an interest in concealing the truth.168 Under these circumstances, the presence of the defendant could even be seen to negatively influence the endeavour to get to the truth, as the defence will often present different interpretations of the facts that may not be congruent with the reality. This consideration is, so to speak, also a reason why the truth to be found in a criminal trial can only be the one congruent with reality.169 It cannot be based on the negotiation, rhetorical skills or partisan interests of the defence.170 On the other hand, in absence of the defendant the court will be unable to gain an impression of the accused as the evidence is presented and there is no opportunity to compare the accused’s statement to witness’ and potential victims’ assertions.171 It should, however, be pointed out that this assertion is highly dangerous as a verdict is to be based on the evidence before the chamber and not on any reaction to it by the defendant.172 It should further be considered that the prosecutor is “an organ of international criminal justice charged with the duty to assist in discovering the truth.”173 STL, KSC and RomeSt also reflect that in their respective legal framework.174 The prosecutor does not lose his status as an organ of international criminal justice in the defendant’s absence. He is to promote the search for truth regardless of whether it supports his case or exonerates the defendant. Further, the prosecution has to present 167 Hoven, Rechtsstaatliche Anforderungen, 441. Cf. the argumentation of Welp, 90 ZStW 1978, 101, 119 regarding mandatory defence. 168 Damasˇka, 83 ChiKentLRev 2008, 329, 337; de Meester, The Investigation Phase, 104; Jörg/Field/Brants, Are Inquisitorial and Adversarial System Converging?, 43; similarly Habermas, Theorie der Gesellschaft oder Sozialtechnologie?, 200 et seq. 169 Damasˇka, 49 HastingsLJ 1997, 289, 296 with footnote 15; Volk, Wahrheit und materielles Recht, 17. See also Habermas, Theorie der Gesellschaft oder Sozialtechnologie?, 201, who is critical towards using the consensus theory of truth in judicial proceedings although he generally endorses this theory. See for his approach to the consensus theory: Habermas, Wahrheitstheorien. 170 Volk, Wahrheit und materielles Recht, 17; cf. also Damasˇka, 83 ChiKentLRev 2008, 329, 337. 171 ICC, Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled ‘Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial’, ICC-01/09-01/11-1066-Anx, 25 October 2013, Joint Separate Opinion of Judge Kourula and Usˇacka, para. 9; Friman, Trying Cases in the Absence of the Accused?, 334; Gardner, 43 GeoWashIntlLRev 2011, 91, 133; Pons, 8 JICJ 2010, 1307, 1310; cf. also Hoven, Rechtsstaatliche Anforderungen, 439. 172 Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 24. 173 STL, Prosecutor v. Ayyash et al., PTJ, Decision on the Sabra Defence’s First, Second, Third, Fourth, Fifth and Sixth Motions for Disclosure, 8 November 2012, Case No. STL-11-01/ PT/PTJ, para. 32. 174 Art. 54(1) RomeSt; Rule 55(C) STL-RPE; Rule 62 KSC-RPE. STL, Prosecutor v. Ayyash et al., PTJ, Decision on the Sabra Defence’s First, Second, Third, Fourth, Fifth and Sixth Motions for Disclosure, 8 November 2012, Case No. STL-11-01/PT/PTJ, para. 32. Also ICTY and ICTR acknowledged this duty of the prosecutor: ICTY, Prosecutor v. Stakic´, Transcript, 25 November 2002, Case No. IT-97-24, p. 9437; ICTR, Prosecutor v. Karemera et al., AC, Decision on Interlocutory Appeals Regarding the Role of the Prosecutor’s Disclosure Suite in Discharging Disclosure, 30 June 2006, Case No. ICTR-98-44-AR73.7, para. 9.

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a complete evidentiary record of all relevant evidence upon disclosure in the presence as in the absence of the defendant.175 In light of the foregoing, truth-finding is possible also in the absence of the defendant.176 Accordingly, the identification of the guilty and their distinction from the innocent, simultaneously one of the main goals of international criminal justice – fighting impunity for the greatest atrocities – is not compromised by the defendant’s absence.177 The means of determining the culpability of a defendant in a criminal trial is the collection of evidence, both of documentary and testimonial nature. The criminal procedure at ICTs is structured so that at trial the relevant evidence is admitted and the judgment based thereon, whereas irrelevant evidence is excluded.178 Usually the prosecution engages in broad investigations of the incriminating and exculpatory evidence, which is disclosed to the defence party. The onus is then on the parties to present the evidence deemed relevant for the determination of culpability or non-culpability of the defendant at trial. Ultimately it is the chamber, however, which decides what evidence is in fact admitted at the stage of the trial guided by rules of evidence developed in the RPE.179 The judges across all tribunals have the possibility of investigating the relevant evidence beyond the parties’ presentation of their respective cases.180 Thus, it is not principally the defendant who is engaged in the fact-finding. Ideally the defendant largely contributes to the defence case, but it remains questionable how much this in fact occurs in practice. Clearly the defence party also presents evidence, but it significantly is based on the evidence what has been disclosed by the prosecution and does not necessarily presuppose the defendant’s presence. Where it is ultimately upon the judges to vindicate the innocent and condemn the guilty, and where they have ex officio means at hand to reach that determination, the defendant’s absence will not hamper that determination. To conclude, it is in line with the goals of the establishment of truth and finding those responsible for crimes committed to try defendants in absentia.

b) Potential victims’ participation during a trial in absentia If the aim of victim participation is solely restricted to the possibility of giving the potential victims a voice, no matter whether as witnesses or through legal representation, the defendant’s absence cannot hamper the potential victims’ abilities to tell their own story. The public will become aware of their suffering. It is often argued 175 There is, however, no obligation to additionally present exculpatory evidence during trial: Namakula, 17 ICLR 2017, 935, 953. Rather it is upon the defence to tender the disclosed evidence that might be of exculpatory nature. 176 Pons, 8 JICJ 2010, 1307, 1321. 177 Ibid.; Trendafilova, Fairness and Expeditiousness, 451. 178 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 61; Safferling, Towards, 18. 179 Rule 89 ICTY-, ICTR-RPE; Art. 69 RomeSt; Rules 63-75 ICC-RPE. 180 Rule 98 ICTY-, ICTR-RPE; Art. 64(6) RomeSt.

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that it is in the alleged victims’ interest to be personally confronted with the defendant for their own healing, redress and to provide the possibility to move on.181 This argument is troublesome as it presumes the guilt of the accused that is still to be determined beyond a reasonable doubt during the trial.182 It is in the potential victims’ interest to determine the truth and resolve of the case. It is only in the aftermath that they can be sure to have indeed faced a person responsible for the atrocities and suffering that occurred to them. In light of this, it is questionable in what way any reconciliation benefit for the victim exists when the defendant is present. Moreover, Letschert, a victimologist, who has interviewed participating victims at the STL’s Ayyash et al. in absentia trial, underlines that it allowed “a very meaningful participation” and empowered the potential victims to be part of the trial against the alleged offenders.183 Let alone the curing affect following the official recognition of the harm suffered by an international(ised) institution.184 This suggests that the defendant’s presence is not a necessary prerequisite in order to meet the potential victims’ needs in judicial participation. However, further research is needed to determine conclusively whether the victims’ morale has been affected by the trial in absentia.185 c) The deterrent effect of a trial in absentia With regard to the alleged deterrent effect a trial has,186 it depends on the addressee whether the defendant’s absence may hamper this function. On the one hand, the trial is held publicly no matter whether the defendant is present or absent, so that the public can be deterred from engaging in the recurrence of similar crimes. It could be assumed that for the deterrent effect it makes no dif181 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11-1066, para. 49; see also ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, Common Legal Representative for Victims’ Response on the Joint Defence Submissions on Legal Basis for the Accused’s Presence at Trial via Video-link, 19 March 2013, Case No. ICC-01/09-01/11-657-Anx.; Pons, 8 JICJ 2010, 1307, 1320. They, however, do not specify why exactly the victims’ morale is effected by the defendant’s absence. Knottnerus, 13 LPICT 2014, 261, 285 also raises this point, however, admits that it is solely an assumption. 182 In a similar vein: Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 16; Volk, FS-Böttcher, 216; Hüls/Reichling, StV 2014, 242, 246; Wheeler, 28 CrimLF 2017, 99, 125. 183 STL, Bulletin, Victims Case in the Ayyash et al. Trial, 28 August – 8 September 2017, p. 12. 184 Hoven, Rechtsstaatliche Anforderungen, 439, 441; Thieroff/Amley, 23 YaleJIntlL 1998, 231, 249. 185 In the same vein: Knottnerus, 13 LPICT 2014, 261, 285. 186 It has already been shown that the presumption of innocence must be carefully observed when speaking about the trial’s deterrent effect: E. II. 1. b) cc).

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ference whether the trial occurs in absentia. In that respect, empirical studies have shown that the defendant who was present and had the possibility of immediately and actively participating in criminal proceedings is more likely to accept the verdict no matter its outcome.187 Though much of the perceived outcome’s fairness comes from the perception of having been fairly treated,188 thus, not necessarily the fair treatment in presence. Casper et al. even find “that formal procedures [such as] a trial may appear to a judge or researcher to offer a defendant more participation and voice than a plea bargain, it may not be experienced in this fashion by the defendant.”189 Additionally, empirical studies show that there must be a real threat that an alleged offender is caught and may be subject to punishment should his guilt be established in the trial procedure.190 Where a defendant has been tried in absentia because he could not be brought to the courts premises, it is questionable whether there is a real threat of prosecution or punishment.191 Once the defendant evaded the trial, it is likely that he will remain hidden in order to evade punishment after he has been convicted. Many accused of atrocities are still at large. A prime example is Indonesia where many persons accused by the SPSC have fled. These fugitives will most likely never be prosecuted since the internationalised institution in East-Timor is no longer functional.192 Besides, only a very small number of those, who are allegedly responsible for the atrocities can be brought to trial due to budgetary reasons and the brief mandates proclaimed by a portion of ICTs.193 Having said that, it should be taken into consideration that it has not been established with certainty that criminal prosecution does in fact have a deterrent effect.194 It should be noted in this regard that the 187 Casper/Tyler/Fisher, 22 Law and Society Review 1988, 483; Trechsel, 118 ZStR 2000, 1, 10 et seq. Cf. Landis/Goodstein, 11 American Bar Foundation Research Journal 1986, 675, 701 et seq. See also Stein, 97 ZStW 1985, 303, 327. 188 Casper/Tyler/Fisher, 22 Law and Society Review 1988, 483, 503 et seq.; Landis/ Goodstein, 11 American Bar Foundation Research Journal 1986, 675, 701 et seq.; Tyler, Why People Obey Law. The studies follow the tradtion of Luhmann’s theory of ‘legitimation through procedure’, which draws attention to the individual perception of legitimation: Luhmann, Legitimation durch Verfahren2nd, 116. 189 Casper/Tyler/Fisher, 22 Law and Society Review 1988, 483, 504. 190 Braithwaite, Crime, Shame and Reintegration, 69; Duff, et al., The Trial on Trial, 228; Drumbl, Atrocity, Punishment, and International Law, 170; Hoon, 17 ICLR 2017, 591 – 614, 601; Hörnle, Straftheorien, 24; Paternoster, 100 JCrimL&Criminology 2010, 765, 766; Safferling, International Criminal Procedure, 67. 191 Cronin-Furman, 7 International Journal of Transitional Justice 2013, 434 even sees punishment at ICC not to be certain and also criticises the severity of punishment as too low. 192 See above fn. 6. 193 Hoon, 17 ICLR 2017, 591 – 614, 599; cf. also Stahn, ZaöRV 2017, 371, 374. 194 Critically as to the deterrent effect: Drumbl, Atrocity, Punishment, and International Law, 169 et seq.; Fedorova, The Principle of Equality of Arms, 135; Hoon, 17 ICLR 2017, 591 – 614, 601 et seq.; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 88. See also Stahn, ZaöRV 2017, 371, 377. For a thorough analysis that finds the figures to be ambiguous and not unveiling a clear picture with regards to the special deterrent effect: Dancy, 17 ICLR 2017, 625, 644 et seq. Whereas for general deterrence he finds a positive impact: ibid., 650 et seq. Asserting that the

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Srebrenica genocide occurred after the ICTY had been established. Admittedly, no judgment has been rendered at this young stage of the tribunal. This notwithstanding, such failure to prevent genocide of such immense magnitude does not bode well for the alleged deterrent effect. That being said, it should be taken into consideration that the authority of an arrest warrant based on a judgment of an international court following a full trial and review of the evidence given in convicting a defendant may have greater authority than an arrest warrant that is based on the confirmation of charges from a pre-trial judge or chamber. While it is not certain that the current legitimacy problems of the ICC that led to African states’ unwillingness to arrest suspects195 would change, it is not unreasonable to assume that a judgment rendered in absentia might convince states that were initially unwilling to cooperate, to change their minds. The more so when considering that stigmatising and shaming, which begins already with the issuing of charges,196 is the main trigger in order to prevent future crimes whether by the specific offender or the general public.197 The perception of alleged perpetrators within their communities and within the international community bears weight among states and specific perpetrators.198 Furthermore, the condemnation of certain crimes can have a positive effect in the prevention of recidivism of atrocities.199 Finally, a positive deterrent impact following the fear of prosecution by the ICC has been observed among African leaders in the case of Burkina Faso’s former president, Blaise Comparoé, who stepped down when riots against his proposed constitutional change, which would have allowed him to continue his presidency indefinitely, arose.200 Under this assumption the threat of punishment and not the threat of standing trial as such is real, also when an in absentia trial occurs.201 Though research suggests that the active participation of the defendant can have a positive effect on the deterrence, trials in absentia can also promote specific and general deterrence.

general preventive effect sustains a significant loss when the trial takes place in absence of the defendant: Plaisier, Het verstek in strafzaken, 5 et seq. 195 Hoon, 17 ICLR 2017, 591 – 614, 593 with footnote 3. See also for the AU’s Withdrawal Strategy Adoption of “ICC Withdrawal Strategy”, January 2017, https://www.hrw.org/sites/ default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf (last accessed: 7 February 2021). 196 Namakula, 17 ICLR 2017, 935, 942. Surely, the presumption of innocence should prevent these stigmas but within society such judgmental thinking can clearly not be fully prevented. 197 Dancy, 17 ICLR 2017, 625, 655. 198 Ibid., 634; in a similar vein eloquently appraising the sanctioning character of the criminal trial: Gaede, 129 ZStW 2017, 911, 953 et seq. 199 Stahn, ZaöRV 2017, 371, 377. 200 Niang, 17 ICLR 2017, 615, 624. 201 Of other opinion Wheeler, The Right to be Present at Trial, 84.

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d) The conflict solving potential of a trial in absentia One could argue that the conflict solving function cannot be reached without the presence of the defendant.202 The ICTY Trial Chamber in this regard found that “an important function of the trial process […] was to seek further peace and reconciliation amongst and between the various factions involved in the conflict in the former Yugoslavia. To allow the Trial Chamber to hear and assess only half of the evidence, albeit from the party charged with the burden of proving its case beyond a reasonable doubt, would be to deny the opportunity the trial process may have to engender such peace and reconciliation as may be gleaned from a full hearing of the evidence brought by both the Prosecution and the Accused”.203 Only where both sides of the conflict are thoroughly investigated, can reconciliation and healing in the postconflict society begin.204 The different viewpoints triggered through and within the conflict continue to have an effect on the region and can only be surmounted when both sides are equally represented and taken into consideration. Then again, the trial can resolve the social conflict no matter whether the defendant is present at the trial or not: the law is reasserted and peace under the law re-established via a ritual process that determines the (non-)culpability of the defendant. The individualisation of the perpetrator occurs by convicting the defendant of particular criminal conduct or by dismissing all charges brought against him, regardless of whether he is present. The defendant, although not physically present, is still party to the procedure and a meaningful part. A contribution to stabilising the society, however small, can also be made where the trial is held in absentia regardless of whether or not that goal is potentially better served in the defendant’s presence. Moreover, one should not underestimate the difference between someone, who has been tried, while not being present to receive punishment and someone who has not been tried at all. In the latter case “people might reasonably feel that justice has not been done, or that he escaped justice […] If, however, he dies after being convicted at a trial, but before undergoing punishment, that feeling is likely to be much less acute: at least, we can say, he was brought to trial for his crime.”205 e) The exemplary function of a trial in absentia The exemplary function can also be fulfilled without the presence of the defendant. It is necessary to respect the fairness standard in a similar fashion as it would 202

ICTY, Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009, Case No. IT-95-5/18-T, para. 20; Hoven, Rechtsstaatliche Anforderungen, 440; Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 153. 203 ICTY, Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009, Case No. IT-95-5/18-T, para. 20. 204 Hoven, Rechtsstaatliche Anforderungen, 440; Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 153. 205 Duff, et al., The Trial on Trial, 81.

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be respected with a defendant in attendance. Likewise, procedural features and safeguards are used in the same way no matter whether the defendant is tried in absentia or in person. The fact that a trial may be conducted in absentia genuinely does not make it a sham proceeding as long as it adheres to the internationally recognised standards of fairness.206 Fairness can be demonstrated even in the defendant’s absence as will be shown further below.207 f) The didactic function of a trial in absentia and its ability to restore the rule of law If the didactic function of a criminal trial is understood as some sort of history lesson, parallelly to the record function, there is no obstruction created by the defendant’s absence. However, Damasˇka, for example, conceives of the didactic function more broadly, insofar as it helps building a consciousness for human rights values on the macro level. This function must also be served on the micro level of a particular criminal trial. According to him, some procedural implications follow from the overall socio-pedagogical function of ICTs, one of which is less adversarialism. An overly adversarial structure of the procedure weakens the overall message and thereby the socio-pedagogical function.208 Especially during the defence case, messages and ideas detrimental to human rights values – precisely the values the didactic function aims to spread – can be presented publicly. This is especially the case where pro se defence occurs.209 One could assume that in this regard trials in absentia could be helpful because there the defendant is unable to present views that might run counter to the human rights values the trial aims to (re)enforce. Then again, the argument loses strength when its prejudicial nature is considered. Besides, the adversarial bipolar structure of presenting two cases, which is still well established in trial procedures at ICTs, requires as a precondition that a defence case is presented. Otherwise no opposition to the prosecution’s case occurs, which has a negative aftertaste. “The reason is straightforward, for it is hard to organize a forensic battle if one combatant refuses to fight.”210 Hence, as indicated above, it is essential to have the defence party represented in the defendant’s absence. The absence of the defendant does not hamper the didactic function of an international criminal trial; the human rights violations are still publicly exposed and cannot be negatively affected by a statement from the defendant. In addition, the rule of law is restored by the conduction of a trial against the defendant, whether present or absent. The public is made aware that the gravest crimes will not remain unpunished. However, the ad206 Arguably of different opinion, strengthening the need of justice to be seen to be done: Skilbeck, 8 JICJ 2010, 451, 460 et seq. 207 G. 208 Damasˇka, 83 ChiKentLRev 2008, 329, 357. 209 Ibid. 210 Ibid.

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versarial structure of the trial can run counter to the didactic function when no case is presented on behalf of the defence. g) Interim Findings Notwithstanding the fact, that some of the goals might be better served when the defendant is present, it has been shown that the goals of international criminal procedure can also be promoted when the trial is held in absentia.

3. Theories that conceptualise criminal procedure as having a further intrinsic value Beyond the instrumental function of international criminal procedure and the other procedural aims, some theorists conceptualise (international) criminal procedure as having a further intrinsic value. That is, beyond the intermediate goals of the process that ultimately serve the broader goals of international criminal justice, the criminal trial is seen to have an additional value in and for itself. In this regard, too, the procedural set-up of the ICTs ought not to run counter to these further intrinsic values. Accordingly, the procedural theories that give the criminal trial an intrinsic function shall be described and their compatibility with trial in absentia will be tested. It is very common for studies in the area of international criminal procedure to focus on Damasˇka’s theory of criminal procedure developed in his book entitled “Faces of Justice”.211 When applying Damasˇka’s categories, as others have already done, to the goals ICTs pursue and their general procedural framework, international criminal procedure is rather policy-implementing, which goes along with the need for an ICT that resembles an activist state.212 However, despite the importance of Damasˇka’s categories for the classification of criminal procedures it sheds no light on the matter of trials in absentia. Both conflict-solving and policy-implementing procedures, the two categories Damasˇka has developed, can be realised without the defendant. Similarly, Packer’s213 models of Crime Control and its antipode Due Process do not amount to a normative theory, but rather help to identify and interpret 211

Damasˇka, The Faces of Justice and State Authority. Cf. Heinze, International Criminal Procedure and Disclosure, 209 et seq.; Tuinstra, Defence Counsel in International Criminal Law, 121 et seq.; not coming to a final determination but sketching several procedural features under Damasˇka’s conception: Swart, 6 JICJ 2008, 87, 99 et seq. Swart, International Criminal Justice and Models of the Judicial Process, however, admits that most of the idiosyncratic goals of international criminal justice predominately are of policy-implementing nature, whereas the traditional goals have both policy-implementing and conflict-solving elements. 213 Packer, 113 UPaLRev 1964, 1. 212

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certain trends in criminal procedure.214 These ideal types cannot solve the question of whether ICTs’ criminal procedure should inherit the possibility of trying defendants in absentia. Instead, due to the scope of this study, the following will predominately focus on the normative theories of criminal procedure. Just like the present study, these theories aim to find out how a criminal trial ought to be shaped. Moreover, Ohlin’s meta-theory of international criminal procedure will be given special attention as it is the only concept that focuses on international criminal procedure. a) Habermas’ discursive theory of law According to procedural and communicative theories with Habermas’ discursive theory215 of law leading the way, only a communicative rational discourse can establish legitimacy. Stemming from his discourse ethics, Habermas finds that the procedural aspect of the public use of reason is decisive for a norm’s legitimacy.216 It is therefore crucial to have clear “conditions of rational discourse and negotiations”.217 According to Habermas, the principle of discourse is central for the legitimation of any action norm. He defines it as follows: “just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.”218 This presupposes an ideal speech situation, meaning the inclusion of all participants that are capable of participating, equal chances to present arguments and unrestricted room for discourse (herrschaftsfreier Diskurs).219 Admittedly such an ideal perspective is counterfactual; de facto solely an approximation of this ideal is possible.220 Outcomes developed in such approximated ideal rational discourses are, hence, fallible. However, according to Habermas, “the flow of discursive opinionand will-formation [of a legal community can be organised] in such a way that their fallible results enjoy the presumption of being reasonable.”221 In the sphere of law the

214

Ashworth/Redmayne, The Criminal Process, 39 et seq. It should be noted that Habermas’ theory is, similarly, incompatible with the present understanding of truth. The development of a consensus theory of truth can even be understood as starting point of Habermas’ engagement in developing his Discourse Theory of law: Habermas, Wahrheitstheorien. 216 Habermas, 92 The Journal of Philosophy 1995, 109, 130 et seq. 217 Ibid., 131. See for further details: Habermas, Faktizität und Geltung. 218 Habermas, Between Facts and Norms, 107. See for the original version: Habermas, Moralbewusstein und kommunikatives Handeln, 103; Habermas, Faktizität und Geltung, 138: “Gültig sind genau die Handlungsnormen, denen alle möglicherweise Betroffenen als Teilnehmer an rationalen Diskursen zustimmen könnten.” 219 Habermas, Moralbewusstein und kommunikatives Handeln, 98 et seq. See for a detailed analysis of the ideal speech situation: Habermas, Wahrheitstheorien, 159 et seq. 220 Habermas, Moralbewusstein und kommunikatives Handeln, 102. 221 Habermas, Between Facts and Norms, 301. See for the original German version Habermas, Faktizität und Geltung, 365: “Fluß der diskursiven Meinungs- und Willensbildung” so reguliert, dass “ihre fallibelen Ergebnisse die Vermutung der Vernünftigkeit für sich haben”. 215

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principle of discourse claims a legitimacy equal to that of moral discourses.222 In Faktizität und Geltung223, Habermas develops a “proceduralist paradigm of law”224 by applying his discourse ethics to public law and legitimising the democratic state order. Judicial proceedings are also based on the discourse principle. However, a judicial decision is not a discourse of justification, in contrast, it concerns the application of a norm.225 Hence, with regard to judicial proceedings discourses of application are relevant.226 In addition to the principle of discourse, for these types of discourses, the principle of appropriateness,227 i. e. the norms “appropriate reference to a situation”,228 is applied.229 A judicial verdict is therefore only valid when it is based on a legitimate norm – a norm that has been legitimatised in a discourse of justification – and appropriately applied to the specific situation. In his contribution to a Discourse Theory of Law Habermas focuses on public law and has not applied his Discourse Theory to criminal law.230 In analogy to Habermas’ idea of discourses of application the present study understands the criminal trial as such a discourse of application. However, contemplating the criminal trial as discourse of application231 many questions remain, especially with regard to its application in international criminal procedure. A discourse of application in a specific case requires a legitimate norm. Thus, the preliminary question arises whether international criminal law has 222

Habermas, Faktizität und Geltung, 138 et seq. See as for the English translation: Habermas, Between Facts and Norms. 224 Ibid., xl. See for the German original version Habermas, Faktizität und Geltung, 10: “prozeduralistisches Rechtsparadigma”. 225 Habermas, Faktizität und Geltung, 140. In this distinction Habermas follows his disciple Günther in Günther, 20 Rechtstheorie 1989, 163, 167 et seq., 184 et seq. and dissociates himself, as Günther does, from his disciple Alexy in Alexy, Theorie der juristischen Argumentation, 259 et seq., 349 et seq. 226 Habermas, Between Facts and Norms, 109; Habermas, Faktizität und Geltung, 140; discourses of justification are only of relevance inasmuch the judiciary acts in the grey area between legislation and application of law, i. e. where the law is developed: ibid., 530. 227 Habermas, Between Facts and Norms, 109, 216 et seq.; Habermas, Faktizität und Geltung, 140, 264 et seq. 228 Habermas, Between Facts and Norms, 217 italics in the original. See for the original German version Habermas, Faktizität und Geltung, 267: “angemessene[r] Situationsbezug einer Norm”. 229 Courts are only to include elements of discourses of justification in addition to the discourse of application where the grey area between legislation and application of law is concerned: Habermas, Faktizität und Geltung, 530. 230 Günther, one of Habermas’ disciples, has applied the discourse theory to criminal law, or more specifically the criminal concept of guilt: Günther, Schuld und Kommunikative Freiheit. However, he does not explore on the criminal trial. 231 Need for discourse of justification might occur where the chamber enters the grey area of development of law. In this context the ICTY’s “relaxed approach” (Meron, The Making of International Criminal Justice, 31) to customary international law in order to include the criminal responsibility in a non-international armed conflict in the Tadic´ case inevitably comes to mind: ICTY, Prosecutor v. Tadic´, AC, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 September 1995, Case No. IT-94-I-A. 223

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been appropriately established through a pure discourse of justification that reciprocally considers the valid claims and interests raised by all persons possibly concerned. Not to mention the question of who the discourse participants are in international law. Habermas develops his theory in light of a state’s democratic society. It would first have to be justified that international law is capable of institutionalising opportunities for participation and communication for the civil population in a way that is comparable to a democratic society. This goes far beyond the scope of this study. However, assuming that the necessary condition of a discourse of justification is fulfilled, in a criminal trial as judicial discourse of application the participation and communication between the parties of the procedure is crucial. The arguments presented by the parties as to the appropriate implementation of the – presumably – valid criminal norm in a specific case need to be considered reciprocally. Thus, all participants, i. e. the prosecution, the defendant and the potential victims (representatives), need to have sufficient opportunity to make themselves heard and communicate in order to engage in a rational discourse with the judge about the norms’ appropriate application. At first sight, the absence of the defendant seems detrimental to the conducting of a trial that has a discursive approach since a communicative discourse between the participants is of the highest relevance. Discourse requires the participation of several actors. A discourse of application between prosecution, victims’ representatives and judges seems impure, considering that the main actor and person necessarily affected by the discourse of application, the person whose criminal responsibility is to be established, does not personally engage in the discourse. However, nonappearance, when it is not due to force majeure, is similarly interpretable as a speech act. A deliberate absence can, thus, be interpreted as a statement within the discourse. In any event, it is decisive that there is room for participation in an ideal rational discourse. Whether one takes the opportunity to present oral arguments is another question. The expressive character of the nonappearance remains. Moreover, it will be shown further below that the defendant tried in absentia needs to be represented by counsel.232 The defence counsel is present throughout the trial and can be part of the rational discourse and engage in communicative actions in order to agree upon the application of the criminal norm to the specific case. It is crucial that within an ideal discourse situation, the appropriateness of the verdict can be rationally agreed upon. This is the case in the defendant’s presence as in his absence. Thus, a trial without the defendant’s physical presence can be a rational discourse of application, in the Habermasian sense.

232

E. III. 6. e).

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b) Duff’s communicative theory and Duff and colleagues’ normative theory Duff’s theory of the trial also ascribes more than a merely instrumental function to the criminal process and particularly to the trial. A trial is more than ensuring the accurate evaluation of evidence much rather “the aim of a criminal trial is […] to communicate and justify that judgment – to demonstrate its justice – to […] [the defendant] and others [the public].”233 The participation of the defendant and the publicity of the trial can, hence, be seen as a hallmark of the trial. The criminal trial provides a setting for communicating with the defendant. “It tries to persuade the person whose conduct is under scrutiny of the truth and justice of its conclusions.”234 A trial has an intrinsic significance. In that respect, a rational process of communication justifies the verdict.235 A trial “aims to engage with the defendant in a communicative enterprise of argument and justification; but we recognise that we should, in practice if not ideally, allow her [him] to refuse to take part in it”,236 for example where the right to remain silent pertains. Accordingly, the defendant should ideally be present at trial,237 although he might decide not to actively engage in the communicative process. Duff’s theory, just outlined, which has been developed in light of his theory of punishment, has recently been further developed to a full normative theory of the criminal trial in the Trial on Trial238 research project conducted in cooperation with Farmer, Marshall and Tadros. As an ideal model of the criminal trial they develop a communicative theory that starkly dissociates itself from the instrumentalist view that a trial solely serves the determination of the guilty who then can be subject to punishment.239 That is not to suggest that truth-finding is not an important part of the criminal trial. In contrast, truth is conceptualised as normative true knowledge the fact-finder gains through a communicative and participatory process regarding the defendant’s conduct and in the condemnation of it.240 This approach unites both the accuracy of the outcome and the fairness of the process that reaches a verdict.241 In their view the focus of the criminal justice system is wrongdoing, as it is part of the “general social practice of holding one another responsible for wrongful conduct”.242 The trial takes on the role of “publicly call[ing] defendants to answer a charge and to account for their conduct, as well as condemning them in the name of the public if 233 234 235 236 237 238 239 240 241 242

Duff, Trials and Punishment, 115. Ibid., 116. Ibid., 118. Ibid., 133. Ibid., 117. Duff, et al., The Trial on Trial. For the dissociation of the instrumentalist view see especially: ibid., 62 et seq. Ibid., 61 et seq. Ibid., 89. Ibid., 288; see also ibid., 303.

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they are proved guilty”.243 Central in the communicative conception of the trial is the defendant’s participation, or much rather an invitation to participate as rational agent.244 For that purpose, the defendant is vested with participatory rights. The conduction of the criminal process and the moral condemnation that goes along with it must be justified.245 The fact-finder is therefore to express in a first-personal plural speech act the verdict he found during the trial and treat defendants “as citizens of a liberal polity”.246 The idea of communication also underlines the reciprocity of responsibility as the defendant is also afforded the possibility of scrutinising the other actors’ conduct by engaging in a dialogue with them.247 At first sight Duff’s expressive theory seems to be detrimental to the conduction of a trial in absentia. In spite of this, Duff admits that where the defendant absconds, behaves disruptively or after the initiation of the trial, wilfully decides to leave the court, the defendant can be tried in his absence. “[E]ven if the court cannot communicate and justify its verdict directly to her [/him], it can still communicate and justify it to the community as a whole.”248 The justification of trial in absentia significantly depends on who the communication partner is. If the addressee is exclusively the defendant as rational and responsible agent, a trial without him was not thinkable. Where, however, the public is the addressee of the trial procedure, a trial in absentia does not run counter to the communicative conception of a trial. In an ideal criminal trial both are true: the defendant personally as well as the public shall be addressed, which finds expression in the principle that trials are generally conducted publicly. Moreover, the international trial aims to communicate ideally with the defendant, but also engages in communication with the affected community and the international community as a whole. The socio-pedagogical function attempts to educate the whole international community in how and why atrocities happen, in order to prevent them in future. In a similar vein, notwithstanding the central role of the defendant’s ideally active participation, Duff and colleagues argue that “participation through counsel is sufficient to secure the value of the defendant’s participation”.249 At times being represented by counsel can even be more effective in allowing for significant involvement in the criminal process.250 In light of the foregoing the defendant’s absence

243

Ibid., 285. Ibid., 119, 124, 128, 153, 203, 225, 227. 245 Ibid. 246 Ibid., 288. 247 Ibid., 216, 219, 225 et seq. That is of course not to say that the principle against selfincrimination must not be abided by. See for Duff, et al. conception of the principle against selfincrimination: ibid., 211. 248 Duff, Trials and Punishment, 117. 249 Duff, et al., The Trial on Trial, 221; see also ibid., 203 et seq. 250 Ibid., 211. 244

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does not generally run counter to the normative theory advanced by Duff and colleagues. c) Other normative approaches When speaking about normative theories of criminal procedure Burns’ theory of the trial251 should not be left out. By using a case example and empirical data Burns develops a thick theory of trial describing how a trial works and how it enables the jury to come to a sound verdict. However, due to his focus on the American jury trial and jury actions, for the purposes of this study Burns’ normative account of the trial is not fruitful, since jurys, let alone other lay participants, do not take part in international criminal trials. Another normative approach has been established in English doctrine. Ashworth and Redmayne develop a “rights-based theory of the criminal process” that sees the trial aiming toward the twin values of determining accurate outcomes and protecting fundamental rights, especially fairness, throughout the procedure.252 The theory particularly regards the protection of individual fundamental rights that, according to Ashworth and Redmayne, can be curtailed in the criminal process only when the reasons and the weighing of rights and public interests follow a transparent and rigorous framework.253 The existence of fundamental rights, especially the procedural rights enshrined in the ECtHR, is internal, i. e. a core value, to the criminal process.254 Thus, the respect for dignity and rights is intrinsic to the trial rather than a mere side constraint.255 By respecting the rule of law during trial, on the one hand, the defendant’s dignity and rights are associated with and on the other hand, the state’s actions in prosecuting crime, in particular the legality of police actions during the investigations, are examined.256 The theory recognises values that may collide with fundamental rights of the defendant such as rights of witnesses, the public interest immunity for disclosure of evidence, or other public interests considerations257, but it also establishes a very strict framework for diminishing fundamental rights that requires “an empirically grounded, reasoned and principled course of argument”.258 They also try to dissociate themselves from consequentialist theories that they find 251

Burns, A Theory of the Trial. Ashworth/Redmayne, The Criminal Process, 23, 25, 28, 39, 58. It should be noted that their concept of criminal procedure bases on a retributive, desert-based theory of punishment: ibid., 45 et seq. 253 Ibid., 43, 60. 254 Ibid., 28, 30 et seq., 322. 255 Ibid. 256 Ibid. 257 Ibid., 41 et seq. Ashworth and Redmayne clearly reject the balancing concept often used in English criminal legislation and courts, which in their view lacks clarity and is simply “the pronouncement of a conclusion”. 258 Ibid. 252

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allow for the curtailing of rights in pursuit of a single value.259 None of the diverging definitions of that single value by consequentialists can grasp the complexities of values that interact in criminal proceedings.260 When putting Ashworth and Redmayne’s theory in action for our present topic – trial in absentia –, the trial’s aim is the implementation of internal fundamental rights. It has been shown that the absence does not hinder the accuracy of fact-finding, so that the second part of the theory, accuracy of the outcome, is not hampered by the defendant’s absence. The compatibility of trials in absentia with internationally recognised human rights standards, although under strict circumstances, will be established further below261; insofar as the conduction of trials in absentia does not generally run counter to the rights based approach to criminal trials. Notwithstanding this, the defendant’s and victims’ rights must be closely observed when trying a defendant in absentia. d) Ohlin’s meta-theory of international criminal procedure Ohlin in his meta-theory of international criminal procedure conceptualises the vindication of the rule of law as an intrinsic retroactive function of criminal procedure.262 The context in which international crimes happen is generally characterised by a “systematic breakdown of the Rule of Law”.263 This finds expression in the absence of investigation and prosecution of crimes that occur during the conflict. Often they are not even appraised as moral wrong nor condemned as legal wrong.264 Although domestic substantive law might, theoretically, still be in place there is either no authority to enforce it or the enforcement structure, both of preventive and ex-post nature, is systematically prevented from acting.265 ICTs with the conduction of trials try to fill the “legal vacuum with international adjudication”.266 They thereby make the atrocious conduct subject to the rule of law and return the legal process to a situation where regularly no criminal trials are held, which is a goal in and for itself.267

259

Ibid., 45 et seq. Ibid. 261 See chapter E. 262 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 67 et seq.; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 100 et seq.; similarly: Douglas, Perpetrator Proceedings and Didactic Trials, 192 et seq. 263 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 100; in a similar vein: Douglas, Perpetrator Proceedings and Didactic Trials, 192; Pawlik, 1 ZIS 2006, 276, 289. 264 Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 101. 265 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 67. 266 Ibid. 267 Ibid., 68; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 105; in a similar vein: Douglas, Perpetrator Proceedings and Didactic Trials, 192. Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 100. 260

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In like manner Douglas sees the function of the international criminal trial, “publicly to project the sober norms of the rule of law” in a lawless setting where legal and procedural rules have been perverted, as part of the didactic function of international criminal trials.268 Ohlin’s Meta-Theory has one striking argument in its favour. It is able to explain the complementarity scheme of the RomeSt. As the intrinsic value of a criminal trial – not necessarily of an international nature – is the vindication of the rule of law, the ICC can only take action where there is need to subject the atrocities to adjudication.269 Where the domestic criminal justice system is willing and able to try the alleged perpetrators, the rule of law will be vindicated and there is no need for international action. That is not to suggest that national and international trials stand on an equal footing. The instrumental values of trials may differ as they address not only the direct actors of the process but include the international community as a whole instead of simply a distinct society. The intrinsic value of a trial in a lawless society – regardless whether national or international in nature – is the vindication of the rule of law.270 No matter whether the vindication of the rule of law is conceptualised as part of the didactic function, as in Douglas’ concept, or as an additional intrinsic value of criminal procedure, as Ohlin’s meta-theory suggests, it is essential to find out whether the conduction of in absentia trials is compatible with this procedural concept. A possible consequence of a conviction in absentia is that punishment cannot be imposed. Ohlin’s meta-theory underlines that the trial is not only about finding the culpable defendant and punishing him. The intrinsic value of re-establishing the rule of law and holding a trial in a lawless setting is not generally hampered by the absence of the defendant at the trial and his unavailability for punishment.271 Rather the defendant’s action will retrospectively be subjected to adjudication, in spite of the situation of absence of domestic procedural law in which he acted that suggested no such consequences would arise. Ohlin expressly admits that the conduction of trials in absentia seems theoretically legitimate under his meta-theory. However, he ultimately leaves open the question of in what circumstances the defendant’s rights to fairness might outweigh the intrinsic procedural function and trials in absentia may not occur.272 Considering that further below, it will be shown that, under certain strict circumstances, trials in absentia do not run counter to internationally recognised human rights norms, particularly the defendant’s right to a fair trial,273 there is no objection from the meta-theory’s perspective of conducting trials in absentia when these conditions are regarded.274 268 269 270 271 272 273

Douglas, Perpetrator Proceedings and Didactic Trials, 192. Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 107. Ibid. Ibid., 120. Ibid., 119. See chapter E.

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III. Conclusions Different types of procedural goals have been identified. Criminal procedure has an instrumental function for the implementation of substantive ICL. Moreover, truth is the procedural goal which underpins all goals of international criminal justice and is a direct goal of the criminal trial. Beyond that there are intermediate aims of criminal procedure that could be established in light of the goals of the macro level of international criminal justice. These goals include structured victims’ participation, special and general deterrence and the solving of a social conflict. Further, the micro level of a criminal trial serves as a model for domestic proceedings in a post-conflict setting and has a didactic function in spreading consciousness for the rule of law. Finally, the modes in which international trials need to occur have been identified as fair, expeditious and efficient. These intermediate aims show that criminal procedure, and in particular the criminal trial, has an intrinsic value that strengthens its importance and goes beyond the instrumentalist function of criminal procedure. Having said that, a further intrinsic value of a trial is conceptualised differently by some scholars. Central to most theories, which have been developed on the domestic level, is the communicative and legitimising aspect of the trial. Also, the fairness of proceedings is held as an important pillar of the conduction of a trial. It has been shown that fairness is best described as the mode in which a criminal trial is to be conducted. Finally, Ohlin developed a meta-theory of international criminal procedure that sees the intrinsic value of the criminal trial in the vindication of the rule of law by returning to legal process in a lawless setting. It has been shown that there is no general objection for the conduction of trials in absentia neither by instrumental nor by intrinsic goals of the international criminal trial. Particularly when the communicative aspect of the trial is stressed, the ideal procedure includes the defendant’s physical presence. However, in light of the defendant’s broad right to remain silent and the need for legal representation, his absence is not generally incompatible with the conduction of a trial; and the more so where the returning of legal processes is seen as an intrinsic value of the criminal procedure. The international prosecution of the criminal offence fills the legal vacuum, whether or not the defendant is absent. Further, the process solemnly affirms and publicises the validity of international criminal law. Clearly one should see the aims in a realistic way. Goals are there to be striven for but not all of them can be achieved at same time or with the same level of fidelity, but that is the same in the defendant’s absence as in his presence. In any event, since it has been shown that the defendant’s absence is not an obstacle to pursuing both the instrumental and the intrinsic goals of international criminal procedure, from the 274

It should be noted that Ohlin sees an increased attentiveness to the local proceedings as practical impact of the Meta-Theory: Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, 112. In light of this, where local procedures allow for trials in absentia such concept can easily be adopted in the international criminal procedure’s vindication of the rule of law in this legal system.

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perspective of procedural theory there are no general objections to the conduction of trials in absentia.

D. Sources of international criminal procedure Having identified that from the viewpoint of procedural theory there is no obstacle for the conduction of trials in absentia, the following will briefly examine the sources of international criminal procedure in order to find out from which sources ICTs can draw to identify whether trials in absentia can be a feature in international criminal law. In 1983, Schwarzenberger observed that “International Criminal Procedure as the adjective law of an International Criminal Law in any substantive sense remains in the limbo of lex ferenda. To escape from there requires stronger de facto and de jure order than confederate unions are able to provide.”1 Even in 2006 it was observed that it is “difficult to identify firmly established rules of international criminal procedure.”2 Now, decades later, we are confronted with an emerging body of positivist procedural law from the ad hoc Tribunals and other ICTs. Many of these procedural laws laid out in the respective statute are operationalized in the tribunal’s RPE. The primary source of all ICTs is their own legal framework.3 Within this internal legal framework, the statute enjoys supremacy over the RPE.4 External law is only 1

Schwarzenberger, 1 NotreDameILJ 1983, 21, 25. Sluiter, 6 ICLR 2006, 605, 606, see also 618. Similarly: Cassese, International Criminal Law, 378. 3 Art. 21(1)(a) RomeSt; ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 177; Cassese, FS-Asbjørn Eide, 20; for the ICTR, it includes a wider range of international instruments: UN Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955, 13 February 1995, UN Doc. S/1995/134, para. 12. See also ICTR, Prosecutor v. Kanyabashi, AC, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, 3 June 1999, Case No. ICTR-9615-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 15, who acknowledge that the Statutes are not treaties but have broad similarities. Consider also ICTY, Prosecutor v. Tadic´, TC II, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, Case No. IT-94-1, para. 18 not even mentioning the missing element of a treaty. 4 As for the ICC: Art. 51(5) RomeSt. The internal sources include also additional legal instruments such as the Elements of Crimes, Regulations of the Court, Code of Judicial Ethics, Code of Professional Conduct for Counsel, Staff Regulations, Financial Regulations and Rules and Regulations of the Trust Funds for Victims. These are ranked below the RPE and the highest authority, the RomeSt, see e. g. Bitti, Article 21 and the Hierarchy of Sources of Law before the ICC, 421; Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 461. See for the ad hoc Tribunals: ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 177; Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16-T, paras. 591, 677. Cassese, FSAsbjørn Eide, 20; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 8. 2

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applied where the internal sources fail to establish a regulation, as the textual interpretation of the positive governing instruments is prioritised. This becomes particularly clear in the ICC’s lacuna case law: external sources can be referred to “when the following two conditions are met[:] (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria provided for in [A]rticles 31 and 32 of the Vienna Convention on the Law of the Treaties and [A]rticle 21(3) of the Statute.”5 The silence of the Rome Statute is not prima facie evidence of the existence of a lacuna. Akin to the German doctrine of planwidrige Regelungslücke, an unintended incompleteness must be found in order for a lacuna to be established.6 If a lacuna is established and cannot be closed by interpretation of the internal framework,7 the ICC may apply external norms as secondary sources.8 Similarly, other tribunals are to draw on their internal legal framework before referring to external law, as outlined in the following.

I. Generally applicable sources For this study, it is notable that ICL – including international criminal procedure – is formally a part of (general) international law and can therefore find its sources in this field, namely in Art. 38 ICJSt.9 Applicable sources of law are: (i) treaties or 5

ICC, Situation in Darfur, Sudan: Prosecutor v. Al Bashir, PTC I, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, 2 March 2009, Case No. ICC-02/05-01/09, para. 126. See also ICC, Situation in the DRC, AC, Judgment on Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, Case No. ICC-01/04-168, para. 39; Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art. 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, Case No. ICC-01/04-01/06772, para. 34. 6 Consider the need to check whether there is an intentional gap: de Meester, The Investigation Phase, 29; Nerlich, The Status of the ICTY and ICTR Precedent in Proceedings before the ICC, 312; Paulussen, Male Captus Bene Detentus?, 763 et seq. Cf. Hochmayr, 12 JICJ 2014, 655, 663 et seq., who leaves the applicability of the German doctrine to ICL open. 7 Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 446 et seq. shows that the textual interpretation was applied very broadly by the ICC e. g. in the Lubanga case. Textual interpretation was used as a cover to implement the judge’s preferred policy, which was going beyond the plain text. 8 Art. 21(1)(b) and (c) RomeSt. 9 Akande, Sources of International Criminal Law, 41, 43; Ambos, Treatise Vol. I, 173; Boas, et al., International Criminal Law Practitioner Library, 2 et seq.; Cassese, FS-Asbjørn Eide, 19; Kress, 111 ZStW 1999, 597, 599; Mégret, The Sources of International Criminal Procedure, 68; Schabas, UN Tribunals, 75; Schabas, Introduction, 190; Stuckenberg, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht, 21; Stuckenberg, GA 2007, 80, 82 et seq.; Werle/Jessberger, Principles of International Criminal Law, marginal no. 152 et seq.; Judges McDonald and Vohrah and Hunt find the list entailed in Art. 38 ICJSt exhaustive: ICTY, Prosecutor v. Er-

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conventions; (ii) customary law; and (iii) general principles of law recognised by civilised nations, i. e. how general principles are traditionally understood as derived from a comparative law survey. Additionally, as a subsidiary means for the determination of rules of law, a reference to judicial decisions and the teachings of the most highly qualified publicists of the various nations can be made.10 There is no formal hierarchy among the sources of international law, except that jurisprudence and scholarly opinion are subsidiary to the first three. However, in practice, the positivist law of treaties and customs apply in that order, or much rather are tested before the general principles are.11 As international organisations and therefore subjects of international law, all ICTs are bound by international law and draw on these classical and recognised sources.12 The RomeSt was the first of the international court statutes to explicitly state sources in a positivist manner. Apart from using different language, there is consensus that Art. 21 RomeSt embodies the sources accepted in general international law, as set forth in Art. 38 ICJSt.13 However, in some regard, these traditional international law sources have been modified by Art. 21 RomeSt14 namely in that the demovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 40; Prosecutor v. Aleksovic´, AC, Judgment, 24 March 2000, Case No. IT-95-14/1-A, Declaration of Judge David Hunt, footnote 1. See also ICTY, Prosecutor v. Mucic´ et al., AC, Judgment, 20 February 2001, Case No. IT-96-21-A, para. 583 referring to the “usual sources of international law”. Critical of the “overstatement” that is attributed to Art. 38 ICJSt, but acknowledging that they are indeed the traditional sources that are accepted as written sources of international law and generally applied by ICTs and seeing the value of a positive rule: Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 458 et seq.; MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 123 finds an additional source in the standards of modern international law. 10 Art. 38(1)(d) ICJSt. 11 Rosenne, 291 Rcadi 2001, 13, 64; Shaw, Statute, Article 38: General Principles of Law. According to them, there is not subsidiarity in a strict sense but, rather, that the positivist assertions of international law will be lex specials. Others submit that this was simply the order in which it came to the judge’s mind: Cheng, General Principles of Law as Applied by International Courts and Tribunals, 22; Stuckenberg, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht, 22. In a similar vein, Vitzthum, Begriff, Geschichte und Rechtsquellen des Völkerstrafrechts, marginal no. 154 speaks of an order of “Rechtslogik”. Similarly, Bassiouni, 11 MichJIntlL 1990, 768, 785, is of the view that general principles are an equal source. As for ICTs: ICTY, Prosecutor v. Kupreskic´, TC II, Judgment, 14 January 2000, Case No. IT-95-16-T, para. 591; Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 3. See also Pellet, Applicable Law, 1076. 12 Akande, Sources of International Criminal Law, 41; Cassese, FS-Asbjørn Eide, 19. See also ICJ, Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 20 December 1980, ICJ Reports 1980, 73 (89 et seq.); Croquet, 11 HRLR 2011, 91, 97 et seq.; Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 20 et seq.; Schermers/Blokker, International Institutional Law, § 1574; Sluiter, 37 NewEngLRev 2002, 935, 937. 13 Triffterer/Ambos-de Guzman, Art. 21 marginal nos. 1, 7. 14 Rule 72bis SCSL-RPE implements Art. 21 RomeSt with slight changes.

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statute adds precision and a hierarchy.15 The ad hoc Tribunals’ statutes do not explicitly refer to the sources of international law. However, the Tribunals are bound by international law, thereby making the sources in Art. 38 ICJ applicable to them as well.16 With regard to most hybrid tribunals, the general sources of international law also apply. Although most hybrid tribunals are formally part of the domestic legal order17 – accordingly the procedure is usually governed by the respective domestic law – they provide for the possibility of applying international law either through their statutory regimes or their jurisprudence.18 Further, some hybrid tribunals have international legal personality19 and others are delegated organs of the UN with broad legal capacity,20 applicability of the sources of international law thus seems not to be questionable.

1. Treaties as secondary source for the ICTs’ criminal procedural framework The first external source ICTs draw from, in terms of the RomeSt ‘applicable treaties’,21 has been held not to be of great importance for the determination of

15

Hochmayr, 12 JICJ 2014, 655, 655; Schabas, RomeSt Commentary1st, 515; Werle/ Jessberger, Principles of International Criminal Law, marginal no. 915. 16 Akande, Sources of International Criminal Law, 41; Cassese, FS-Asbjørn Eide, 19. The case law has not derogated from the classical international law sources; rather it has added a hierarchy: ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-9517/1-T, para. 177; Cassese, FS-Asbjørn Eide, 20. 17 Nouwen, 2 Utrecht Law Review 2006, 190, 202. See as for the BWCC: ICTY, Prosecutor v. Stankovic´, Referral Bench, Decision on Referral of Case under Rule 11bis, 17 May 2005, Case No. IT-96-23/2-PT, para. 26. 18 Art 3.1(b) UNTAET Regulation 1999/1; Art. 28(2) STLSt obliges the judges to adopt the RPE in line with highest standards of justice; Art. 12(1) ECCC Agreement. Exemplarily it can be referred to STL, AC, Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 February 2001, Case No. STL-11-01/I, para. 39 asserting that “as an international court, we may depart from the application and interpretation of national law by national courts under certain conditions: when such interpretation or application “appears to be unreasonable, or may result in a manifest injustice, or is not consonant with international principles and rules binding upon Lebanon.” 19 That is the case for the SCSL: Fuhrmann, Der Beitrag des Libanontribunals zur Weiterentwicklung des Völkerrechts, 250; Nouwen, 2 Utrecht Law Review 2006, 190, 203; SCSL, Prosecutor v. Taylor, AC, Decision on Immunity from Jurisdiction, Case No. SCSL-2003-01-I, 31 May 2004, para. 41. 20 That is the case for the STL: Fuhrmann, Der Beitrag des Libanontribunals zur Weiterentwicklung des Völkerrechts, 256 et seq. 21 Art. 21(1)(b) RomeSt. ‘Applicable treaties’ is not definite in their interpretation, as the RomeSt uses language so far unknown to international law. The ICTY’s case law speaks of “treaties that internal documents refer to”: ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 177; Cassese, FS-Asbjørn Eide, 20.

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procedural rules.22 In fact, treaties that concern criminal procedure are rare and usually implement an indirect enforcement model, but they cannot be considered direct sources of law.23 However, there is one exception which is of great importance to this study – international human rights law. ICTs are usually not party to the ECHR, the ICCPR or other human rights treaties. Hence, they are not directly bound by their requirements or the respective case law of the relevant (quasi-)judicial body.24 That is different for the BWCC applying predominately BiH law. BiH is party to the ECHR and ICCPR. Since their ratification, “the Court is constitutionally bound”25 to comply with these international human rights standards that even take precedence over BiH law.26 Accordingly, the BWCC frequently refers to ECtHR and HRC case law27 and assesses whether BiH law is in line with the internationally recognised human rights standards.28 The other ICTs internal legal framework is clearly underpinned by human rights.29 With regards to the ICC, human rights instruments such as the ICCPR and ECHR fall either under the criterion of ‘applicable treaties’ in Art. 21(1)(b) RomeSt30 or become 22 de Meester, The Investigation Phase, 30; Mégret, The Sources of International Criminal Procedure, 71. 23 See as an example Council Framework Decision 2002/584/JHA on the European arrest warrant or Council Framework Decision 2009/299/JHA enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. 24 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 32; Safferling, Die EMRK und das Völkerstrafprozessrecht, 157 et seq. 25 BWCC, Prosecutor v. Todorovic´ et al., Panel of the Appellate Division Section I for War Crimes, Appeals Judgment, 23 January 2008, X-KRZˇ -07/382, para. 213. 26 Art 2.2 BiH Constitution. See also Skilbeck, 8 JICJ 2010, 451, 453. 27 BWCC, Prosecutor v. Rasˇevic´ et al., Section I for War Crimes, Verdict, 28 February 2008, Case No. X-KR/06/275, pp. 35, 49, 66, 166; Prosecutor v. Todorovic´, Section I for War Crimes, Verdict, 29 April 2008, Case No. X-Kn-H7I3112, p. 12 et seq.; Prosecutor v. Kurtovic´, Section I for War Crimes, Judgment, 30 April 2008, Case No. X-KR-061299, p. 9; Prosecutor v. Lelek, Panel of the Appellate Division Section I for War Crimes, Judgment, 12 January 2009, Case No. X-KR Zˇ -06/202, paras. 108, 135. 28 BWCC, Prosecutor v. Rasˇevic´ et al., Section I for War Crimes, Verdict, 28 February 2008, Case No. X-KR/06/275, p. 166 et seq. 29 ICC, Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision of the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, Case No. ICC-01/04-01/06-722, para. 37. See also Eibach, Abwesenheitsverfahren, 234 et seq. and Hoven, Rechtsstaatliche Anforderungen, 88 et seq. who use the ban on circumvention of an obligation under the ECHR in order to explain the indirect bound of the ICTs to human rights law. 30 So: de Meester, The Investigation Phase, 42; Sadat, The International Criminal Court and the Transformation of International Criminal Law, 177 footnote 12. Critically: Pellet, Applicable Law, 1068. Considering that the human rights criterion is expressly mentioned in a later paragraph of Art. 21 RomeSt, where it has, as will be shown shortly, a more prominent place as it constitutes a general benchmark applicable to all sources of the ICC’s law, it indeed does not

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applicable through Art. 21(3) RomeSt31, requiring the court to apply and interpret the statute and other relevant law consistently with ‘internationally recognised human rights’. Internationally recognised human rights not only refers to treaties with aspiration of universal application or established regional instruments such as the ECHR, ACHPR and the respective jurisprudence thereunder, it rather inter alia includes resolutions of the General Assembly, recommendations, concluding remarks from UN bodies, reports of the European Commissioner of Human Rights and several others.32 Thus, the ACHPR, ECHR and ICCPR – as the instruments that are under examination in the present study – can surely be seen as internationally recognised human rights standards. According to the wording and systematic position of Art. 21(3) RomeSt internationally recognised human rights are “a standard against which all the law applied by the court should be tested.”33 Thus, the human rights values take precedence over all other sources of international criminal law, including the RomeSt itself.34 This phenomenon was strikingly labelled as “super-legality” as seem persuasive. Sadat, The International Criminal Court and the Transformation of International Criminal Law, 177 footnote 12 concerns that the ICC is not a party to the relevant human rights treaties so that it seems questionable that such instrument is indeed applicable. However, she pleads for a more liberal interpretation of the term applicable. 31 Similar regulations can be found in Rule 21 ECCC-IR; Rule 3(A) STL-RPE. These rules, however, do not have such a prominent place and only serve as interpretative guidelines. See also: de Meester, The Investigation Phase, 45. 32 See inter alia: ICC, Situation in the DRC, PTC I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, 17 January 2006, Case No. ICC-0 l/04-101-tEN-Corr, para. 115; Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”, 13 February 2007, Case No. ICC-01/04-01/06-824, Separate Opinion Judge Pikis, para. 16; Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision on Victims’ Participation, 19 January 2008, Case No. ICC-01/04/06-1119, para. 35; Situation in the DRC: Prosecutor v. Katanga and Chui, Presidency, Decision on ‘Mr. Mathieu Ngudjolo’s Complaint under Regulation 221(1) of the Regulations of the Registry against the Registrar’s Decision of 18 November 2008’, 10 March 2009, Case No. ICC-RoR-217-02/08-8, paras. 27 et seq., 40, 44; Situation in the Republic of Kenya, PTC II, Decision on Victims’ Participation in Proceedings Related to the Situation in the Republic of Kenya, 3 November 2010, Case No. ICC-01/09-24, para. 5; Situation in the Republic of Côte d’Ivoire: Prosecutor v. Gbagbo, PTC I, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings before this Court, 2 November 2012, Case No. ICC-02/11-01/11-286-Red, para. 46 et seq. 33 Arsanjani, 93 AJIL 1999, 22, 29. 34 Akande, Sources of International Criminal Law, 47; Bitti, Article 21 and the Hierarchy of Sources of Law before the ICC, 436; Cryer/Robinson/Vasiliev, An Introduction to International Criminal Law and Procedure, 415; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 51; Hochmayr, 12 JICJ 2014, 655, 677; de Meester, The Investigation Phase, 62; Pellet, Applicable Law, 1080; Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 485; ICC, Situation in the DRC, AC, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, Case No. ICC-01/04-168, para. 11; Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a)

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it, in the extreme, might lead to the ICC’s refusal to apply its own statute where it finds it to be inconsistent with fundamental human rights.35 In fact, the ICC in several decisions showed its willingness to use the provision of Art. 21(3) RomeSt as the standard to be weighed against its own legal framework. Having done so it took the human rights monitoring bodies’ case law as “persuasive authority”,36 i. e. “authority that attracts adherence as opposed to obliging it”.37 This case law often concerned the fundamental rights of the defendant38 and, particularly, the notion of a fair trial, which of the Statute of 3 October 2006, 14 December 2006, Case No. ICC-01/04-01/06-722, para. 36 (“the application of the law applicable under the Statute subject to internationally recognized human rights”) and para. 37 (human rights values “underpin the Statute”); Situation in the DRC: Prosecutor v. Katanga and Chui, TC II, Decision on an Amicus Curiae Application and on the “Requête tendant à obténir presentation des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaise aux fins dásile” (articles 68 and 93(7) of the Statute), 9 June 2011, Case No. ICC-01/04-01/07-3003-tEng, para. 13. Of other opinion: Hafner/Binder, 9 ARIEL 2004, 163, 174 et seq.; Croquet, 11 HRLR 2011, 91, 131 observes the ICC to be hesitant in applying Art. 21(3) RomeSt, which, however, will be proved wrong as numerous case law suggests otherwise. Croquet, however, pleads for an expanded application of the provision. 35 Pellet, Applicable Law, 1080. Bitti goes even one step further and asserts that international human rights law is an additional source of substantive law for the ICC: Bitti, Article 21 and the Hierarchy of Sources of Law before the ICC, 413 et seq.; following him: Hochmayr, 12 JICJ 2014, 655, 677. Arguably in the same direction, as PTC I only applies Art. 21(3) RomeSt where it found a lacuna within the primary sources: ICC, Situation in the DRC, PTC I, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, 17 January 2006, Case No. ICC-0 l/04-101-tEN-Corr, para. 81; Situation in Darfur, Sudan: Prosecutor v. Al Bashir, PTC I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, 4 March 2009, Case No. ICC-02/ 05-01/09-3, para. 44. Of other opinion: Young, 60 Intl&CompLQ 2011, 189, 193, 198 et seq. arguing that it is a general rule of application. See also for this interpretation: ICC, Situation in the Republic of Kenya: Prosecutor v. Katanga, PTC I, Decision on the Joinder of the Cases Against Germain Katanga and Mathieu Ngudjolo Chui, 10 March 2008, Case No. ICC-01/0401/07-257, p. 7; Situation in the Republic of Kenya: Prosecutor v. Katanga and Chui, PTC I, Decision on the Powers of the Pre-Trial Chamber to Review Proprio Motu the Pre-trial Detention of Germain Katanga, 18 March 2008, Case No. ICC-01/04-01/07-330, p. 6; Situation in the Republic of Kenya: Prosecutor v. Katanga and Chui, PTC I, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, 13 May 2008, Case No. ICC-01/04-01/07-474, para. 78. 36 Croquet, 11 HRLR 2011, 91, 108; de Meester, The Investigation Phase, 50 et seq., 53 et seq.; Slaughter, 40 VaJIntlL 1999, 1103, 111. It is to be noted that this included the ECtHR which is predominately referred to, although it is a regional treaty: Zahar/Sluiter, International Criminal Law, 280. 37 Glenn, 32 McGill Law Journal 1987, 261, 263. 38 See inter alia: ICC, Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision of the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, Case No. ICC-01/04-01/06-722, para. 37 et seq.; Situation in the Republic of Côte d’Ivoire: Prosecutor v. Gbagbo, PTC I, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings before this Court, 2 November 2012, Case No. ICC-02/11-01/11-286Red, para. 46 et seq.; Situation of the Republic of Côte d’Ivoire: Prosecutor v. Gbagbo, TC I, Decision on “Requête urgente aux fins de fixation d’une nouvelle date d’audience portant sur le

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was considered to be “a concept broadly perceived and applied, embracing the judicial process in its entirety. [… Even more] a fair trial is the only means to do justice.”39 Already during the drafting process, the High Commissioner for Human Rights stressed the importance of the right to a fair trial when applying Art. 21(3) RomeSt.40 Thus, combining both the present case law and drafting history – when interpreting and applying the law in line with internationally recognised human rights – the ICC has to take account of the right to a fair trial as interpreted by the HRC and ECtHR. Moreover, the ICC often takes universal, international or regional human rights law as authority without applying Art. 21(3) RomeSt.41 The majority of réexamen des conditions de maintien en detention”, 8 October 2014, Case No. ICC-02/11-01/ 11-693, para. 10; Situation in the CAR: Prosecutor v. Bemba et al., AC, Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber II of 23 January 2015 Entitled “Decision on ‘Mr. Bemba’s Request for Provisional Release’”, 29 May 2015, Case No. ICC-01/ 05-01/13 OA 10, para. 1 et seq. See as for counter-examples where it, according to Bitti, seems doubtful whether the decision made was in line with internationally recognised human rights: Bitti, Article 21 and the Hierarchy of Sources of Law before the ICC, 441 et seq. 39 ICC, Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision of the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/ 04-01/06-722, para. 37. See also in regard to a fair trial inter alia: ICC, Situation in the DRC, AC, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168, paras. 11, 38; Situation in the DRC: Prosecutor v. Lubanga, AC, Decision on the Prosecutor’s Application for Leave to Reply to “Conclusions de la Défense en Réponse au Mémoire d’Appel du Procureur”, 12 September 2006, Case No. ICC-01/04-01/06-424, Separate Opinion Judge Pikis, para. 3; Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo Against the Decision of Pre-Trial Chamber I Entitled “Décision sur la Demande de Mise en Liberté Provisoire de Thomas Lubanga Dyilo”, 13 February 2007, Case No. ICC-01/04-01/06-824, Separate Opinion Judge Pikis, para. 16; Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeals of Mr. Lubanga Dyilo and the Prosecutor Against the Decision of Trial Chamber I of 14 July 2009 Entitled “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May Be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, Case No. ICC-01/04-01/06-2205, para. 84 et seq.; Situation in the Republic of Côte d’Ivoire: Prosecutor v. Gbagbo,, PTC I Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings before this Court, 2 November 2012, Case No. ICC-02/11-01/11-286-Red, para. 46 et seq. See also de Meester, The Investigation Phase, 55, concluding that the right to a fair trial in the investigative phase amounts to the internationally recognised human rights standards. 40 UN High Commissioner on Human Rights, High Commissioner’s Position on the Establishment of Permanent International Criminal Court, 15 June 1998, UNICC/NONE/98/T, para. 48 et seq. 41 See inter alia: ICC, Situation in Darfur, Sudan: Prosecutor v. Harun and Ali Kushayab, PTC I, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, Case No. ICC-02/05-01/07-1, para. 28; Situation in Uganda, PTC II, Decision on the Prosecution’s Application for Leave to Appeal the Decision on Victim’s Applications for Participation a/0010/06, a/0064/06 to a/0070/06-101, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-101, 19 December 2007, Case No. ICC-02/04-112, para. 27. Situation in the Republic of Kenya: Prosecutor v. Katanga and Chui, AC, Judgment on the Appeal of Mr. Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled “Decision on the Modalities of Victim Participation at Trial”, 16 July 2010, Case No. ICC-01/04-01, para. 78 et

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references to the ECtHR’s case law concern the scope of fair trial standards.42 The overall assessment shows, without any doubt, that the ICC is bound by internationally recognised human rights values and the right to a fair trial in particular – no matter whether it is seen as the law-source treaty or an additional source of law in Art. 21(3) RomeSt. Similarly, Rule 3(A)(ii) STL-RPE provides for an interpretation of its RPE in line with international standards of human rights. According to its wording, the scope of the impact of human rights is not quite as high as at the ICC, since the recognition of human rights standards solely concerns the interpretation of the rules and not the statute itself. Nevertheless, the STL repeatedly uses international and regional human rights instruments and the respective jurisprudence as authority to apply both the statute and the RPE.43 The ICTY has already referred to the “internationally recognised human rights instruments” in its case law.44 With regard to both ad hoc Tribunals the former UN General Secretary Boutros-Boutros Ghali stated, “it is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused in all stages of its proceedings […], in particular, contained in Art. 14 ICCPR.”45 Accordingly, the ICTY, ICTR and MICT all regularly referred to the HRC and ECtHR jurisprudence and other international human rights instruments, especially with regard to the right to a fair trial.46 The ICTYAppeals Chamber found seq.; Situation in Darfur, Sudan: Prosecutor v. Al Bashir, AC, Judgment on the Appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 3 February 2010, Case No. ICC-02/05-01/09-73, para. 31. See also for further references: Croquet, 11 HRLR 2011, 91. 42 Bitti, Article 21 and the Hierarchy of Sources of Law before the ICC, 435; Croquet, 11 HRLR 2011, 91, 131, Young, 60 Intl&CompLQ 2011, 189, 203 et seq. The latter cautioning against an overwhelming preponderance of the ECHR values. 43 See inter alia: STL, Prosecutor v. Beirut S.A.L. and Amanin, The Contempt Judge, Decision on Motion Challenging Jurisdiction, 6 November 2014, Case No. STL-14-06/PT/CJ, paras. 27, 31 et seq., 40 et seq.; Prosecutor v. Ayyash et al., AC, Decision on Appeal by Counsel of Mr. Oneissi Against the Trial Chamber’s Decision on the Legality of the Transfer of Call Data Records, 28 July 2015, Case No. STL-11-01/T/ACAR126.9, para. 45; ibid., Separate and Partially Dissenting Opinion of Judge Riachy, para. 16; ibid., Dissenting Opinion of Judge Baragwanath, para. 11. Of eminent importance to the examination conducted in this study, as it concerns the decision to try the defendants in absentia: STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 1 February 2012, Case No. STL-II-011IITC, paras. 32, 56; Prosecutor v. Merhi, TC, Decision to Hold Trial in Absentia, 20 December 2013, Case No. STL13-04/1/TC, para. 66 et seq. 44 ICTY, Prosecutor v. Tadic´, AC, Decision, 2 October 1995, Case No. IT-94-1-AR72, para. 45. 45 UN SG, Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704, para. 106. 46 See inter alia: ICTY, Prosecutor v. Tadic´, TC, Decision, 10 August 1995, Case No. IT-941, Separate Opinion of Judge Stephens; Prosecutor v. Delalic´ et al., TC, Decision on Zdravko Mucic´’s Motion for the Exclusion of Evidence, 2 September 1997, Case No. IT-96-21-T, para. 50 et seq.; Prosecutor v. Tadic´, AC, Judgment, 15 July 1999, Case No. IT-94-1-A,

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“that there is no reason to distinguish the notion of fair trial […] of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments.”47 The MICT also asserts that it “is under the obligation to ensure that the detention [of Mr Lukic´] complies with International Standards and Human Rights.”48 Moreover, the case law shows that the ICTY considered itself bound by the international human rights standards.49 Even further, the ad hoc Tribunals accepted the predominance of human rights over the Tribunal’s governing framework, including the statute.50 Hybrid tribunals are formally part of the domestic legal system and depend therefore on the domestic commitment to human rights. All countries where internationalised courts act, or have acted, are members of the ICCPR. However, East Timor has not accepted and Cambodia has not ratified the Optional Protocol 1, enabling individuals to complain to the HRC, so that the protection of the rights enshrined in the ICCPR solely depends on the willingness of the respective national authorities.51 Nonetheless, the hybrid arrangements provide for the application of international human rights standards during criminal procedures. The first of the internationalised courts, the SPSC in the District Court of Dili, is to comply with ‘internationally recognised human rights standards’, including the ICCPR, when applying East Timorese law, international law (including all treaties ratified that include several human rights instruments) or the subsidiary law which

paras. 44, 48 et seq.; Prosecutor v. Furundzˇija, AC, Judgment, 21 July 2000, Case No. IT-95-17/ 1-A, paras. 69, 181 et seq. with footnote 239; Prosecutor v. Kunarac et al., TC, Judgment, 22 February 2001, Case Nos. IT-96-23-T, IT-96-23/1-T para. 465 et seq.; ICTR, Prosecutor v. Nyiramasuhuko and Ntahobali, TC II, Decision on the Motion for Separate Trials, 8 June 2001, Case No. ICTR-97-21-T, para. 23 et seq.; Prosecutor v. Bizimungu et al., TC III, Judgment and Sentence, 30 September 2011, Case No. ICTR-99-50-T, Partially Dissenting Opinion of Judge Short, para. 4. See for further examples: Jones/Powles, International Criminal Practice, marginal no. 8.5.15 et seq.; Sluiter, 37 NewEngLRev 2002, 935, 939. See as for the MICT inter alia: MICT, Prosecutor v. Bosˇkoski and Tarcˇ ulovski, Single Judge, Decision on Application to Lift Confidentiality of the 7 December 2007 Decision on the Bosˇkoski and Tarcˇ ulovski Case, 27 January 2015, Case No. MlCT-14-84, para. 19. See also Cassese, FS-Asbjørn Eide with an analysis of the types of references and structure of impact the ECtHR’s jurisprudence had on the ICTY and ICTR up until the early 2000s. 47 ICTY, Prosecutor v. Tadic´, AC, Judgment, 15 July 1999, Case No. IT-94-1-A, para. 44. Nevertheless, it comes to the conclusion that the equality of arms is to be interpreted more liberal in ICTY proceedings: ibid., para. 52. 48 MICT, Prosecutor v. Milan Lukic´, President, Reply in Support of Motions for Reconsideration and Review of Sentence of Mr. Lukic´ in Estonia and Transfer to the Hague, 14 April 2015, Case No. MlCT-13-52-ES.l, para. 8. 49 ICTY, Prosecutor v. Tadic´, AC, Decision, 2 October 1995, Case No. IT-94-1-AR72, para. 45. See also: Bohlander, 45 NYIL 2014, 331, 344. 50 Akande, Sources of International Criminal Law, 46. 51 Critically in this regard: Zahar/Sluiter, International Criminal Law, 280.

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was in force before 25 October 1999, which is Indonesian law.52 Hence, it must disregard provisions where they do not comply with these human rights standards or apply regulations that are provided for in ratified treaties or international law. The court therefore applied the rule that ‘on points of criminal procedure not prescribed in the present regulation, internationally recognized principles shall apply.’53 Accordingly, the court made references to international human rights law, including the ICCPR and ECHR, especially in regard to the notion of a fair trial.54 Similarly, the SCSL found the ECtHR to be a “source of guidance regarding fair trial rights” and subsequently applied the standards set forth by the ECtHR.55 The statute of the ECCC obliges the chambers to seek procedural rules established at the international level where, in its own legal framework, a lacuna exists or ‘if there is uncertainty regarding their interpretation or application or if there is a question regarding their consistency with international standard’.56 Moreover, it expressly refers to Art. 14 ICCPR when obliging the court to exercise its ‘jurisdiction in accordance with international standards of justice, fairness and due process of law’.57 Hence, the ECCC is expressly bound by the requirements laid down in Art. 14 ICCPR and additionally is to comply with international standards when interpreting and applying its own legal framework regarding the judicial proceedings. Accordingly, it regularly referred to human rights instruments and jurisprudence.58 Also, the KSC’s president found that the Specialist Chambers abide by the highest standard of international human rights.59 According to Art. 3(2)(e) KSCSt and 52 Section 9 RDTL Constitution, Section 2 UNTAET/Reg/1999/1, Sections 2, 3 UNTAET/ Reg/2000/15. 53 Section 54.5 2001/Reg/125; SPSP Dili District Court, Prosecutor. v. Cadorso, TC, Judgment, 05 April 2003, Case 04/2001, para. 301 et seq. 54 SPSP Dili District Court, Prosecutor. v. Cadorso, TC, Judgment, 05 April 2003, Case 04/ 2001, paras. 245 et seq., 252 et seq.; Prosecutor v. Nahak, TC, Findings and Order on Defendant’s Nahak Fitness to Stand Trial, 1 March 2005, Case 01a/2004, para. 32 et seq. 55 SCSL, Prosecutor v. Taylor, AC, Appeals Judgment, 26 September 2013, Case No. SCSL-03-01-A (10766-11114), para. 84 and accordingly applied the ECtHR requirements ibid., para. 84 et seq. 56 Art. 33(1) ECCCSt. 57 Art. 33(2) ECCCSt; Art. 12 Agreement on the creation of the ECCC. 58 See inter alia: ECCC, Prosecutor v. Nuon Chea et al., Case 002/01, TC, Decision on Khieu Samphan’s Application for Immediate Release, 26 April 2013, Case No. 002/19-092007/ECCCITC E275/1, para. 15, 23; Prosecutor v. Nuon Chea et al., Case 002/01, TC, Judgment, 7 August 2014, Case No. 002/19-09-2007/ECCC/TC E313, paras. 18, 64, 446. See also ECCC, Prosecutor v. Nuon Chea et al., 1, SCC, Appeal Judgment, 3 February 2012, Case No. 001/18-07-2007-ECCC/SC, paras. 14, 431 et seq. and 516 et seq. where the chamber is first hesitant to apply standards set forth by the regional judicial human rights bodies due to their autonomous approaches but still considers their assertions and takes them as authority. See also Skilbeck, 8 JICJ 2010, 451, 453, 455. 59 KSC, Statement by President Trendafilova on the Second Judgment of the Specialist Chambers of the Constitutional Court, 28 June 2017, https://www.scp-ks.org/en/statement-

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Art. 22 of the Constitution of Kosovo, human rights standards as set forth in the ECHR and ICCPR take superiority over domestic law. As far as the tribunals established by the UN Security Council are concerned – namely ICTY, ICTR and SCSL – it is further argued that, as subsidiary bodies, they are bound by the UN principles which clearly include respect for human rights according to Art. 1(3), 55(c) UNCh, not to mention the several human rights documents that have been adopted by the UN.60 In addition, it should be noted that all statutes of ICTs provide for the right to a fair trial that, in slightly varied language among the instruments, often takes Art. 14 ICCPR almost verbatim and mirrors what international or regional human rights treaties understand as the right to a fair trial.61 The ICTY Trial Chamber in Tadic´ even found that “in drafting the Statute and the Rules every attempt was made to comply with internationally recognized standards of fundamental human rights” and mentioned Art. 14 ICCPR as a source for the statute’s own right to a fair trial.62 By these fair trial provisions set forth in their own legal framework, the international judicial bodies are naturally directly bound. Further, one could argue that by prosecuting those individuals who grossly violated human rights by committing international crimes, one of the objectives of international criminal justice is to help the enforcement of human rights.63 Human president-trendafilova-second-judgement-specialist-chamber-constitutional-court (last accessed: 7 February 2021). 60 de Meester, The Investigation Phase, 45; Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 8; see also Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 21. 61 Art. 20(1), 21 ICTYSt, Art. 19(1), 20 ICTRSt; Art. 19 MICTSt; Art. 64(1), 67 RomeSt; Art. 15, 16 STLSt; Art. 33 ECCCSt, Rule 21(1)(a), (b) ECCC-RPE; Art. 17 (2), (4) SCSLSt and RSCSLSt; Section 2, 6 UNTAET/Reg/2000/30; Section 34 RDTL Constitution; Art. 21, 40(2) KSCSt; Art. 6, 9, 13, 14, 39 BIH Procedural Code; Art. 2(3)(e) BiH Constitution. See as for the ad hoc Tribunals: Morris/Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. II, 226; Morris/Scharf, The International Criminal Tribunal for Rwanda, Vol. I, 513; Møse, FS-Asbjørn Eide, 207; Sluiter, 37 NewEngLRev 2002, 935, 936; Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 150. See also: de Meester, The Investigation Phase, 45 and above B. III. 1.; D. IV. 1. a); B. IV. 2. a); B. IV. 3. a); B. V. 1. 62 ICTY, Prosecutor v. Tadic´, TC, Decision, 10 August 1995, Case No. IT-94-1, para. 25; as for the latter also ibid., Separate Opinion of Judge Stephens. 63 Leading the way: Bassiouni, 9 YaleJWorldPubOrd 1983, 193: (international criminal proscription as ‘ultima ratio of human rights protection’); Möller, Völkerstrafrecht und Internationaler Strafgerichtshof, 419 et seq.; Damasˇka, 10 JICJ 2012, 611, 614 (“spreading of human rights culture”); LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 34; Sluiter, 37 NewEngLRev 2002, 935, ibid.; Safferling, Die EMRK und das Völkerstrafprozessrecht, 154; Werle/Jessberger, Principles of International Criminal Law, marginal no. 98 and Werle, 109 ZStW 1997, 808, 814 et seq. argue that massive human rights violations concern the world peace and therefore one of the three main values of the international community. See also Stahn, 32 KJ 1999, 343, who sees Bassiouni’s assertion of a general ultima ratio function critically but asserts that international criminal law applies in mass violations in a destructed state that cannot for

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rights values do to some extent form the normative content of international crimes.64 Thus, international criminal justice serves and improves the protection of human rights. In light of this, ICTs need to ensure that their own proceedings are in line with these values they aim to protect. What this all amounts to is that ICTs are bound by international human rights set forth in international and regional treaties and conventions. Treaties are, hence, an important source of law for international criminal procedure.

2. Customary law as secondary source for the ICTs’ criminal procedural framework Customary law,65 which is the secondary external source to be applied by ICTs, is generally not of great importance to procedural studies. Considering that criminal procedure is broadly governed by domestic particularities, and that none of the widely ranging models of criminal procedure are accepted as binding law by states, a manifestation of opinio iuris is highly unlikely even if a certain state practice can be perceived.66 However, international human rights law, to a large extent, can be seen to itself implement the universal human rights. See also: Seibert-Fohr, Prosecuting Serious Human Rights Violations, 269 et seq., 289 et seq. 64 Safferling, Die EMRK und das Völkerstrafprozessrecht, 154; Young, 60 Intl&CompLQ 2011, 189, 190. 65 As for the ICTY: UN SG, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, 3 May 1993, UN Doc. S/25704, para. 34. As for the ICTR: UN SG, Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955, 13 February 1995, UN Doc. S/1995/134, para. 12. Judge Shahabuddeen is of the view that the ICTY was to exclusively apply customary law: Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal, 52. The RomeSt speaks of ‘principles and rules of international law’: Art. 21(1)(b) RomeSt. Consensus seems to exist that customary international law falls within this notion: Triffterer/Ambos-de Guzman, Art. 21 marginal no. 24; Hochmayr, 12 JICJ 2014, 655, 668; Mégret, The Sources of International Criminal Procedure, 71; Pellet, Applicable Law, 1071; Schabas, RomeSt Commentary1st, 522. It is suggested that the different language emerges from the objective to meet sufficient precision for the legality principle: Triffterer/Ambos-de Guzman, Art. 21 marginal no. 24; Pellet, Applicable Law, 1071. 66 de Meester, The Investigation Phase, 31; Mégret, The Sources of International Criminal Procedure, 71; cf. also Jung, 43 AVR 2005, 525, 534. This is especially true when considering that the threshold the ICJ maintains in regard to the opinio iuris is high. With examples from its case law: Shaw, International Law, 63 et seq. Nevertheless, the ICJ started referring to General Assembly Resolutions and work of the International Law Commission to prove opinio iuris: Shaw, International Law, 63. That is in line with the scholarship representing the “modern” view of customary law that refers to assertions of International Organisations, especially the UN General Assembly, and highlights the importance of opinio iuris over state practice: Fidler, 39 GYIL 1996, 198, 220 et seq.; Lillich, 25 GaJIntl&CompL 1995, 1, 8 et seq.; Roberts, 95 AJIL 2001, 757, 759 et seq. all with further references. In a similar vein, parts of the ICL scholarship interpret customary law as also including the manifestation of opinio iuris alone, which can be expressed in soft law and relinquish the requirement of state practice: Meron, 89 AJIL 1995, 554, 577; Meron, 90 AJIL 1996, 238. Similarly, Cassese, International Law, 160 et seq., re-

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have attained customary status, especially when it comes to the fairness of proceedings.67

3. General principles as a secondary source for the ICTs’ criminal procedural framework The ad hoc Tribunals found general principles of international (criminal) law to be applicable sources.68 Subsidiary sources of law are, according to the court’s observation in Furundzˇ ija, the general principles (of criminal law) that have been recognised in major legal systems around the world.69 Likewise, the RomeSt distinguishes between general principles of law70 and ‘general principles of law derived ferring to laws of humanity, which may be opinio iuris without practice, instead of soft law; but solely in the area of humanitarian law as result of the existence of the Martens clause. Ensuing from that, the proof of opinio iuris in procedural matters without even having practice to rely on seems especially difficult. Akande, Sources of International Criminal Law, 50 asserts this secondary role to customary law to international criminal law in general not only procedural law. 67 ICTY, Prosecutor v. Aleksovski, AC, Judgment, 24 March 2000, Case No. IT-95-14/1-A, para. 104; de Meester, The Investigation Phase, 31; Mégret, The Sources of International Criminal Procedure, 71; Raimondo, General Principles of Law, 171; Sluiter, 37 NewEngLRev 2002, 935, 937. 68 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1T, para. 177; Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16T, paras. 591, 677. Cassese, FS-Asbjørn Eide, 20; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 8. 69 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 3; Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 177; Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16-T, paras. 591, 677, 738. See also Pellet, Applicable Law, 1076; ICTY, Prosecutor v. Tadic´, TC II, Decision on the Defence Motion on the Principle of Non Bis in Idem, 14 November 1995, Case No. IT-94-1-T, para. 9. For criticism regarding the additional recognition of different types of general principles beyond the traditional source of general principles recognised in legal systems of the world: Akande, Sources of International Criminal Law, 51 et seq.; de Meester, The Investigation Phase, 35; cf. also Boas, et al., International Criminal Law Practitioner Library, 10 et seq. 70 It is subject to debate whether these are encompassed by ‘principles and rules of international law’, which would make them applicable as secondary sources. Whereas, if general principles do not fall within the scope of ‘principles and rules of international law’, Art. 21(1)(c) RomeSt will encompass general principles of law. Consequently, they would be applicable only in the third place. In light of the general absence of customary law in criminal procedure except for human rights law which is already treaty law and therefore applicable as primary source, the debate is not of relevance here. But see the following references: Pro inter alia: Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 478; Schabas, RomeSt Commentary1st, 520; Safferling, International Criminal Procedure, 113 et seq.; see also Stuckenberg, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht, 7 et seq.; proclaiming a continued validity of customary law and the “existence of two compounds of law”. See also Stuckenberg, GA 2007, 80. Contra inter alia: Akande, Sources of International

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by the court from the national laws of legal systems of the world, including, as appropriate, the national laws of the states that would normally exercise jurisdiction over the crime’71 as a subsidiary source of law.72 The first part of the latter phrase ‘general principles of law derived by the court from the national laws of legal systems of the world’ clearly embodies the traditional international law source of general principles recognised by civilised nations, although it is described with slightly different language.73 The language of the RomeSt reflects, more appropriately, that all legal systems of the world are included – not solely civilised nations, let alone the difficulties that arise when determining whether a nation is civilised.74 The second phrase, ‘including, as appropriate, the national laws of the States that would normally exercise jurisdiction over the crime’, is a new addition and raises doubts as to its interpretation but, as recognised by Pre-Trial Chamber I, “that price had to be paid in order to reach a compromise.”75 Pre-Trial Chamber I seems to interpret the notion as Criminal Law, 52; Hochmayr, 12 JICJ 2014, 655, 669; Pellet, Applicable Law, 1071, 1073; Werle/Jessberger, Principles of International Criminal Law, marginal no. 201. A third way of interpretation is that lit. b includes general principles that are not derived from national law: Ambos, Treatise Vol. I, 76 refers to principles “drawn from an all-over assessment of international ‘soft law’, as a kind of opinio iuris without concordant state practice”. Triffterer/ Ambos-de Guzman, Art. 21 marginal no. 25 et seq. refers to Schachter’s categories of general principles that beyond the general principle recognised by civilised nations, include four other categories: principles (i) derived from the specific nature of the international community (ii) intrinsic to the idea of law and basic to all legal systems (iii) valid through all kinds of societies in relationships of hierarchy and coordination (iv) of justice founded on the very nature of man as a rational and social being, Schachter, International Law in Theory and Practice, 118. 71 Art. 21(1)(c) RomeSt. 72 For the sake of completeness it should be mentioned that Art. 21(2) RomeSt provides that judges are to apply principles and rules of law as interpreted in previous decisions. It is clear from the wording, that no stare decisis rule was established and it is up to the judges’ discretion to use previous jurisprudence as subsidiary means of source. 73 Triffterer/Ambos-de Guzman, Art. 21 marginal no. 38; Hochmayr, 12 JICJ 2014, 655, 670; Mégret, The Sources of International Criminal Procedure, 71; Pellet, Applicable Law, 1073. 74 Also, Art. 38(1)(c) ICJSt has been interpreted in that way and recognised all states as civilised for a while: Heintschel von Heinegg, Allgemeine Rechtsgrundsätze, § 20 marginal no. 3; Verdross/Simma, Universelles Völkerrecht, § 602; Vitzthum, Begriff, Geschichte und Rechtsquellen des Völkerstrafrechts, marginal no. 143. Consider also Pellet, Applicable Law, 1073 with footnote 125; ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 177 speaking of “major legal systems of the world”. See already during the drafting process M. de Lapradelle: PCIJ, Advisory Committee of Jurists, ProcèsVerbaux of the Proceedings of the Committee, June 16th – July 24th 1920, p. 335. Some scholars see a possible significance in the words when nations in future fall back to not follow a civilised system of law: Bassiouni, 11 MichJIntlL 1990, 768, 768 with footnote 4; Tomuschat, 281 RCADI 1999, 23, 337 et seq. 75 Saland, International Criminal Law Principles, 215. A reference to national law can be found in the ad hoc Tribunals’ case law in regard to the practice of prison sentence where they may have recourse to the practice in the relevant national courts: Art. 24(1) ICTYSt, Art. 23(1) ICTRSt; Art. 19(1) SCSLSt. Hybrid tribunals, generally, directly apply the national law for the territory where the conflict happened, but a reference to deprive a general principle from that

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reflecting the necessity to include the domestic legal systems – which would normally have jurisdiction – into the comparative study when deriving a general principle.76 Yet it did not abide by this standard and did not incorporate the DRC’s domestic regulation in its comparative study to derive a general principle of major legal systems in the Lubanga case.77So far, the ICC has not made a reference to legal nations that would normally exercise jurisdiction over the crime, and even rejected a request for an oral hearing in the Situation of Kenya that was based on Kenyan law in application of Art. 21(1)(c) RomeSt.78 This shows that the notion has been and most likely will be used seldomly,79 especially when taking into account that it might lead to unequal treatment of defendants, depending on which states would have normally exercised jurisdiction over the case.80 This study intends to give a general proposal as to the matter of proceedings in absentia. Thus, the general principle derived from domestic laws of states that would have had jurisdiction over the alleged crimes will law was never established. See as for an analysis of the ad hoc Tribunals’ use of the national system of the state loci delicti: Wilt, 10 ICLR 2010, 209. 76 ICC, Situation in the DRC: Prosecutor v. Lubanga, PTC I, Decision on the Practices of Witnesses Familiarisation and Witness Proofing, 8 November 2006, Case No. ICC-01/01-01/ 06, para. 35. See also Pellet, Applicable Law, 1075. Of other opinion: Hochmayr, 12 JICJ 2014, 655, 671, she interprets it as a second source derived only from the national jurisdiction that would normally have jurisdiction over the case. 77 ICC, Situation in the DRC: Prosecutor v. Lubanga, PTC I, Decision on the Practices of Witnesses Familiarisation and Witness Proofing, 8 November 2006, Case No. ICC-01/01-01/ 06, para. 37. 78 ICC, Situation in the Republic of Kenya, Prosecutor v. Muthaura et al., AC, Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”, 1 May 2012, Case No. ICC-01/09-02/11. 79 Triffterer/Ambos-de Guzman, Art. 21 marginal no. 34; Powderly, The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function, 483 cannot “conceive of a scenario where it would be appropriate” to consult the domestic law of these jurisdiction. Consider also Pellet, Applicable Law, 1075. However, the case law of the ad hoc Tribunals reveals a prominent place for the respective territorial jurisdictions: Wilt, 10 ICLR 2010, 209, 236. The author himself predicts that the recourse to national systems will diminish due to the coherent body of law that has been established with the ICC: ibid., 241. Nevertheless, its relevance remains for the purposes of involvement in the prosecution of the perpetrators of the core crimes and eventually sharing the massive case load the ICC and territorial states are faced with, ibid. 80 Hochmayr, 12 JICJ 2014, 655, 671; Schabas, Introduction, 193. See also Stuckenberg, GA 2007, 80, 100; Wilt, 10 ICLR 2010, 209, 239. That is not to speak of the difficulties in determining what state would normally exercise jurisdiction over a certain case. Drafting history and the intention to regard the defendant’s familiarity with a legal system seem to exclude universal jurisdiction as a basis for making such a determination: Triffterer/Ambos-de Guzman, Art. 21 marginal no. 39; Hochmayr, 12 JICJ 2014, 655, 671; Pellet, Applicable Law, 1075; Werle/Jessberger, Principles of International Criminal Law, marginal no. 206. Of other opinion as including the principle of universality and therefore any state: Edwards, 26 YaleJIntlL 2001, 323, 408. The national jurisdiction the court may rely on can rather be identified as, in hierarchical order, the territory in which the crime occurred, the nationality of the perpetrator, or the custodial state: Triffterer/Ambos-de Guzman, Art. 21 marginal no. 39; Pellet, Applicable Law, 1075.

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not be of relevance, as an abstract determination of the state which would normally have jurisdictional power is not possible. However, the general principle derived from legal systems of the world will be of importance and its requirements are outlined further below. According to Art. 21(1)(c) RomeSt, both the general principles recognised in legal systems of the world and the specific references to certain nations may not be inconsistent with the RomeSt, international law, or internationally recognized norms and standards. In light of the converging justice systems – not least due to human rights supervisory bodies and transnational institutions’ indirect harmonisation – it is highly unlikely that a general principle drawn from the nations of the world is inconsistent with international law and internationally recognised rules.81 To shed further light on the different types of general principles as identified by the ad hoc Tribunals and ICC, it is helpful to first make some general remarks to the term “general principle”. a) Excursus: Meaning of the term “general principle” To elucidate the notion of general principles, the genuine meaning of the words “general” and “principle” must be clarified. To draw a distinction between rules and principles, a set of definitions has been put forward which will also clarify the issue at hand. The focus will be on the part of the definitions of the concept of a “principle”. At the beginning of the 20th century, the umpire in the Gentini case found that a general principle “exprime une vérité générale, d’après laquelle on dirige ses actions, qui sert de base théorique aux divers actes de la vie, et dont l’application à la réalité amène telle ou telle conséquence.”82 This sweeping definition highlights that a principle is the (theoretical) basis for actions and their consequences. The ICJ in the Gulf of Main decision established that “the association of the terms ‘rules’ and ‘principles’ is no more than the use of a dual expression to convey one and the same idea, since in this context ‘principles’ clearly means principles of law, that is, it also includes rules of international law in whose case the use of the term ‘principles’ may be justified because of their more general and more fundamental character.”83 This definition focuses on a degree of generality and fundamentality to single out the existence of a principle. Fitzmaurice put a more qualitative distinction forward and submitted, “by a principle, or general principle, as opposed to a rule, even a general rule, of law is meant chiefly something which is not itself a rule, but which underlies a 81

Triffterer/Ambos-de Guzman, Art. 21 marginal no. 42. Gentini Case, Venezuela v. Italy, in: Venezuelan Arbitrations of 1903, 720 (725). Translation by Cheng, General Principles of Law as Applied by International Courts and Tribunals, 24: “Principle expresses a general truth, which guides our action, serves as a theoretical basis for the various acts of our life, and the application of which to reality produces a given consequence.” 83 ICJ, Case Concerning Delimitation of the Maritime Boundary Area in the Gulf of Maine: Canada v. the United States, Judgment, 12 October 1984, pp. 46, 48. 82

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rule, and explains or provides the reasons for it. A rule answers the question ‘what’; a principle in effect answers the question ‘why’. In the event of any dispute as to what the correct rule is, the solution will often depend on what principle is regarded as underlying the rule.”84 Finally, Sluiter et al. proposed a specific definition for principles in international criminal procedure: “principles are general, highly abstract, and inconclusive legal prescriptions which are (or must be) shared by all individual tribunals due to their fundamental and mandatory nature (i. e. not subject to fragmentation in the macro-dimension of international criminal justice).”85 The Sluiter et al. approach links a qualitative distinction as their obligatory character for ICTs to the question of degree when it comes to the fundamentality, abstractness and status of fragmentation. What all these definitions have in common is the high degree of fundamentality which is required in order to identify principles. This could be described as the theoretical and abstract backbone of the relevant branch of law – which underpins all other features and the relevant actors must comply with. Considering that “general” describes the degree of abstractness it seems almost redundant, as a high degree of generality is already attributed to the principle itself.86 However, the notion “general” also embodies the idea that the application is not limited. Hence, transposing this to the issue of international criminal procedure, the principle is of such a widespread and abstract nature that it applies across all ICTs. What we are faced with in the discussion concerning different sets of general principles is, thus, a fundamental and abstract norm that underpins the emerging body of international criminal procedure at all ICTs. The following subsections will elucidate the details of these norms, after exploring the types of general principles that exist in general international law. b) The different types of general principles in general international law The source of general principles cannot be easily explained, as different types of general principles exist – particularly in view of the fact that different names exist for the same type of general principle. In the prevailing opinion,87 at least two different 84

Fitzmaurice, 92 RCADI 1957, 1, 7. Sluiter, et al., Introduction, 21. 86 Ibid., 22. See also Stuckenberg, GA 2007, 80, 93 et seq., who discusses the problems of general principles in international criminal law. 87 Especially in the older positivistic literature there are also scholars that do not see general principles as an autonomous formal source of law, treating it, rather, as a reiteration of either treaty, customary law, or fundamental features of international law. See e. g. the soviet doctrine often represented by Tunkin, Theory of International Law, Chapter 7; see also Kelsen, Principles of International Law, Edited by Robert W. Tucker, 539 et seq.; Strupp, 47 RCADI 1934, 263, 335 et seq.; Virally, 183 RCADI 1983, 13, 171. Strupp, 33 RCADI 1930, 357, 474 et seq. submits that it would be redundant to assert that the ICJ needs to apply general principles of international law. Hence, only general principles recognised by civilised nations are referred to by Art. 38(1)(c) ICJSt. See for an overview of scholars that are of the same view: Lammers, FS-Van Panhuys, 56 et seq. Judge Fernandez, however, found rightly representing the prevailing opinion 85

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types of general principles are distinguished: firstly, the general principles of law as understood in their traditional sense (derived from the legal system of the world88) and secondly, the general principles of international law.89 The former require a comparative survey of domestic jurisdictions which will be explored in more detail below.90 The latter can be derived solely by generalising common significant features91 of international law, conventions or customs.92 Bassiouni defines the general principles of international law as “principles [with general content] deemed basic to international law […that] can emerge in the international legal context without having a specific counterpart in the national legal systems because of the differences that characterize these legal systems.”93 General principles of international law are often deduced from features that guide the legal system and are labelled with a diversity of names, such as emanating from justice, equity or considerations of public policy.94 Hence it is a question of methodology. By way of analogy, deduction, extraction, inductive reasoning or generalisation, existing sources and rules of in-

that “whatever, I say, may be the attitude of each towards the origin and basis of these principles [general principles recognised by civilised nations], all are agreed in accepting their existence and their application as a source of positive law.”, ICJ, Right of Passage over Indian Territory, Portugal v. India, Judgment, Merits, 12 April 1960, Dissenting Opinion of Judge Fernandez, para. 35. Generic as for the prevailing opinion that recognises general principles as source of international law: Vitzthum, Begriff, Geschichte und Rechtsquellen des Völkerstrafrechts, marginal no. 145 although he does not distinguish different types of general principles. 88 The traditional understanding of general principles of civilised nations goes back to the drafting of the PCIJ Statute: Procés-verbaux of the Proceedings of the Committee, 335. But already before arbitrarial courts had recourse to principles derived from the foro domestico: Vasiliev, General Rules and Principles of International Criminal Procedure, 34. 89 See inter alia: Cassese, International Law, 188; MPEPIL-Gaja, General Priniples of Law marginal no. 7 et seq and 17 et seq.; Hoof, Rethinking the Sources of International Law, 139 et seq.; Rosenne, 291 RCADI 2001, 13, 63; with a slightly different wording: Shaw, International Law, 73; Verdross/Simma, Universelles Völkerrecht, § 606. Mosler, FS-Truyol Serra and MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 29 et seq. find further categories: general principles from municipal law (the classical definition) having their origin directly in international relations, principles recognised in all kind of legal relations regardless of the legal order to which they belong, principles of legal logic. Ibid., marginal no. 29 adds general principles developed or set out in one particular treaty regime, which are or may be transferred to others, thus gaining an independent status. 90 See below chapter H. 91 Bassiouni, 11 MichJIntlL 1990, 768, 768, 771 et seq.; Cassese, International Law, 188; Malanczuk, Akehurst’s Modern Introduction to International Law, 48 et seq.; Rosenne, 291 RCADI 2001, 13, 63. 92 Bassiouni, 11 MichJIntlL 1990, 768, 768, 771 et seq.; Lachs, 169 RCADI 1980, 13, 196; Lammers, FS-Van Panhuys, 59, 66 et seq.; Virally, 183 RCADI 1983, 13, 171; Rosenne, 291 RCADI 2001, 13, 63; Simma/Alston, 12 AustYBIL 1988, 82, 102; Verdross/Simma, Universelles Völkerrecht, § 606; Zemanek, 266 RCADI 1997, 13, 135 et seq. 93 Bassiouni, 11 MichJIntlL 1990, 768, 771. 94 Shaw, International Law, 73, 79.

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ternational law are used to establish a general principle,95 thereby obtaining an independent status that goes beyond their status as treaty or customary law.96 However, they do not acquire the status of a distinct source of law.97 Some scholars understand the notion more broadly: they not only deduce general principles from customary law or conventional rules, but also features that have not yet acquired the status of customary or treaty norm.98 That is the case, for example, where a binding obligation for the international community, i. e. opinio iuris, exists but finds no supporting practice and therefore cannot be deemed customary law.99 This may include resolutions or declarations of the UN General Assembly or other international institutions as long as their views can be deemed to represent a considerable majority of the international community and, consequentially, to be quasi opinio iuris.100 It also includes decisions of international courts and tribunals.101 Moreover, general principles can be derived from international relations,102 legal

95

Malanczuk, Akehurst’s Modern Introduction to International Law, 48 et seq.; see also: Bassiouni, 11 MichJIntlL 1990, 768, 811; Hoof, Rethinking the Sources of International Law, 140; Lammers, FS-Van Panhuys, 74. 96 MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 34, 125. It should also be noted that these fundamental principles of international law are perceived to have erga omnes character: Vasiliev, General Rules and Principles of International Criminal Procedure, 37. 97 Stuckenberg, GA 2007, 80; Verdross/Simma, Universelles Völkerrecht, § 606 both with further references. 98 Bassiouni, 11 MichJIntlL 1990, 768, 768 et seq., 777, 801; Lammers, FS-Van Panhuys, 74; Verdross/Simma, Universelles Völkerrecht, § 606. See especially for ICL: Ambos, Der Allgemeine Teil des Völkerstrafrechts, 42 et seq.; following him Raimondo, General Principles of Law, 50, 167. Critically Stuckenberg, GA 2007, 80, 96 et seq. with further references. He instead suggests to take account of converging trends in domestic legal systems in order to find a general principle ibid. 99 Bassiouni, 11 MichJIntlL 1990, 768, 768; Lammers, FS-Van Panhuys, 69; cf. also MPEPIL-Gaja, General Priniples of Law marginal no. 18. Specifically for ICL: Ambos, Treatise Vol. I, 76. 100 Petersen, 23 Am U Int’l L Rev 2007, 275, 308; cf. also: Simma/Alston, 12 AustYBIL 1988, 82, 102; Verdross/Simma, Universelles Völkerrecht, 606; similarly: Ambos, Treatise Vol. I, 76; Heinze, International Criminal Procedure and Disclosure, 49 both referring to soft law. Of other opinion: Vitzthum, Begriff, Geschichte und Rechtsquellen des Völkerstrafrechts, marginal no. 146. 101 Raimondo, General Principles of Law, 49, 175; Vallejo, Instituciones de Derecho Internacional Público, 136 – 139. This is also the case in practice; see e. g. ICJ, Corfu Chanel Case, the UK and Northern Ireland v. Albania, Judgment, Merits, 9 April 1949, p. 18; SCSL, Prosecutor v. Sesay et al., Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, Case No. SCSL-04-15-T, para. 10 referring to the ICTR. 102 Cassese, International Law1st, 188; Vasiliev, General Rules and Principles of International Criminal Procedure, 37.

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logic103 or specific international treaties, and may build a basis for new or modified international obligations in branches of international law that they were not originally intended to touch on.104 In summation, the general principles of international law are legal norms that are firmly embedded in the international legal order and may also be found in opinio iuris that has not yet reached the status of customary international law. For the sake of completeness it should be added that some scholars identify a third group of general principles, namely “general principles as such” that exist both in national and international law.105 The origin of such principles will, in the majority of cases, be the domestic legal systems, but no comparative survey is necessary before applying the principle in international law, since the principle is immanent to every legal system – no matter whether national or international.106 This is enough to suggest that this further differentiation does not seem necessary. A further categorisation adds no clarification other than to assert that a certain feature is a principle part of both the domestic and international spheres. That can similarly be established by referring to a general principle of international law and a general principle recognised by the major legal systems of the world. c) Conceptualising the different types of general principles applicable to ICTs Against this background, the types of general principles applicable to ICTs can be established. Three different types of general principles have been identified in Furundzˇ ija:107 general principles of international criminal law, general principles recognised in major legal systems of the world and general principles of international law. To add 103 Cf. Brownlie, Principles of Public International Law, 34. See also: ICJ, Corfu Chanel Case, the UK and Northern Ireland v. Albania, Judgment, Merits, 9 April 1949, p. 22; The Frontier Dispute: Burkina Faso v. Republic of Mali, Judgment, 22 December 1986, para. 20. 104 MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 125, for example, human rights may have influence on other areas in international law such as trade law. 105 MPEPIL-Gaja, General Priniples of Law marginal no. 8; Kadelbach/Kleinklein, 44 Avr 2006, 235, 255; Riznik, Die Immunität ”ratione personae” des Souveräns, 163; Shaw, Statute, Article 38: General Principles of Law; Vitanyi, 86 Revue Générale de Droit International Public 1982, 48, 96 – 102. Of other opinion: Lammers, FS-Van Panhuys, 74, who only distinguished two general principles derived from national law or emerged from public law through generalisation of more specific rules of other sources or from unperfected conventional or customary law. 106 MPEPIL-Gaja, General Priniples of Law marginal no. 8. 107 The chamber used a general principle of international law to establish a definition of rape to test whether sexual penetration of the mouth was included. After the chamber was unable to find a solution in the statute, custom or a survey of the penal systems of the world it referred to the general principles of international law by referring to the human dignity: ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 182 et seq.

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confusion to the already opaque issue, in Kupresˇkic´ et al.,108 Trial Chamber II likewise classified three types of general principles. However, only the first two – general principles of international criminal law and general principles recognised in major legal systems of the world – are the same as those listed in Furundzˇ ija.109 The third – general principles of law – have been defined as principles consonant with the basic requirements of international justice as a subsidiary source to draw from.110 It is therefore necessary to clarify what the Furundzˇ ija and Kupresˇkic´ et al. Trial Chambers meant with their respective references to different types of general principles, as well as to determine whether there is a genuine difference in the principles or simply a difference in language used to describe the same concepts. As in general international law, a differentiation between general principles recognised in major legal systems of the world – in the traditional sense of Art. 38(1)(c) ICJSt – and other general principles of international law is after all accepted among a considerable number of international criminal law scholars and case law.111 However, these sources often fall short of definitions and explanations of their meaning and interrelationships. Akande, paraphrasing the Kupresˇkic´ et al. judgment, defines general principles of international law as “the fundamental features and the basic requirements of international criminal law.”112 They differ from the principles found in national legal systems of the world, particularly in their methodology of establishment.113 Whereas the latter are a common basis derived from national legal systems114 and transported into international law – an issue addressed in greater detail below115 – the former “underlie and are inherent in the in-

108

The chamber used the general principles of law consonant with the basic requirements of international justice as last resort after it could not find a general principle from a survey of the legal systems of the world to resolve problems of double-conviction and the erroneous legal classification of an act by the prosecution: ICTY, Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16-T, paras. 717, 728 et seq. 109 ICTY, Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-9516-T, para. 591. 110 Ibid. 111 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/ 1-T, para. 177; Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-9516-T, para. 677; Akande, Sources of International Criminal Law, 51 et seq.; de Meester, The Investigation Phase, 34 et seq.; Pellet, Applicable Law, 1073. Of other opinion arguably Boas, et al., International Criminal Law Practitioner Library, 10 et seq., who criticise all references going beyond the traditional general principles as mentioned in Art. 38(1) ICJSt. 112 Akande, Sources of International Criminal Law, 52, referring to: ICTY, Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16-T, para. 738. 113 Akande, Sources of International Criminal Law, 52; de Meester, The Investigation Phase, 34. 114 Pellet, Applicable Law, 1073. See also Daillier/Pellet, Droit International Public, 348 et seq. See also Stuckenberg, GA 2007, 80, 89 et seq. 115 See below F. IV.

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ternational legal system.”116 Hence, they are already part of the international body of law. Per this interpretation, the general principle of international law identified in Furundzˇ ija and the principles of law consonant with the basic requirements of international justice identified in Kupresˇkic´ et al. are essentially the same – both describe fundamentals that underpin the international (criminal) order. Some guidance as to the meaning of the different notions of general principles can be found in subsequent publications of Cassese117 who presided over the Kupresˇkic´ et al. case.118 He distinguishes general principles of international law – sweeping and loose standards inherent to the international legal system that are embedded in conventional or customary rules and can be established by way of induction or generalization – and general principles of international criminal law.119 Along the lines of the general international law scholarship, the latter belong to a particular branch of international law, i. e. international criminal law. As general principles, these are fundamental legal standards that undergird the whole body of international criminal law. Cassese finds that those principles are already embedded in international law because they belong to the international body of law via customs, treaties or general principles derived from the penal systems of the world.120 Hence, no comparative study is necessary to establish those principles; they have often been transposed from principles specific to criminal law from national legal systems to the international level, but over time have become a firm part of ICL as general principle.121 They can also expand and become a general principle for the whole body of international law.122 Cassese’s and the ICTY’s assertions regarding general principles is similarly reflected in the RomeSt, which provides for fundamental principles of criminal law in Part III. These principles of ICL referred to by the RomeSt concern substantive international criminal law.123 They are often modelled on customary law and general principles in their traditional understanding.124 Furthermore, the ICC’s 116 Akande, Sources of International Criminal Law, 51, cf. also Raimondo, General Principles of Law, 171. 117 Cassese, International Law1st, 31. 118 See also: Raimondo, General Principles of Law, 167, 170. 119 Cassese, International Law, 188 et seq. with footnote 3; Cassese, International Criminal Law, 378, 21. 120 Cassese, International Criminal Law, 21. 121 Ibid., 20 et seq.; Vasiliev, General Rules and Principles of International Criminal Procedure, 39. An example is general principles of international humanitarian law. 122 Cassese, International Law, 189 with footnote 3; Vasiliev, General Rules and Principles of International Criminal Procedure, 39. See also ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 183. 123 Werle, General Principles of International Criminal Law, 54 also includes the right to a fair trial in the set of general principles of criminal law. According to Bassiouni, The Legislative History of the International Criminal Court: Introdcution, Analyisis and Integrated Text of the Statute, Elements of Crimes, and Rules of Procedure and Evidence, Vol. I, 85 Art. 21 RomeSt “properly belongs” in Part III of the Statute, as it also enshrines a general principle. 124 Werle, General Principles of International Criminal Law, 54.

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case law gives support to the recognition of different types of general principles, as it often refers to well-established principles in international law without engaging in a comparative study.125 It remains to conclude that there are general principles inherent to any of the specialised branches of international law and thus, also to international criminal law, though these analytical statements do not develop new normative content. Against this background, another aspect is to be added to the matter of general principles. Recent studies on the establishment of shared principles and rules of international criminal procedure126 show that a coherent normative system in the discipline of international criminal procedure is emerging,127 in spite of the fact that until recently it was an area of law fragmented in different tribunals and their divergent RPE. Hence, there is some impetus to further systematise the general principles derived from international law. The group of general principles of international criminal procedure can be added.128 Again, it should be highlighted that these general principles of international procedural law are to be distinguished from the general principles recognised in legal systems of the world, although the latter can prove – or rather reinforce – the existence of the former.129 They take on a special role as general principles in the normative body of international criminal law in that they are of a fundamental character and underpin the very construct of international criminal procedure, but are ultimately derived from one of the traditional sources. In a similar vein – although reluctant to recognise international criminal procedure as a specific branch of international (criminal) law – Cassese introduces general principles governing international criminal trials.130 He extracts these by way of 125 See inter alia: ICC, Situation in the DRC: Prosecutor v. Lubanga, PTC I, Decision on the Practices of Witnesses Familiarisation and Witness Proofing, 8 November 2006, Case No. ICC01/01-01/06, para. 29 et seq.; Situation in the DRC: Prosecutor v. Chui, AC, Judgment on the Prosecutor’s Appeal Against the Decision of Trial Chamber II Entitled “Judgment Pursuant to Article 74 of the Statute”, 27 February 2015, Case No. ICC-01/04-02/12-271, para. 246; Situation in the DRC: Prosecutor v. Katanga and Chui, PTC I, Decision on the Confirmation of Charges, 30 September 2008, Case No. ICC-01/04-01/07, para. 98; ICTY, Prosecutor v. Tadic´, AC, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-91-1, paras. 42 – 46. 126 Boas, et al., International Criminal Law Practitioner Library; de Meester, The Investigation Phase; Sluiter, et al., International Criminal Procedure: Principles and Rules; Vasiliev, General Rules and Principles of International Criminal Procedure. 127 In this direction also Boas, et al., International Criminal Law Practitioner Library, 14, 463 et seq.; Kwon, Procedural Challenges; Sluiter, 6 ICLR 2006, 605, 606. Of other opinion: Cassese, International Criminal Law, 378, who, nevertheless, pointed out certain general principles underpinning all international criminal trials. 128 Vasiliev, General Rules and Principles of International Criminal Procedure, 40, who comes to this conclusion after having eloquently elaborated on the existence of general principles of international law and a similar counterpart in the different branches of international law. 129 Sluiter, et al., Introduction, 22. 130 Cassese, International Criminal Law, 378.

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generalisation from the statutes, RPE, and case law of the ICTs in the matter of criminal procedure. Because the method used here is again inference from international criminal (procedural) sources, they can be conceptualised as general principles of the specific branch of international criminal procedure. Thus, they can be classified on the same level as general principles of ICL. Cassese’s understanding is basically what Akande and the ICTY Trial Chambers, respectively, saw as general principles of international law: general principles of law consonant with the basic principles of justice, yet especially focusing on criminal procedural law. With this interpretation, the recognition of general principles of international criminal (procedural) law amounts to nothing more than a systematisation of general principles which have ultimately been derived from legal systems of the world or other formal sources, but which are already been firmly embedded in the international sphere. Hence, they are part of the category of general principles of international law but concern a more specific matter – namely the coherent normative system of international criminal procedure.131 In order to find these principles, one must draw on the common rules and norms that underpin criminal proceedings across all ICTs. Hence, structures that are typically applicable at ICTs must be identified. Ultimately, these features often stem from a custom or conventional regulation which is of a fundamental nature and generally recognised in international law (or one of its branches), or from a general principle recognised by states of the world according to the classical definition but have become a firm part of international criminal procedure. For example, the internationally recognised right to a fair trial is inevitably a general principle of criminal procedure in states around the world. Fairness of proceedings also serves as the basis for several general principles underpinning international criminal procedure. In this regard, Boas et al. submit that the right to a fair trial is the basis of international criminal procedure.132 “It is the glue that binds together the entire body of international criminal procedure, and the central component that imbues it with legitimacy.”133 It can, hence, be deemed a general principle of international criminal procedure. As will be shown below134, the principle is derived from internationally recognised human rights instruments and can therefore also be deemed part of the international law source ‘treaty’. Finally, it can be seen to have 131

Cf. as for the link between principles and the existence of a coherent normative system: Sluiter, et al., Introduction, 19; Boas, et al., International Criminal Law Practitioner Library, 461. 132 Boas, et al., International Criminal Law Practitioner Library, 13, 464. Similarly, Gradoni, The Human Rights Dimension of International Criminal Procedure, 75. See also Sluiter, 6 ICLR 2006, 605, 610: human rights as “backbone and general framework” of international criminal procedure. 133 Boas, et al., International Criminal Law Practitioner Library, 464. In a similar vein, the examples Cassese names under the notion of general principles governing international criminal trials are: the presumption of innocence, the independence and impartiality of the judges, the fairness and expeditiousness of the trial, and the right of the defendant to be present. These are all such fundamental notions that they without question underpin any criminal process – no matter whether international or national. 134 See below F. III.

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attained customary status135 as well as being a principle recognised in penal systems of the world. d) Hierarchy among the different types of general principles Having identified different types of general principles – general principles of international criminal procedure, general principles of international criminal law, general principles of international law and general principles recognised by the penal systems of the world – the hierarchy between the different types of general principles must be clarified. Cassese establishes a hierarchy of general principles. To start, he draws upon the rule of lex specialis, which he understands in this context as the application of those norms that are better suited to find a solution to the international problem. According to this rule, the general principles specific to international criminal (procedural) law are at the highest level, followed by general principles of international law. Finally, if those two sources cannot establish a solution to the legal problem, general principles common to the penal systems of the world – and thereby the national sphere – may be drawn upon.136 The ICTY firstly drew on the general principles of ICL, then engaged in a comparative study to extract general principles common to the major legal systems of the world – and only lastly referred to the broadest and most basic principles of international law.137 For the purposes of this study, only general principles of criminal procedure derived from the tribunals’ framework and practice and general principles in the classical sense are of importance. Following both Cassese and the ICTY’s case law it seems reasonable to draw firstly on the specific general principles of international criminal procedure that stem from the ICTs’ common use and secondly on the principles recognised by the penal systems of the world – whereby the former follow from the first two sources.

4. Interim conclusions It has been shown that human rights treaties, customary law as far as it concerns the fairness of criminal proceedings and both general principles derived from legal systems of the world and general principles deduced from the international legal order – which also include general principles of international criminal procedure – are all important sources of international criminal procedure. These sources are all relevant to the question of whether trials in absentia may be held at ICTs. 135

See above D. I. 2. Cassese, International Law, 194; Cassese, International Criminal Law, 21. 137 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/ 1-T, para. 182 et seq.; Prosecutor v. Kupresˇkic´ et al., TC, Judgment, 14 January 2000, Case No. IT-95-16-T, paras. 717, 728 et seq. A difference only occurs with regard to general principles of international law, which are not of relevance to the present study. 136

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All ICTs, as well as their residual mechanisms, are bound by internationally recognised human rights standards either by their statute, RPE, as applicable international treaties, customary law or case law138 – especially by borrowing consolidated interpretations, particularly of the right to a fair trial, from international human rights monitoring bodies, mainly the ECtHR.139 The right to a fair trial is of such fundamental importance to respect and ensure procedural fairness, so it is also deemed a general principle of international law and recognised by the major legal systems of the world.140 Some scholars, as well as impliedly the Appeals Chamber of the ICTY, even consider some or all of the fairness features as ius cogens.141 As a peremptory norm, its imperative character would be unquestionable.142

138

Bohlander, 45 NYIL 2014, 331, 344; Cassese/Gaeta/Jones, 1201; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 34; Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 21; Møse, FS-Asbjørn Eide, 207; de Meester, The Investigation Phase, 40 et seq.; Safferling, Die EMRK und das Völkerstrafprozessrecht, 154, 157 et seq.; Zappalà, Human Rights in International Criminal Proceedings, 7 asserting that applicability of human rights was a “policy choice” is, therefore, too narrow. 139 Criticism of the last part, as the case law could not be applied directly but rather as a reference showing customary law or international principles of law: de Meester, The Investigation Phase, 50 et seq.; Cassese, FS-Asbjørn Eide, 21 et seq., 50. 140 Akande, Sources of International Criminal Law, 49; Meron, Human Rights and Humanitarian Norms as Customary Law, 88 et seq.; Pellet, Applicable Law, 1068; Raimondo, General Principles of Law, 171; Sluiter, 37 NewEngLRev 2002, 935, 937; Werle, General Principles of International Criminal Law, 54; cf. also, in general, for human rights treaties: Bos, 22 FordhamIntlLJ 1998, 229, 234. 141 ICTY, Prosecutor v. Tadic´, AC, Appeal Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, Case No. IT-94-1-A-AR77 in regard to Art. 14 ICCPR; Boas, et al., International Criminal Law Practitioner Library, 12, 14; Cassese, International Criminal Law, 384; Hafner, FS-Eric Suy, 657. Only the right to fair trial but not the minimum guarantees enshrined therein: Boas, The Milosˇevic´ Trial, 16 et seq.; Wladimiroff, Rights of Suspects and Accused, 430. Critically as for this view as the right to a fair trial is in all relevant human rights treaties subject to a derogation clause: Croquet, 11 HRLR 2011, 91, 98. He himself observes that Sluiter, 37 NewEngLRev 2002, 935, 938, 940 when submitting that the derogation clause only apply to states and cannot be automatically applied to procedures before international criminal courts, has a decent counter-argument against that view. 142 Art. 53 VCLT.

E. Requirements for trials in absentia deriving from human rights law Having identified international human rights law as source of law for ICTs, the following will as a first step explore the requirements that regional and universal human rights supervisory bodies established for the lawful conduction of procedures in absentia. It will be shown that the focus for these conditions lies on the compatibility of trial in absentia with the defendant’s right to be present enshrined in his right to a fair trial. It will also be discussed whether the fairness standard must be adjusted in response to the particularities of international criminal procedure. In a second step it will be tested whether in light of these conditions, the conduction of trials in absentia runs counter other guarantees that are enshrined in the right to a fair trial.

I. Requirements for the conduction of trials in absentia Human rights supervisory bodies have established a number of requirements for the lawful conduction of trials in absentia. The conditions under which trials in absentia are compatible with human rights must be observed by ICTs since they are bound by these standards.1 The jurisprudence of human rights monitoring bodies, especially the ECtHR, is also of utmost importance in determining whether a general principle common to the major legal systems of the world exists2, for two main reasons. Firstly, from a comparative viewpoint, the case law of these institutions covers a great number of different legal systems of the world, which can help elucidating which common principles guide the respective domestic systems and may be determined as general principle.3 One hundred and fourteen countries have adopted Optional Protocol 1 and thereby accepted individual claims to the HRC. As for the ECtHR, 47 states are member to the Council of Europe. The IACtHR’s jurisprudence is of minor importance in this regard, as the member states that accepted its jurisdiction are predominately civil law countries.4 The inferior relevance of the HRC can naturally not be explained by the small number of different legal traditions it covers, but as a sole supervisory body with no proper judicial function the impact of its 1

See above D. I. 1. This will ne adressed in the following chapter H. 3 Cassese, FS-Asbjørn Eide, 25; Mégret, The Sources of International Criminal Procedure, 70; cf. also Verdross/Simma, Universelles Völkerrecht, § 603. 4 Cassese, FS-Asbjørn Eide, 25. 2

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findings is much reduced.5 Finally, the ECtHR’s caseload is the highest and, and accordingly, the diversity of cases it hears is by far the greatest. As will be shown, they also influenced the drafting of the relevant governing instruments of the ICTs. Secondly, general principles coming from the international sphere can generally also be derived from international human rights treaties.6 This finds support in the ICTY’s case law. In Tadic´ the Appeals Chamber referred to the ECtHR, ACHR and ICCPR to single out a general principle of law.7 Light can also be shed on common values and principles in criminal procedure by assessing the EU’s standard setting within the Area of Freedom, Security and Justice. One key element of this setup is the mutual recognition of the other member states’ criminal justice systems,8 which entails acceptance of diverse approaches in criminal procedure. Beyond that, through the implementation of framework decisions and more recently directives in the field of criminal procedure, this mutual recognition amounts to an indirect harmonisation of the criminal justice systems. By observing the legislative actions of the EU in this area, convergence of different domestic criminal justice systems can be revealed, which also elucidates the general procedural principles common to the EU member states making up a significant number of the major legal systems of the world. This is why the analysis will also involve the EU as international institution.

1. EU requirements regarding criminal procedures in absentia Before assessing the requirements of the EU law regarding criminal procedures in absentia, it should be noted that the EU legislation in criminal procedural matters, especially regarding the suspect’s rights in criminal proceedings, is generally closely orientated to regard the ECtHR’s case law. This stems not least from the fact that the ECHR and the case law of the ECtHR through the EU FRCh became indirectly binding for the member states and EU bodies.9 Moreover Art. 52(3) EU FRCh declares that the meaning and scope of the provisions that corresponds with rights guaranteed by the ECHR shall be the same as those rights enshrined in the Convention. This makes a further exploration of the right to a fair trial and right to defence enshrined in Art. 47 and 48(2) EU FRCh redundant.

5

Cf. also ibid. Ibid., 27; see also Tomuschat, 281 RCADI 1999, 23, 337. 7 ICTY, Prosecutor v. Tadic´, AC, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-91-1, paras. 42 – 46. 8 Böse, 36 NCJIintlL & Com Reg 2011, 489, 493 et seq.; McDermott, Fairness in International Criminal Trials, 142. 9 Preamble and Art. 51(1), Art. 52(3) EU FRCh; Art. 6(1), (3) TEU. See as for the indirect binding character and the relationship between ECtHR and ECJ: Hecker, The Development of Individual Rights Protection in European Criminal Law After the Lisbon Treaty, 3 et seq. 6

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The EU along the way has passed various legislation in regard to criminal proceedings in absentia, focusing on the trial phase. In this regard, the framework decisions on the arrest warrant10 and the subsequent framework decision on trials in absentia,11 which amended the earlier provision by tightening the requirements for surrendering convicts who have been tried in absentia, were of great importance. Both framework decisions are based on the principle of mutual recognition, which, in criminal procedural terms means, that an act or decision that was lawfully taken by a criminal authority of a member state is to be recognised in all other member states.12 The harmonisation of criminal law in Europe progressed remarkably, and is significantly based on this principle.13 However, the mutual recognition principle may be restricted where the violation of fundamental rights is concerned.14 It is to be checked in every individual case whether mutual trust between member state is applicable.15 Also, the framework decisions on the European arrest warrant and trials in absentia still foresee several reservations as to the mutual recognition. They leave room for judicial review before extraditing suspects or convicts or executing requested investigative actions.16 Neither of the framework decisions aimed for a harmonisation of the conditions under which the conduction of trials in absentia seems lawful.17 However, by defining common grounds of non-recognition of the arrest warrant and other cooperation instruments regarding convicts that have been 10 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States, Official Journal L 190, 18. 07. 2002, pp. 001 – 0020. 11 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, OJ 81, 27. 03. 2009, pp. 24 – 36. According to Cras/Erbezˇnik, Eucrim 2016, 25, 26, some member states question the compatibility with the new Directive, which will be subject to investigation further below. 12 Cf. Hecker, The Development of Individual Rights Protection in European Criminal Law After the Lisbon Treaty, 3; Smith, 4 NewJEuropeanCrimL 2013, 82, 83. 13 Hecker, The Development of Individual Rights Protection in European Criminal Law After the Lisbon Treaty, 3; Cape/Hodgson/Prakken/Spronken, Procedural Rights at the Investigative Stage, 3 et seq. See as for the growing importance of said principle: Albert/Merlin, Eucrim 2015, 60, 61 et seq.; see also Smith, 4 NewJEuropeanCrimL 2013, 82, who maintains a rather critical point of view as, according to her, fundamental rights are not – yet – sufficiently respected. She finds further reforms regarding the protection of fundamental rights necessary. 14 ECJ, Aranyosi and Calda˘ ra˘ ru, Grand Chamber, Judgment, 5 April 2016, Case Nos. C404-15, C-659/15; BVerfG, Second Senate, Order, 15 December 2015, 2 BvR 2735/1. 15 BVerfG, Second Senate, Order, 15 December 2015, 2 BvR 2735/1, para. 63 et seq., 85 et seq.; Kaiafa-Gbandi, 7 EuCLR 2017, 219, 237. 16 See for a comprehensive description of the principle of mutual recognition: Böse, 36 NCJIintlL & Com Reg 2011, 489, 492 et seq.; a brief overview can also be found at: Hecker, The Development of Individual Rights Protection in European Criminal Law After the Lisbon Treaty, 3. 17 Böse, 36 NCJIintlL & Com Reg 2011, 489, 504.

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tried in absentia,18 an indirect harmonisation of domestic criminal procedural law took place.19 The framework decision has, however, been criticised for implementing optional grounds for non-execution of the arrest warrant or the requested investigative actions and thereby leaving broad discretion to the member states regarding whether to abide by the standards set forth for trials in absentia.20 But a step in the direction of a standard that seriously implements the merits of Art. 6 ECHR regarding the right to be present at one’s trial can be found in several directives to strengthen the defendant’s rights in criminal proceedings that have been issued in light of the Stockholm programme21 and the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings22 both issued by the European Council. These directives go beyond merely indirect harmonisation. One of these directives expressly concerns the issue of trials in absence of the defendant and thereby implements and clarifies the standards that have been set forth in the framework decision on trials in absentia. A common feature of all these directives is that the ECtHR case law shall be taken into account.23 Hence, the EU legislator regards the ECtHR requirements as minimum standards of Union law that are cornerstone for the harmonisation in criminal law matters.24 The Directive (EU) 2016/343,25 which is to be implemented by April 2018, concerns, inter alia, the right to be present at the trial in criminal proceedings by safeguarding the defendant’s right to participation and to make his own contribution 18 This is according to Preamble 4 Council Framework Decision 2009/299/JHA the objective of the framework decision. 19 Böse, 36 NCJIintlL & Com Reg 2011, 489, 504. 20 Ibid., 507, 509. 21 The Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens 2010/C 115/01. 22 Resolution of the Council of 30 November 2009 (2009/C 295/01). The initiative of the European Criminal Bar Association “Agenda 2020: A new Roadmap on minimum standards of certain procedural safegurdas”, http://www.ecba.org/extdocserv/20180424_ECBA_Agenda202 0_NewRoadMap.pdf (last accessed: 7 February 2021), has not yet borne fruits. 23 See inter alia Recital No. 27 Directive (EU) 2016/343 of the European Parliament and the council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ, L65/1, 11. 03. 2016, pp. 1 – 11; Recital No. 53 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ 294, 6. 11. 2013, pp. 1 – 12 (Directive (EU) 2016/343). 24 Cf. also Cras/Erbezˇnik, Eucrim 2016, 25, 34. 25 See as for its development: ibid., 25 – 27. The Directive applies to all stages of criminal proceedings as interpreted by the ECJ, thereby including all kinds of administrative procedure assessing the guilt of an accused person: Art. 1, 2 Directive (EU) 2016/343, loc. cit. However, the regulations on in absentia procedure are always only referred to at the trial stage. See e. g.: Art. 1(b); Art. 8(1) and Recital No. 40 Directive (EU) 2016/343. The Directive has not been adopted by Denmark, the UK and Ireland.

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to criminal hearings. Again, as has been the case while drafting earlier international instruments, the matter on trials in absentia has been controversially discussed.26 At the outset it is to be noted that the Directive is not applicable to written procedures.27 The Directive expressly allows for procedures that are from the outset constructed to have no hearing.28 Inaudito reo proceedings provided for by domestic criminal law are therefore unconditionally lawful as measured by this Directive. The Directive mainly amounts to a written authorisation of the ECtHR case law regarding the compatibility of a trial in absentia with Art. 6 ECHR.29 The Directive highlights that the defendant has generally a right to be present during his trial,30 but also foresees exceptions. Hence, the right to be present is not guaranteed absolutely.31 In this regard, it expressly provides for the temporary exclusion of the defendant in order to ensure the proper conduct of the trial for example if he behaves disruptively.32 During the drafting procedure, this exception was labelled as common-sense.33 Additionally, the Directive bases a lawful in absentia trial on an unequivocal – expressive or tacit – waiver of the right to be present at one’s trial.34 Against that framework, the Directive allows for trials in absentia, clearly basing these on a tacit waiver, under the condition that the defendant has been duly informed of the trial and of the consequences of his nonappearance, and especially that the judgment may be rendered in his absence.35 Hence, the appropriate information on the conduction of the hearing is a decisive requirement to institute a procedure in absentia. However, the recitals specify that the information may be provided via personal summons or ‘other means’ that unequivocally ensures the defendant’s awareness of the scheduled trial in due time to participate, giving the member states broad discretion as to the proper notification and, more importantly, not requiring the

26

Cras/Erbezˇnik, Eucrim 2016, 25, 33. See above B. III. 3.; B. IV.; B. V. Art. 8(6) Directive (EU) 2016/343 loc. cit with Recital No. 41. See as for the interpretation of the scope of the exception: Ruggeri, Eucrim 2016, 42, 45 et seq., who is very critical and proposes that a procedure without a hearing requires the defendant’s waiver of the right to a public judicial hearing or needs to give him the opportunity to an effective remedy. 28 Recital No. 41 Directive (EU) 2016/343 loc. cit. 29 Cras/Erbezˇnik, Eucrim 2016, 25, 28. 30 Art. 8(1) and Recital No. 35 Directive (EU) 2016/343 loc. cit. 31 Recital No. 35 Directive (EU) 2016/343 loc. cit.; ECJ, TX and UW, 6th Chamber, Judgment, 13 February 2020, Case No. C-688/18 para. 32. 32 Recital No. 40 Directive (EU) 2016/343 loc. cit. 33 Cras/Erbezˇnik, Eucrim 2016, 25, 33. 34 Recital No. 35 Directive (EU) 2016/343 loc. cit. See already for the Framework Decision: Böse, 36 NCJIintlL & Com Reg 2011, 489, 504. 35 Art. 8(2)(a) and Recital 36 Directive (EU) 2016/343 loc. cit. See also ECJ, TX and UW, 6th Chamber, Judgment, 13 February 2020, Case No. C-688/18 para. 42. See for the Framework Decision: Art. 2(1) Council Framework Decision 2009/299/JHA loc. cit. 27

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personal service.36 In this regard it is to be noted that the focus is not just on the diligence exercised by the state authorities to inform the defendant, but also on the diligence exercised by the defendant in order to receive the information.37 Therefore, the leeway for the member states on how to properly inform the defendant is even broader. Further, the suspect or accused person, having been informed of the trial, can express the waiver of his right to be present at trial by deliberately deciding to appoint a defence counsel that represents him at the trial rather than appearing personally.38 The Framework Decision on trial in absentia highlights, which was also confirmed by the ECJ, that the defence counsel must in fact represent the defendant throughout his absence and might need to be appointed by the respective state authority.39 If these conditions regarding an unequivocal waiver of the right to be present are not met, the trial in absentia may still be lawful when the defendant is given the opportunity to have the merits of the case re-examined while participating at this examination.40 In this regard the ECJ found that in situations where the defendant did not appear to a hearing because of a reason beyond his control – e. g. sickness – the right to be present is not infringed if the defendant is informed about the hearing conducted in his absence and there exists a meachmism for repetition of the precdural step that has been taken in his absence, for example the condction of a further witness examination.41 A remedy against an in absentia judgment must entail a fresh determination of the merits of the case, during which new evidence may be introduced and a completely reversed outcome of the trial is possible. The defendant must be allowed the possibility of effectively making use of his presence and participation rights, especially the right to a defence.42 This can also be implemented by way of a regular appeal. It was criticised that this may lead to the loss of an instance, where the first instance was held in absentia and a special remedy leading to a new trial is not provided for.43 The 36

Art. 8(2) and Recital No. 36 Directive (EU) 2016/343, loc. cit. Art. 2(1), Preamble 7 Council Framework Decision 2009/299/JHA. Very critical: Ruggeri, 128 ZStW 2016, 578, 597 et seq. 37 Recital No. 38 Directive (EU) 2016/343. 38 Art. 8(2)(b) and Recital No. 37 Directive (EU) 2016/343, loc. cit. See for the Framework Decision on trials in absentia: Art. 2(1), Preamble 10 Council Framework Decision 2009/299/ JHA, loc. cit. 39 Art. 9 Directive (EU) 2016/343, loc. cit. See also Art. 2(1), Preamble 10 Council Framework Decision 2009/299/JHA, loc. cit; ECJ, TX and UW, 6th Chamber, Judgment, 13 February 2020, Case No. C-688/18 para. 42. 40 Art. 9 Directive (EU) 2016/343, loc. cit. See also Art. 2(1), Preamble 11 Council Framework Decision 2009/299/JHA, loc. cit. 41 ECJ, TX and UW, 6th Chamber, Judgment, 13 February 2020, Case No. C-688/18 para. 48 et seq. 42 Art. 9 Directive (EU) 2016/343, loc. cit. 43 Cras/Erbezˇnik, Eucrim 2016, 25, 33.

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defendant’s right to evidence may be infringed, as he may not be allowed for its introduction in the second instance.44 This criticism, however, is without merit where the second instance provides for a full revision of the facts, which is the case at least in all European jurisdictions under investigation as will be shown later.45 It is also to be considered that only then a fresh determination of the merits of the case can be recognised to have taken place. The defendant, again, can waive such right to an appeal or re-trial either expressly, by asserting that he does not contest the judgment, or tacitly, by failing to file a remedy after he has been duly informed about the judgment and remedy possibilities.46 It is interesting to note that the Directive, in spite of the aforementioned requirements, finds full trials in absentia lawful, as it allows the conduction of a trial against the untraceable defendant when the state authorities undertook “reasonable efforts” to trace the defendant.47 However, approval as to full trials in absentia is only given under the condition that, upon apprehension, the defendant is to be properly informed about the judgment and possible remedies against it, such as the possibility of obtaining a new trial. Under these conditions, the directive allows for the immediate execution of the judgment in absentia without regard to possible remedies, but requires the proper information about such possibilities to attack the judgment in absentia, either orally or in writing, upon the surrender or apprehension.48 Without proper information before the trial or a delivery of the judgment, including information regarding the possibilities of remedying the judgment, a lawful in absentia conviction is not possible. As shown by the Directive it is “common-sense”, that participation requires knowledge about the criminal proceedings to enable the defendant to decide whether he wants to make a contribution to the procedure. Therefore, proper information is required. This is also reflected in the 2012 Directive on the right to information in 44

Ruggeri, 128 ZStW 2016, 578, 600. See below F. II. 2. 46 This is only implemented by the Framework Decision: Art. 2(1) and Preamble 12 Council Framework Decision 2009/299/JHA, loc. cit. This also applies where the judgment and remedy information has not yet been served, but will be served upon surrender. 47 Art. 8(4) and Recital No. 39 Directive (EU) 2016/343, loc. cit. Cras/Erbezˇnik, Eucrim 2016, 25, 33 see this as important clarification to the framework decision that remained silent on that issue. Böse, 36 NCJIintlL & Com Reg 2011, 489, 505, however, interpreted the framework decision already in this way. 48 Recital No. 39 Directive (EU) 2016/343, loc. cit. Böse, 36 NCJIintlL & Com Reg 2011, 489, 505 came to this conclusion already after analysing the Council Framework Decision 2009/ 299/JHA, loc. cit. See as for this: Preamble 12, Art. 5 Council Framework Decision 2009/299/ JHA, loc. cit, according to which, the extradition may be refused when a evader of justice has not been informed of the trial before its conduction or subsequently not provided with the judgment and a remedy possibility. Hence, another member state could refuse to extradite the convict that has been tried in absentia as he sought to evade justice and was not given the possibility to contest the judgment. 45

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criminal proceedings.49 This entitles the defendant to be informed both about the charges and the results of the ongoing inquiry.50 It is aimed to ensure that the defendant obtains sufficient information to enable him to fully understand the information and to properly prepare his defence.51 It should be noted that the addressee of the information, according to the Directive, is the suspect or defendant himself, and not his lawyer.52 Not only is he to be informed, at the start of judicial proceedings at the latest, about the indictment and the legal classification and factual background of it, the proper information also includes information as to the preliminary charges.53 That is general information about the criminal offence in such detail that the fairness of the procedure, during the investigations and pre-trial stage is ensured.54 A common standard as to the serving of official documents has, however, not been established. It is to be noted, that any change of the information regarding both the factual and legal nature has to be communicated to the defendant.55 However, once again there remains a great leeway for the member states to decide in which manner the information is served upon the defendant.56 The right to information is clearly not guaranteed absolutely. Any restriction must, however, be properly justified.57

2. Human rights bodies’ case law and requirements regarding trials in absentia For the purposes of this work, the relevant human rights instruments and the growing body of the case law of their respective judicial or supervisory authorities in the matter of procedures in absentia is primarily limited to ECHR and the relevant jurisprudence by the ECtHR, and the ICCPR and the respective cases decided by the HRC. This narrow framework is explained by the fact that the study focuses on human rights instruments that are genuinely working under control of a judicial or supervisory body and not merely normative text and those agreements, which in practice play a role in the practice of ICTs.58 This excludes a considerable number of 49 Directive 2012/13/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1. 06. 2012, pp. 1 – 10. 50 Ruggeri, 128 ZStW 2016, 578, 581. 51 Recital Nos. 25 and 27 Directive 2012/13/EU, loc. cit. 52 Art. 6(1) Directive 2012/13/EU, loc. cit. 53 Art. 6(1), (3) and Recital Nos. 14, 28 Directive 2012/13/EU, loc. cit. Critically as to the distinction between preliminary charges and the actual accusation: Ruggeri, 128 ZStW 2016, 578, 582; Quattrocolo, The Right to Information in EU Legislation, 86 et seq. 54 Art. 6(1), (3) and Recital Nos. 14, 28 Directive 2012/13/EU, loc. cit. 55 Art. 6(4) Directive 2012/13/EU, loc. cit. Quattrocolo, The Right to Information in EU Legislation, 88. 56 ECJ, Covaci, Judgment, 15 October 2015, C216/14, § 62. 57 Ruggeri, 128 ZStW 2016, 578. 58 Similarly: Eibach, Abwesenheitsverfahren, 232 and Trechsel, Human Rights, p. 4.

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regional and universal recommendations, declarations and resolutions, as well as numerous documents prepared by NGOs.59 On the other hand, the criterion of law in action with a relevant judicial or quasi-judicial body of control certainly include the ACHR, also known as ‘Pact of San José’ and the ACHPR, known as ‘Banjul Charter’. However, these documents are of little relevance for the issue under examination here. In regard to the Banjul Charter, it should be noted that in February 2021 only six of the 30 countries that have ratified the Protocol to the ACHPR on the Establishment of an African Court on Human and Peoples’ Rights declared their acceptance of the ACtHPR’s jurisdiction over applications by individuals or NGOs.60 The body of case law of the young court is therefore rather small; by February 2021 only 100 cases have been finalised. Yet, the most decisive point is that none of the cases concern the issue of procedures in the absence of the defendant. Therefore references will only be made to the theoretical framework of proceedings in the absence of the defendant as set forth in the ‘Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa’ issued by the African Commission on Human and People’s Rights. Moreover, according to the protocol setting up the ACtHPR, the court has jurisdiction over any other human rights instrument ratified by the relevant state.61 Thus, applicants often submit alleged violations of the ICCPR which the court assesses, if necessary, after having examined the alleged violation of the Banjul Charter.62 In light of the foregoing, it is not surprising that the ACtHPR makes references to HRC case law, but it also relies on the ECtHR’s jurisprudence.63 In a similar vein, the IACtHR case law is not very fruitful for the matter in question. Although its body of case law is significant, it has only once been concerned with a question regarding in absentia trials, and then only scratched the surface of the issue. In addition, the Inter-American Court uses ECtHR and HRC case law as authority.64 The introductory note to the right to a fair trial in a commentary on the ACHR and the case law on the Inter-American court even finds “the influence of the European system and its case law […] [to be] extremely present, not to say overwhelming.”65 59 That in no way shall deny their merits and importance, although the latter documents are anyway mostly not binding. Also analysing all binding rules of international law such as regional declarations and resolutions would exceed the scope of this study. 60 Four countries had initially accepted the jurisdiction but in the meantime withdrew the acceptance. 61 Art. 3(1) Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. 62 See inter alia: ACtHPR, Beneficiaries of Late Norbert Zongo et al. v. Burkina Faso, Judgment, 28 March 2014, Appl. No. 013/2011, paras. 9, 118; Lohé Issa Konaté v. Burkina Faso, Judgment, 5 December 2015, Appl. No. 004/2013, para. 9. 63 See inter alia: ACtHPR, Mohamed Abubakari v. Tanzania, Judgment, 3 June 2016, Appl. No. 007/2013, para. 224; Lohé Issa Konaté v. Burkina Faso, Judgment, 5 December 2015, Appl. No. 004/2013, para. 128. 64 See inter alia: IACtHR, Caesar v. Trinidad and Tobago, Judgment, 11 March 2005, Appl. No. 123, Serie C, Separate Opinion of Judge Cançado Trindade, para. 7 et seq. 65 Úbeda De Torres, The Right to Due Process, 646.

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The human rights courts seem to coordinate and harmonise their interpretation of the values of human rights by referencing the ECtHR’s case law and taking it as a paragon.66 The ECtHR was also considered to be a “world court of human rights”.67 This underlines the importance of the case-law of the (quasi-)judicial bodies I have chosen to examine in detail for the purposes of this work, covering one regional human rights instrument, certainly with the largest and fastest growing body of case law, and one that has the aspiration to universal applicability whereby focus will be on the ECHR. Given the ICCPR’s significantly broader scope of application this may well be surprising. But weakness is the status of its quasi-judicial supervisory body, which competes with the binding authority of judgments delivered in a judicial procedure by the ECtHR.68 However, at the outset the African and American human rights framework with regards to trial in absentia will be addressed briefly. a) ACHPR framework and requirements regarding trials in absentia As has already been pointed out, the rather young ACtHPR was never concerned with a question of the compatibility of the Banjul Charter with the conduction of proceedings in absence of the defendant. Nevertheless, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa issued by the African Commission on Human and People’s Rights in 2003 gives some guidance on the matter in question. The document expressly provides for the defendant’s right to be present at his trial.69 The defendant is entitled to appear in person before the judicial authority where a trial against him is held.70 The right is, however, not guaranteed absolutely. The defendant may waive his right to be present as long as the waiver is made voluntarily and unequivocally,71 preferably in writing.72 After asserting that the defendant ‘may not be tried in absentia’ the guidelines go on to state the consequences if a trial was nonetheless held in absentia.73 The defendant is entitled to apply for a re-opening of the case, which leads to a fresh determination of the charges 66 Young, 60 Intl&CompLQ 2011, 189, 204. As for African Human Rights institutions: Heyns, 11 South African Journal of Human Rights 1995, 252, 259 et seq., especially 260 – 261. 67 Attanasio, 28 New York University Journal of International Law and Politics 1995, 1, 16. 68 Croquet, 11 HRLR 2011, 91, 127 et seq., 131; Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 150. 69 Section N(6)(c) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 70 Section N(6)(c)(i) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 71 Section N(6)(c)(iii) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 72 Ibid. 73 Section N(6)(c)(ii) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

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upon showing that he was not adequately notified of the trial, that he was not personally notified or that he was absent due to exigent circumstances beyond his control.74 It is to be highlighted that he has the right to apply for the re-opening, but the request must be granted by the relevant judicial authority. It can, thus, be concluded that in absentia proceedings are not per se incompatible with the Banjul Charter,75 although the wording may suggest so upon a first reading. On the contrary, the defendant may waive his right to be present or tried in his absence after he has been personally notified. Wheeler even observes an emphasis on the defendant’s choice to not be present.76 Moreover, he is entitled to a fresh determination of the merits of the case where he had no personal notion of the trial or his absence was due to force majeure. b) IACtHR jurisprudence regarding trials in absentia The IACtHR was never actually concerned with the question of whether the conduction of trials in the absence of the defendant is compatible with the Charter of San José. However, when seised with a question of impunity in the case of Valle Jaramillo et al. v. Colombia, the court referred to “the trial and conviction in absentia of members of paramilitary groups, who have benefited from the ineffectiveness of the punishment, because the warrants for their arrest have not been executed”77 in order to prove impunity. It seems difficult to draw any conclusion as to the IACtHR’s point of view on the matter of trials in absentia from this. The court considered the trials, which happened to be held in absentia, to be show trials that were never intended to be executed, but rather used to relieve a state from its burden to thoroughly investigate and prosecute the incident in question. To suggest that this indicates that “the court prefers that trials take place in the presence of the accused, not only to ensure the rights of the accused are adequately protected, but also to guarantee that the trial will result in a sufficient remedy”78, although tempting, is in my view too much speculation. Admittedly, nobody denies the court’s general preference for regular trials in the presence of all participants, but the assertion adds nothing to the debate on whether and how trials in absentia may actually be conducted. To sum up, it can be concluded that the IACtHR has not set forth the framework under which a trial may be held in the absence of the defendant under the ACHR.

74

Ibid. Wheeler, 28 CrimLF 2017, 99, 103. 76 Ibid. 77 IACtHR, Valle Jaramillo et al. v. Colombia, Judgment, 27 November 2008, Series C No. 92, para. 165. 78 Wheeler, The Right to be Present at Trial, 14. 75

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c) ECtHR case law and requirements regarding trials in absentia Neither the ECHR nor the ECtHR have a rigorous framework as to procedures in absentia. However, the ECtHR has in its consolidated case law elaborated a standard for trials and appeals in absentia and outlined the conditions under which a trial in the absence of the defendant can be recognised as being compatible with the right to a fair trial enshrined in Art. 6 ECHR.79 The crucial point is, hence, the compatibility with the right to a fair trial. The ECtHR’s case law regarding procedures in absentia, although generally highlighting the importance of the investigative stage,80 only concerns the trial and appeal stages. The fact alone that the ECtHR elaborated conditions to lawfully conduct trials in absentia shows that it sees the need for defendants – under certain circumstances – to be tried in their absence. The court in this regard mentions that the exclusion of trials in absentia may paralyse the conduct of the criminal proceedings, which may cause dispersal of evidence, expiration of time limits for prosecution, or miscarriages of justice.81 Further, it mentions that a proper administration of justice requires the conduction of criminal procedure in due time in service to an economic criminal justice system.82 Finally, “it also recognises as legitimate the interests of the victim’s surviving kin and of society as a whole in seeing the criminal proceedings […] brought to a timely conclusion.”83 aa) Right to be present Taking this as starting point it should be noted that the ECHR does not expressly provide for a right to be present. But there is no dispute about the fact that there is a non-written right to be present at the criminal proceedings enshrined in Art. 6 ECHR. This right is inferred firstly from Art. 6(1)(s.1) ECHR’s object and purpose entitling the defendant to take part in a hearing. Secondly, it is derived from its particular fairness guarantees enshrined in Art. 6(3)(c), (d), (e) ECHR, which can only be effectively used when the defendant is present.84 The ECtHR generally regards the 79 See only ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 81 et seq. where the conditions that have been elaborated in the case law are comprehensively asserted. 80 See e. g. ECtHR, Salduz v. Turkey, Judgment, 27 November 2008, Appl. No. 36391/02, para. 54. 81 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 29. 82 ECtHR, Ekbatani v. Sweden, Judgment, 26 May 1988, Appl. No. 10563/83, Dissenting Opinion of Judge Thór Vilhjálmsson and Dissenting Opinion of Judge Matscher, Joined by Judges Bindschedler-Robert and Gölcüklü. 83 ECtHR, Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, para. 62. 84 See only the leading case: ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 27 and for a more recent example: ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 81.

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minimum guarantees of Art. 6(3) ECHR as particular aspects of the right to a fair trial laid down in Art. 6(1) ECHR and therefore takes both provisions together when assessing the infringement of the right to a fair trial.85 Hence, the fairness of the proceedings taken as a whole is relevant, especially whether the rights of the defence have been respected.86 In conclusion, it can be said that the right to be present is an integral part of the right to a fair trial. It is to be noted that the importance the ECtHR places on the defendant’s presence varies according to the stage of the procedure. During the trial and the appeal that concerns the merits of the case and/or the sentence, the presence of the defendant is deemed to be of capital importance and an essential requirement of Art. 6 ECHR.87 The appeal solely on points of law or leave to appeal proceedings, on the other hand, do not require the defendant’s presence.88 It should be noted that two dissenting 85

See inter alia: ECtHR, Goddi v. Italy, Judgment, 9 April 1984, Appl. No. 8966/80, para. 28; Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 39; F.C.B. v. Italy, Judgment, 28 August 1991, Appl. No. 12151/86, paras. 28, 33; Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 29; Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para. 26; van Mechelen et al. v. the Netherlands, Judgment, 23 April 1997, Appl. No. 21363/93, para. 49; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 27; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 82; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, paras. 45, 52. 86 ECtHR, Unterpertinger v. Austria, Judgment, 24 November 1986, Appl. No. 9120/80, para. 31; Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 44 et seq.; Delta v. France, Judgment, 19 December 1990, Appl. No. 11444/85, para. 36; Lüdi v. Switzerland, Judgment, 15 June 1992, Appl. No. 12433/86, para. 50. 87 ECtHR, Ekbatani v. Sweden, Judgment, 26 May 1988, Appl. No. 10563/83, paras. 25, 31; Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 67, but see para. 58 where the court asserts: “the personal attendance of the defendant does not necessarily take on the same significance for an appeal or nullity hearing as it does for a trial hearing.” This is due to the fact that the ECtHR leaves great discretion to the domestic jurisdiction in how to implement the remedy possibilities. See also ECtHR, Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, para. 58 requiring the presence where in the appeal the sentence may be increased. Relevant are further: ECtHR, Pobornikoff v. Austria, Judgment, 3 October 2000, Appl. No. 28501/95, para. 31. On the other hand, the presence was not required in: ECtHR, Kucera v. Austria, Judgment, 3 October 2002, Appl. No. 40072/98, para. 27 et seq. where the expert report on the alcoholisation was in question. Critically as this concerns facts related to the question of guilt and sentencing: Gaede, Fairness als Teilhabe, 619 et seq. Similarly: ECtHR, Josef Prinz v. Austria, Judgment, 8 February 2000, Appl. No. 23867/94, para. 43 did not consider the presence necessary as the appeal concerned the question of “the future dangerousness of a mentally ill person [largely depending] on the assessment by psychiatric experts”. 88 ECtHR, Sutter v. Switzerland, Judgment, 22 February 1984, Appl. No. 820/78, para. 30; Morell and Morris v. the United Kingdom, Judgment, 2 March 1987, Appl. No. 9562/81, para. 58; Ekbatani v. Sweden, Judgment, 26 May 1988, Appl. No. 10563/83, para. 31; ibid., Dissenting Opinion of Judge Bernhardt, who, however, highlights that participation in writing must be provided for; Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 63; Michael Edward Cooke v. Austria, Judgment, 8 February 2000, Appl. No. 25878/94, para. 38; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 51.

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opinions in the case Ekbatani v. Switzerland and the majority in several cases concerning petty offences did not consider a public hearing on appeal on the merits of the case in relation to minor offences to be necessary, as that ran contrary to an effective criminal justice system.89 As a natural consequence, the defendant has no right to be present. The court established criteria to decide whether in petty offences the second instance may be conducted with written submissions instead of in a public hearing. These criteria include that at the trial stage a public hearing has been properly conducted, the defences’ interests before the appellate court are protected and what is at stake for the defendant.90 The court further considers whether there is a risk of reformatio in peius.91 It seems that in petty offences where the above criteria are met the presence is generally not required.92 This liberal approach to the presence somewhat transferred to petty proceedings at the trial stage. Following a Grand Chamber judgment, the ECtHR also adjusted its approach to proceedings that do not belong to the “core criminal crimes”93 and “do not carry any significant degree of stigma”94 such as tax law and administrative fine proceedings.95 Henceforth, the ECtHR acknowledges that in petty administrative fine proceedings the need for a public hearing96 and the right to be present97 can be subjected to severe limitations. It is, however, of crucial importance that the defence 89 ECtHR, Ekbatani v. Sweden, Judgment, 26 May 1988, Appl. No. 10563/83, Dissenting Opinion of Judge Thór Vilhjálmsson and Dissenting Opinion of Judge Matscher, Joined by Judges Bindschedler-Robert and Gölcüklü; Jan-Åke Andersson v. Sweden, Judgment, 29 October 1991, Appl. No. 11274/84, paras. 27, 29; Fejde v. Sweden, Judgment, 29 October 1991, Appl. No. 12631/87, paras. 31, 33. 90 See inter alia: ECtHR, Helmers v. Sweden, Judgment, 29 October 1991, Appl. No. 11826/ 85, paras. 32, 38; Botten v. Norway, Judgment, 19 February 1996, Appl. No. 16206/90 para. 51 et seq.; Marcello Viola v. Italy, Judgment, 5 October 2006, Appl. No. 45106/04, paras. 67, 76; Golubev v. Russia, Decision, 9 November 2006, Appl. No. 26260/02; Liebreich v. Germany, Decision, 8 January 2008, Appl. No. 30443/03; Samokhvalov v. Russia, Judgment, 12 February 2009, Appl. No. 3891/03, para. 53. Critically as to the latter requirements as it seems to be identical to the petty requirement: Trechsel, Human Rights, 258. 91 Ibid. 92 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 715; Trechsel, Human Rights, 258. 93 ECtHR, Jussila v. Finland, Grand Chamber, Judgment, 23 November 2003, Appl. No. 73053/01, Joint Dissenting Opinion of Judge Loucaides Joined by Judges Zupancˇ icˇ and Spielmann. 94 ECtHR, Jussila v. Finland, Grand Chamber, Judgment, 23 November 2003, Appl. No. 73053/01, para. 43. 95 Ibid.; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR 679. Contra: ECtHR, Jussila v. Finland, Grand Chamber, Judgment, 23 November 2003, Appl. No. 73053/01, Joint Dissenting Opinion of Judge Loucaides, Joined by Judges Zupancˇ icˇ and Spielmann. The case concerned the exclusion of a public hearing but was later applied to the defendant’s presence. Similarly critical: ECtHR, A and B v. Norway, Grand Chamber, Judgment, 15 November 2016, Appl. Nos. 24130/ 11, 29758/11, Dissenting Opinion of Judge Pinto de Albuquerque, para. 28 et seq. 96 See inter alia: ECtHR, Suhadolc v. Slovenia, Decision, 17 May 2011, Appl. No. 57655/ 08; Marcˇ an v. Croatia, Judgment, 10 July 2014, Appl. No. 40820/12, para. 37 et seq. 97 ECtHR, Kammerer v. Austria, Judgment, 12 May 2010, Appl. No. 32435/06, para. 27.

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rights are safeguarded and defence counsel attends the proceedings.98 The case law further shows that cases of private prosecution fall within the scope of the right to be present.99 bb) Duty to be present Art. 6 ECHR enshrines certain fair trial rights but does not provide duties or obligations,100 accordingly, the ECtHR did never expressly impose a duty to be present at criminal proceedings upon the defendant. Nevertheless, it is consolidated case law that it must be possible for the domestic legislation to discourage unjustified absences.101 This implies that a duty to be present at a hearing in court exists, as the absence can only be unjustified where the defendant is obliged to be present. In a similar vein, the ECtHR found an order restricting the free movement “the most lenient restriction on his [the defendant’s] liberty, which the authorities could have imposed in order to guarantee his appearance in court”.102 Further, the case law suggests that the domestic procedure can foresee a possibility to fine the defendant in order to make him appear in court.103 Moreover, the ECtHR has on several occasions recognised that a domestic “court of second instance should order the defendant to appear to an appeals hearing, if his personal presence appears necessary in the interest of justice”.104 On another occasion, the ECtHR found that an order to appear at the 98 Ibid., para. 29. But see ECtHR, Yavuz v. Austria, Judgment, 27 May 2004, Appl. No. 46549/99, para. 45 et seq.; cf. also as for regulatory proceedings under the Public Order Act: ECtHR, Flisar v. Slovenia, Judgment, 29 September 2011, Appl. No. 3127/09, para. 33 et seq. where the usual prerequisites to hold a procedure in the absence of the defendant also for administrative fine proceedings were applied, thereby abandoning the rather low requirements for petty cases. 99 ECtHR, Helmers v. Sweden, Judgment, 23 November 1990, Appl. No. 11826/85, para. 29 et seq.; but see the Joint Dissenting Opinion of Judge Palm, Joined by Judges Thór Vilhjálmsson, Bernhardt, Martens and Pekkanen that is of the view that private prosecution is of civil and not criminal nature. 100 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Dissenting Opinion of Judge Bonello. 101 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33; Goedhart v. Belgium, Judgment, 20 March 2001, Appl. No. 34989/97, para. 31; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 47; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 47. Criticising the court for this penalising approach: ECtHR, van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/ 95, Dissenting Opinion of Judge Bonello; Eliazer v. the Netherlands, Judgment, 16 October 2001, Appl. No. 38055/97, Joint Dissenting Opinion of Judges Türmen and Maruste. See also Böse, 36 NCJIintlL & Com Reg 2011, 489, 501; Gaede, Fairness als Teilhabe, 775 et seq. 102 ECtHR, Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 57. 103 ECtHR, Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 55. 104 ECtHR, Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 68; Michael Edward Cooke v. Austria, Judgment, 8 February 2000, Appl. No. 25878/94,

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trial hearing would have been suitable.105 However, this last assertion must be interpreted in its particular context: the defendant in that case suffered from a mental disability and, as a consequence, was not fully capable to act on his behalf. This suggests that for vulnerable defendants special procedural safeguards must apply but does not allow conclusions as to a general duty to be present. Yet, it shows that the defendant can be compelled to appear at a judicial hearing by coercive means, besides the possibility of fining the defendant in order to compel his presence.106 Further, this demonstrates that the ECtHR does not per se exclude a paternalistic approach. The finding that it is for the domestic authorities to take the necessary “positive measures” to ensure the defendant makes use of his right to be present, points in the same direction.107 On the other hand, the ECtHR rejects the penalisation of unjustified absences with stripping the defendant of his right to be defended by counsel.108 The legitimate requirement that defendants must attend court hearings can be satisfied by means

para. 43; Pobornikoff v. Austria, Judgment, 3 October 2000, Appl. No. 28501/95, para. 32; Kucera v. Austria, Judgment, 3 October 2002, Appl. No. 40072/98, para. 28. 105 ECtHR, Vaudelle v. France, Judgment, 30 January 2001, Appl. No. 35683/97, para. 65. 106 See as for the compelled assistance at trial: ECtHR, Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 55. LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 711 assesses that the use of compulsory measures to provide for the defendant’s presence according to German criminal procedure may be problematic in lieu of the ECtHR jurisprudence can, therefore, not be followed. 107 ECtHR, Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 68; Botten v. Norway, Judgment, 19 February 1996, Appl. No. 16206/90 para. 53; but see Melin v. France, Judgment, 22 June 1993, Appl. No. 12914/87, para. 24 et seq. where the court on a, luckily, one time-occasion with a slight majority held that it was upon the defendant to request the delivery of a copy of the judgment of first instance to prepare the appeal procedures when he was personally present at the delivery of said judgment. It seems, as if, the court based the assessment also on the fact that the defendant was a lawyer and familiar with the French criminal procedure. 108 ECtHR Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 35; Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para. 33; Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/90, para. 40; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 34; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 89; Goedhart v. Belgium, Judgment, 20 March 2001, Appl. No. 34989/97, para. 26. See also ECtHR, Eliazer v. the Netherlands, Judgment, 16 October 2001, Appl. No. 38055/97, Joint Dissenting Opinion of Judges Türmen and Maruste; Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 51; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 48. The cases concerned only the second instance that included questions of fact and law as the ECtHR concerns cases only to be admissible after the internal remedies have been exhausted and due to the fact that, as will be schown below F. II., many domestic regulations find the presence of the defendant in the appeals proceedings to be of lesser importance. As the ECtHR asserts to the opposite I do not see why these regulations should not apply to the trial stage. Hence, in the following no differentiation will be made.

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other than deprivation of the right to be defended by counsel.109 Finally, a punishment imposed upon the defendant in light of his unjustified absence, must not be disproportionate.110 So generally, the refusal to hear an appeal on points of law “because the accused has not surrendered himself to custody prior to the appeal constitutes a disproportionate interference with the right of access to a court and therefore a denial of a fair trial.”111 The defendant may not in this way be outwitted to surrender himself.112 Yet, all these precedents reveal that the ECtHR recognises a certain duty of the defendant to be present at judicial hearings. This finding is further confirmed by the PC-OC Committee’s memorandum on judgments in absentia that acknowledges that the presence at one’s own trial is not

109 ECtHR, Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 32; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 48. 110 ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 34; Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para. 33; Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/90, para. 40; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 34; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 89 et seq.; Goedhart v. Belgium, Judgment, 20 March 2001, Appl. No. 34989/97, para. 31; Mariani v. France, Judgment, 31 March 2005, Appl. No. 43640/98, para. 40; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 92; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 51; Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31. On one occasion Judge Matscher contested that opinion and found the exclusion of the counsel in that particular case to be appropriate: ECtHR, Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, Dissenting Opinion of Judge Matscher. 111 ECtHR, Omar and Guérin v. France, Judgment, 29 July 1998, Appl. No. 43/1997/827/ 1033, paras. 40, 43; Khalfaoui v. France, Judgment, 14 December 1999, Appl. No. 34791/97, para. 52 et seq.; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 87; Goedhart v. Belgium, Judgment, 20 March 2001, Appl. No. 34989/97, para. 31; Eliazer v. the Netherlands, Judgment, 16 October 2001, Appl. No. 38055/97, para. 31; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 65. Of other opinion: ECtHR, Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, Joint Dissenting Opinion of Judges Ryssdal, Sir John Freeland and Lopes Rocha, who argue that it was in the defendant’s own hands to decide to surrender to the arrest warrant and take part at the appeals hearing. But see ECtHR, Eliazer v. the Netherlands, Judgment, 16 October 2001, Appl. No. 38055/97, para. 33 et seq. where the court found, penalising the defendant’s absence by declaring the right to an appeal on point of law inadmissible, proportionate. The Joint Dissenting Opinion of Judges Türmen and Maruste rightly asserts that this reasoning can only apply where the criminal procedure obliges the defendant to be present, to their assessment in the case in question that was not the case. This case was also taken under the special circumstances that the criminal procedure of the Dutch Antilles gave precedence of the objection against a trial judgment rendered in absentia and did not allow for the defendant to contest the judgment with an appeal on points of law. Hence, the defendant had the possibility to have the merits of his case re-examined by way of objection, although the appeal was rejected. 112 ECtHR, Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 65.

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only a right but also a duty.113 According to the memorandum, it is necessary “to give personal account to the court”, unless minor offences are at stake.114 cc) Conditions under which a hearing in absentia is compatible with Art. 6 ECHR There are three major conditions that can be distilled from the ECtHR’s case law under which the conduction of a trial or appeal on points of facts (and law) in absentia can be assumed to be lawful. Firstly the unequivocal, possibly implicit, waiver of the right to be present, including the proper information of the defendant, secondly the possibility to have a defence counsel to defend the defendant during his absence and finally, where the foregoing requirements have not been met, the opportunity to have an effective remedy subsequent to the procedure in absentia. Beyond that, the ECtHR leaves room for another concept justifying the defendant’s absence where no waiver exists, namely where the defendant intended to evade justice. (1) Waiver The right to be present is not guaranteed absolutely. The defendant can waive his right to be present. It is even an integral part of the right that one can decide not to make use of it.115 The straightforwardness with which the court assumes the possibility of a waiver of the right to be present at trial is astonishing, considering that the ECtHR on several occasions highlighted the “capital importance” of the defendant’s presence before court “both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim”.116 Alongside the individual defendant’s right to be present, there is, thus, also another public objective to the defendant’s presence. He is a possible means of 113

Council of Europe, PC-OC Committee, Judgments in Absentia, Secretariat Memorandum, 3 March 1998, p. 7. 114 Ibid. 115 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Concurring Opinion of Judge Bonello; Böse, 36 NCJIintlL & Com Reg 2011, 489, 500. Of other opinion arguably Stavros, The Guarantees for Accused Persons, 219 submitting that the right to be present is an absolute right and, therefore, at least an implicit waiver was excluded. See further below G. II. 1. 116 ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 35. This line is repeated inter alia in: ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33; Eliazer v. the Netherlands, Judgment, 16 October 2001, Appl. No. 38055/97, para. 32; Stoichkov v. Bulgaria, Judgment, 24 March 2005, Appl. No. 9808/02, para. 55; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 92; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. para. 51; Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 47; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 47. See especially in regard to the trial hearing of first instance: ECtHR, Ekbatani v. Sweden, Judgment, 26 May 1988, Appl. No. 10563/83, para. 25.

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evidence. Again, that underlines the fact that the ECtHR recognises a duty to be present. The court, however, seems to give preponderance to the subjective component over the defendant as means of evidence in the proceedings. Whether this is indeed the case will be discussed below.117 (a) Information In any event, a crucial prerequisite for a deliberate waiver is that the defendant was properly informed of the proceedings instituted against him.118 Only then can the defendant make a “knowing and informed relinquishment”119 of the right to be present. The ECtHR therefore requests that the defendant has been aware of criminal procedure instituted against him and the reasons for the charges.120 An indirect and informal notification is not sufficient.121 The defendant has to be officially and precisely informed in accordance with procedural and substantial requirements about the proceedings instituted against him, so that he is capable to effectively make use of his defence rights.122 This includes information on date, time and venue of the hearing.123 Moreover, the personal summons or other official notification need to be composed in a language the addressee understands.124 He also needs to be apprised of the hearing sufficiently in advance to make his attendance possible.125 A summons one day before the hearing does not suffice.126 It is, in principle, sufficient to assume awareness of the proceedings where the summons was delivered to the defendant’s 117

See below chapter G. ECtHR, Zana v. Turkey, Judgment, 25 November 1997, Appl. No. 18954/91, para. 70; this can also inter alia be concluded from: ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 28; Brozicek v. Italy, Judgment, 19 December 1989, Appl. No. 10964/84, para. 45; F.C.B. v. Italy, Judgment, 28 August 1991, Appl. No. 12151/86, paras. 33, 35; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135. 119 ECtHR, Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135. 120 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 28; T. v. Italy, Judgment, 12 October 1992, Appl. No., 14104/88, para. 28. 121 ECtHR, T. v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88, para. 28; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 99. 122 ECtHR, T. v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88, para. 28; Kwiatkowska v. Italy, Decision, 30 November 2000, Appl. No. 52868/99; highlighting the official notification: Esser, Auf dem Weg, 723; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 672. 123 See inter alia: ECtHR, Brozicek v. Italy, Judgment, 19 December 1989, Appl. No. 10964/84, para. 42. 124 Ibid., para. 41. 125 ECtHR, Yakovlev v. Russia, Judgment, 15 March 2005, Appl. No. 72701/01, para. 21 et seq.; see also ECtHR, Ziliberberg v. Moldavia, Judgment, 1 February 2005, Appl. No. 61821/ 00, para. 37 et seq. 126 ECtHR, Ziliberberg v. Moldavia, Judgment, 1 February 2005, Appl. No. 61821/00, para. 39. 118

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place of residence; if he could not be reached personally, he can be notified about the attempt to deliver the summons.127 Also, the service on a family member, living at the residential address of the defendant, is sufficient, at least when his defence counsel was similarly notified.128 Local press coverage may also establish the defendant’s knowledge, where the court adduces evidence for such coverage and the defendant’s awareness.129 However, a sole presumption of the defendant’s knowledge does not suffice.130 Was it known, or should it have been known, to the judicial authorities that the defendant did no longer reside at his registered address, a reasonable effort has to be made to trace the defendant.131 A public or indirect notification can then not be deemed to have made the defendant aware of the proceedings instituted against him.132 Similarly, the knowledge of other state authorities, for example, as to the detention of the defendant, can be attributed to the criminal justice authorities.133 It is upon the court to take positive measures to summon the defendant.134 Special diligence is to be taken by the state authorities where the defendant was not notified in person.135 The ECtHR, however, never formulated precise conditions how the summons needs to be delivered to ensure the defendant’s awareness. Altogether there is broad leeway for domestic criminal procedures to regulate the appropriate notification, as long as it guarantees that the defendant had effective knowledge of the proceedings instituted against him and enables him to exercise the defence rights guaranteed by the ECHR. This is all the more true when taking into account that the ECtHR recognises that – in absence of a personal summons – certain facts and circumstances can establish the defendant’s awareness of the proceedings and the precise charges he is faced with,136 for example, where the defendant successfully evaded an attempted arrest.137 Further, when the defendant comprehensively took part in the investigatory proceedings.138 In addition, knowledge is presumed when the defendant appointed a 127

ECtHR, Goddi v. Italy, Judgment, 9 April 1984, Appl. No. 8966/80, paras. 13, 29. ECtHR, Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 45. 129 E contrario ECtHR, Somogyi v. Italy, Judgment, 18 May 2004, Appl. No. 67972/01, paras. 56 et seq., 78. 130 ECtHR Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 28. 131 Ibid.; T. v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88 para. 28. 132 Ibid. 133 ECtHR, Seliwiak v. Poland, Judgment, 21 July 2009, Appl. No. 3818/04, paras. 60, 62. 134 ECtHR, Botten v. Norway, Judgment, 19 February 1996, Appl. No. 16206/90, para. 53. 135 ECtHR, Yavuz v. Austria, Judgment, 27 May 2004, Appl. No. 46549/99, para. 49 et seq. 136 ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 99; Stoyanov v. Bulgaria, Judgment, 31 January 2012, Appl. No. 39206/07, para. 31. 137 ECtHR, Iavarazzo v. Italy, Decision, 4 December 2001, Appl. No. 50489/99; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 99; Stoyanov v. Bulgaria, Judgment, 31 January 2012, Appl. No. 39206/07, para. 31. 138 European Commission of Human Rights, B. v. France, Decision, 12 May 1986, Appl. No. 10291/83, p. 70 et seq. 128

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defence counsel in order to be represented during the trial procedure in question.139 Finally, a lack of information cannot be complained about when the defendant “caused a situation imputable to him which made it impossible to inform him formally”140 and he gained knowledge of the proceedings elsewhere. Similarly, the defendant must be sufficiently aware of the opportunity to exercise his right to be present.141 Needless to say that such communication comes along with the summons to a court hearing. (b) Unambiguousness of the waiver As a second condition, the waiver has to be expressed in an unequivocal manner.142 The waiver need not necessarily be express, but can be made in a tacit manner.143 However, the pure nonappearance cannot be regarded as a waiver of the right to be present.144 Similarly, a waiver may not be inferred from the repeated nonappearance or the refusal to speak the court’s language.145

139

ECtHR, Battisti v. France, Judgment, 12 December 2006, Appl. No. 28796/05. European Commission on Human Rights, Erdogan v. Turkey, Decision, 9 July 1992, Appl. No. 14723/89. 141 ECtHR, Håkansson and Sturesson v. Sweden, Judgment, 21 February 1990, Appl. No. 11855/85, para. 66; Pfeiffer and Plankl v. Austria, Judgment, 25 February 1995, Appl. No. 10802/84, para. 38; Stoyanov v. Bulgaria, Judgment, 31 January 2012, Appl. No. 39206/07, para. 31. 142 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 28; Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 31; Kolu v. Turkey, Judgment, 2 August 2005, Appl. No. 3581/1/97, para. 53; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 86; Hermi v. Italy, Grand Chamber, Judgment, 18 October 2006, Appl. No. 18114/02, para. 73; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 50. 143 ECtHR, Kwiatkowska v. Italy, Decision, 30 November 2000, Appl. No. 52868/99; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 86; Hermi v. Italy, Grand Chamber, Judgment, 18 October 2006, Appl. No. 18114/02, para. 73; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 50. It is to be noted that the ECtHR does not seem to have a clear differentiation, it sometimes speaks of an expressive waiver, where arguing with the defendant’s conduct and the foreseeability of the consequences of such, which clearly point to an implicit waiver. 144 Böse, FS-Paeffgen, 572; Harris/O’boyle/Bates/Buckley, Harris/O’Boyle/Warbrick, 413. 145 ECtHR, Brozicek v. Italy, Judgment, 19 December 1989, Appl. No. 10964/84, para. 45; Zana v. Turkey, Judgment, 25 November 1997, Appl. No. 69/19967688/880, para. 70. As for the former case Paul, Abwesenheitsverfahren, 217 maintains that the court concluded that no waiver by the defendant was intended, because he did not actively express the waiver. She concludes that, therefore, the sole omission was not sufficient to assume that the defendant had waived his right to be present. In my view, the court rather bases the conclusion, that the defendant did not intend to waive his right to be present, on the insufficiency of evidence supporting his awareness of the proceedings. Hence, no informed waiver could be taken. 140

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(c) Voluntariness Finally, the waiver must be voluntary, hence, based on the defendant’s free will.146 That clearly includes that the waiver is made free of constraint.147 Other conditions as to the voluntariness have not been elaborated by the ECtHR. However, it has been held that the defendant cannot be tried in absentia where objective reasons that are known to the court, or which can be considered to have been apparent, hinder the defendant’s appearance.148 Thus, force majeure hinders the assumption of a voluntary waiver and bars the lawful conduction of a trial in absentia. Force majeure, for example, exists where the defendant is detained elsewhere.149 (d) Balancing of interests Generally the Strasbourg court, as a fourth requirement for a valid waiver, tests whether the waiver runs counter to any important public interest.150 This requirement balances the voluntary and informed decision of the defendant against important public interest on a case by case basis, however, the ECtHR has not developed precise criteria.151 Some scholars even assert that it is unclear which public interest is capable of outweighing the defendant’s free and informed choice.152 In light of the other requirements which sufficiently protect the defendant from hasty waiver decisions, a further paternalistic protection through inadmissibility seems redundant153, but other public interests may be at stake. In any event, as regards the waiver of the right to be present this restriction has never been applied by the Strasbourg court. Also, it will be shown in course of the study that there is room for courts to ponder the interests at stake with regard to the defendant’s presence at trial, though the balancing of interest

146 ECtHR, Kwiatkowska v. Italy, Decision, 30 November 2000, Appl. No. 52868/99; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 86; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135. 147 ECtHR, Deweer v. Belgium, Judgment, 20 February 1980, Appl. No. 6903/75, para. 49 et seq. 148 ECtHR, F.C.B. v. Italy, Judgment, 28 August 1991, Appl. No. 12151/86, para. 35; Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, para. 62. 149 Ibid. 150 ECtHR, Håkansson and Sturesson v. Sweden, Judgment, 21 February 1990, Appl. No. 11855/85, para. 66; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 47; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 50. 151 Ferguson, 5 CrimLR 2002, 554, 561; Gaede, Fairness als Teilhabe, 770. 152 Thommen, 128 ZStR 2010, 373, 389; similarly Gaede, Fairness als Teilhabe, 770 et seq. who submits that instead it should be seen a test of proportionality: where a valid public interest exist it may invalid the waiver but only in the rare case that such infringement of the waiver is proportional. Arguably of other opinion in regard to the absence of the defendant as he sees room for the paternalistic invalidation of a waiver where for example not in line with the rule of law: Ferguson, 5 CrimLR 2002, 554, 561. 153 Gaede, Fairness als Teilhabe, 771; Thommen, 128 ZStR 2010, 373, 389.

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is not part of the waiver of the right to be present. It is rather part of releasing the defendant from his duty to be present.154 (e) Burden of proof The Strasbourg court’s jurisprudence as to the burden of proof of the reasons of the defendant’s absence is not unambiguous. On some occasions, the burden of proof that the state authorities had knowledge of objective reasons for the defendant’s nonappearance lies with the defendant.155 On the other hand, the court asserts that the defendant “must not be left with the burden of proving […] that his absence was due to force majeure.”156 In a similar vein, the burden of establishing that the defendant was properly summoned generally lies with the state authorities.157 The ECtHR further maintains that it is upon the state authorities to make sure that the defendant is aware of the proceedings and has waived his right to be present.158 Hence, the criminal justice authorities are to determine and check the positive knowledge and the requirement of a waiver. That is especially the case where the defendant is not fully capable of acting alone on his own behalf due to a mental disability.159 (2) Implicit waiver As already seen above, the waiver of the right to be present can be made in an implicit manner. As for an implied waiver, it is of special importance that the waiver is made deliberately, and that the defendant knows what consequences his conduct has.160 The consequences are not foreseeable, for example, if the law regarding the admissibility of in absentia trials has been subject to a recent change and the defendant, as a layman, could not be expected to have knowledge of this change and, 154

See below G. III. 2. ECtHR, Goddi v. Italy, Judgment, 9 April 1994, Appl. No. 8966/80, para. 29; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 673; Trechsel, Human Rights, 255. 156 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 30; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 87. 157 ECtHR, Gut¸u v. Modldova, Judgment, 7 June 2007, Appl. No. 20289/02, para. 52. 158 ECtHR, F.C.B. v. Italy, Judgment, 28 August 1991, Appl. No. 12151/86, paras. 33, 35; T. v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88 para. 29; Somogyi v. Italy, Judgment, 18 May 2004, Appl. No. 67972/01, para. 72; Abbasov v. Azerbaijan, Judgment, 17 January 2008, Appl. No. 24271/05, para. 29; Seyithan Demir v. Turkey, Judgment, 28 July 2009, Appl. No. 25381/02, para. 42; Maksimov v. Azerbaijan, Judgment, 8 October 2009, Appl. No. 38228/ 05, para. 37. 159 ECtHR, Vaudelle v. France, Judgment, 30 January 2001, Appl. No. 35683/97, para. 61 et seq. 160 ECtHR, Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135; Jones v. the United Kingdom, Decision, 9 September 2003, Appl. No. 30900/02; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 87; Talat Tunç v. Turkey, Judgment, 27 March 2007, Appl. No. 32432/96, para. 59; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46. 155

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therefore, could not foresee the consequence of his nonappearance.161 At the same time, foreseeability is generally assumed where the defendant is, from the outset of the proceedings, assisted by a lawyer.162 The criteria of an implicit waiver of the right to be present are, hence, awareness of the proceedings163 and foreseeability of the consequences of the conduct. An example for an implicit waiver is where the defendant prevents his attendance by putting himself deliberately in a situation where he is unable or unfit to follow the proceedings and thereby tries to prevent the conduction of the trial as such.164 On another occasion, the ECtHR found the breach of an order restricting the defendant’s movement to be a manifestation of wilfully making oneself unavailable to the procedure.165 The court similarly found that a defendant who decided not to appear to subsequent trial hearings and refused to have his defence lawyers represent him in his absence, after he and his lawyers initially participated impliedly waived presence.166 An implicit waiver also occurs if a detained defendant did not request to be transferred to the court hearing.167 Finally, applications that have been filed by defendants who were (temporarily) removed from the courtroom due to their own disruptive behaviour have often been declared to be manifestly ill founded.168 E contrario it can be argued that the removal from the courtroom caused by the defendants misconduct that interrupts the proper conduction of the trial does not violate the right to a fair trial as “it is essential for the proper administration of justice that dignity and order in the courtroom be the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither could nor should [be] tolerated.”169 Nevertheless, the Strasbourg court recently added an important condition to this holding. It is upon the court to ensure that the defendant can reasonably foresee what the consequences of his conduct would be.170 Thus, it is incumbent to the court to make the defendant 161

ECtHR, Jones v. the United Kingdom, Decision, 9 September 2003, Appl. No. 30900/02. ECtHR, Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 57; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 136. 163 ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 59; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, paras. 98, 101. 164 European Commission on Human Rights, Ensslin et al. v. Germany, 8 July 1978, Appl. Nos. 7572/76, 7586/76, 7587/76, pp. 64, 116. In that case the consultation and contact with the defence counsel has throughout the applicants’ absence been possible. 165 ECtHR, Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, paras. 51, 57 et seq. 166 ECtHR, Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 136. It is to be noted that the chamber speaks of an explicit waiver. It, however, assess the foreseeability, hence, applies requirements only suitable to an implicit waiver. Similarly: Böse, 36 NCJIintlL & Com Reg 2011, 489, 499. 167 ECtHR, Hermi v. Italy, Judgment, 18 October 2006, Appl. No. 18114/02, para. 98 et seq. 168 European Commission on Human Rights, X. v. the United Kingdom, Decision, 9 October 1980, Appl. No. 8386/78, p. 126. See also Trechsel, Human Rights, 253. 169 ECtHR, Ananyev v. Russia, Judgment, 30 July 2009, Appl. No. 20292/04, para. 44. 170 ECtHR, Jones v. the United Kingdom, Decision, 9 September 2003, Appl. No. 30900/02; Ananyev v. Russia, Judgment, 30 July 2009, Appl. No. 20292/04, para. 44. 162

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“aware of the consequences of his removal from the courtroom, and, in particular, of the fact that, if the court decided to proceed to try him in his absence, it would do so without appointing counsel to represent him.”171 That is due to the fact that no unequivocal, not even tacit, waiver can be extrapolated from his conduct where the defendant could not foresee the consequences of his disruptive behaviour. (3) Evasion of justice Beyond the waiver, the ECtHR generally refers to another concept when explaining the possibilities of trial in absentia. The Strasbourg court notoriously refers to the concept of “waiver of the right to appear or the intention to escape trial”172 in its justification of trial in absentia. In a recent case, Judge Myjer even expressly found in his dissenting opinion that “where a defendant has largely contributed to bringing about a situation that prevented him from appearing at his trial, the Government cannot be blamed for the need ultimately to decide the case in his absence.”173 The scenario of evading justice relies, hence, on a distinct theoretical basis. Cases where the intention to evade justice have been found seldomly occurred. However, in Medenica the court found that seeking to evade justice requires that the defendant largely contributes “to bringing about a situation that prevented him from appearing before the […] Court”.174 Hence, there must be culpable conduct of the defendant that makes it impossible for him to appear at trial. The same applies, where the defendant makes himself unavailable to be informed of the proceedings instituted against him.175 Medenica was found to have culpably evaded justice by making inaccurate statements before American state authorities in order to make himself unavailable for the criminal trial instituted against him in Switzerland.176 Judge Myjer in his dissent even found a defendant culpable of evading justice because he managed by his conduct, dealing drugs, to be arrested in Norway, which prevented him from going to the Netherlands where he was supposed to stand trial, although it was clear that the

171

ECtHR, Ananyev v. Russia, Judgment, 30 July 2009, Appl. No. 20292/04, para. 46. See instead of many: ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 30; Sejdovic v. Italy, Grand Chamber, Judgment, 1 March 2006, Appl. No. 56581/00, para. 82; Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, Dissenting Opinion of Judge Myjer, para. 58 (Emphasis not in the original). 173 ECtHR, Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/ 12, Dissenting Opinion of Judge Myjer, para. 6. In a similar vein ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 58. 174 ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 58. See also ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 98. 175 Böse, 36 NCJIintlL & Com Reg 2011, 489, 499. 176 ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 58. 172

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defendant did not have any interest in getting arrested.177 In spite of his wish to be present at the trial conducted in the Netherlands, merely causing an objective obstacle that prevented him from appearing, was sufficient to justify a trial in absentia.178 It should be noted that the court regularly assesses the defendant’s conduct as part of the proportionality of the restriction of the right to be present.179 Otherwise the defendant would unwillingly, although deliberately, lose the right to be present.180 Again, it is not on the defendant to prove that he had no intention to escape prosecution.181 Further, it lies with the national authorities to appraise whether the defendant showed good cause for his absence or whether there were objective reasons he could not influence.182 (4) Legal representation during the absence On several occasions, the ECtHR pointed out that the guarantee to be effectively assisted by counsel is of fundamental importance at both the first and second instance.183 Against that framework, the ECtHR asserted that the waiver must be accompanied “by minimum safeguards commensurate to its importance.”184 Accordingly, it concluded that the defendant “does not lose the benefit of that right merely on 177 ECtHR, Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/ 12, Dissenting Opinion of Judge Myjer, para. 7. 178 Ibid., para. 9. 179 ECtHR, Medenica v. Switzerland, Grand Chamber, Judgment, 14 June 2001, Appl. No. 20491/92, para. 58 (“did not amount to a disproportionate penalty”); Böse, FS-Paeffgen, 574; Gaede, Fairness als Teilhabe, 777 et seq.; Paul, Abwesenheitsverfahren, 274; cf. also ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Dissenting Opinion of Judge Bonello. 180 Böse, FS-Paeffgen, 574; Gaede, Fairness als Teilhabe, 785 et seq. 181 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 30; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, paras. 87, 103. 182 ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 57; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 87; Demir v. Turkey, Judgment, 28 July 2009, Appl. No. 25381/02, para. 42. 183 ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 34; Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/90, para. 40; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 89; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 91; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 50; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 48; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 47 et seq. 184 ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 31; Kolu v. Turkey, Judgment, 2 August 2005, Appl. No. 3581/1/97, para. 53; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 81; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 135; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 47; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 50.

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account of not being present.”185 The contracting states must ensure that the defendant has a counsel who defends him during his absence.186 That is even the case for appeal hearings solely on points of law, where the defendant’s presence is generally not required.187 Again, it is asserted that it lies with national authorities to ensure the practical and effective guarantee of said right and the court only assesses whether it is indeed practically and effectively provided for.188 However, the ECtHR repeatedly maintains that the domestic court concerned is to admit a defence counsel who appeared to defend the absent defendant.189 It, further, asserts that the adequate legal assistance requires that the defendant’s counsel is summoned to the hearing in due time to prepare the defence of the absentee.190 Finally, the admission of a defence counsel cannot be subject to unduly formalistic requirements.191 Recently, the ECtHR also found that a court, being of the view that the procedure could not take place in the defendant’s absence, should have given the counsel who appeared ready to defend the absentee, the opportunity to put forward arguments as to the possibility 185 ECtHR, Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 89; Mariani v. France, Judgment, 31 March 2005, Appl. No. 43640/98, para. 40; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 91; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 51; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 48; similarly: ECtHR, Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 133. Of other opinion: ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, Dissenting Opinion Judge Pettiti, who in essence argues that a defendant who does not personally stand his prosecution, forfeits the right to be represented by counsel. He bases this conclusion mainly on the importance of the victims’ interest and the danger that the defendant by not appearing to court could prevent the victims from confronting him. 186 ECtHR, Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para. 34; Pelladoah v. the Netherlands, Judgment, 22 September 1994; Appl. No. 16737/90, para. 41; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 93; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 52; Makarenko v. Russia, Judgment, 22 December 2009, Appl. No. 5962/03, para. 133. 187 ECtHR, Ziliberberg v. Moldova, Judgment, 1 February 2005, Appl. No. 61821/00, para. 42; Abbasov v. Azerbaijan, Judgment, 17 January 2008, Appl. No. 24271/05, para. 33; Maksimov v. Azerbaijan, Judgment, 8 October 2009, Appl. No. 38228/05, para. 41. 188 ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 94; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 52. 189 ECtHR, Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/ 90, para. 41; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 94; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 52; Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31; Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 47. 190 ECtHR, Goddi v. Italy, Judgment, 9 April 1994, Appl. No. 8966/80, para. 30 et seq. 191 ECtHR, Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/ 90, para. 41; Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para. 34.

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to conduct the procedure in his client’s absence.192 Following this strict framework, it is not surprising that this consolidated jurisprudence has led to changes of the statutory law regarding appeals on points of fact of the domestic criminal procedure inter alia in France, Germany and the Netherlands.193 It should be noted that the above case law only concerned cases in which the defendant specifically empowered counsel of his choosing to defend him in his absence. By sending an empowered counsel to the hearing, it was clear that the respective defendant did not waive his right to be represented through counsel. However, the ECtHR was never concerned with the question of whether a counsel needs to be appointed ex officio when the defendant is physically absent from the court hearing and did not empower a counsel for the purposes of his defence. Considering the importance the ECtHR attributes to the possibility of being legally represented while absent from a criminal procedure – even in petty proceedings,194 appeals on points of law195 and during the defendant’s partial absence196 – it is particularly appropriate to oblige the domestic authorities to provide for a duty counsel when trying an unrepresented defendant in his absence. This hypothesis will be further explored at a later stage.197 (5) Effective Remedy Even when the conditions of a waiver and legal representation outlined above have not been met and the defendant did not seek to evade justice, the procedure in absentia may still be compatible with Art. 6 ECHR, when the defendant after becoming aware of the proceedings, has the opportunity to a fresh determination of the merits of the case.198 The ECtHR considers it to be an essential part of Art. 6 ECtHR that the 192 ECtHR, Tolmachev v. Estonia, Judgment, 9 July 2015, Appl. No. 73748/13, para. 52 et seq. Similarly as to arguments on points of law: ECtHR, Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 47. 193 See below F. II. 2. a) ee) (1); F. II. 2. e) bb) (1). 194 ECtHR, Kammerer v. Austria, Judgment, 12 May 2010, Appl. No. 32435/06, para. 29. 195 ECtHR, Ziliberberg v. Moldova, Judgment, 1 February 2005, Appl. No. 61821/00, para. 42; Abbasov v. Azerbaijan, Judgment, 17 January 2008, Appl. No. 24271/05, para. 33; Maksimov v. Azerbaijan, Judgment, 8 October 2009, Appl. No. 38228/05, para. 41. 196 European Commission on Human Rights, Ensslin et al. v. Germany, Decision, 8 July 1978, Appl. Nos. 7572/76, 7586/76, 7587/76, pp. 64, 116. 197 See below E. III. 6. e). 198 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 29; Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, para. 31; Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 55; Jones v. the United Kingdom, Decision, 9 September 2003, Appl. No. 30900/02; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, paras. 82, 84; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46; Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, para. 58. See as for the need of a re-examination where the defendant was not represented by counsel during his absence: LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 689. Following his narrower scope, this only applies where the defendant expressed the wish to be represented by a duty counsel during his absence.

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defendant had the possibility of being present at the criminal proceedings instituted against him, either in the trial proceedings or during the re-examination of the merits of the case.199 Otherwise it is considered to be a “flagrant denial of justice”.200 However, the ECtHR leaves it to the contracting states, in which manner they provide for a fresh determination of the merits of the case.201 Hence, the re-examination can be guaranteed by means of appeal for the renewed admission of evidence rather than an extraordinary remedy for in absentia judgments.202 It is also possible that a bench composed of the same judges conducts the re-examination.203 Yet, the court requests that those measures be effective.204 In this regard, the defendant may not be left with the burden of proving that he did not seek to evade prosecution or was absent due to a reason beyond his control.205 The defendant can, of course, accept the judgment and waive the right to a fresh determination by not contesting the verdict.206 There is also no right to a re-examination if the defendant unequivocally waived his right to be present or sought to evade justice. dd) Conditions under which judicial hearings can be partially conducted in absentia As seen above, the ECtHR allows for in absentia trials fully in absence of the defendant under certain circumstances. It is reasonable to assume that in application of the same criteria, a partial conduction of the trial or appeal in absentia can be justified. An unequivocal (implicit) waiver must, hence, be established. The conduction of a trial after having its initial start in the defendants’ presence is also in line with the right to a fair trial where the defendant deliberately brings about his unfitness

199

ECtHR, Stoichkov v. Bulgaria, Judgment, 24 March 2005, Appl. No. 9808/02, para. 56; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 84. 200 Ibid. 201 ECtHR Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 30; Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 55; Somogyi v. Italy, Judgment, 18 May 2004, Appl. No. 67972/01, para. 66; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 83; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46. 202 ECtHR, Jones v. the United Kingdom, Decision, 9 September 2003, Appl. No. 309008/ 02; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 84. Cf. also ECtHR Pelladoah v. the Netherlands, Judgment, 22 September 1994, Appl. No. 16737/90, para. 38. 203 ECtHR, Thomann v. Switzerland, Judgment, 10 June 1996, Appl. No. 17602/91, para. 35. 204 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 30; Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 55; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 46. This, naturally, requires that the defendant is effectively informed about the right to have the merits of the case reexamined: ECtHR, Hakimi v. Belgium, Judgment, 29 June 2010, Appl. No. 665/08, para. 35 et seq. 205 See above E. I. 2. c) cc) (1) (a). 206 Böse, 36 NCJIintlL & Com Reg 2011, 489, 499.

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to stand trial,207 behaves disruptively208 or makes unsubstantiated claims to be ill.209 Aside from the interest of the administration of justice, which is concerned in these cases, overarching interests, such as the protection of victims and witnesses or the defendant himself, may limit the defendant’s right to be present for short time periods. For those reasons a partial – de minimis – absence of the defendant can be justified.210 ee) Conditions under which the defendant can participate via video link at judicial hearings The ECtHR in consolidated case law211 held that the use of a video link to the defendant is not, as such, incompatible with the notion of a fair hearing and may be a possibility to guarantee an effective participation of the defendant.212 However, the audio-visual link may only be used where it pursues legitimate objectives such as the “prevention of disorder, prevention of crime, protection of witnesses and victims of offences in respect of their rights to life, freedom and security, and compliance with the ‘reasonable time’ requirement in judicial proceedings.”213 Avideo link procedure, in addition, requires a solid connection, so the defendant is able to follow the proceedings and no technical impediments hinder his right to make himself heard.214 It must, further, be ensured that the defendant can communicate effectively and confidentially with his counsel.215 This can be established by a secured telephone line that prevents any attempt of interception216 or personal contact 207

See above E. I. 2. c) cc) (2). See ibid. 209 European Commission on Human Rights, X. v. the United Kingdom, Decision, 22 March 1972, Appl. No. 4798/71. 210 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 676. 211 Alone the ECtHR was seised by the question whether a connection of the defendant via video link to the courtroom impedes the right to a fair trial. 212 ECtHR Marcello Viola v. Italy, Judgment, 5 October 2006, Appl. No. 45106/04, paras. 67, 76; Decision, Golubev v. Russia, 9 November 2006, Appl. No. 26260/02; Zagaria v. Italy, Judgment, 27 November 2007, Appl. No. 58295/00, para. 29; Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 83/02, para. 83; Sakhnovskiy v. Russia, Judgment, 2 November 2010, Appl. No. 21272/03, para. 98. 213 ECtHR, Marcello Viola v. Italy, Judgment, 5 October 2006, Appl. No. 45106/04, para. 75; Zagaria v. Italy, Judgment, 27 November 2007, Appl. No. 58295/00, para. 29. 214 ECtHR, Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 83/02, para. 83; Sakhnovskiy v. Russia, Judgment, 2 November 2010, Appl. No. 21272/03, para. 98. 215 ECtHR, Marcello Viola v. Italy, Judgment, 5 October 2006, Appl. No. 45106/04, para. 75; Zagaria v. Italy, Judgment, 27 November 2007, Appl. No. 58295/00, para. 29; Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 83/02, para. 83; Sakhnovskiy v. Russia, Judgment, 2 November 2010, Appl. No. 21272/03, para. 98. 216 ECtHR, Sakhnovskiy v. Russia, Judgment, 2 November 2010, Appl. No. 21272/03, para. 98. 208

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before the hearing.217 Finally, it is to be noted that the “exercise of the right to legal assistance takes on particular significance where the applicant communicates with the courtroom by video link.”218 d) HRC case law and requirements regarding trials in absentia The ICCPR does not establish requirements for which a trial in absence of the defendant can be conducted. However, the HRC has been concerned with a few cases in which it elaborates on the issue of the compatibility of a trial in absentia with Art. 14 ICCPR, the right to a fair trial. In August 2007, this case law has been codified in the HRC’s General Comment No. 32 on the ICCPR.219 In both the codification and the cases the Committee dealt with, the HRC only addresses the trial phase and does not clarify whether this similarly concerns the appeals phase. Forasmuch, it does not seem to rebut the ECtHR’s argument that the exploration on trials in absentia similarly concern the appeals where the facts of the case are concerned. Similar to the ECtHR, the HRC acknowledges the necessity of procedures in absentia for the proper administration of justice.220 It likewise allows for a trial in absentia where the defendant has been sufficiently informed of the proceedings but declines to participate.221 Art. 14(3)(d) ICCPR expressly provides for a right of the defendant to be tried in his presence. In appeal proceedings, however, the right to be present applies only when the facts of the case are concerned or in severe cases.222 Again, the ICCPR does not expressly impose a duty to be present upon the defendant. However, the Committee acknowledges that the state authorities may take the necessary steps “to request [the defendant’s] attendance.”223 Thus, the wording suggests that the existence of a duty is presumed, since otherwise the presence could not be requested. Regarding the conduction of trial in absentia, the HRC has, first of all, held that the institution of a trial in absentia does not exempt the state authorities from their obligation to promptly inform the defendant of the nature and cause of the criminal 217

ECtHR, Golubev v. Russia, Decision, 9 November 2006, Appl. No. 26260/02. ECtHR, Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 83/02, para. 92. 219 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, paras. 31, 36. 220 Ibid., para. 31; HRC, Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1; cf. also HRC, Ali Maleki v. Italy, 27 July 1999, Communication No. 600/1996, para. 9.2. 221 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 31; Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1. 222 HRC, Karttunen v. Finland, 5 November 1992, Communication No. 387/1989, para. 7.3. 223 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 36; Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1. 218

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charges he faces. The HRC requires the states to diligently take all due steps to inform the defendant of the charges, including the applicable law and the general facts they are based on.224 The required information also includes precise information about date and place of the proceedings and must expressly request the defendant’s presence.225 The information must also be provided in a timely manner, enabling the defendant to adequately prepare his defence and make use of his rights to legal assistance and to examine witnesses or have them examined on his behalf.226 “The Committee acknowledges that there must be certain limits to the efforts which can duly be expected of the responsible authorities of establishing contact with the accused”,227 but found the issuance of a summons three days before the hearing insufficient.228 Similarly, the sole assumption that the defendant has been informed by his lawyer does not suffice.229 Then again, informing the family of date and place of the trial is appropriate information of the defendant regarding the conduction of the trial.230 Apart from proper information as prerequisite for the waiver of the right to be present, the HRC underlines the importance of the right to a proper defence when the defendant is tried in his absence.231 Finally, the Committee is of the view that a violation of Art. 14(3)(d) ICCPR can be remedied where the defendant has been given the possibility of a re-trial in his presence.232 Unfortunately, it does not elaborate whether this requirement can be fulfilled by an appeal concerning a fresh determination of the merits of the case. Based on the wording, it could be assumed that a new trial of first instance was 224

HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 31; Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1. AViolation of the right to be tried in his presence was found in HRC, Wolf v. Panama, 26 March 1992, Communication No. 289/1988, para. 6.5 et seq.; Hiber Conteris v. Uruguay, 17 July 1985, Communication No. 139/1983, para. 9.2 et seq. as the respective defendant was not informed about the proceedings. 225 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 36; Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1; Ali Maleki v. Italy, 27 July 1999, Communication No. 600/1996, para 9.2 et seq.; Osiyuk v. Belarus, 30 July 2009, Communication No. 1311/2004, para. 8.2. 226 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 36; Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1; Ali Maleki v. Italy, 27 July 1999, Communication No. 600/1996, para 9.2 et seq. 227 HRC, Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.2. 228 Ibid. 229 HRC, Ali Maleki v. Italy, 27 July 1999, Communication No. 600/1996, para. 9.4. 230 HRC, Osiyuk v. Belarus, 30 July 2009, Communication No. 1311/2004, para. 8.2. 231 HRC, ICCPR General Comment No. 13, 21st Session, 13 April 1984, Art. 14, para. 1; cf. also HRC, Raphael Henry v. Jamaica, 1 November 1991, Communication No. 230/1987, para. 8.3. 232 HRC, Ali Maleki v. Italy, 27 July 1999, Communication No. 600/1996, para. 9.4.

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necessary. But again, it does not rebut the assumption that a remedy on the merits of the case has the same effect as a re-trial and similarly guarantee the adjustment of the verdict found in the trial in absentia.

3. Synopsis of the ACHPR’s, HRC’s and ECtHR’s case law and requirements regarding judicial proceedings in absentia The HRC’s elaborations on the issue of proceedings in absentia do not reach the same depth and detail as the precise conditions established by the ECtHR. The preponderant role of the ECtHR comes not least from the significantly higher caseload. However, the HRC does not contradict the conditions that have been formulated by the ECtHR. In some regard, namely the notification of the proceedings to the defendant, it supplements this standard. The ACHPR’s framework on trial in absentia basically repeats some of the ECtHR’s requirements. Accordingly, trials in absentia are lawful when the defendant unequivocally and voluntarily waives his right to be present and has the possibility to receive a re-trial. Hence, no further references must be made to this framework. Both human rights supervisory bodies start from the premise that the defendant has a comprehensive right to be present at the hearings of the criminal procedure instituted against him, which is seen to be of crucial importance. They proceed on the assumption that to a certain extent also a duty to be present can be imposed upon the defendant. Nevertheless, having assessed the case law of both human rights supervisory bodies, it is clear that trial and appeals on points of fact and law in absentia are not per se incompatible with the right to a fair trial and can be deemed lawful if certain safeguards are provided for. Trials in absentia serve to ensure a proper administration of justice as the defendant could otherwise hamper the criminal justice process, which may have severe consequences such as the loss of evidence, expiration of time limits to prosecute or miscarriages of justice. The possibility of in absentia procedures is predominately based on the concept of an unequivocal – express or implied – waiver of the right to be present. The HRC does not expressly formulate the need of a waiver but speaks of the defendant who declines to participate after having been sufficiently informed about the proceedings. That is in essence an informed relinquishment of the right to be present and participate, hence, a waiver. Further, a trial in absentia may be conducted where the defendant frustrates the process by absconding and seeking to evade justice. The safeguards required for the conduction of the judicial hearing in absentia are the proper and timely information of the proceedings instituted against the defendant, which is also a requirement for the waiver, the legal representation and effective assistance by a counsel during the defendant’s absence and, thirdly, the trial in absentia must not be contrary to important public interests. Finally, upon apprehension after a conviction in absentia the defendant must be enabled to receive a fresh de-

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termination of the merits of the case, unless he waived his right to be present and according to the ECtHR additionally has not evaded justice. It is on the criminal justice authorities to demonstrate that the defendant had actual knowledge of the proceedings and that the authorities acted diligently by giving the defendant timely notice of the proceedings. There can, however, be limits as to the states’ diligence and a great amount of leeway exists for the state authorities as to how to properly inform the defendant. The summons must not be a mere formality and must enable the defendant to effectively take part at the proceedings by giving him sufficient details on the proceedings issued against him, including both the charges and date and place of the hearing, adequately in advance. However, there seems to be a lower threshold where the defendant is at large because knowledge can be inferred from other circumstances than personal notification and media coverage has been seen to suffice. It also lies with the state authorities to ensure that a defence counsel be admitted to the hearing that is held in the absence of the defendant when he specifically empowered counsel to represent him in his absence. This right of the defendant cannot be curtailed. Finally, the state must ensure that the convict tried in his absence has an effective opportunity to receive a fresh determination of the facts of his case. Again, the states enjoy broad discretion regarding by which means this remedy is granted. The latter safeguard only applies when the defendant did not deliberately and unequivocally, either expressly or impliedly, waive his right to be present or sought to evade justice. However, the other two safeguards apply even after the defendant’s waiver or evasion of justice. It should be pointed out that the EU legislation goes beyond the human rights supervisory bodies requirements regarding trials in absentia in this one point, as the defendant who evaded justice has a right to re-trial upon surrender.233 Hence, a re-trial becomes a necessity whenever the defendant has not been informed personally. In a similar vein, the removal from the courtroom due to the defendant’s obstreperous behaviour requires that the defendant foresees the removal and conduction of the trial in his partial absence as a consequence of his behaviour. Only then can an unequivocal waiver of the right to be present be established. The defendant must not only foresee the possible removal but, where suitable, also the possibility that the trial may proceed in absence of the defence party as a whole when the defendant has not appointed a defence counsel and the court does not intend to appoint one either. In conclusion, an unequivocal and (implicit) waiver of the right to be present is to be established as necessary prerequisite to conduct any type of in absentia procedure, unless the defendant sought to evade justice.

233 Preamble 12 Council Framework Decision 2009/299/JHA, loc cit.; Recital 39 Directive (EU) 2016/343 loc. cit.

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II. Adjustment of international human rights standards as response to the needs of international criminal procedure It is often argued that human rights standards have to be conceptualised differently within the sui generis context of international criminal procedure.234 Human rights instruments are rather designed to shape standards for domestic criminal proceedings that are not concerned with international crimes.235 This can only be endorsed to the extent that human rights instruments are generally designed to oblige states and not international organisations. Certainly, the human rights supervisory bodies’ assertions cannot be applied without small adjustments, especially in their terminology. The second part of the argument is not persuasive as, in fact, domestic courts similarly apply international crimes.236 Otherwise the ICC’s principle of complementarity would be obsolete. Moreover, under the pretext of answering to the particularities of international criminal procedure, some scholars limit the applicability of human rights and their effectiveness.237 That is not convincing. There is no basis to state that the threshold of protection of the right to a fair trial is reduced for defendants charged with core crimes within the jurisdiction of one of the ICTs. Not least due to the ECtHR’s broad scope of jurisdiction over different legal traditions and a diversity of procedural models, a broad leeway in implementing the human rights obligations into the procedural system exists. This gives the ICTs, likewise, broad flexibility in shaping their own procedural rules and standards without relaxing fairness requirements. Hence, there is sufficient leeway to make adjustments in order to regard the unique context of international criminal procedures. Moreover, the fairness requirements established by the international human rights scheme install a minimum standard, 234 Cassese, FS-Asbjørn Eide, 26; Damasˇka, 10 JICJ 2012, 611, 611; Deprez, 12 ICLR 2012, 721, 723, 742; Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 10; Gradoni, 19 LJIL 2006, 847; Hafner/Binder, 9 ARIEL 2004, 163, 171 et seq.; McIntyre, Defining Human Rights, 194; Sheppard, 10 ICLR 2010, 43, 70; Vasiliev, Fairness and Its Metric in International Criminal Procedure, 48. Cf. although he is more reluctant: Møse, FS-Asbjørn Eide, 208. See as for a comprehensive overview of the different doctrinal concepts: de Meester, The Investigation Phase, 69 et seq. 235 ICTY, Prosecutor v. Tadic´, TC, Decision on the Prosecutors Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, Case No. IT-94-1, para. 28. 236 Germany for example adopted a criminal code for the four core international crimes to which the “normal” domestic procedural code applies, except that universal jurisdiction applies. 237 See for example: Boas, 21 CrimLF 2010, 313, 327; Deprez, 12 ICLR 2012, 721; more hesitant but not excluding the abandonment or relaxation of procedural fairness standards: Damasˇka, 10 JICJ 2012, 611, 612. Similarly critical: de Meester, The Investigation Phase, 73 et seq. who persuasively refutes Deperez’s argumentation. He, however, interprets Damasˇkas approach differently as to that it elevates the bar of fairness rather than lowering it and, therefore, find no issue with that approach. Very critical also: Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 34, 46 et seq.; McDermott, Fairness in International Criminal Trials, 143 et seq.; Carter/Pocar, The Challenge of Shaping Procedures in International Criminal Courts, 8; Vasiliev, Fairness and Its Metric in International Criminal Procedure, 49.

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which can be exceeded.238 The sole necessity for ICTs, as for anyone else bound by human rights, is not to disregard these minimal requirements.239 Above this level, they can shape their own procedure and can even depart from domestic templates or ordinary procedures. The ICTs’ founding materials and case law, on the other hand, speak of the “highest standard”240 of fairness that ICTs aim to meet. This maxim is merely used as a synonym for the accordance of a trial with internationally recognised fairness standards.241 It is, thus, a rhetorical emphasis on the implementation of the general

238 Fedorova/Sluiter, 3 HR&IntlLegalDiscourse 2009, 9, 10, 16 et seq.; Warbrick, 3 Journal of Conflict and Security Law 1998, 45, 51. 239 In this direction also Damasˇka, 10 JICJ 2012, 611, 616 with his “fair enough” standard, although he submits that there is the need for relaxation of fairness standards in ICL proceedings. See also Warbrick, 3 Journal of Conflict and Security Law 1998, 45, 54 and de Meester, The Investigation Phase, 80. The “fair enough” term is not unambiguous and might suggest that the fairness standards of international criminal proceedings are below internationally recognised standards. That is, however, as just shown not the case. 240 McDermott, Fairness in International Criminal Trials, 125 et seq.; Hochmayr, 12 JICJ 2014, 655, 675, 678; UN General Assembly, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 58th Session, 1995, Supplement No. 22, UN Doc. A/50/22, para. 129; UN Security Council, Resolution 1664, 29 March 2006, UN Doc. S/RES/ 1664, para. 1. As for the case law consult: ICTY, Prosecutor v. Blasˇkicˇ , TC, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, 18 July 1997, Case No. IT-95-14-T, para. 61; SCSL, Prosecutor v. Kallon and Kamara, AC, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, Case No. SCSL-2004-15AR72(E), para. 11. See as for external communications of ICTs: ‘Completion Strategy’, http: //www.icty.org/sid/10016 (last accessed: 7 February 2021); ‘Statement of the President of the Tribunal Judge Theodor Meron’, 17 November 2011, http://www.icty.org/en/press/statementpresident-tribunal-%E2%80%93-judge-theodor-meron (last accessed: 7 February 2021); ICTY Press Release, ‘Judge Kirk McDonald urges that the International Permanent Court’ “must be effective”’, 14 August 1997, http://www.icty.org/en/press/judge-kirk-mcdonald-urges-interna tional-permanent-court-must-be-effective (last accessed: 7 February 2021); ‘Remarks of President Theodor Meron, Opening of the Arusha Branch of the Mechanism for International Criminal Tribunals’, 2 July 2012, http://www.unmict.org/sites/default/files/statements-andspeeches/120702_president_meron_arusha_en.pdf (last accessed 7 February 2021); Report on the Special Court for Sierra Leone submitted by the Independent Expert, Antonio Cassese, 12 December 2006, http://www.rscsl.org/Documents/Cassese%20Report.pdf (last accessed: 7 February 2021); ‘Address of Mr. John Hocking, Registrar, United Nations International Criminal Tribunal for the former Yugoslavia’, Meeting of Registrars of Final/Appellate, Regional and International Courts, Ottawa, Canada, 14 – 16 April 2010, http://www.icty.org/x/file/ Press/Statements%20and%20Speeches/Registrar/100414_reg_hocking_ottawa.pdf (last accessed: 7 February 2021); KSC, Statement by President Trendafilova on the Second Judgment of the Specialist Chambers of the Constitutional Court, 28 June 2017, https://www.scp-ks.org/ en/statement-president-trendafilova-second-judgement-specialist-chamber-constitutional-court (last accessed: 7 February 2021). 241 See for example McDermott, Fairness in International Criminal Trials, 130, 140; SCSL, Prosecutor v. Norman, AC, Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone and Chief Samuel Hinga Norman JP Against the Decision of His Lordship, Mr. Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a

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standards of the right to a fair trial but does not change its content. However, considering that the public manifestation of fairness of the proceedings is an imperative condition for the legitimacy of ICTs,242 this approach seems reasonable. Since the public perception of ICTs is of the utmost importance,243 highlighting that the respective international judicial body embodies the highest standard of fairness might emphasise the legitimacy of the judgments rendered by these institutions. It could also help to mine possible challenges as to the legitimacy, suspicion of bias and fairness from the outset.244 McDermott, further, submits that the highest standards must be exemplified by ICTs in order to satisfy their “role in spreading respect for the rule of law”.245 In the same vein, the standard setting role of international criminal proceedings is underlined.246 Especially, post-conflict countries will closely observe the proceedings and may borrow certain features from the international exemplar in order to (re)build the judiciary in a way that meets international fairness standards.247 Only where the ICTs are perceived as setting a good standard of fairness, the domestic legislator will take the ICTs procedure as a standard of best practice. Public Hearing with Chief Samuel Hinga Norman JP, 28 November 2003, Case No. SCSL2003-08-PT, para. 44. See also Art. 28(2) STLSt. 242 ICC, Situation in the DRC: Prosecutor v. Katanga, Judgment, 7 March 2014, Case No. ICC-01/04-01/07, Minority Opinion of Judge Van den Wyngaert, para. 311; Boas, et al., International Criminal Law Practitioner Library, 12 et seq., 464 et seq.; Luban, Fairness to Rightness, 575, 579 et seq., 588; McDermott, Fairness in International Criminal Trials, 22 et seq., 140 et seq. See also, although not in regard to ICTs but generally courts and their procedure: Franck, Fairness in International Law and Institutions, 9, 30; Gaede, Fairness als Teilhabe, 364 et seq. Cf. also Duff, Authority and Responsibility in International Criminal Law, 590 et seq., 598, who argues that fairness of trials alone cannot suffice for legitimising the authority of international criminal tribunals to try individuals. It must be accompanied by constitutive legitimacy, meaning to have authority to prosecute. Effectiveness is another important factor that has to be taken into account, especially in regard to the external legitimacy: Damasˇka, 10 JICJ 2012, 611, 619. See also Shany, 106 AJIL 2012, 225, who underlies a goalbased approach to measure the effectiveness of international tribunals. Consider also Struett, The Politics of Constructioning the International Criminal Court, 153 et seq., who sees the main reasons for the ICC’s legitimacy in the involvement of several NGOs in the process of establishment of the ICC. 243 McDermott, Fairness in International Criminal Trials, 140 et seq.; McIntyre, Defining Human Rights, 193; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71; cf. also Jalloh, SelfRepresentation and the Use of Assigned, Standby and Amicus Counsel, 156; Schomburg/ Nemitz, FS-Laïty Kama, 90. 244 McDermott, Fairness in International Criminal Trials, 141; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71; cf. also Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 152. 245 McDermott, Fairness in International Criminal Trials, 147; very similar: Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71. See for this socio-pedagogical procedural aim above C. II. 1. b) ff). 246 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 66; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 71; Schomburg/Nemitz, FS-Laïty Kama, 108. See for this procedural goal above C. II. 1. b) ee). 247 Ohlin, Goals of International Criminal Justice and International Criminal Procedure, 66.

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III. Compatibility of trials in absentia with the right to a fair trial Having identified that ICTs are bound by the right to a fair trial as fundamental right of the defendant and to trying to implement the highest fairness standard, it will now be analysed whether in fact a trial in the absence of the defendant before ICTs is in line with the right to a fair trial. Having investigated under which circumstances a procedure in absentia is, according to the human rights jurisprudence, not considered to violate the right to be present, it is relevant to assess what other features of participation enshrined in the right to a fair trial may collide with trials in absentia. The judicial human rights authorities have developed criteria under which trials in absentia do not constitute a violation of the right to a fair trial. At first sight it may be questionable, how useful a further elaboration on the right to a fair trial is. However, the judicial human rights authorities refer to the waiver of the right to be present or evasion of justice in order to allow for trials in absentia. It is questionable whether the defendant relinquishes more than just his presence at the criminal proceedings. Does the decision or involuntary loss of the right to be physically present not impact and hinder other participation aspects of the defendant’s right to a fair trial? This question makes it worthwhile to elaborate further whether trials in absentia are in line with the right to a fair trial. In the following the guarantees enshrined in the right to a fair trial that are relevant to the defendant’s presence shall, therefore, be examined. It will be further analysed whether these rights can be effectively used during the defendant’s absence, for example through defence counsel. This outline is followed by the analysis whether the non-enforcement of rights can be counterbalanced. The court might have paternalistic obligations to protect the defendant of decisions against his benefit or counterbalance these non-beneficial decisions with the implementation of certain safeguards. Especially since the right to a fair trial not only enshrines rights for the defendant but also implicates an institutional component – the interests of the judicial system.248 The latter function may limit the individual framework of the right to a fair trial when guaranteeing publicity, expeditiousness, impartiality and independence of the court.249 It is clear that human rights with their rather abstract character cannot conclusively determine, which design a criminal procedure ought to adopt250 but it is imperative that the procedure does not violate these rights. In that way, the right to a fair trial may dictate the exclusion of certain procedural solutions. In light of this, in the following it will be determined whether proceedings in the absence of the defendant run counter the right to a fair trial and must therefore be a priori excluded. 248 SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-04-14-T, para. 25; Croquet, 11 HRLR 2011, 91, 92, 100, 129; Greer, 23 OJLS 2003, 405, 424; Hoven, Rechtsstaatliche Anforderungen, 434. 249 Croquet, 11 HRLR 2011, 91, 92, 100, 129; Greer, 23 OJLS 2003, 405, 424. 250 de Meester, The Investigation Phase, 877.

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The right to a fair trial is an integral part of any human rights treaty. It can inter alia be found in Art. 6 ECHR, Art. 14 ICCPR, Art. 10 UDHR, Art. 8 ACHR, Art. 7 ACHPR alongside no. 2 of the resolution on the right to recourse and fair trial, Art. 19(e) Cairo Declaration on Human Rights in Islam and Art. 47 EU FRCh. The legal framework of the ICTs similarly contains the right to a fair trial.251 In the assessment of what guarantees of the right to a fair trial are relevant to the issue under investigation – trial in the absence of the defendant – again a predominance of the ECtHR case law in interpreting the features of a fair trial will be noticeable. However, in as far as possible, references will be made to the case law of ICTs. In this regard the ICC has found to be “a mirror of the ECtHR when defining the scope of the defence rights and limiting their exercise on public interests grounds”.252 The ECtHR, on the other hand, found the ICTY to be an institution based on fundamental human rights giving the defendant equivalent protections as under the ECHR legal framework.253

1. Scope of application and general structure Before focusing on the substantive content of the particular guarantees enshrined in the right to a fair trial, the scope of that notion needs to be assessed briefly. There is no doubt that the alleged misconduct and charges the international judiciary are concerned with are of a criminal nature,254 so that the fair trial right without question applies to their suspects and accused. It is consolidated case law that the right to a fair trial applies to the whole criminal procedure, beginning with the police or in ICL prosecutors’ inquiry and applying until the last possible stage of appeals procedures.255 251

See chapter B. Croquet, 11 HRLR 2011, 91, 91. 253 ECtHR, Naletilic´ v. Croatia, Decision, 4 May 2000, Appl. No. 51891/99; Blagojevic´ v. the Netherlands, Decision, 9 June 2009, Appl. No. 49032/07. 254 See as for the autonomous determination what criminal means the leading case: ECtHR, Engel et al. v. the Netherlands, Judgment, 8 June 1976, Appl. No. 5100/71 et al., para. 82. The other human rights judicial authorities remain silent on this matter. See also Trechsel, Human Rights, 18 et seq. with further references. 255 See instead of many: ECtHR, Deweer v. Belgium, Judgment, 27 February 1987, Appl. No. 6903/75, paras. 42, 46; Mikolajová v. Slovenia, Judgment, 18 January 2011, Appl. No. 4479/03, para. 40; Dvorski v. Croatia, Grand Chamber, Judgment, 20 October 2015, Appl. No. 25703/11, para. 76; Schaefer, FS-Rieß, 491. See as for the details: Esser, Auf dem Weg, 24, 68 et seq.; Frowein/Peukert, 41 et seq.; Trechsel, Human Rights, 32. See for the HRC inter alia HRC, Brown v. Jamaica, 11 May 1999, Communication No. 775/1997, para. 6.6; Aliev v. Ukraine, 18 September 2003, Communication No. 781/1997, para 7.3. Especially in jurisdictions with a participatory pre-trial phase the attachment of the right to be present and other defence and participation rights is crucial. International criminal procedure, however, broadly emphasises the trial phase, see above chapter B. See for ICTs: Art. 18(3) ICTYSt; Art. 17(3) ICTRSt; Rule 42, 62(A)(i) RPE ICTY-, ICTR- and SCSL-RPE; Rules 21(1)(a) IR-ECCC; 252

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As has been indicated, it is not always easy to distinguish between the different notions of fairness as the Strasbourg court assesses the ‘fairness as a whole’.256 Paragraph three of Art. 6 ECHR and Art. 14 ICCPR and paragraph two of Art. 8 ACHR, according to the wording, formulate minimum guarantees a trial must fulfil to be fair. The respective paragraph concerns specific participation and defence rights. As they guarantee a minimum standard, they cannot alone constitute the overarching fairness. Accordingly, the ECtHR usually assesses the overall fairness, even when one of the minimum guarantees is violated.257 A close look to the case law and comments by the doctrine also reveal certain features that can be attributed to Art. 6(1) ECHR, Art. 14(1) ICCPR and Art. 8(1) ACHR, namely the equality of arms, the right to adversarial proceedings258 and effective participation, which taken together with the other paragraphs, compose the overarching fairness as mentioned in the title of the right to a fair trial.259 The Strasbourg court labels this a “wider concept of fairness”.260

Rule 65 STL-RPE; Art. 55 RomeSt; Art. 21(6) KSCSt. Gradoni, The Human Rights Dimension of International Criminal Procedure; de Meester, The Investigation Phase, 64 et seq.; Møse, FSAsbjørn Eide, 186; ICC, Situation in the DRC, AC, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, Case No. ICC-01/04-168, para. 11. However, some scholars are critically as to this consolidated jurisprudence as they see the necessity of a clear distinction between the public trial hearings and secret pre-trial phase to comply with the ECtHR’s conceptual principle of an adversarial criminal procedure that presupposes this clear distinction: Jackson/Summers, The Internationalisation of Criminal Evidence, 96; Summers, Fair Trials, 129 et seq. 256 ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, paras. 68, 89; Salov v. Ukraine, Judgment, 6 September 2005, Appl. No. 65518/ 01, para. 67; Ibrahim et al. v. the United Kingdom, Grand Chamber, Judgment, 13 September 2016, Appl. No. 50541/08 et al., para. 301. Critically: Summers, Fair Trials, 103; Trechsel, Human Rights, 87 et seq.; ECtHR, Ibrahim et al. v. the United Kingdom, Grand Chamber, Judgment, 13 September 2016, Appl. No. 50541/08 et al., Joint Partly Dissenting, Partly Concurring Opinion of Judges Sajó and Lafranque, para. 14 et seq. 257 See inter alia ECtHR Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, para. 25; Mayzit v. Russia, Judgment, 20 January 2005, Appl. No. 63378/00 para. 77; Pishchalnikov v. Russia, Judgment, 24 September 2009, Appl. No. 7025/04, para. 64. Supporting this overall approach: LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 172, 245. Of other opinion: ECtHR, Ibrahim et al. v. the United Kingdom, Grand Chamber, Judgment, 13 September 2016, Appl. No. 50541/08 et al., Joint Partly Dissenting, Partly Concurring Opinion of Judges Sajó and Lafranque, para. 14 et seq. Croquet, 11 HRLR 2011, 91, 129; Stavros, The Guarantees for Accused Persons, 44; Trechsel, Human Rights, 86 find that a violation of the minimum standards make the procedure a priori unfair. According to Gaede, FG-Fezer, 21, 35 et seq., there are examples that the court also finds violations of solely the minimum guarantees and does not concern the overall fairness. Cf. also Richardson (ed.), Archbold 2010: Criminal Pleading, Evidence and Practice, Art. 6 marginal no. 16 – 74. 258 The HRC adds the expeditiousness of criminal procedures and the preclusion of the ex officio reformatio in peius: HRC, Morael v. France, 10 July 1987, Communication No. 207/ 1986, para. 9.3. 259 See among many others: LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 171 et seq.; Summers, Fair Trials, 103; Trechsel, Human Rights, 87 et seq.

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2. Equality of arms One of the features of the wider fairness concept of the respective fair trial notions of the human rights conventions and the statutes of ICTs261 is, although not expressly mentioned in the wording, the doctrine of equality of arms.262 The concept of equality of arms does not itself enshrine concrete rights, it rather aims to balance the rights of the opposing parties and ensure the fair application of their rights to achieve procedural fairness.263 Both parties have to have a reasonable opportunity to present their case without any substantial disadvantage between them.264 Thus, it corroborates the 260 ECtHR, Delcourt v. Belgium, Judgment, 17 January 1970, Appl. No. 2689/65, para. 28; Monnell and Morris v. United Kingdom, Judgment, 2 March 1987, Appl. Nos. 9562/81, 9818/ 82, para. 62. See also Esser, Auf dem Weg, 401; Rainey/Wicks/Ovey, The European Convention on Human Rights, 291. 261 Art. 6(1) ECHR, Art. 14(1) ICCPR, Art. 8(1) ACHR, Art. 21(2) ICTYSt, Art. 20(2) ICTRSt, Art. 17(2) SCSLSt; Art. 35(1) ECCCSt; Art. 16 STLSt; Art. 21(2) KSCSt; Art. 67(1) RomeSt. 262 As for the ECHR: ECtHR, Neumeister v. Austria, Judgment, 27 June 1968, Appl. No. 1936/63, para. 22; Summers, Fair Trials, 104; Trechsel, Human Rights, 94 – 102. As for the ICCPR: HRC, Morales v. France, 10 July 1987, Communication No. 207/1986, para. 9.3. See for the ICC: Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Art. 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008, 13 June 2008, Case No. ICC-01/04-01/06-1401, para. 77 et seq. Consider as for the ICTY and the regulation of Art. 20(1) ICTYSt: ICTY, Prosecutor v. Tadic´, AC, Appeals Judgment, 15 July 1999, Case No. IT-94-1-A, para. 44. 263 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 202 et seq.; Summers, Fair Trials, 104; Trechsel, Human Rights, 97. See for a comprehensive overview of disparities in resources, facilities, access to evidence and time and number of witnesses at the ad hoc Tribunals: Tuinstra, Defence Counsel in International Criminal Law, 157 et seq., who comes to the conclusion that these disparities do not violate the procedural equality, but due regard ought to be attached to provision of sufficient resources. 264 ECtHR, Dombo Beheer v. the Netherlands, Judgment, 27 October 1993, Appl. No. 14448/88, para. 33; Bulut v. Austria, Judgment, 22 February 1996, Appl. No. 17358/90, para. 47; Foucher v. France, Judgment, 18 March 1997, Appl. No. 22209/93, para. 34. Similarly: ECtHR, Laska and Lika v. Albania, Judgment, 20 April 2010, Appl. No. 12315/04, 17605/04, para. 60; ICTR, Prosecutor v. Kayishema and Ruzindana, AC, Appeal Judgment (Reasons), 1 June 2000, Case No. ICTR-95-1-A, para. 69; ICTY, Prosecutor v. Stakic´, AC, Appeals Judgment, 22 March 2006, Case No. IT-97-24-A, para. 149; SCSL, Prosecutor v. Norman et al., TC I, Decision on the Impermissibility of Eliciting Evidence Involving the Second Accused through Cross-Examination of Witnesses Called by the Third Accused, 10 November 2006, Case No. SCSL-04-14-T, para. 20; ICC, Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision Reviewing the Registry’s Decision on Legal Assistance for Mr. Thomas Lubanga Dyilo Pursuant to Regulation 135 of the Regulations of the Registry, 30 August 2011, Case No. ICC-01/04-01/06, para. 56 et seq., the Trial Chamber did not refer to the defendant’s disadvantage vis-à-vis its opponent but literally requested equality. See as for this interpretation of the decision and an overview of the issue of equality of arms at the ICC: McDermott, Fairness in International Criminal Trials, 94 et seq. Some scholars apply a rather strict interpretation of the equality of arms that includes not just formal equality, meaning the fair application of the rights, but also substantial equality between the participants: Gaede, Fairness als Teilhabe, 655 et seq. It is to be noted that the ECHR itself tightened its requirements

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application of the other guarantees enshrined in the right to a fair trial and attaches “increased sensitivity to the fair administration of justice.”265 Equality of arms especially requires that the parties to the criminal procedure have an equal basis of knowledge for the presentation of their cases. During the investigations the prosecution clearly has an advantage in knowledge that has to be levelled by disclosure of the relevant material.266 Generally, disclosure of the evidence, both incriminating and exonerating, and of relevant submissions occurs in advance of the trial or appeals hearing.267 As part of the prosecution’s mandate as organ of (international) criminal justice it is, generally, obliged to disclose all relevant evidence.268 Whereas in Nuremberg, the defence lacked full access to the evidentiary for equality of arms: while it found the Belgium system that the Avocat Général was present during the judges’ deliberations to be in line with the equality of arms in ECtHR, Delcourt v. Belgium, Judgment, 17 January 1970, Appl. No. 2689/65, para. 25; it found the exact same system to be contrary in ECtHR, Borgers v. Belgium, Judgment, 30 October 1991, Appl. No. 12005/86, para. 92. 265 ECtHR, Lanz v. Austria, Judgment, 31 January 2001, Appl. No. 24430/94, para. 57. The principle of equality of arms enshrined in Art. 6(1) ECHR for example largely overlaps with the defendant’s right to be informed about the evidence brought against him and the right to present his own and challenge the evidence he is faced with enshrined in Art. 6(3)(d) ECHR: see inter alia ECtHR, Brandstetter v. Austria, Judgment, 28 August 1991, Appl. No. 13468/7, para. 66 et seq.; Krcˇ márˇ et al. v. Czech Republic, Judgment, 3 March 2000, Appl. No. 35376/97, para. 40; Meftah et al. v. France, Judgment, 26 July 2002, Appl. Nos. 32911/96, 35237/97, 34595/97, para. 51, where the ECtHR relies on both provisions; ICTY, Prosecutor v. Tadic´, TC, Decision on Prosecution Motion for Production of Defence Witness Statements, 27 November 1996, Case No. IT-94-1-T, Separate Opinion of Judge Vohrah. Cf. also LR-Esser, Art. 6 EMRK/ Art. 14 IPBPR marginal nos. 202, 212. Summers, Fair Trials, 110 et seq., who interprets this as completely overlapping with the right to an adversarial procedure as both guarantees contain the same features. 266 Stavros, The Guarantees for Accused Persons, 182; Trechsel, Human Rights, 223; cf. also Harris, et al., Harris/O’Boyle/Warbrick, 417 et seq. 267 See inter alia ECtHR, Edwards u. Lewis v. the United Kingdom, Grand Chamber, Judgment, 27 October 2004, Appl. Nos. 39647/98, 40461/98, para. 46 et seq.; Janatuinen v. Finland, Judgment, 8 December 2009, Appl. No. 28552/05, para. 41; Welke u. Białek v. Poland, Judgment, 1 March 2011, Appl. No. 15924/05, para. 64. As for the appeals: ECtHR, Foucher v. France, Judgment, 18 March 1997, Appl. No. 22209/93, para. 32. As for the judiciary being obliged to disclosure: ECtHR, Skondrianos. v. Greece, Judgment, 18 December 2003, Appl. Nos. 63000/00, 74291/01, 74292/01, para. 30 et seq. See as for the ICTs: Rule 66(A) ICTR-, ICTY- and SCSL-RPE; Rule 110(A) STL-RPE. See also STL, Prosecutor v. Ayyash et al., PTJ, Decision on the Sabra Defence’s First, Second, Third, Fourth, Fifth and Sixth Motions for Disclosure, 8 November 2012, Case No. STL-11-01/PT/PTJ, para. 32. Due to the additional confirmation hearing at the ICC the RPE foresee two schemes of disclosure. One before the confirmation hearing: Art. 61(3)(b) RomeSt and the disclosure of witness statements of witnesses, whom the prosecution intends to call at trial: Art. 64(3)(c) RomeSt, Rule 76 ICC-RPE. As for exculpatory evidence: Art. 67(2) RomeSt. See for details: Heinze, International Criminal Procedure and Disclosure; Whiting, Disclosure Challenges at the ICC, 1007. 268 ICTY, Prosecutor v. Blasˇkic´, TC, Decision on the Production of Discovery Materials, 27 January 1997, IT-95-14-PT, para. 50; STL, Prosecutor v. Ayyash et al., PTJ, Decision on the Sabra Defence’s First, Second, Third, Fourth, Fifth and Sixth Motions for Disclosure, 8 November 2012, Case No. STL-11-01/PT/PTJ, para. 32; Namakula, 17 ICLR 2017, 935, 949;

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material and had to request disclosure of specific documents, the right to disclosure in modern international tribunals has increased significantly.269 Especially at the ICC, the prosecution has extensive disclosure duties both in terms of quantity and time; it is to disclose, as soon as practicable, all relevant exculpatory material to the defence.270 The ECtHR considered the equality of arms on one occasion in regard to the defendant’s presence. It thereby found that the equality of arms was violated with “regard both to the presence of the public prosecutor in the courtroom and to the forcefulness of his oral statements”, whereas the defendant was not able to give a statement.271 The Strasbourg court seemingly presumes the equality of arms is guaranteed more effectively when both parties are present, since oral submissions increase substantial influence on the court and the outcome of the criminal proceedings. However, this reasoning only applies where the disadvantage vis-a-vis the prosecutor actually exists, i. e. where the prosecution is allowed to give an emphatic oral speech and no member of the defence can react. Given that, the presence of the defendant is not a strict necessity as long as someone gives a statement for the defence. Further, the ECtHR clearly highlights the importance of orality of proceedings but does not exclude written submission when both parties present their case in writing.272

Vasiliev, Trial, 705 et seq. Exceptionally it is possible to withhold evidence where this is ‘strictly necessary’ for important compelling reasons and not a unilateral decision of the prosecution but controlled by a judicial authority that gave the defendant the possibility to make submissions: see inter alia ECtHR, Jasper v. United Kingdom, Grand Chamber, Judgment, 16 February 2000, Appl. No. 27502/97, para 51 et seq. See as for the details: Esser, Auf dem Weg, 222 et seq. The restriction of disclosure can be proportionate and counterbalanced, especially for reasons of confidentiality, witness and victims’ protection and the public interests to secure immunity and the purpose of secret investigations. See instead of many: ECtHR, Kennedy v. the United Kingdom, Judgment, 18 May 2010, Appl. No. 26839/05, para. 184 et seq. See as for the legal framework of ICTs: Rules 66c, 67 ICTY-, ICTR- and SCSL-RPE; Rule 116 STL-RPE; Art. 54(3)(e), 72 RomeSt; Rules 81-84 ICC-RPE. 269 Namakula, 17 ICLR 2017, 935, 949, 953; cf. Vasiliev, Trial, 706. 270 ICC, Situation in the DRC: Prosecutor v. Lubanga, AC, Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I Entitled “Decision on the Consequences of Non-disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain other Issues Raised at the Status Conference on 10 June 2008”, 21 October 2008, Case No. ICC-01/04-01/06 OA 13; Namakula, 17 ICLR 2017, 935, 953; Vasiliev, Trial, 709. Cf. also Rule 113 STL-RPE. 271 ECtHR, Belziuk v. Poland, Judgment, 25 March 1998, Appl. No. 45/1997/829/1035, para. 39. 272 Similarly Summers, Fair Trials, 117, who is, therefore, critical as to the possibility to deduct the right to be present from the equality of arms.

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3. Right to adversarial proceedings At the outset it is to be noted that the Strasbourg court predominately speaks of the right to an adversarial hearing and refers to what in Continental Europe is commonly known as right to be heard.273 The right is enshrined in Art. 6(1) ECHR and “in principle [means] the opportunity for the parties to a criminal trial to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the courts’ decision”.274 Thus, it makes sure that the defendant has the possibility of being heard in regard to all relevant evidence, to challenge or respond to said evidence and to present whatever seems pertinent to the defence case so the defendant can possibly influence the court’s decision.275 The right to an adversarial hearing is, according to the ECtHR, related to the right to be present, as it requires the examination of the relevant evidence “in the presence of the accused at a public hearing with a view to adversarial argument”.276 The defendant will often have relevant information as to the facts and charges in question, so that his presence is, without question, generally helpful for the outcome of the procedure.277 The active involvement further makes the defendant a subject of the procedure, so he is not treated as mere object.278 273 ECtHR, Brandstetter v. Austria, Judgment, 28 August 1991, Appl. No. 1346/87, para. 66 et seq.; Ruiz-Mateos v. Spain, Judgment, 23 June 1993, Appl. No. 12952/87, para. 63. Also many scholars draw this connection: cf. ibid., 124; Trechsel, Human Rights, 89. 274 Consider only: ECtHR, Vermeulen v. Belgium, Judgment, 20 February 1996, Appl. No. 19075/91, para. 33; Laska and Lika v. Albania, Judgment, 20 April 2010, Appl. Nos. 12315/04, 17605/04, para. 59. See also, referring to the ECtHR’s case law: ICTR, Prosecutor v. Kayishema and Ruzindana, AC, Judgment, 1 June 2001, Case No. ICTR-95-1-A, para. 80. 275 See inter alia, all with further references: ECtHR, Salov v. Ukraine, Judgment, 6 September 2005, Appl. No. 65518/01, para. 87; Janatuinen v. Finland, Judgment, 8 December 2009, Appl. No. 28552/05, para. 41; Sabayev v. Russia, Judgment, 8 April 2010, Appl. No. 11994/03, para. 35; EMRK-Mayer-Ladewig/Harrendorf/Raumer-Meyer-Ladewig/Harrendorf, Art. 6 marginal no. 96 et seq.; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 219 et seq.; Trechsel, Human Rights, 89 et seq.; of other opinion Summers, Fair Trials, 113 et seq., who sees the right to an adversarial hearing as a different right than the right to be heard and asserts that it enshrines the right to be present, knowledge of the submissions of the opponent and the possibility to challenge these. Substantially that is the same what here is considered the right to be heard/right to an adversarial hearing. 276 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, paras. 27, 31 et seq.; Kostovski v. Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 41; Delta v. France, Judgment, 19 December 1990, Appl. No. 11444/85; para. 36; Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, para. 27; Saïdi v. France, Judgment, 20 September 1993, Appl. No. 14647/89, para. 43. Supporting this: Harris, et al., Harris/O’Boyle/ Warbrick, 411; critically: Summers, Fair Trials, 177. 277 Reed/Murdoch, A Guide to Human Rights Law in Scotland, marginal no. 5.114; Trechsel, Human Rights, 89. But see C. II. 2. a); G. II. 2. b) aa): due the right to remain silent many defendants do not contribute to the fact-finding. 278 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 202; Trechsel, Human Rights, 89, 247.

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Effective use of the right to an adversarial hearing is only possible where the defendant has knowledge of the proceedings against him and especially all evidence and submissions adduced.279 The prosecution or the judicial authorities, therefore, need to communicate their submissions to the defence in advance.280 Having sufficient knowledge of evidence and relevant submissions the defendant has to have, as a next step, the opportunity to challenge the evidence presented, comment on submissions and “make known any evidence needed” for the defence.281 On the other hand, where the defence fails to assess the evidence or comment on it although it had the opportunity to do so, no breach of a fair trial exists.282 The court, in a third step, has to substantially take into account said statements and evidence before coming to a verdict, regardless of whether the court finds it relevant for its decision.283 Thus, a reasoned decision is necessary.284 Finally, the right to be heard gives the defendant the possibility to take part in the proceedings or, in the Strasbourg court’s terms, a right to a procedure, which is adversarial in character.285

279

See inter alia ECtHR, Brandstetter v. Austria, Judgment, 28 August 1991, Appl. No. 13468/87, para. 67; JJ v. Netherlands, Judgment, 27 March 1998, Appl. No. 9/1997/793/ 994, para. 43; Göç v. Turkey, Judgment, 11 July 2002, Appl. No. 36590/97, para. 34; Laska and Lika v. Albania, Judgment, 20 April 2010, Appl. Nos. 12315/04, 17605/04, para. 59; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 222 et seq.; Reed/Murdoch, A Guide to Human Rights Law in Scotland, marginal no. 5.104; Summers, Fair Trials, 118 et seq. 280 See as for disclosure above E. III. 2. 281 ECtHR, Reinhardt and Slimane-Kaïd v. France, Grand Chamber, Judgment, 31 March 1998, Appl. Nos. 21/1997/805/1008, 22/1997/806/1009, paras. 105 et seq.; Meftah et al. v. France, Judgment, 26 July 2002, Appl. Nos. 32911/96, 35237/97, 34595/97, para. 51; Skondrianos. v. Greece, Judgment, 18 December 2003, Appl. Nos. 63000/00, 74291/01, 74292/01, para. 29; Laukkanen and Manninen v. Finland, Judgment, 3 February 2004, Appl. No. 50230/ 99, para. 34. 282 ECtHR, Schuler-Zgraggen v. Switzerland, Judgment, 24 June 1993, Appl. No. 14518/89, para 52; Bendenoun v. France, Judgment, 24 February 1994, Appl. No. 12547/86, para. 52. 283 ECtHR, Kraska v. Switzerland, Judgment, 19 May 1993, Appl. No. 13942/88, para. 30; Quadrelli v. Italy, Judgment, 11 January 2000, Appl. No. 28168/95, para. 34; Kari-Pekka Pietiläinen v. Finland, Judgment, 22 September 2009, Appl. No. 13566/06, para. 33. 284 ECtHR, Salov v. Ukraine, Judgment, 6 September 2005, Appl. No. 65518/01, para. 89; Baucher v. France, Judgment, 24 July 2007, Appl. No. 53640/00, para. 42. See expressly: Art. 22(2) ICTYSt; Art. 23(2) ICTRSt. See also LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 231 et seq.; Trechsel, Human Rights, 85, 104, who sees this only as one of the aspects why a decision needs to be reasoned. Alongside the transparency, acceptability, possibility to file a remedy and to make legal theory. 285 See instead of many ECtHR, Nideröst-Huber v. Switzerland, Judgment, 18 February 1997, Appl. No. 18990/91, paras. 24, 27, 29; Krcˇ márˇ et al. v. Czech Republic, Judgment, 3 March 2000, Appl. No. 35376/97, para. 40.

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4. Right to participate effectively Beyond the right to participate in criminal proceedings, the ECtHR acknowledged a right to participate effectively at the hearing and criminal proceedings in general.286 This right is expressly put in relation to the right to be present as the latter is regarded to be inherent in the former.287 Aside from the mere presence and possibility to comment on evidence, these rights, including the rights of the minimum guarantees to defend oneself, need to be guaranteed effectively,288 which “in general […] includes, inter alia, not only […] [the] right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of paragraph 3 of Article 6”.289 The defendant must, therefore, be able to acoustically, visually, mentally and physically follow and contribute to the proceedings, possibly through his legal assistance or an interpreter.290 It “presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty, which may be imposed. The defendant should be able, inter alia, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.”291

5. The minimum guarantees As indicated above the minimum guarantees of Art. 6(3) ECHR are to be seen as particular aspects of the general notion of a right to a fair trial enshrined in Art. 6(1) 286 ECtHR, Stanford v. the United Kingdom, Judgment, 23 February 1994, Appl. No. 16757/ 90, para. 26; Pullicino v. Malta, Decision, 15 June 2000, Appl. No. 45441/99; Marcello Viola v. Italy, Judgment, 5 October 2006, Appl. No. 45106/04, para. 53; LR-Esser, Art. 6 EMRK/ Art. 14 IPBPR marginal no. 659; SK-Meyer, Art. 6 marginal no. 142; Rainey/Wicks/Ovey, The European Convention on Human Rights, 296; Reed/Murdoch, A Guide to Human Rights Law in Scotland, marginal no. 5.117 et seq. See as for a thorough analysis Gaede, Fairness als Teilhabe. See also IACtHR, Advisory Opinion of 1 October 1 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, OC 16 – 99, Series A No. 16, para. 117. 287 Harris, et al., Harris/O’Boyle/Warbrick, 414. See also ECtHR, Ziliberberg v. Moldova, Judgment, 1 February 2005, Appl. No. 61821/00, para. 40. 288 ECtHR, Abramyan v. Russia, Judgment, 9 October 2008, Appl. No. 10709/02, para. 38; Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 22/03, para. 78. 289 See inter alia ECtHR, Stanford v. the United Kingdom, Judgment, 23 February 1994, Appl. No. 16757/90, para. 26; Pullicino v. Malta, Decision, 15 June 2000, Appl. No. 45441/99; Ziliberberg v. Moldova, Judgment, 1 February 2005, Appl. No. 61821/00, para. 40. 290 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 660; cf. also Rainey/Wicks/Ovey, The European Convention on Human Rights, 296; Reed/Murdoch, A Guide to Human Rights Law in Scotland, marginal no. 5.118. 291 ECtHR, Grigoryevskikh v. Russia, Judgment, 9 April 2009, Appl. No. 22/03, para. 78.

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ECHR.292 Following the jurisprudence of the HRC and ECtHR, the presence of the defendant during court hearings mainly concerns the minimum guarantees of the prompt information of proceedings and charges, to have adequate time and facilities to prepare the defence and engage counsel of his own choosing, to defend oneself in person or through legal assistance of his own choosing and examine or have examined witnesses and to examine witnesses on his behalf.293 These minimum guarantees will, therefore, be examined in the following. a) Right to be informed promptly and in detail about the charges294 The ECtHR does not expressly state the right to be promptly notified in detail about the accusation when assessing procedures in absentia, other than the HRC. As already seen, proper information is an integral requirement to make a deliberate and informed decision to waive the right to be present. It also affects the right to an adversarial hearing. The defendant is entitled to know of date and place of the trial and which offences he is charged with. The right to be promptly and properly informed of the charges, therefore, seems to be similarly relevant to proceedings in absentia and the HRC’s approach favourable. As for the content, it is necessary to have the defendant informed in detail about the factual basis of the charges, as well as, the nature and cause of the accusation and their legal basis.295 Only this enables him to effectively take part in the proceedings, adequately prepare his defence, have witnesses summoned, in short to effectively defend himself,296 or to decide to not make use of those rights or fulfil them through counsel. 292 See inter alia ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, para. 67; Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, para. 25; Janatuinen v. Finland, Judgment, 8 December 2009, Appl. No. 28552/ 05, para. 40; Ebanks v. the United Kingdom, Judgment, 26 January 2010, Appl. No. 368220/06, para. 71. 293 HRC, Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1 et seq. 294 As for the human rights instruments: Art. 6(3)(a) ECHR, Art. 14(3)(a), ICCPR, Art. 8(2)(b) ACHR. As for ICTs: Art. 21(4)(a) ICTYSt; Art. 20(4)(a) ICTRSt; Art. 17(4)(a) SCSLSt; Art. 16(4)(a) STLSt; Art. 35(2)(a) ECCCSt; Art. 67(1)(a) RomeSt; Art. 21(4)(a) KSCSt. 295 ECtHR, Pélissier und Sassi v. France, Judgment, 25 March 1999, Appl. No. 25444/94, para. 51; Mattoccia v. Italy, Judgment, 25 July 2000, Appl. No. 23969/94, para. 60 et seq.; Dallos v. Hungary, Judgment, 1 March 2001, Appl. No. 29082/95, para. 47; Constantin v. Rumania, Judgment, 12 April 2011, Appl. No. 21175/03, para. 25; ICTY, Prosecutor v. Kupresˇkic´ et al., AC, Judgment, 23 October 2001, Case No. IT-95-16-A, para. 88. 296 Dijk/Hoof, Theory and Practice of the European Convention on Human Rights, 464; Frowein/Peukert, marginal no. 175; Gaede, Fairness als Teilhabe, 234; Harris, et al., Harris/ O’Boyle/Warbrick, 468 et seq.; Rainey/Wicks/Ovey, The European Convention on Human Rights, 320; Rzepka, Zur Fairness im deutschen Strafverfahren, 59; Trechsel, Human Rights, 193. See also: ECtHR, Sipavicˇ ius v. Lithuania, Judgment, 21 February 2001, Appl. No. 49093/

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As seen above the ECtHR’s case law is not unambiguous as to who is responsible for providing the relevant information to the defendant. On the one hand, the defendant needs to make sure that he is reachable297 but, on the other, it is the state authorities’ task to ensure that defendant has gained knowledge.298 This latter line of case law squares with the HRC299 and ensures that the defendant has effective knowledge and can effectively participate. It is therefore preferable. Whether the information has to be conveyed in writing is not clear from the ECtHR’s jurisprudence.300 Legal scholars give strong support for this interpretation.301 In the issue in question, trials in the absence of the defendant, notification in writing will often be the usual procedure. A personal notification is de facto not possible where the defendant’s whereabouts are unknown. Public notification and broad media coverage are the only means of informing the fugitive of the charges brought against him. As regards the time requirement, the prior or prompt notification is not further elaborated, but it is closely linked to the second minimum guarantee. The timely notification needs to ensure sufficient time to prepare the defence.302 Accordingly, the 99, para. 28; ICTY, Prosecutor v. Kupresˇkic´ et al., AC, Judgment, 23 October 2001, Case No. IT95-16-A, para. 88; SCSL, Prosecutor v. Taylor, TC II, Decision on Urgent Defence Motion Regarding a Fatal Defect in the Prosecution’s Second Amended Indictment Relating to the Pleading of JCE, 27 February 2009, Case No. SCSL-03-1-T-752, para. 57. 297 ECtHR Hennings v. Germany, Judgment, 16 December 1992, Appl. No. 12129/86, para. 26. See also ECtHR Salinga v. Germany, Decision, 7 December 1994, Appl. No. 22534/ 93. 298 ECtHR, Colozza v. Italy, Judgment, 12 February 1985, Appl. No. 9024/80, para. 28 et seq.; T v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88, para. 28 et seq. 299 HRC, Monguya Mbenge v. Zaire, 25 March 1983, Communication No. 16/1977, para. 14.1 et seq. 300 The Strasbourg court required a written information in: ECtHR, Kamasinski v. Austria, Judgment, 19 December 1989, Appl. No. 9783/82, para. 79 (for the indictment); Sipavicˇ ius v. Lithuania, Judgment, 21 February 2001, Appl. No. 49093/99, paras. 27, 29 (no violation was found as the subsequent appeals hearing healed that lack of information); but also asserted that there was generally no special form to be held, in: ECtHR, Pélissier and Sassi v. France, Judgment, 25 March 1999, Appl. No. 25444/94, para. 53; Gasin¸sˇ v. Latvia, Judgment, 19 April 2001, Appl. No. 69458/01, para. 55. 301 Esser, Auf dem Weg, 438; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 554; Trechsel, Human Rights, 206. Harris, et al., Harris/O’Boyle/Warbrick, 469, who do not require a notification in writing in every case; Preamble No. 19 Directive 2012/13/EU. 302 ECtHR, Pélissier und Sassi v. France, Judgment, 25 March 1999, Appl. No. 25444/94, para. 54; Gasin¸sˇ v. Latvia, Judgment, 19 April 2001, Appl. No. 69458/01, para. 55; Abramyan v. Russia, Judgment, 9 October 2008, Appl. No. 10709/02, para. 36 et seq. Dijk/Hoof, Theory and Practice of the European Convention on Human Rights, 464; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 535, 571; Harris, et al., Harris/O’Boyle/Warbrick, 468; Reed/Murdoch, A Guide to Human Rights Law in Scotland, marginal no. 5.196; Stavros, The Guarantees for Accused Persons, 44; Trechsel, Human Rights, 207. See as for an overview of the discussion among Scholars what the term charges respectively accusation means: there is dispute in whether it either means the formal indictment or the first police’s or prosecution’s inquiry, ibid., 198 et seq.

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defendant should be notified as soon as possible.303 Further, the ECtHR’s general approach regarding the minimum guarantees that they might be “relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them”304 can be engaged here and points in that same direction. The information of the charges must be addressed to the defendant himself or his counsel.305 However, it is not sufficient to presume that the defendant was duly informed upon his nonappearance or engagement of legal assistance.306 Some scholars find the notification of defence counsel not sufficient.307 It seems, however, reasonable when the objective of the right to be informed is understood to be to afford the possibility to prepare and conduct an effective defence.308 It is further supported by the fact that the information must be given in an understandable language, which means a language that either the defendant or his legal assistance understands.309 b) Right to have adequate time and facilities to prepare the defence310 The right to have adequate time and means to prepare one’s defence is usually dealt with as peripheral matter and seen as a subsidiary right.311 The human rights 303 HRC, ICCPR General Comment No. 32, 98th Session, 23 August 2007, CCPR/C/GC/32, para. 8; Dijk/Hoof, Theory and Practice of the European Convention on Human Rights, 464; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 539; Gaede, Fairness als Teilhabe, 235; Stavros, The Guarantees for Accused Persons, 64. 304 See inter alia: ECtHR, Imbrioscia v. Switzerland, Judgment, 24 November 1993, Appl. No. 13972/88, para. 36; Söylemez v. Turkey, Judgment, 21 September 2006, Appl. No. 46661/ 99, para. 128; Dvorski v. Croatia, Grand Chamber, Judgment, 20 October 2015, Appl. No. 25703/11, para. 76. 305 Cf. ECtHR, Pélissier and Sassi v. France, Judgment, 25 March 1999, Appl. No. 25444/ 94, para. 55; Gasin¸sˇ v. Latvia, Judgment, 19 April 2001, Appl. No. 69458/01, para. 55. An official notification is necessary: ECtHR, T v. Italy, Judgment, 12 October 1992, Appl. No. 14104/88, para. 28. 306 ECtHR, Brozicek v. Italy, Judgment, 19 December 1989, Appl. No. 10964/84, para. 38 et seq. 307 Dijk/Hoof, Theory and Practice of the European Convention on Human Rights, 465; Stavros, The Guarantees for Accused Persons, 174. But see Preamble No. 19 Directive 2012/13/ EU, which allows for an oral notification where appropriate. 308 See as for this objective: ECtHR, Pélissier and Sassi v. France, Judgment, 25 March 1999, Appl. No. 25444/94, para. 62; Harris, et al., Harris/O’Boyle/Warbrick, 469. 309 European Commission of Human Rights, X. v. Austria, Decision, 29 May 1975, Appl. No. 6185/73. 310 Art. 6(3)(b) ECHR, Art. 14(3)(b) ICCCPR, Art. 8(2)(b) ACHR; Art. 20(4)(b) ICTYSt; Art. 19(4)(b) ICTRSt; Art. 17(4)(b) SCSLSt; Art. 35(2)(b) ECCCSt; Art. 16(4)(b) STLSt; Art. 67(1)(b) RomeSt; Art. 21(4)(b) KSCSt. 311 Rainey/Wicks/Ovey, The European Convention on Human Rights, 322; Trechsel, Human Rights, 209. But see Christen, Anwesenheitsrecht, 29 et seq., who concerns this minimum guarantee also in regard to the right to be present. It is significant in that respect that only according to recent case law a prejudice is no longer required to claim a violation as the ECtHR

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supervisory bodies, however, mention this minimum guarantee in their deduction of the right to be present. The objective of the guarantee can clearly be inferred from the wording. Indeed, the possibility to sufficiently prepare the defence is a crucial requirement to effectively use the defence rights, including the participation and presence rights. In fact, the defendant must be informed, whenever a right to presence or participation exists, no matter in which phase of the procedure.312 Among the facilities for a proper defence, clearly the most relevant one is the access to all material that is necessary for the defence, including exculpatory and other relevant evidentiary material.313 The right partly overlaps with the equality of arms,314 where disclosure and its limitations have already been discussed. Adequate facilities for the preparation of the defence further include access to legal consultation and the presence of legal assistance, which are to be elaborated further below when assessing the right to defence.315 At this point, it is only to be said that it is necessary to have legal advice in advance so a proper time for preparation is ensured. The appointment of a duty lawyer a few hours before trial is insufficient.316 In this regard it is also to be noted that the ICCPR and the RPE of international criminal judicial authorities317 expressly protect the defendant’s right to communicate with counsel of his own choosing. This finds expression also in the ECtHR’s and ICTY’s consideration that it is one of the basic principles of a fair criminal procedure.318 now highlights the general appearance of a fair administration of justice and the relevance to the defence: cf. ECtHR, Artico v. Italy, Judgment, 13 May 1980, Appl. No. 6694/74, para. 35 (“asking for the impossible”). See also ECtHR, Brennan v. the United Kingdom, Judgment, 16 October 2001, Appl. No. 39846/98, para. 58; Korellis v. Cyprus, Judgment, 7 January 2003, Appl. No. 54528/00, para. 35; Richardson (ed.), Archbold 2010: Criminal Pleading, Evidence and Practice, Art. 6 marginal no. 16 – 111. This has already been asked for by many scholars: Villiger, Handbuch der Europäischen Menschenrechtskovention, marginal no. 509; Spaniol, Das Recht auf Verteidigerbeistand, 96, 159 et seq. 312 Christen, Anwesenheitsrecht, 30. 313 See above E. III. 2. 314 European Commission on Human Rights, Jespers v. Belgium, Report, 14 December 1981, Appl. No. 8403/78, para. 55; ICC, Situation in the CAR: Prosecutor v. Bemba, AC, Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo Against the Decision of Pre-Trial Chamber III Entitled ‘Decision on Application for Interim Release’, 16 December 2008, Case No. ICC-01/05-01/08, para. 32. The approach that disclosure pertains to the overall fairness enshrined in in the right to a fair trial was taken in ICC, Situation in the DRC: Prosecutor v. Katanga, AC, Judgment on the Appeal of Mr. Germain Katanga Against the Decision of PreTrial Chamber I Entitled ‘First Decision on the Prosecution Request for Authorisation to Redact Witness Statements’, 13 May 2008, Case No. ICC-01/04-01/07, para. 63 et seq. 315 See below E. III. 5. c). Again it shows the difficulties in clearly distinguishing the particular guarantees of the right to a fair trial. 316 ECtHR, Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 40; Bogumil v. Portugal, Judgment, 7 October 2008, Appl. No. 35228/03, para. 48. 317 Rule 97 ICTY-, ICTR- and SCSL-RPE; Rule 73 ICC-RPE; Rule 163 STL-RPE. 318 See inter alia ECtHR, Golubev v. Russia, Decision, 9 November 2006, Appl. No. 26260/ 02; Rybacki v. Poland, Judgment, 13 January 2009, Appl. No. 57479/99, para. 56. It is however, usually discussed under Art. 6(3)(c) ECHR: ECtHR, Campbell and Fell v. the United Kingdom,

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The right to have adequate time and facilities to prepare the defence further enables the defence to conduct their own investigations, contact potential witnesses and take relevant evidence.319 A clear indication as to the time element is hardly possible and a case-to-case analysis has to be conducted as it, among other factors, significantly depends on the complexity of the case and stage of the proceedings.320 It is, however, clear that the defence, collectively, is the relevant point of reference rather than the defendant and his legal assistance individually.321 The right is conceptualised as a right of the defence as a whole.322 For example, it is in principle compatible with the convention to limit the access to the case-file to the defendant’s counsel.323

Judgment, 28 June 1984, Appl. Nos. 7819/77, 7878/77, para. 99; Ocalan v. Turkey, Judgment, 12 March 2003, Appl. No. 46221/99, para. 146; ICTY, Prosecutor v. Prlic´, AC, Decision on Prosecution’s Appeal against Trial Chamber’s Order on Contact Between the Accused and Counsel During an Accused’s Testimony Pursuant to Rule 85(C), 5 September 2008, Case No. IT-04-74-AR73.10, para. 16 et seq.; STL, Order on Conditions of Detention, President, 21 April 2009, Case No. CH/PRES/2009/01/rev, para. 16 sees it as customary international law. 319 Gaede, Fairness als Teilhabe, 240; Trechsel, Human Rights, 277 et seq.; Villiger, Handbuch der Europäischen Menschenrechtskovention, marginal no. 511. See especially in regard to ICTs and investigative measures that can be taken by defence counsel in the pre-trial phase: Dieckmann/O’Leary, The Role of Defense Counsel in Pre-Trial, 269 et seq. 320 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 626; Frowein/Peukert, marginal no. 180; Gaede, Fairness als Teilhabe, 239 et seq.; Trechsel, Human Rights, 213. See as for the details and a list of relevant criteria: ibid., 218. See also European Commission of Human Rights, X. v. Belgium, Decision, 9 May 1977, Appl. No. 7628/76. ICTY, Prosecutor v. Delalic´ et al., TC, Decision on Applications for Adjournment of Trial Date, 3 February 1997, Case No. IT96-21-T, para. 19 adds the interests of co-accused person to be taken into consideration. The strict time frame imposed by the Single Judge in the Ruto et al. case: ICC, Situation in Kenya: Prosecutor v. Ruto, Kosgey and Sang, Single Judge, Decision on the Prosecution’s Application Requesting Disclosure After a Final Resolution of the Government of Kenya’s Admissibility Challenge and Establishing a Calendar for Disclosure Between the Parties, 20 April 2011, Case No. ICC-01/09-01/11, para. 17 et seq. has been subject to criticism: Khan/Buisman, Sitting on Evidence?, 1035; McDermott, Fairness in International Criminal Trials, 92 et seq. 321 ECtHR, Kamasinski v. Austria, Judgment, 19 December 1989, Appl. No. 9783/82, para. 87 et seq.; Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 52; Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 40 et seq.; ECtHR, Ocalan v. Turkey, Judgment, 12 March 2003, Appl. No. 46221/99, para. 159. 322 Christen, Anwesenheitsrecht, 30; Gaede, Fairness als Teilhabe, 241. 323 European Commission of Human Rights, X. v. Austria, Decision, 29 May 1975, Appl. No. 6185/73; Kamasinski v. Austria, Judgment, 19 December 1989, Appl. No. 9783/82, para. 88; Kremzow v. Austria, Judgment, 21 September 1993, Appl. No. 12350/86, para. 52. Exceptionally, where the defendant is better suited, and where he is not represented by counsel, it must be granted personally: ECtHR, Öcalan v. Turkey, Grand Chamber, Judgment, 12 March 2003, Appl. No. 46221/99. Critically as both defendant and counsel should have the right to inspect the files: Trechsel, FS-Druey, 996 et seq.

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It should be noted that the Strasbourg court asks a certain diligence on the defence’s part to reasonably request the facilities and time-extensions needed.324 On the other hand, the judicial authorities have a certain duty of care on behalf of the defendant that is to be preponderated against the defendant’s due diligence.325 This includes information regarding his defence rights.326 The state has to take reasonable steps to inform the defendant about the rights he has in criminal proceedings, especially the other minimum guarantees enshrined in the right to a fair trial.327 c) Right to defence by self-representation or representation through legal assistance of one’s own choosing328 The right to defend oneself in person, through legal assistance, where need to be assigned officially, is clearly the guarantee from which legal writers mainly infer the right to be present from.329 At the beginning of Art. 14(3)(d) the Covenant even expressly guarantees the right to be tried in presence. Also the ECtHR, on many occasions, strengthened that an in absentia procedure may not be compatible with Art. 6(3)(c) ECHR. The right to defence consists of three different and independent guarantees. Firstly, the right to personal defence, secondly, the right to have legal assistance by a professional defence counsel and, finally, the right to have counsel appointed and paid for by the state where this lies in the interests of justice.330 The Strasbourg court, 324 European Commission on Human Rights, Jespers v. Belgium, Report, 14 December 1981, Appl. No. 8403/78, para. 60 et seq.; Melin v. France, Judgment, 22 June 1993, Appl. No. 12914/87, para. 25; Janatuinen v. Finland, Judgment, 8 December 2009, Appl. No. 28552/ 05, para. 45; HRC, Kool v. the Netherlands, 28 April 2008, Communication No. 1569/2007, para. 4.3. Critically Stavros, The Guarantees for Accused Persons, 108; Trechsel, Human Rights, 214. But see ECtHR, Vacher v. France, Judgment, 17 December 1996, Appl. No. 20368/ 92, para. 28, where the court puts the burden on the state authorities’ shoulders. 325 ECtHR, Vacher v. France, Judgment, 17 December 1996, Appl. No. 20368/92, para. 28; Galstyan v. Armenia, Judgment, 15 November 2007, Appl. No. 26986/03, para. 85; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 576. 326 ECtHR, Galstyan v. Armenia, Judgment, 15 November 2007, Appl. No. 26986/03, para. 8. 327 ECtHR, Padalov v. Bulgaria, Judgment, 10 August 2006, Appl. No. 54784/00, para. 53 et seq.; Talat Tunç v. Turkey, Judgment, 27 March 2007, Appl. No. 32432/96, para. 61; Panovits v. Cyprus, Judgment, 11 December 2008, Appl. No. 4268/04, para. 68. 328 Art. 6(3)(c) ECHR; Art. 14(3)(d) ICCPR; Art. 8(2)(d) ACHR; Art. 16(d) IMTCh; Art. 21(4)(d) ICTYSt; Art. 20(4)(d) ICTRSt; Art. 17(4)(d) SCSLSt; Art. 35(2)(d) ECCCSt; Art. 67(1)(d) RomeSt; Art. 16(4)(d) STLSt; Art. 21(4)(e) KSCSt. See as for the legal assistance of suspects: Art. 18(3) ICTYSt; Art. 17(3) ICTRSt; Art. 55(2) RomeSt. 329 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 655 et seq.; Gaede, Fairness als Teilhabe, 294; SK-Meyer, Art. 6 marginal no. 170, 412; Trechsel, Human Rights, 243, 252 et seq.; see also Harris, et al., Harris/O’Boyle/Warbrick, 411, who also mention lit. d and e. 330 Instead of many: ECtHR, Campbell and Fell v. the United Kingdom, Judgment, 28 June 1984, Appl. Nos. 7819/77, 7878/77, para. 99; Poitrimol v. France, Judgment, 23 November

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however, examines whether the right to defence as whole has been regarded.331 The overarching objective of the three guarantees is the adequate and effective defence of the person faced with the charges.332 This is sufficiently guaranteed if a defendant or his legal representative had the opportunity to participate.333 aa) Right to defend oneself in person The right to defend oneself in person enshrines the right to hear and follow the proceedings with a view to actively influencing the proceedings is clearly linked to the defendant’s presence.334 However, the right to defend oneself in person does not embody an absolute right to be present.335 It neither allows the defendant to make unlimited use of defence arguments. In this respect the defendant is not allowed to make suspicious allegations defaming witnesses or other parties to the procedure.336

1993, Appl. No. 14032/88, para. 34; Trechsel, Human Rights, 243 et seq.; Gaede, Fairness als Teilhabe, 252 with further references to case law and legal literature. The ECtHR found the French version to be authorative, which conjuncts the three guarantees with an ‘and’: ECtHR, Pakelli v. Germany, Judgment, 25 April 1983, Appl. No. 8398/78, para. 31. Hence, the interests of justice do not imitate the right to be defended through counsel. This limitation rather solely applies to the payment of the lawyer by state. The same applies to the ICCPR, LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 726. 331 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 719, 722; European Commission on Human Rights, Ensslin et al. v. Germany, Decision, 8 July 1978, Appl. Nos. 7572/76, 7586/ 76, 7587/76, p. 115; Artico v. Italy, Judgment, 13 May 1980, Appl. No. 6694/74, para. 32; Imbrioscia v. Switzerland, Judgment, 24 November 1993, Appl. No. 13972/88, para. 37 et seq.; Daud v. Portugal, Judgment, 21 April 1998, Appl. No. 11/1997/795/997, para. 39 et seq. 332 ECtHR, Pakelli v. Germany, Judgment, 25 April 1983, Appl. No. 8398/78, para. 31; Granger v. United Kingdom, Judgment, 28 March 1990, Appl. No. 11932/86, para. 47; Demko, 122 ZStR 2004, 416, 6; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 23 et seq., 734; Trechsel, Human Rights, 247. See also Gaede, Fairness als Teilhabe, 256, although mentioning this only in regard to the right to be defended through counsel. 333 Christen, Anwesenheitsrecht, 32; IntKommEMRK-Kühne, Art. 6 marginal no. 533. 334 ECtHR, Stanford v. the United Kingdom, Judgment, 23 February 1994, Appl. No. 16757/ 90, para. 26; SK-Meyer, Art. 6 marginal no. 169. 335 ICTY, Prosecutor v. Milosˇevic´, AC, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, Case No. IT02-54-AR73.7, para. 12; SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self-Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-04-14-T, para. 9; Gaede, Fairness als Teilhabe, 253; Jørgensen, 4 JICJ 2006, 64, 64. 336 ECtHR, Brandstetter v. Austria, Judgment, 28 August 1991, Appl. No. 1346/87, para. 52 et seq.; ICTY, Prosecutor v. Sˇ esˇelj, TC, Decision on Assignment of Counsel, 21 August 2006, Case No. IT-03-67-T, para. 34 et seq., where the court cites several defamatory submissions and misconduct by the defendant that led to the imposition of ex officio counsel. The assignment of counsel has, however, been overruled by the Appeals Chamber: ICTY, Prosecutor v. Sˇ esˇelj, AC, Decision on Appeal against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, Case No. IT-03-67-A.

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Yet, broad latitude exists, as the defendant may not be inhibited from exercising his defence rights by having to fear subsequent prosecution for his allegations.337 In view of the increasing sophistication of criminal law338, it is not per se incompatible with the right to defend oneself in person to impose a mandatory defence counsel upon the defendant if there are good reasons and it lies in the interests of justice.339 That can be the case in instances where the defendant behaves disruptively, uses the courtroom as a stage to spread propaganda – an issue especially relevant in the context of international criminal proceedings340– or abuses the self-representation to intimidate victims or witnesses.341 A good reason also exists if the defendant is not able to adequately defend himself342 or expeditiousness, integrity or fairness of the

337 ECtHR, Brandstetter v. Austria, Judgment, 28 August 1991, Appl. No. 1346/87, para. 53. 338 ECtHR, S.C. v. the United Kingdom, Judgment, 15 June 2004, Appl. No. 60958/00, para. 29. 339 ECtHR, Croissant v. Germany, Judgment, 25 September 1992, Appl. No. 13611/88, para. 27; Lagerblom v. Sweden, Judgment, 14 January 2003, Appl. No. 26891/95, para. 50; Galstyan v. Armenia, Judgment, 15 November 2007, Appl. No. 26986/03, para. 91. See also Gaede, Fairness als Teilhabe, 253. See as for the details: Harris, et al., Harris/O’Boyle/Warbrick, 475; Trechsel, Human Rights, 263 et seq. But see the opposite assessment in HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/02, para. 5. See as for the context of international criminal law inter alia: ICTY, Prosecutor v. Karadzˇic´, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT-95-5/18-AR73.6, para. 27; Tuinstra, Defence Counsel in International Criminal Law, 245 et seq. See also Rule 45ter ICTY-, ICTR-RPE that allows for the appointment of counsel where it lies in the interests of justice. 340 Damasˇka, 10 JICJ 2012, 611, 611; Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 127; Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 176; Wald, Tyrants on Trial. See as for a thorough description of the Sˇ esˇelj case in this regard: Zahar, 19 CrimLF 2008, 241. 341 ICTY, Prosecutor v. Milosˇevic´, TC, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, Case No. IT-02-54-T, para. 40 et seq.; Prosecutor v. Sˇ esˇelj, TC I, Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial, 25 October 2006, Case No. IT-03-67-PT; Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, paras. 9, 13; Prosecutor v. Krajisˇnik, AC, Decision on Krajisˇnik Request and on Prosecution Motion, 11 September 2007, Case No. IT-00-39-A, para. 41. Intimidation of witnesses: ICTY, Prosecutor v. Sˇ esˇelj, TC I, Decision on Assignment of Counsel, 21 August 2006, Case No. IT-03-67-T, para. 63 et seq.; Prosecutor v. Karadzˇic´, AC, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT-95-5/18-AR73.6, para. 27. McDermott, Fairness in International Criminal Trials, 74, 76; Trechsel, Human Rights, 263; Zahar, 19 CrimLF 2008, 241, 254 et seq. all deliver a summary of the numerous misconduct Sˇ esˇelj has conducted already during the beginning of his trial. 342 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to SelfRepresent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, Fundamentally

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proceedings (possibly for co-accused) requires such approach.343 Hence, the appointment of counsel ex officio, whether with the defendant’s approval or not, is not generally incompatible with the human rights instruments when it lies in the interests of justice, meaning “a proper defence of the defendant’s interests”344 and effective administration of justice. The ECtHR even goes one step further by asserting “a legal requirement that an accused be assisted by counsel in criminal proceedings cannot be deemed incompatible with the Convention.”345 Mandatory formal defence during appeals on points of law is justified where it is necessary for an undisturbed conduction of the procedure, the defendant is not able to defend himself in person or to act in his own interests or simply where it appears necessary.346 It is to be noted that the KSC implemented mandatory defence for certain crucial stages such as a plea agreement, hearings on detention or remand and where severe crimes with a punishment of ten years imprisonment are concerned.347 The HRC in its earlier case law held to the contrary. A mandatory defence under the ICCPR was considered not possible.348 This view has, however, been changed and the right to defend oneself personally is no longer interpreted as absolute.349 bb) Right to formal defence The other right enshrined in Art. 6(3)(c) ECHR is the right to defend oneself through legal assistance of the defendant’s own choosing, which is considered to be a Dissenting Opinion of Judge Schomburg, para. 4; IACtHR, Advisory Opinion OC-11/90, 10 August 1990, Serie A No. 11 (1990), para. 25 et seq. 343 ICTY, Prosecutor v. Karadzˇic´, AC, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT95-5/18-AR73.6, para. 27; SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-2004-14-T, paras. 26, 28; Prosecutor v. Sesay et al., TC, Decision on Application to Withdraw Counsel, 6 July 2004, Case No. SCSL-04-15-PT-180, para. 15. 344 ECtHR, Correia de Matos v. Portugal, Decision, 15 November 2001, Appl. No. 48188/ 99. 345 ECtHR, Lagerblom v. Sweden, Judgment, 14 January 2003, Appl. No. 26891/95, para. 50 (Emphasis added). The defendant’s wishes as to the choice to ex officio counsel can be overridden although they are generally to be regarded: ibid., para. 54. 346 ECtHR, Croissant v. Germany, Judgment, 25 September 1992, Appl. No. 13611/88, para. 27 et seq.; Correia de Matos v. Portugal, Decision, 15 November 2001, Appl. No. 48188/ 99; Meftah et al. v. France, Judgment, 26 July 2002, Appl. Nos. 32911/96, 35237/97, 34595/97, para. 45 et seq.; HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/ 02, para. 7.4. LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 492 et seq.; Gaede, Fairness als Teilhabe, 254. 347 Art. 21(6) KSCSt. 348 HRC, Michael and Brian Hill v. Spain, 2 April 1997, Communication No. 526/1993, para. 14.2. 349 HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/02, para. 7.3.

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basic and very powerful right.350 It ensures that the defendant has “recourse to legal assistance of his own choosing” where he so wishes.351 Limitations as to the number of counsel, or formal requirements such as a special qualification are not incompatible with this right.352 However, the exclusion of a lawyer chosen by a defendant shall occur only very rarely and for good reasons.353 Art. 14(3)(d) ICCPR further expressly ensures that the defendant be informed to engage a counsel of his own choosing if he has not yet done so. Similarly, the ECtHR recognises that the defendant must be informed regarding the possibility of appointing defence counsel.354 The point in time where such information is necessary is not clarified by either the Covenant nor the Convention. It must clearly be sufficiently in advance to effectively use the defence rights at a hearing or interrogation.355 It seems advisable to give that information at the latest with the summons to the main hearing, if need be through public notification, especially in cases where the defendant’s whereabouts are uncertain. The right to defence also includes the defendant’s free and unsupervised confidential contact with his defence counsel, a right that may be subject to proportionate restrictions, but only for significant reasons.356 The consultation must also be sufficient in terms of time.357 The representation by legal assistance further needs to be

350 See only: ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 34; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/ 96, para. 89; Frowein/Peukert, marginal no. 192; Gaede, Fairness als Teilhabe, 255; Spaniol, Das Recht auf Verteidigerbeistand, 56, 131 et seq.; Trechsel, Human Rights, 266. 351 ECtHR, Pakelli v. Germany, Judgment, 25 April 1983, Appl. No. 8398/78, para. 31; Hanzˇevacˇ ki v. Croatia, Judgment, 16 April 2009, Appl. No. 17182/07, para. 21; Dvorski v. Croatia, Grand Chamber, Judgment, 20 October 2015, Appl. No. 25703/11, para. 78. 352 European Commission of Human Rights, V v. the United Kingdom, Decision, 3 March 1986, Appl. No. 11465/85; ECtHR, Claudel v. France, Decision, 30 November 1994, Appl. No. 23038/93; Shabelnik v. Ukraine, Judgment, 19 February 2009, Appl. No. 16404/03, para. 39; IACtHR, Petruzzi et al. v. Peru, Judgment, 30 May 1999, Series C No. 52, para. 147. 353 Trechsel, Human Rights, 268. See only: ECtHR, Eurofinacom v. France, Decision of 7 September 2004, Appl. No. 58753/00; Mayzit v. Russia, Judgment, 20 January 2005, Appl. No. 63378/00, para. 65; Dvorski v. Croatia, Grand Chamber Judgment, 20 October 2015, Appl. No. 25703/11, para. 79 et seq. 354 ECtHR, Padalov v. Bulgaria, Judgment, 10 August 2006, Appl. No. 54784/00 para. 61; Panovits v. Cyprus, Judgment, 11 December 2008, Appl. No. 4268/04, para. 72; Adamkiewicz v. Poland, Judgment, 2 March 2010, Appl. No. 54729/00, para. 88. 355 Cf. also LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 756. 356 See inter alia European Commission on Human Rights, Can v. Austria, Decision, 14 December 1983, Appl. No. 9300/81, p. 51; ECtHR, Brennan v. the United Kingdom, Judgment, 16 October 2001, Appl. No. 39846/98, para. 59 et seq.; Öcalan v. Turkey, Grand Chamber, Judgment, 12 March 2003, Appl. No. 46221/99, para. 133. A weighty reasons for a timely restricted surveillance is for example the possibility to catch the other alleged gang members: ECtHR, Kempers v. Austria, Decision, 27 February 1997, Appl. No. 21842/93. 357 ECtHR, Öcalan v. Turkey, Grand Chamber, Judgment, 12 March 2003, Appl. No. 46221/ 99, para. 134 et seq.

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practical and effective.358 In extreme cases where the ineffectiveness of the legal representations “is manifest or sufficiently brought to [the court’s] attention in some other way”, the defendant has to be provided with a new or additional lawyer.359 This applies to both the duty and privately appointed counsel.360 The ICTR found in this regard that the defendant was to show “his Counsel to be incompetent on the basis of solid arguments and relevant facts.”361 The ICTY applied an even stricter standard by generally presuming due diligence of counsel362 and refusing the defendant the possibility of tendering additional evidence when he did not complain at the time of the alleged incompetence of his counsel in regard to the admission of evidence, unless “injustice may have been caused to the accused by gross professional incompetence.”363 The KSC is the first international(ised) set of chambers to expressly address the problem of ineffective defence in its legal framework. It is upon the chamber to determine where the representation is ‘ineffective to the extent that equality of arms may no longer be met’ and to replace counsel.364 It remains to be seen how this standard will be applied in practice. Nothing suggests that the KSC will depart from the high threshold established by its international precursors. The relevant authority in this regard must also act diligently and take positive measures to ensure the effectiveness. It needs for example to ensure that defence counsel is properly informed of the criminal proceedings as otherwise he is not able to ef358 Demko, 122 ZStR 2004, 416, 6; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 723 et seq.; Gaede, Fairness als Teilhabe, 256; Harris, et al., Harris/O’Boyle/Warbrick, 479 et seq.; Spaniol, Das Recht auf Verteidigerbeistand, 73 et seq.; Trechsel, Human Rights, 247. See only: ECtHR, Öcalan v. Turkey, Grand Chamber, Judgment, 12 March 2003, Appl. No. 46221/99, para. 134; Ebanks v. the United Kingdom, Judgment, 26 January 2010, Appl. No. 36822/06, para. 73. 359 ECtHR, Kamasinski v. Austria, Judgment, 19 December 1989, Appl. No. 9783/82, para. 65. See also: ECtHR, Imbrioscia v. Switzerland, Judgment, 24 November 1993, Appl. No. 13972/88, para. 38, 41; Rutkowski v. Poland, Decision, 19 October 2002, Appl. No. 45995/ 99; Sannino v. Italy, Judgment, 27 April 2006, Appl. No. 30961/03, para. 49; Ebanks v. the United Kingdom, Judgment, 26 January 2010, Appl. No. 36822/06, para. 73; HRC, Michael Adams v. Jamaica, 1 November 1994, Communication No. 607/1994, para. 8.4; Frowein/ Peukert, marginal no. 198, who are of the view that this only applies in the case of duty counsel. But see ECtHR, Goddi v. Italy, Judgment, 9 April 1984, Appl. No. 8966/800, para. 31, where the ineffectiveness of counsel that defendant has himself appointed and paid for was concerned. 360 Harris, et al., Harris/O’Boyle/Warbrick, 480. 361 ICTR, Prosecutor v. Kambanda, AC, Judgment, 19 October 2000, Case No. ICTR-9723-A, para. 28. See also: ICTR, Prosecutor v. Akayesu, AC, Judgment, 1 June 2001, Case No. ICTR-96-4-A, para. 78. 362 ICTY, Prosecutor v. Tadic´, AC, Decision on the Appellant’s Motion for the Extension of the Time-limit and Admission of Additional Evidence, 15 October 1998, Case No. IT-94-1, para. 48. See also: ICTR, Prosecutor v. Akayesu, AC, Judgment, 1 June 2001, Case No. ICTR96-4-A, para. 78. 363 ICTY, Prosecutor v. Tadic´, AC, Decision on the Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, Case No. IT-94-1, para. 65; cf. also ICTR, Prosecutor v. Akayesu, AC, Judgment, 1 June 2001, Case No. ICTR-964-A, para. 77 et seq. referring to the Tadic´ decision. 364 Rule 63(1)(c), 64 KSC-RPE.

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fectively defend his client, where necessary the relevant authority may also give assistance as to how to proceed with the defence or has to inform the defendant about the inefficiency of counsel’s work to grant him the opportunity to appoint a new lawyer.365 cc) Ratio of the two components of the right to defence The defendant can – as a general principle – freely choose to defend himself or to rely on defence counsel defending him.366 Some case law of the ECtHR and ICTY, however, suggest that the right to pro se and to formal defence apply in a strictly alternative manner, i. e. the defendant must opt for one scenario.367 On the other hand, appointment of counsel, whether by the state authorities or deliberately by the defendant, does not mean that the defendant cannot act simultaneously in person or is prevented from being present or participating directly in the proceedings.368 In fact, the defendant can “make different choices – self-representing or engaging legal counsel – with regard to different issues” within one procedure.369 To that end, it is not 365 ECtHR, Goddi v. Italy, Judgment, 9 April 1984, Appl. No. 8966/800, para. 26 et seq., 31; Alvarez Sánchez v. Spain, Decision, 23 October 2001, Appl. No. 50720/99; Czekalla v. Portugal, Judgment, 10 October 2002, Appl. No. 38830/97, paras. 65, 68; HRC, George Graham and Arthur Morrison v. Jamaica, 18 March 1991, Communication No. 461/1991, para. 10.5. But see ECtHR, Imbrioscia v. Switzerland, Judgment, 24 November 1993, Appl. No. 13972/88, para. 41 et seq. where the court found that defence counsel must request to take part in the interrogation, so he will be informed about date and venue by the relevant authorities. 366 Ast, 68 JZ 2013, 780, 781; Böse, FS-Paeffgen, 570; ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Concurring Opinion of Judge Bonello; ICTY, Prosecutor v. Krajisˇnik, Decision on Momcˇ ilo Krajisˇnik’s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 28 February 2008, Case No. IT-00-39-A, para. 8. 367 ECtHR, Mayzit v. Russia, Judgment, 20 January 2005, Appl. No. 63378/00, para. 65; IntKommEMRK-Kühne, Art. 6 marginal no. 537. Arguably in this direction also: ICTY, Prosecutor v. Milosˇevic´, AC, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, Case No. IT-02-54-AR73.7, para. 11; Prosecutor v. Krajisˇnik, AC, Decision on Krajisˇnik Request and on Prosecution Motion, 11 September 2007, Case No. IT-00-39-A, para. 40 et seq.; Prosecutor v. Karadzˇic´, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT-95-5/18-AR73.6, paras. 26, 28. 368 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 721 et seq.; Gaede, Fairness als Teilhabe, 258; IntKommEMRK-Kühne, Art. 6 marginal no. 537; Summers, Fair Trials, 117; Trechsel, Human Rights, 251; Zahar, 19 CrimLF 2008, 241, 250 et seq.; ECtHR, Stanford v. the United Kingdom, Judgment, 23 February 1994, Appl. No. 16757/90, paras. 26 et seq., 30; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, paras. 84 et seq.; HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/02, para. 7.3.; ICTY, Prosecutor v. Prlic´ et al., AC, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007, Case No. IT-04-74, para. 10. 369 ICTY, Prosecutor v. Krajisˇnik, TC, Decision on Momcˇ ilo Krajisˇnik’s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 28 February 2008, Case No. IT-00-39-A, para. 8.

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understandable why a defendant, who chose to defend himself in person may not be assisted and supported by counsel.370 This is also endorsed by the fact that the ICTY installed a remuneration scheme for persons assisting indigent self-represented accused.371 This indicates that a defendant, who chose to represent himself, may nonetheless be assisted by counsel, paid by legal aid if need to be. The rights are not mutually exclusive, but rather concurrent rights to act personally and be assisted by counsel. There may be exceptions to this general rule in special cases inter alia where the defendant can due to the victims’ protection not act personally, as for the inspection of files only granted to counsel or where formal defence is mandatory.372 Where counsel and defendant act in the contrary, generally the defendant’s will prevails but in that case the liability of a proper defence shifts to the defendant personally as he cannot force his lawyer to act against his persuasion.373 The ratio between the right to pro se defence and to be assisted by counsel has also implications with regard to proceedings in absentia. Where legal assistance is interpreted literally and attributes to the defendant the right to be assisted by legal counsel in their defence374, assistance amounts to nothing more than legal support of the defendant. Counsel is not seen to be a replacement of his client. That does not mean that the defendant may not be defended in his physical absence. A defendant who fails to appear at the court hearing has still a right to have his interests represented through counsel where the court decides to try him in absentia.375 However, he 370

HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/02, para. 7.3; ICTY, Prosecutor v. Sˇ esˇelj, TC I, Decision on Prosecution’s Motions for Order Appointing Counsel to Assist Vojislav Sˇ esˇelj with his Defence, 9 May 2003, Case No. IT-03-67PT, para. 29; cf. ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Dissenting Opinion of Judge Bonello. In a similar vein: IntKommEMRK-Kühne, Art. 6 margial no. 535; Trechsel, Human Rights, 251. 371 ICTY Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused of 1 April 2010. 372 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 722; Gaede, Fairness als Teilhabe, 258; Trechsel, Human Rights, 251; European Commission on Human Rights, X. v. Austria, Decision, 22 March 1972, Appl. No. 4622/70. Cf. also ECtHR, Stanford v. the United Kingdom, Judgment, 23 February 1994, Appl. No. 16757/90, para. 26 et seq.; HRC, Correia de Matos v. Portugal, 28 March 2006, Communication No. 1123/02, para. 7.3. 373 Trechsel, Human Rights, 251 et seq.; European Commission on Human Rights, X. v. United Kingdom, Decision, 9 October 1980, Appl. No. 8386/78; X. v. Switzerland, Decision, 6 October 1981, Appl. No. 9127/80; HRC, Pratt and Morgan v. Jamaica, 6 April 1989, Communication No. 210/1986, para. 13.2. Cf. also: IntKommEMRK-Kühne, Art. 6 marginal no. 539; ECtHR, Brennan v. the United Kingdom, Judgment, 16 October 2001, Appl. No. 39846/98, para. 47. 374 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Dissenting Opinion of Judge Pellonpää; Mosbacher, NStZ 2013, 312, 313. In this direction also ECtHR, Poitrimol v. France, Judgment, 23 November 1993, Appl. No. 14032/88, Dissenting Opinion of Judge Pettiti. 375 Ast, 68 JZ 2013, 780, 781 et seq.; Böse, FS-Paeffgen, 573 et seq. Both conduct an analysis of the ECtHR’s case law finding it to be wrongly interpreted when legal replacement and the right to be absent is attributed to the right to defence. The latter mainly argues with the court

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has no right to be absent376 nor to be legally replaced.377 Counsel’s presence and representation of the defendant’s interests in his absence can be seen to counterbalance the infringement of the defendant’s right to pro se defence. Beyond that there is no need to be legally replaced.378 Hence, there is no right to be tried in absentia. However, the Strasbourg court’s case law, as endorsed by many scholars, points in another direction. Beyond the assistance, in the literal meaning of the word, the defendant is seen to have a right to remain absent and to be legally replaced by counsel during his absence.379 In that respect, the ECtHR repeatedly considered the dismissal of an appeal or non-admission of counsel to appeals proceedings – even in absence of an excuse as to the defendant’s nonappearance – where defence counsel willing to defend his absent client appeared, to be a breach of the right enshrined in

itself, generally basing its judgment on the right to be defended and not the right to be replaced by counsel, whereas the former focuses on the presumption that the defence by counsel compensates the infringement of the right to defend oneself in person – through dismissing the appeal or conducting the appeal without representation. See also big parts of the Dutch doctrine that see the possibility of having the absentee represented by counsel but not replaced when tried in his absence: Hart/Simmelink, FS-Remmelink, 175, 177 et seq.; Verbaan, Straf(proces)recht Begrepen, 251. Cf. also Knigge, 26 DD 1996, 991, 1000; Plaisier, Het verstek in strafzaken, 225; Wedzinga/Neut, Advocatenblad 1998, 615. 376 Böse, FS-Paeffgen, 573; Frisch, NStZ 2015, 69, 610; Mosbacher, NStZ 2013, 312, 313; Spitzer, StV 2016, 48, 54; ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Dissenting Opinion of Judge Pellonpää. 377 Ast, 68 JZ 2013, 780, 781; Böse, FS-Paeffgen, 573 et seq. In a similar vein, Frisch, NStZ 2015, 69, 599 et seq., who criticises the limitless application of the legal replacement although he accepts a right to be legally replaced where the presence of the defendant is not necessary. He wants to also attach such right where solely legal arguments are concerned. 378 Ast, 68 JZ 2013, 780, 781 et seq.; Böse, FS-Paeffgen, 573 et seq. 379 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 708 et seq.; Gerst, NStZ 2013, 310, 311; Püschel, StraFo 2012, 493; Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 222. See also Frisch, FS-Paeffgen, 601 who highlights that this right does not attach indefinitely. Especially for the trial hearing: Christen, Anwesenheitsrecht, 31. As for the case law see inter alia ECtHR, Lala v. the Netherlands, Judgment, 22 September 1994, Appl. No. 14861/89, para 33 et seq.; Poitrimol v. France, Judgment, 23 November 1994, Appl. No. 14032/88, para. 32 et seq.; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33 and Dissenting Opinion of Judge Bonello; Grand Chamber, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 95 and heading before para. 91; Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, heading before para. 50; Kari-Pekka Pietiläinen, Judgment, 22 September 2009, Appl. No. 13566/06, para. 31 et seq.; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 49 et seq. See also several very critical Dissenting Opinions: ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, Joint Concurring Opinion of Judges Palm, Rozakis, Türmen and Bîrsan and Dissenting Opinion of Judge Pellonpää; Neziraj v. Germany, Judgment, 1 March 2006, Appl. No. 30804/07, Joint Concurring Opinion of Judges PowerForde and Nussberger. See also for Dutch criminal procedure that allows substitution as the only possibility to have the absentee defended: HR, 8 April 2003, NJ 2003, 723; HR, 23 October 2001, NJ 2002, 77.

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Art. 6(3)(c) ECHR.380 Ultimately, that gives the defendant a right to be tried in his physical absence where he sends counsel in order to be represented while absent and amounts to a justification of proceedings in absentia.381 As a consequence, a procedure in absentia would necessarily have to be available to guarantee the defendant’s right to be absent and represented by counsel.382 While it is questionable that these consequences have been borne in mind by the Strasbourg court, this does not alter the fact that its case law regarding the appeals stage points in this direction. Admittedly, where the defendant empowered counsel to represent him during his physical absence, knowledge of the proceedings instituted against him is certain.383 However, that cannot explain why criminal procedure needs necessarily foresee a procedure in absentia. Nonetheless, where the defendant sent counsel, he chose formal defence and must be replaced by counsel. Hence, in cases where the defendant is physically absent, the Strasbourg court follows the interpretation that pro se and formal defence stand in a binary opposition. However, this line of case law has only applied to the appeals stage and it is an open question whether the court would decide differently where the trial stage is concerned. Considering that the ECtHR’s jurisprudence concerned appeals on fact rather than appeals on solely legal matters a similar verdict for the trial phase seems feasible. Yet, another question is whether it is mandatory for courts to appoint counsel where the defendant will be prosecuted in his absence and has not sent counsel in order to represent him while being absent. The Strasbourg court has never been concerned with this question. This issue will be assessed further below.384 dd) Right to counsel paid by the state respectively the registry The right to legal aid is the third right enshrined in the right to defence. Legal aid as to the payment and/or appointment of counsel ex officio has two requirements, an economical one and the interests of justice test. Only if the defendant has no means to pay for counsel and it lies within the interests of justice, counsel needs to be paid for

380 See inter alia: ECtHR, Campbell and Fell v. the United Kingdom, Judgment, 28 June 1984, Appl. Nos. 7819/77, 7878/77, para. 98 et seq.; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 36; Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, para. 52 et seq. 381 Impressively shown by Frisch, FS-Paeffgen, 599. 382 Ibid., 611. Of other opinion Wohlers, FS-Paeffgen, 630 et seq. who submits that other measures can be taken, the defendant could be brought to court by coercive means, although he admits that courts conveniently often will decide to proceed in absentia with counsel replacing the defendant. Being concerned that in absentia proceedings will increase and the right to be present not taken seriously for the convenience of the court and expeditiousness of proceedings: Orie, DD 1996, 1004, 1012. 383 Kamerstukken, Tweede Kamer, 1995 – 96, 24 692, No. 3 (MvT), p. 14; Kamerstukken, Tweede Kamer, 1996 – 97, 24 692, No. 6 (Notas n.a.v. Verslag), p. 5. 384 E. III. 6. e) aa) et seq.

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by the state or in the context of ICTs, the registry.385 As for the financial requirement, it is at the outset to be noted that the burden of proving the defendant’s indigence is upon himself.386 However, the ECtHR is quite generous and usually does not reject legal aid due to the fact that the defendant has sufficient means to pay for a defence counsel.387 The Strasbourg court recognises the difficulties that lie in the need to prove the insufficiency of financial means and resolves doubts in favour of the defendant.388 It never established strict guidelines to overcome these issues.389 Nevertheless, the ECtHR developed several criteria that play into the second requirement, the interest of justice test; each criteria taken by itself justifies the appointment of counsel ex officio. However, the Strasbourg court usually appraises the entirety of the proceedings and conflates the individual criteria.390 The criteria are solely non-exhaustive guidelines that underline the “primary, indispensable requirement of the ‘interests of justice’ that must be satisfied in each case. That is the requirement of a fair procedure before courts, […] that means that the authorities must give an accused the opportunity of putting his case in […] a concrete and effective way.”391 The protection of the defendant’s adequate defence is, hence, the main focus of the legal aid scheme.392 One of the criteria usually concerned is the

385

So expressly Art. 14(2)(d) ICCPR. LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 737; Harris, et al., Harris/ O’Boyle/Warbrick, 468; Trechsel, Human Rights, 271. See as for the details as to the financial requirement: Gaede, Fairness als Teilhabe, 264 et seq. 387 ECtHR, Pakelli v. Germany, Judgment, 25 April 1983, Appl. No. 8398/78, para. 33 et seq.; Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 51; Kreuz v. Poland, Judgment, 19 June 2001, Appl. No. 28249/95, para. 63 et seq.; R.D. v Poland, Judgment, 18 December 2001, Appl. Nos. 29692/96, 34612/97, para. 46; LR-Esser, Art. 6 EMRK/ Art. 14 IPBPR marginal no. 737; Trechsel, Human Rights, 271. 388 ECtHR, Pakelli v. Germany, Judgment, 25 April 1983, Appl. No. 8398/78, para. 34; Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 51. 389 IntKommEMRK-Kühne, Art. 6 marginal no. 556. 390 As for the, obligatory, references to the proceedings as a whole: ECtHR, Granger v. United Kingdom, Judgment, 28 March 1990, Appl. No. 11932/86, para. 46; Boner v. the United Kingdom, Judgment, 28 October 1994, Appl. No. 18711/91, para. 37; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, para. 33. As for the linking of criteria: ECtHR, Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, paras. 32, 34 et seq. See also with a thorough analysis of the Quaranta case: Demko, 122 ZStR 2004, 416, 6 et seq. with footnote 16. 391 ECtHR, R.D. v. Poland, Judgment, 18 December 2001, Appl. Nos. 29692/96, 34612/97, para. 49. See also: ECtHR, Boner v. the United Kingdom, Judgment, 28 October 1994, Appl. No. 18711/91, para. 41; Quaranta v. Switzerland, Judgment 24 May 2001, Appl. No. 12744/87, para. 36. 392 Demko, 122 ZStR 2004, 416, 8 et seq.; Esser, Auf dem Weg, 476; Gaede, Fairness als Teilhabe, 268 et seq. and 564 et seq. with further references to different views of legal writers; Trechsel, Human Rights, 272; of other opinion interpreting the notion as aiming to promote the interests of the administration of justice: Dijk/Hoof, Theory and Practice of the European Convention on Human Rights, 473. 386

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gravity of the offence and severity of the penalty.393 In light of the maximum penalty imposed by law, the ECtHR assesses what is at stake for the defendant.394 Especially where “liberty is at stake, the interests of justice in principle call for legal representation”.395 The second criterion the court takes into consideration, is the complexity of the case and proceedings of both a – but not necessarily cumulative – legal and factual nature.396 The Strasbourg court thereby assesses whether the defendant can effectively contribute to the proceedings and make expert arguments as to his case and legal issues.397 Finally, the judicial authorities take the defendant’s personal capabilities and circumstances into consideration.398 In this regard, the unfamiliarity with the justice system of a certain country, the defendant’s youth or inexperience may play a role.399

393

ECtHR, Granger v. United Kingdom, Judgment, 28 March 1990, Appl. No. 11932/86, para. 47; Benham v. United Kingdom, Judgment, 10 June 1996, Appl. No. 19380/92, para. 60; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, para. 33 et seq. 394 ECtHR, Maxwell v. the United Kingdom, Judgment, 28 October 1994, Appl. No. 18949/ 91, para. 41; Benham v. United Kingdom, Judgment, 10 June 1996, Appl. No. 19380/92, para. 60 et seq.; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, para. 33 et seq. 395 ECtHR, Benham v. the United Kingdom, Judgment, 10 June 1996, Appl. No. 19380/92, para. 61. See also ECtHR, Boner v. the United Kingdom, Judgment, 28 October 1994, Appl. No. 18711/91, para. 41; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/ 87, para. 33; Padalov v. Bulgaria, Judgment, 10 August 2006, Appl. No. 54784/00 para. 43. Using the same reasoning: HRC, Saidova v. Tajikistan, 20 August 2004, Communication No. 964/2001, para. 6.8. Critically as the severity of the punishment cannot be the sole criterion, as effective defence must be ensured in every kind of criminal trial: Demko, 122 ZStR 2004, 416, 20. In a similar vein, Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 14. 396 ECtHR, Pham Hoang v. France, Judgment, 25 September 1992, Appl. No. 13191/87, para. 40; Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 53; R.D. v. Poland, Judgment, 18 December 2001, Appl. Nos. 29692/96, 34612/97, para. 48; Padalov v. Bulgaria, Judgment, 10 August 2006, Appl. No. 54784/00, para. 53 et seq. 397 ECtHR, Granger v. United Kingdom, Judgment, 28 March 1990, Appl. No. 11932/86, para. 47; Boner v. the United Kingdom, Judgment, 28 October 1994, Appl. No. 18711/91, para. 41; R.D. v. Poland, Judgment, 18 December 2001, Appl. Nos. 29692/96 and 34612/97, paras. 48, 52; Padalov v. Bulgaria, Judgment, 10 August 2006, Appl. No. 54784/00 para. 54. 398 ECtHR, Pham Hoang v. France, Judgment, 25 September 1992, Appl. No. 13191/87, para. 40; Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 53; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, para. 35 et seq.; Demko, 122 ZStR 2004, 416, 18; Esser, Auf dem Weg, 739; IntKommEMRK-Kühne, Art. 6 marginal no. 558. 399 ECtHR, Twalib v. Greece, Judgment, 9 June 1998, Appl. No. 42/1997/826/1032, para. 53; Biba v. Greece, Judgment, 26 September 2000, Appl. No. 33170/96, para. 29; Quaranta v. Switzerland, Judgment, 24 May 2001, Appl. No. 12744/87, para. 35 et seq.

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d) Right to examine and present witnesses400 As we have seen the ECtHR and some legal scholars deduce the right to be present also from the minimum guarantee of Art. 6(3)(d) ECHR that enshrines the right to examine or have incriminating witnesses401 examined and have witnesses for the defence summoned.402 This right implements equality of arms regarding the questioning of witnesses.403 It is evident that the right to confront a witness can only effectively be made use of when the defendant is present during the examination. His presence is key, especially, at the trial stage where usually a large portion of the witness questioning takes

400 Art. 6(3)(d); Art. 14(3)(f) ICCPR; Art. 8(2)(f) ACHR; Art. 16 IMTCh; Art. 16(4)(e), (f) STLSt; Art. 21(4)(e) ICTYSt; Art. 20(4)(e) ICTRSt; Art. 17(4)(e) SCSLSt; Art. 25(2)(e) ECCCSt; Art. 67(1)(e) RomeSt; Art. 21(4)(f) KSCSt. 401 There is no clear definition of the term witness but it is seen to include every person that gave any kind of evidence related to the case that has been regarded in the judgment: ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 40; Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, paras. 25, 51 et seq.; S.N. v. Sweden, Judgment, 2 July 2002, Appl. No. 34209/96, para. 45; Scheper v. the Netherlands, Decision, 5 April 2005, Appl. No. 39209/02; Sharkunov and Mezentsev v. Russia, Judgment, 10 June 2010, Appl. No. 75330/01, para. 111. It is clear that the term is to be interpreted autonomously and can include co-accused’s: ECtHR, Lucà v. Italy, Judgment, 27 February 2001, Appl. No. 33354/96, para. 41; Isgrò v. Italy, Judgment, 19 February 1991, Appl. No. 11339/85, para. 33 and victims: ECtHR, Mirilashvili v. Russia, Judgment, 11 December 2008, Appl. No. 6293/04, para. 157. The same rules, although not technically a witness, apply to experts: ECtHR, Doorson v. the Netherlands, Judgment, 26 March 1996, Appl. No. 20524/92, para. 81 et seq. See as for a comprehensive overview and analysis of the case law: LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 764 et seq.; Trechsel, Human Rights, 310 et seq. 402 See inter alia: ECtHR, Barberà, Messegué and Jabardo v. Spain, Judgment, 6 December 1988, Appl. No. 10590/83, para. 78. Supporting this: Gaede, Fairness als Teilhabe, 280, 294. See also Summers, Fair Trials, 117, who interprets it very broadly as a right to be present during the examination of the evidence, arguably also including evidence other than witnesses or experts. It is noticeable that authors from a common law background, following the general approach of their domestic criminal procedure, speak of a right to cross-examine incriminating witnesses (see e. g. Richardson (ed.), Archbold 2010: Criminal Pleading, Evidence and Practice, Art. 6 marginal no. 16-124; Harris, et al., Harris/O’Boyle/Warbrick, 482), whereas authors from an inquisitorial approach rather speak of the right to question or confront witnesses, possibly also through a judge (Trechsel, Human Rights, 305). Walther, GA 2003, 204, 212 comprehensively explains the gradual difference between questioning and confrontation. See as for a detailed analysis of the right to confrontation in the scope of the ECHR: Maffei, The European Rights to Confrontation in Criminal Proceedings, 61 et seq.; Schmitt, FS-Rissing-van Saan. 403 Esser, Auf dem Weg, 633; Gaede, Fairness als Teilhabe, 275; Schmitt, FS-Rissing-van Saan, 620; ICTR, Prosecutor v. Munyakazi, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28 May 2008, Case No. ICTR-97-36-R11bis, para. 83. See also ECtHR, Engel et al. v. the Netherlands, Judgment, 8 June 1976, Appl. No. 5100/71 et al., para. 91; Vidal v. Belgium, Judgment, 22 April 1992, Appl. No. 12351/86, para. 33; Destrehem v. France, Judgment, 18 May 2004, Appl. No. 56651/00, para. 39.

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place.404 Also the witnesses’ attitude and demeanour may be of importance for their reliability405 and only noticeable during the defendant’s physical presence.406 The right, therefore, underlines the defendant’s active role as subject of the proceedings with a view to influence the outcome of the procedure.407 However, the wording already suggests that witnesses may be examined on behalf of the defendant and not necessarily by himself.408 Instead, the right to test witness evidence is conceptualised as a right of the defence as a whole.409 Some of the ECtHR’s case law even suggests that a counsel should generally assist the defendant during the questioning of witnesses.410 The ICTY is arguably more liberal in this regard. It underlines the importance of the defendant’s possibility to examine witnesses personally, particularly as regards questioning on events where the defendant claims specific expertise, e. g. through his personal presence at the occurrence of that event.411 However, the Prlic´ et al. Trial Chamber allowed examination of witnesses by Praljak personally only in exceptional circumstances and asserted that generally it is for the counsel to conduct the examination of witnesses.412 At the SCSL, the defendant’s presence is also only 404

Summers, Fair Trials, 137 et seq., especially 148 et seq. Cf. also Schmitt, FS-Rissing-van Saan, 620 et seq., who sees this as an effect of the strict application of the principle of immediacy but which goes beyond said principle. Trechsel, Human Rights, 305 et seq., who sees Art. 6 ECHR as root of the principle of immediacy. But see the Swiss approach where most of the questioning is conducted in the pre-trial phase F. II. 2. b) aa). 405 ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/ 85, para. 43; Van Mechelen et al. v. Netherlands, Judgment, 23 April 1997, Appl. No. 21363/93, para. 59. 406 Gaede, Fairness als Teilhabe, 280, 624. 407 Trechsel, Human Rights, 293; Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 174. 408 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 775; Trechsel, Human Rights, 311, who interprets this in contrast to the ACHR which does not include the “have examined” as in the common law, the questioning is not conducted by the presiding judge. 409 Cf. ECtHR, Kamasinski v. Austria, Judgment, 19 December 1989, Appl. No. 9783/82, para. 91; Isgrò v. Italy, Judgment, 12 February 1991, Appl. No. 11339/85; HRC, Compass v. Jamaica, 3 November 1993, Communication No. 375/1989, para. 10.3. See also Christen, Anwesenheitsrecht, 33; LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 774; Schmitt, FSRissing-van Saan, 624. See also Trechsel, Human Rights, 309 et seq., without reference to the wording and the notion of the defence of a whole. 410 See the obiter dicta ECtHR, Artico v. Italy, Judgment, 13 May 1980, Appl. No. 6694/74, para. 35; Hulki Günes¸ v. Turkey, Judgment, 19 June 2003, Appl. No. 490/95, para. 92; but see: ECtHR, Isgrò v. Italy, Judgment, 19 February 1991, Appl. No. 11339/85, para. 35 et seq. 411 ICTY, Prosecutor v. Prlic´ et al., TC II, Revised Version of the Decision Adopting Guidelines on the Conduct of Trial Proceedings, 28 April 2006, Case No. IT-04-74-PT; Prosecutor v. Prlic´ et al., AC, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s Decision on the Direct Examination of Witnesses Dated 26 June 2008, 11 September 2008, Case No. IT-04-74-AR73.11, para. 19 et seq. As for this interpretation: Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 175. 412 ICTY, Prosecutor v. Prlic´ et al., TC II, Revised Version of the Decision Adopting Guidelines on the Conduct of Trial Proceedings, 28 April 2006, Case No. IT-04-74-PT; Prosecutor v. Prlic´ et al., AC, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s

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seen to assist his counsel to put forward a defence and properly cross-examine witnesses.413 Hence, the examination of witnesses in international criminal proceedings is generally seen to be best taken care of by counsel. The right to test witness evidence comprises two different guarantees. Firstly, the right to examine witnesses, which is sufficiently respected where the defendant or his counsel throughout the procedure once had an adequate opportunity to challenge and question the witness, no matter in which stage of the criminal procedure the right was granted.414 That generally requires knowledge of the witnesses’ identity as credibility, reliability and possible discrepancies can only then be tested.415 The examination is, in general, adversarial.416 Therefore, the right to examine witnesses is often limited to the trial hearing.417 That is especially true since the court on some occasions requires immediacy by ruling that the confrontation should take place in front of the judge who ultimately decides the case.418 According to this interpretation, without the conduction of a trial hearing the defendant has no right to have witnesses summoned. This is expressly the case in the ACHR’s provision; Art. 8(2)(f) ACHR limits the Decision on the Direct Examination of Witnesses Dated 26 June 2008, 11 September 2008, Case No. IT-04-74-AR73.11, para. 19 et seq. See for this interpretation: Harvey, Who Needs a Lawyer Anyway?, 93. 413 SCSL, Prosecutor v. Sesay et al., TC, Transcript of Hearing, 11 January 2005, Case No. SCSL-2004-15-T, p. 43. 414 ECtHR, Windisch v. Austria, Judgment, 27 September 1990, Appl. No. 12489/86, para. 26; Saïdi v. France, Judgment, 20 September 1993, Appl. No. 14647/89, para. 43; S.N. v. Sweden, Judgment, 2 July 2002, Appl. No. 34209/96, para. 44; Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/ 06, para. 118; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 131. More reluctant: SK-Meyer, Art. 6 marginal no. 477. Critically as equality of arms and fairness of the procedure have to be respected in each case; did the evidence change in an crucial point the right to questioning must be granted newly: Ambos, 115 ZStW 2003, 583, 609. It is noteworthy that, if a new witness examination is conducted, both parties have to be granted the right to examination in order to ensure equality of arms: ICTY, Prosecutor v. Delalic´ et al., Decision on the Motion of Presentation of Evidence by the Accused Ezad Lanzo, 1 May 1997, Case No. IT-96-21-T, para. 28 et seq. See also ECtHR, Bricmont v. Belgium, Judgment, 7 July 1989, Appl. No. 10857/84, para. 79, where the court tests the effectiveness of the defence’s witness examination during the investigations. The ICC has a similar regulation in its framework: Rule 68(2)(a) ICC-RPE allowing for the admission of written witness statements where the defence had the opportunity to cross-examine the witness at the time of the statement. 415 ECtHR, Kostovski v. Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 42 et seq.; Van Mechelen et al. v. Netherlands, Judgment, 23 April 1997, Appl. No. 21363/ 93, para. 59. Summers, Fair Trials, 137 et seq. This is, however, similarly subject to the above exceptions, especially in regard to the protection of victims and witnesses. 416 ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, para. 78. 417 Ibid.; Isgrò v. Italy, Judgment, 19 February 1991, Appl. No. 11339/85, para. 34. Summers, Fair Trials, 141 et seq., 148 et seq. on the other hand, argues that the court ought apply the rules stricter in that the evidence be only examined at trial and sees the taking of evidence during investigations as somewhat unfair for its lack of adversarial testing. 418 ECtHR, PK v. Finland, Decision, 9 July 2002, Appl. No. 37442/97.

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right by its wording to the examination of witnesses in court. However, the right is not meant to apply only at the trial stage but rather ensures the equal possibility of defending oneself in an adversarial manner throughout the criminal procedure.419 In any event, the apparent immediacy is subject to several restrictions.420 Already following its wording, the right to confront witnesses is not guaranteed absolutely. Rather it is subject to several restrictions of a factual421 or normative nature, namely the questioning can be refused if the witness is not seen to give evidence of considerable importance or the protection of witnesses or victims must be ensured.422 Other obstacles to the witness examination can be national security concerns423 or, although only applicable in exceptional cases, the anonymity of

419 Schmitt, FS-Rissing-van Saan, 621; Summers, Fair Trials, 145 et seq. even sees this approach, of having witnesses examined outside the trial hearing as prevailing and is critical in this regard. See for example: ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 42. 420 Evidence provided by witnesses that has been produced outside of the trial hearings can be made use of when the loss of defence rights will be compensated at a later stage: ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, para. 87 et seq.; Lüdi v. Switzerland, Judgment, 15 June 1992, Appl. No. 12433/86, para. 47; Van Mechelen et al. v. Netherlands, Judgment, 23 April 1997, Appl. No. 21363/93, para. 51; Sapunarescu v. Germany, Decision, 11 September 2006, Appl. No. 22007/03. Visual evidence, on the other hand, must be produced at trial to give the defence the opportunity to challenge its relevance effectively: ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, para. 88. Critical as to this differentiation: Esser, Auf dem Weg, 626 et seq.; Summers, Fair Trials, 141. However, the right may also be tacitly waived where the defendant or his counsel do not take or seek the opportunity of questioning a relevant witness: ECtHR, Cardot v. France, Judgment, 19 March 1991, Appl. No. 11069/84, para. 32 et seq. 421 See e. g.: ECtHR, Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, para. 28: repetition of the evidence at trial was not possible; European Commission on Human Rights, S. v. Switzerland, Decision, 13 December 1983, Appl. No. 8945/80; X. v. Austria, Decision, 1 July 1972, Appl. No. 4428/70: factual obstacle due to a failed extradition request or extradition agreement with the country in question. Death of witness: ECtHR, Ferrantelli and Santangelo v. Italy, Judgment, 7 August 1996, Appl. No. 19874/92, para. 52; Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/06, para. 118; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 133. See with a comprehensive list of the reasons and references to the ECtHR’s case law: Harris, et al., Harris/O’Boyle/Warbrick, 483 et seq. 422 ECtHR, Unterpertinger v. Austria, Judgment, 22 November 1986, Appl. No. 9120/80, para. 30; Ash v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, para. 28; S.N. v. Sweden, Judgment, 2 July 2002, Appl. No. 34209/96, para. 47; Accardi et al. v. Italy, Decision, 20 January 2005, Appl. No. 30598/02; Scheper v. the Netherlands, Decision, 5 April 2005, Appl. No. 39209/02; Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/06, para. 122 et seq.; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 133. 423 ECtHR, Edwards and Lewis v. the United Kingdom, Judgment, 22 July 2003, Appl. Nos. 39647/98, 40461/98. See critically as regards a general trend in direction of in camera proceedings, not only in criminal law: Vogel, 12 ZIS 2017, 28.

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witnesses.424 Further, the admission of hearsay evidence is not per se excluded.425 Especially in the context of international criminal proceedings, the ICTs’ legal frameworks foresee broad possibilities for the admission of written statements that have not been subject to cross-examination.426 Counterbalancing measures have to be taken, if the defence is not able to conduct the adversarial questioning of the witness.427 The defendant or his counsel can for example submit written supplementary questions after inspecting the statement that has been given in their absence.428 The untested character of the statement can also be taken into account during the eval-

424 Ambos, 115 ZStW 2003, 583, 609. The first cases on this issue were: ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 43; Lüdi v. Switzerland, Judgment, 15 June 1992, Appl. No. 12433/86, para. 42 et seq. The former establishing that the decisive evidence may not come from an anonymous witness. The requirements have gotten stricter. 425 “Art. 6(1) and (3)(d) contains a presumption against hearsay evidence”: ECtHR, Thomas v. United Kingdom, Judgment, 10 May 2001, Appl. No. 19354/02, the law heading B. But see European Commission of Human Rights, Blastland v. the United Kingdom, Decision, 7 May 1987, Appl. No. 12045/86 where hearsay evidence was admitted as the defence failed to call the witness in question or to make objections regarding the hearsay rule. See as for a detailed analysis: ECtHR, Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/06, para. 126 et seq.; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 131 et seq. concluding that the applicability of hearsay evidence may be possible where the decision is not solely and decisively based upon the evidence of the absent witness and the loss of rights sufficiently counterbalanced. See also Frowein/Peukert, marginal no. 200; Gaede, Fairness als Teilhabe, 279. Trechsel, Human Rights, 322, on the other hand, sees no issue regarding human rights on the matter of hearsay evidence and finds it to be fully admissible under the Convention. 426 Rules 92bis, quarter, quinquies ICTY-, SCSL-RPE; Rule 155 STL-RPE; Rule 68(2) ICC-RPE. That is the case where the statement does not concern acts and conduct of the accused, the witness has been subject to intimidation, where the witness died or is genuinely unavailable. Critically: Kay, 2 JICJ 2004, 495; McDermott, Fairness in International Criminal Trials, 90 et seq., who both give an excellent overview as to the amendments that have been made by ICTs to allow for the admission of written statements rather than to rely primarily on oral evidence. Report of the Study Group on Governance, 20 September 2013, para. 18, as cited in International Bar Association, ICC Programme Legal Opinion, Rule 68 Amendment Proposal, 12 November 2013, p. 5. 427 ECtHR, Visser v. Netherlands, Judgment, 14 February 2011, Appl. No. 26668/95, para. 43; Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/06, para. 119; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 132. The idea of ‘counterbalancing’ was first brought up in: ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 43. 428 European Commission of Human Rights, Baragiola v. Switzerland, Decision, 21 October 1993, Appl. No. 17265/90; Sapunarescu v. Germany, Decision, 11 September 2006, Appl. No. 22007/03. That was, however, not sufficient where the identity of the witness was unknown to the defendant: ECtHR, Kostovski v. the Netherlands, Judgment, 20 November 1989, Appl. No. 11454/85, para. 42 et seq.; Windisch v. Austria, Judgment, 27 September 1990, Appl. No. 12489/86, para. 28.

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uation of the evidence.429 These pieces of evidence are to be evaluated with “extreme care”430 and may not be the sole and decisive basis of the judgment.431 The second inherent right to have witnesses summoned is similarly not guaranteed absolutely. “Equal treatment” in regard to both parties is required.432 The right is subject to restrictions as it, according to the case law, lies in the court’s discretion to assess whether it is appropriate and relevant to call a witness.433 It is important to note that the guarantee includes the calling of any witness on the defences’ initiative not only witnesses that actually support the defence’s case.434

6. Impairment of the defence and participation rights enshrined in the right to a fair trial in the defendant’s absence Having described the scope and content of the particular guarantees for the right to a fair trial that are related to the defendant’s presence in criminal proceedings, it is 429 Harris, et al., Harris/O’Boyle/Warbrick, 484 et seq.; critically: Schmitt, FS-Rissing-van Saan, 633. 430 See inter alia ECtHR, Doorson v. the Netherlands, Judgment, 26 March 1996, Appl. No. 20524/92, para. 76; S.N. v. Sweden, Judgment, 2 July 2002, Appl. No. 34209/96, para. 53; Sapunarescu v. Germany, Decision, 11 September 2006, Appl. No. 22007/03; Visser v. Netherlands, Judgment, 14 February 2011, Appl. No. 26668/95, para. 44. 431 ECtHR, Doorson v. the Netherlands, Judgment, 26 March 1996, Appl. No. 20524/ 92, para. 76; Hulki Günes¸ v. Turkey, Judgment, 19 June 2003, Appl. No. 28490/95, para. 86; Kornev and Karpenko v. Ukraine, Judgment, 21 October 2010, Appl. No. 17444/04, para. 53 et seq.; Visser v. Netherlands, Judgment, 14 February 2011, Appl. No. 26668/95, para. 43. Critically Trechsel, Human Rights, 313; Wohlers, FS-Trechsel, 820 et seq. See also: ECtHR, Asch v. Austria, Judgment, 26 April 1991, Appl. No. 12398/86, Dissenting Opinion of Judges Sir Vincent Evans and Bernhardt. More reluctant the recent case law that does not see the decisive test as being dispositive in regard to hearsay evidence: ECtHR, Al-Khawaja and Tahery v. the United Kingdom, Grand Chamber, Judgment, 15 December 2011, Appl. Nos. 26766/05, 22228/ 06, para. 119 et seq.; Horncastle et al. v. the United Kingdom, Judgment, 16 December 2014, Appl. No. 4184/10, para. 131 et seq. The ICTY took over the decisive test: ICTY, Prosecutor v. Prlic´ et al., AC, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlic´’s Questioning into Evidence, 23 November 2007, Case No. IT-04 – 74-AR73.6, para. 53; Prosecutor v. Haraqija and Morina, AC, Judgment, 23 July 2009, Case No. IT-04 – 84-R77.4-A, para. 61. 432 ECtHR, Engel et al. v. the Netherlands, Judgment, 8 June 1976, Appl. No. 5100/71 et al., para. 91; Bönisch v. Austria, Judgment, 6 May 1985, Appl. No. 8658/79, para. 3; Pisano v. Italy, Judgment, 27 July 2000, Appl. No. 36732/97, para. 21. 433 Frowein/Peukert, marginal no. 202; ECtHR, Engel et al. v. the Netherlands, Judgment, 8 June 1976, Appl. No. 5100/71 et al., para. 91; Bricmont v Belgium, Judgment, 7 July 1989, Appl. No. 10857/84, para. 89; Vidal v. Belgium, Judgment, 22 April 1992, Appl. No. 12351/86, para. 33; S.N. v. Sweden, Judgment, 2 July 2002, Appl. No. 34209/96, para. 44. Similarly: HRC, Denroy Gordon v. Jamaica, 29 May 1987, Communication No. 237/1987, para. 6.3. See as for the details regarding the case law on the denial to have a witness examined: Esser, Auf dem Weg, 633 et seq. 434 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 764; Trechsel, Human Rights, 323.

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now to be analysed whether the defendant has forgone these rights because he waived his right to be present. If that is not the case, the question arises whether these due process rights make the defendant’s presence indispensable or whether they can be similarly respected when the criminal process is conducted in absentia. a) Rights the defendant retains when being tried in absentia All the outlined guarantees of the right to a fair trial are related to or even the cornerstone of the right to be present at one’s trial. Where the defendant is absent it is physically impossible for him to exercise the defence and participation rights. He cannot engage in face-to-face examination of witnesses, give personal statements, present evidence and call witnesses or defend himself in person.435 In cases where the defendant is absent and his whereabouts are unknown at the commencement of his prosecution, it is, further, impossible to personally inform him of the trial instituted against him and the rights he can exercise in his defence. He necessarily loses the right to participate effectively in an adversarial hearing. Finally, the absence can also have negative implications on the equality of arms. Considering the broad impairment of defence rights, the defendant’s absence goes along with, it is questionable whether waiver of the right to be present or the defendant’s evasion of justice includes the loss of these other defence rights. For a waiver to include the abandonment of all these defence rights, it is necessary to show that the defendant was aware of losing all the rights when he waives his right to be present and the trial is held in his absence.436 Especially where it comes to a tacit waiver it is difficult to establish such awareness. Under these rigorous requirements waiver of all defence rights cannot be assumed where the defendant – expressly or impliedly – in his waiver only refered to his presence at trial,437 unless the defendant includes all these guarantees in his expression of waiver. Also, in light of the ECtHR’s case law that regularly conceptualises a waiver as a relinquishment of one or more particular guarantees enshrined in Art. 6 ECHR, rather than the right to a fair trial as a whole, a waiver including all defence and participation rights seems unlikely.438 435

Also: Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 520. This is particularly where legal representation is understood as substitution as the right to be legally represented must be waived: cf. Consolidated Criminal Practice Direction of General Application – CrimPR 2013, Part I.13.17; Regina v. Abrahams [1895] 21 VLR 343; Regina v. Jones (Anthony William) [2002] UKHL 5, paras. 7, 18, 24, 35, 47; Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para 22. However, most defendants probably do not understand the fine distinction between representation and substitution. 437 Cf. also: Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 521. See for a different interpretation with regard to the Italian in absentia regulations: Lattanzi, 24 Legislazione Penale 2004, 595, 596. 438 See e. g.: ECtHR, Barberá, Messegué and Jabardo v. Spain, Judgment, 6 December 1989, Appl. No. 10590/83, para. 82; Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl. No. 26103/95, para. 33 et seq. See also Gaede, Fairness als Teilhabe, 743. 436

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Further, where courts proceeded in the defendant’s absence they usually did not make a determination as to the waiver of the defence and participation rights beyond the right to be present and it seems far-fetched to assume a waiver of all those guarantees.439 Any assumption that the defendant’s waiver of the right to be present includes all other defence rights rests on an unsound footing. Hence, the defence rights, except for the right to be present that has been intentionally abandoned, remain intact. Similarly, the defendant’s evasion of justice cannot per se work a loss of the defence and participation rights, save for the right to be present. Sanctioning the defendant’s absence with both trying him in absentia and losing the entirety of his defence and participation rights cannot be considered to be prima facie proportional. Depriving the defendant of the entirety of defence rights, according to the right to a fair trial, cannot be justified for it encroaches on his dignity. Hence, albeit losing his right to be present, the defendant retains the other defence and participation rights enshrined in the right to a fair trial. Whether these rights can be safeguarded in his absence by a third person will be assessed in the following. b) A third party exercising the defendant’s rights It may seem somewhat odd to suggest that individual rights, like the guarantees enshrined in the right to a fair trial, can be exercised by a person different from their bearer. However, the exercise of the defendant’s rights by a third party is not to a priori less effective than the personal defence. If the third party exercises the defence rights effectively it can generally be seen to compensate for the impossibility to personally make use of the defence rights. Nonetheless, one concern remains. As a matter of fact, the defendant cannot participate personally when he is absent. At first blush, it appears that the replacement of the defendant by appointing a surrogate might reduce him to a “mere object” of the proceedings. However, respect for the defendant’s dignity and his position as a rational agent is not the result of his actual active participation in a specific case. Where the procedure is designed in a manner, which allows to take positive actions on behalf of the defendant in order to represent his interests, the defendant is not a mere object of the procedure. The more so, if he (tacitly) waived his right to be present, i. e. made a deliberate decision.440 The freedom to not make use of his rights underlines his autonomy and thereby his subjectivity. His deliberate physical absence, therefore, in no way diminishes his status as the subject of the criminal proceedings. In light of the foregoing, a third party seems generally to be a suitable surrogate to exercise the defence rights for the defendant tried in absentia. More even to guarantee the defendant’s dignity his rights and interests must be taken care of in his absence. 439 Also: Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 521 referring to some constitutional rights the accused has in a criminal trials in the US. 440 Hoven, Rechtsstaatliche Anforderungen, 434.

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From the outset it should be noted that the right to defend oneself in person, naturally, cannot be carried out by another person acting on behalf of the defendant or implemented by other means. The defendant’s absence makes it physically impossible to exercise the right to pro se defence.441 Along these lines, the defendant’s relevant behaviour – not appearing in court – can be assumed to be a waiver of both presence and pro se defence.442 Following the ECtHR’s more recent case law, a duplicate waiver is not necessary.443 Rather one waiver comes along with the other. Hence, waiver of the right to be present a fortiori apply to the waiver of the right to represent oneself in person. This case law is convincing since the right to pro se defence is not guaranteed absolutely, though any infringement must be proportional. It seems not unreasonable to assume that appointing a third person, for example defence counsel, to the absentee effectively counterbalances the infringement of the right to pro se defence.444 The encroachment of this right is minimised where someone is present since the possibility to bring forward a defence and represent the defendant’s interests is guaranteed, which has been identified as overall purpose of the right to a defence. The following analyses whether the other participation rights outlined above can be equally respected in the defendant’s absence. In that case, in absentia proceedings would not run counter to the guarantees enshrined in the right to a fair trial. To be able to draw this conclusion, it is necessary to determine through which measures the defendant’s defence and participation rights can be safeguarded in absentia, so that the defendant’s physical presence is not necessarily required. c) Paternalistic action taken by the court to exercising the defendant’s rights The defendant’s defence and participation rights enshrined in the right to a fair trial could be surrogated by paternalistic action by the trial chamber or judge aiming to safeguard the defence’s interests. Yet, it is difficult to envisage how the court effectively could protect the defendant’s rights and interests. How is the chamber supposed to put forward a defence or cross-examine witnesses on behalf of a defendant? Surely, in order to establish substantive truth, the chamber questions witnesses and can thoroughly investigate issues supporting the defendant when questioning them. In the inquisitorial systems this is foreseen in the principle of in441 Cf. Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 520; Spaniol, Das Recht auf Verteidigerbeistand, 64. 442 ECtHR, Yavuz v. Austria, Judgment, 27 May 2004, Appl. No. 46549/99, para. 45; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 82; Domingues Ferreira v. Belgium, Judgment, 24 May 2007, Appl. No. 50049/99, para. 54. LR-Esser, Art. 6 EMRK/ Art. 14 IPBPR marginal no. 687 extends this even to the right to defence as a whole. 443 Cf. ECtHR, Yavuz v. Austria, Judgment, 27 May 2004, Appl. No. 46549/99, para. 45; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 82; Domingues Ferreira v. Belgium, Judgment, 24 May 2007, Appl. No. 50049/99, para. 54. 444 Ast, 68 JZ 2013, 780, 783.

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quisition. Also in the system of England and Wales, a special role of the judge is foreseen in cases held in absentia. The judge is to ensure fair proceedings and can expose weaknesses of the evidence and pursue lines of arguments favouring the defendant.445 Under the guise of establishing objective truth, the court could call witnesses, who it assumes to favour the defendant. But in a system that is based upon the adversarial structure, this may create the appearance of bias as well as partial and dependent judges. Albeit human rights law does not endorse a certain procedural system – especially the ECtHR unites procedural systems stemming from the civil law, common law or mixed traditions – criminal procedure at ICTs has taken a clear choice to conduct the actual trial with a view to adversarial argument, even at ICTs with strong civil law influence on their proceedings, such as the ECCC and KSC.446 This requires adverse parties submitting their respective case to the court, leaving no space for a chamber taking over the defendant’s interests. It is upon the prosecution to prove the defendant’s affiliation with the crimes charged beyond a reasonable doubt.447 Paternalistic actions by the chamber is, hence, not an option in pursuing the defendant’s rights during an in absentia trial. d) A defence counsel exercising the defendant’s rights It may well be conceivable that the chamber defers to a paternalistic approach by not itself engaging in the exercise of the defendant’s rights and interests but by appointing counsel to the absentee. The following will critically evaluate whether counsel is a suitable surrogate to exercise the defence rights for the defendant tried in absentia. As seen above, the defence rights enshrined in Art. 6 ECHR are not generally attributed to the defendant personally but the defence as a whole so the defence counsel is mutatis mutandis entitled to these rights.448 The opportunity for the legal assistant to make use of the defence rights can, generally, be assumed to sufficiently safeguard the rights of the defence. This applies regardless of whether defence counsel was chosen by the defendant or acts as duty counsel appointed by the registrar.449 445 See below F. II. 3. b) bb) (2) (d); Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. 446 Rule 127 KSC-RPE obliging the parties to present witness evidence in the way of examination and cross-examination. Also the ECC in Case 002 the chamber deviated from starting the initial questioning of the witness and let the prosecution begin and the defence respond. According to Karnavas, The Role of the Defense in the Trial Stage, 308 the trial therefore was an adverse argument between two opposing parties. 447 Rule 87(1) ECCC-IR; Rules 127(1), (2)(a), 140, KSC-RPE. 448 See above E. III. 2. et seq. and especially is entitled European Commission on Human Rights, Ofner and Hopfinger v. Austria, Decision, 23 November 1962, Appl. Nos. 524/59, 617/ 59. 449 Cf. ibid.; X. v. Austria, Decision, 5 July 1977, Appl. No. 7138/75, which obviously refer to the appointment by the relevant state authority. Stavros, The Guarantees for Accused Persons,

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Some legal scholars fear that the defendant loses control and supervisory powers over the defence counsel’s acting and the defence strategy, if the defence counsel takes over the defence rights.450 In the issue of proceedings in absentia this criticism seems, however, to be without merit. Where proceedings are held in full absence of the accused, it lies in the nature of things that the defendant cannot actively influence the defence strategy. No matter whether the defendant waived his right to be present or evaded justice, a lack of control of the defence strategy is a natural consequence when the court decided to try the defendant in absentia. The defendant’s loss of control is clearly to be taken into account in the court’s assessment whether it is reasonable to proceed in absentia; once the decision has been taken, it seems reasonable to have someone representing the defence’s interests. Especially where the defendant took a deliberate decision to not act and participate personally, he knowingly and willingly accepted that he cannot influence his defence strategy. That goes along with the factual loss of the right to pro se defence. It is necessary to look at each particular guarantee and determine whether it can be fulfilled in the defendant’s absence through legal assistance either of his own choosing or appointed ex officio. Then the defence counsel can be seen as to genuinely implement the defence rights and guaranteeing fairness of the proceedings. aa) Right to an adversarial hearing and right to confront witnesses The right to an adversarial proceeding ensures, in essence, that the defence has the possibility to influence the court’s decision by having knowledge of all evidence adduced and being able to react to that evidence as well as submit relevant exculpatory evidence. There is no reason why influencing the court’s decision by testing and submitting evidence could not be achieved by defence counsel. If someone represents the defence party, the adversarial structure of the trial can be upheld and the defence side of the case be heard. This is especially true with regard to witnesses. The right to confrontation, as set up in the very wording of Art. 6(3)(d) ECHR, can be fulfilled by defence counsel both in regard to the confrontation of prosecution witnesses and the calling of defence witnesses. It should further be noted that no proper client-counsel relationship451 exists where the defendant is not willing to cooperate and boycotts proceedings. In these cases, counsel can only put forward 184 et seq. is critical in this regard as it may lead to complaints about the effectiveness of the defence conducted by the duty counsel, but in favour with regards to the advocate appointed by the defendant. Spaniol, Das Recht auf Verteidigerbeistand, 64 wants to attach the right to the defence as a whole only for certain, not further specified, guarantees. 450 Stavros, The Guarantees for Accused Persons, 185, 216. Cf. in regard to duty counsel: Spaniol, Das Recht auf Verteidigerbeistand, 64; cf. also Esser, Auf dem Weg, 425 et seq., 616 et seq. Critical with regard to the right to inspect the files, which in his view needs to be granted to both defendant and defence counsel: Trechsel, FS-Druey, 996 et seq. 451 See for the need of a truthful lawyer-client relation that shall be built up already in the pre-trial phase: Dieckmann/O’Leary, The Role of Defense Counsel in Pre-Trial, 245 et seq.

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what is perceived to be in the best interests for his client,452 which is the same in a trial in absentia. The physical presence of the defendant is, therefore, not generally necessary to implement the right to an adversarial hearing and the confrontation of witnesses.453 bb) Equality of arms The principle of equality of arms structurally relies on the typical adversarial procedure that has two opposing parties. To that end, it also needs to be considered that equality of arms is not a classical right that applies to the defendant but rather a principle ensuring the fairly balanced application of procedural rights. The equality can be ensured by representation of the defence party but does not require the defendant’s personal presence.454 cc) Right to be informed of the charges As seen on several occasions, informing the defendant of the conduction of the criminal trial instituted against him is an essential requirement to have him tried in absentia. The right to be duly and timely informed of the charges against oneself seems not to be affected by the physical absence of the defendant. If need to be, the defendant is to be informed publicly. In any event, it is also of crucial importance for the defence counsel to be precisely informed of the charges, their factual and legal basis to be able to effectively conduct the defence. dd) Right to have adequate time and facilities to prepare the defence Further, defence counsel can similarly be given adequate time and facilities to prepare the defence case, including the inspection of the files, a right that is in any case often limited to counsel. More even, in proceedings at ICTs it is usually the defence counsel who prepares the defence and induces the enforcement of the disclosure regime.455 The defendant is regularly detained and simply has no possibility to prepare his defence for example with regard to the conduction of investigative acts. 452 ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Counsel’s Motion to Withdrawal, 7 December 2004, Case No. IT-02-54-7, para. 19. 453 See below E. III. 6. e) dd) for the internal difficulties arising in the defence team that lacks instruction by the accused. 454 Hoven, Rechtsstaatliche Anforderungen, 435, 442. See also above E. III. 2. 455 Knoops, The Pionieering Role of Defense Counsel, 39. See inter alia ICC, Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision on the Consequences of Non-Disclosure of Exculpatory Materials, Case No. ICC-01/04-01/06-1401; ICTY, Prosecutor v. Karadzˇic´, AC, Decision on Radovan Karadzˇ ic´’s Appeal of the Decision on Commencement of Trial, 13 October 2009, Case No. IT-95-5/ 18-AR73.5; ICTR, Prosecutor v. Karemera et al., AC, Decision on “Joseph Nzirorera’s Appeal from Decision on Tenth Rule 68 Motion,” 14 May 2008, Case No. ICTR- 98-44-AR73.13.

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ee) Right to defence through counsel The right to defend oneself through legal assistance of one’s own choosing naturally gives the defence counsel the possibility of appearing on behalf of the defendant and conducting his defence. Whether the absentee, beyond that, has a general right to be appointed a legal aid counsel will be assessed further below. It should merely be pointed out that it is not apparent why the legal aid scheme should not apply to an absent defendant. ff) Interim Findings The defence rights enshrined in the right to a fair trial can be interpreted to apply to the defence party as a whole. Although they have originally been established as fundamental rights of the defendant, content and interpretation in practice do not strictly attach them to the defendant personally. Also in the defendant’s absence the rights can be effectively made use of, save for the right to pro se defence. Defence counsel can ensure the fullest possible defence for the absentee. Especially in international criminal proceedings where complexity, length and sui generis character of the procedure make support by a defence team almost necessary, “the unity of identity between client and counsel is indispensable to the workings of the International Tribunal.”456 Following the foregoing, the effective use of the defence rights in the defendant’s absence requires the representation of the defence party. It is, therefore, necessary to assess whether defence counsel and defence team need to be appointed ex officio when the defendant is absent. Jørgensen for example concluded “[s]ince it is necessary in adversarial proceedings for both ‘adversaries’ to be in attendance, as each must gather evidence and cross-examine witnesses, it is difficult to see how there could be a fair trial if one party has no representation and does not present a defence. […] Thus, in these circumstances, the only way to safeguard the integrity of proceedings is for the Court to appoint counsel.”457 This speaks in favour of the need to appoint counsel in order to represent the absentee’s interests. e) Obligation to appoint ex officio counsel to the defendant tried in absentia Human rights monitoring bodies were never concerned with the question whether counsel needs to be appointed ex officio when the defendant is physically absent to 456 ICTY, Prosecutor v. Tadic´, AC, Decision on the Appellant’s Motion for the Extension of the Time-limit and Admission of Additional Evidence, 15 October 1998, Case No. IT-94-1, para. 65. 457 Jørgensen, 4 JICJ 2006, 64, 72. In a similar vein Damasˇka, 83 ChiKentLRev 2008, 329, 357; Hoven, Rechtsstaatliche Anforderungen, 423; Roberts/Zuckerman, Criminal Evidence, 53; Vogler, El sistema acusatorio en los procesos penales en Inglaterra y en Europa Continental, 184.

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the court hearing and did not empower counsel for the purposes of his defence. Where no counsel has been appointed, that will most likely be the case where a full trial in absentia against a fugitive is concerned, it is necessary to have counsel appointed ex officio to effectively secure the defendant’s due process rights. In order to sustain this hypothesis, different aspects will be elucidated. Firstly, the consideration of an ex officio appointment of defence counsel shall be based on the legal aid counsel and duty counsel scheme of the human rights instruments, especially the ECtHR’s case law.458 It is to be noted that the ad hoc Tribunals’ system largely overlaps with domestic legal aid schemes,459 which on their part have been shaped by human rights monitoring bodies’ case law. Hence, the ECtHR’s approach can be regarded as representative example. Secondly, the particularities of international criminal proceedings and the ICTs’ practice will be explored. Additional aspects that speak for the appointment of duty counsel will follow. Finally, the last section expands on possible challenges that might be raised against the hypothesis and tries to rebut these counter-arguments. aa) Obligation to appoint ex officio counsel to the defendant tried in absentia based on the legal aid scheme Legal aid serves “in the first place […] the interests of justice and fairness by enabling the [defendant] to make an effective contribution to the proceedings.”460 Hence, it aims to secure a fair procedure by providing for an effective defence. This objective can undoubtedly be transferred to the issue of a procedure in absence of the defendant, during which it is important to conduct fair proceedings with a view to an effective defence. The ex officio appointment of counsel under the legal aid scheme is generally subject to two conditions: the financial necessity and the interests of justice.461 (1) Financial necessity There are difficulties as to the proof of whether the defendant has sufficient means to pay for his legal assistance or whether he is dependent on legal aid. Especially in the context of international criminal procedure as the courts do not have the means for a thorough investigation of the defendant’s financial background and usually rely on

458 See already LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 682, 684, 686. It should be noted that Esser’s assessment applies not particularly to ICTs but rather concerns domestic criminal procedure. 459 Khan/Dixon, Archbold: International Criminal Courts and Practice, §§ 20 – 32. 460 ECtHR, Granger v. United Kingdom, Judgment, 28 March 1990, Appl. No. 11932/86, para. 47; cf. also Zahar, 19 CrimLF 2008, 241, 249. 461 See above E. III. 5. c) dd).

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the defendants’ statements.462 These difficulties are even of greater importance where the defendant is to be tried in his absence since there is no one to bring proof of defendant’s indigence. It, therefore, seems reasonable to prima facie assume the defendant’s indigence. This is buttressed by the fact that, according to the prevailing opinion, subsequent reimbursement of costs is possible where the defendant is no longer indigent.463 This view has also been taken by the ICTY’s registry that ordered Praljak to reimburse the costs that have been spent for provision of his defence counsel during the trial proceedings when it was discovered that he, in fact, was no longer indigent.464 It is not apparent how that should be conducted differently where prima facie a false assumption as to the defendant’s means has been made particularly since this assumption was to the defendant’s own advantage. It is also to be noted that the ICTY Appeals Chamber in the case of Prosecutor v. Prlic´ ordered the assignment of duty counsel for the accused Praljak although it has already been discovered that Praljak was solvent and able to pay for counsel.465 The defendant, however, refused to assign counsel and delayed the proceedings with requests for translations of documents he did not understand due to a lack of knowledge of the court’s working language.466 The Appeals Chamber found such delay to be contrary to both the interests of justice and of the co-accused and appointed counsel ex officio.467 This line of case law underlines that in certain instances, absent of the defendant’s financial need, a defence counsel may be officially appointed. Finally, at the STL, as far as in absentia proceedings are concerned, legal counsel will be appointed with a view to representing the absentees’ interests and protect their rights, regardless of their financial situation.468 Admittedly, the above-mentioned approach of a priori presuming the defendant’s lack of means is somewhat artificial. It appears preferable to allow for the appointment of counsel ex officio regardless of financial need, as the ICTY did in the Prlic´ case. 462 Tuinstra, Defence Counsel in International Criminal Law, 30; Zappalà, The Rights of the Accused, 1338. 463 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal no. 752; Gaede, Fairness als Teilhabe, 265; IntKommEMRK-Kühne, Art. 6 marginal no. 569 et seq. See also: ECtHR, Croissant v. Germany, Judgment, 25 September 1992, Appl. No. 13611/88, para. 35 et seq. See for the STL: Rule 59(E) STL-RPE. 464 ICTY, Prosecutor v. Prlic´ et al., AC, Order on the Registrar’s Application Pursuant to Rule 45(E) of the Rules, 13 May 2014, Case No. IT-04-74-A. 465 ICTY, Prosecutor v. Prlic´ et al., AC, Decision on Praljak’s Request for Stay of Proceedings, 27 June 2014, Case No. IT-04-74-A, para 17. The Registry had ordered him before to reimburse the costs, E 2,807,611.1, the court had spent on his counsel as he has later found out to be not indigent: ICTY, Prosecutor v. Prlic´ et al., Registry, Order on the Registrar’s Application Pursuant to Rule 45(E) of the Rules, 13 May 2014, Case No. IT-04-74-A. 466 ICTY, Prosecutor v. Prlic´ et al., AC, Decision on Praljak’s Request for Stay of Proceedings, 27 June 2014, Case No. IT-04-74-A, para. 9. 467 Ibid., para. 16 et seq. 468 Art. 7(A) STL Directive on the Appointment and Assignment of Defence Counsel (as amended on 9 March 2016). See also para. 1.3 STL Legal Aid Policy for Defence.

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(2) Interests of justice Now the second requirement of the legal aid scheme needs to be focused on: the criminal justice test. The ex officio appointment of counsel where the defendant failed to appoint counsel of his own choosing could be based on the very necessity to be effectively defended (during in absentia proceedings). The overarching objective of the minimum guarantee of Art. 6(3)(c) ECHR, and the respective regulation in the other human rights treaties and criminal court’s statutes, is precisely to ensure that the defendant has an effective and adequate defence. It could be assumed that where the effectiveness of the defence is at stake, it prima facie lies in the interests of justice to officially appoint duty counsel. The possible need for the assignment of duty counsel by the state in these circumstances is stipulated particularly clearly in the relevant provision of the ACHR providing ‘the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel’.469 This provision attaches importance to the necessity of an official counsel and technical defence regardless of whether the defendant has the means to pay for it or the appointment of counsel lies within the interests of justice.470 The only requirement is that the defendant has not appointed counsel himself or does not engage in pro se defence. The question of who bears the costs is a second step.471 The feature of a mandatory defence counsel in criminal proceedings seems to be easier justifiable under the ACHR, especially since the court held that “a violation of Art. 8 of the Convention could be said to exist if it can be proved that the lack of legal counsel [and the forcing to represent oneself] affected the right to a fair hearing”.472 European scholars commenting on the ECtHR and ICCPR, similarly, see the need for appointment of mandatory duty counsel in extraordinary circumstances to ensure the effectiveness of the assistance by counsel, no matter the financial situation of the defendant.473 In a similar vein, a broad comparative study by Bassiouni comes to the conclusion that “in the interest of an adequate and effective representation of the accused, the court should […] appoint professional counsel.”474 Accordingly, counsel may be imposed, for example, where the defendant behaves disruptively during the trial hearing475 or refuses to appear for 469

Art. 8(2)(e) ACHR. See also Antowiak/Gonza, The American Convention on Human Rights, 200; Trechsel, Human Rights, 243. 471 It has, however, been clarified that the indigent defendant must be provided with counsel paid by the state: IACtHR, Loor v. Panama, Judgment, 23 November 2010, Series C No. 218, para. 146. 472 IACtHR, Advisory Opinion, Exceptions to the Exhaustion of Domestic Remedies, 10 August 1990, Series A No. 11, para. 27. 473 LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 723 et seq., 734; Trechsel, Human Rights, 264 et seq. 474 Bassiouni, 3 DukeJComp&IntlL 1993, 235, 283 et seq. 475 ICTY, Prosecutor v. Sˇ esˇelj, TC I, Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial, 25 October 2006, Case No. IT-03-67-PT; Prosecutor v. 470

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trial.476 Judge Schomburg also rightly pointed out that several domestic criminal procedures impose counsel “from the very moment that a case reaches a certain degree of gravity or a specifically serious sentence is to be expected, i. e. in scenarios in which it cannot be reasonably expected that an individual will be able to represent himself adequately.”477 There is not much imagination needed to suppose that with the nonappearance of neither the defendant nor counsel appointed by him, in other words in the circumstance of the absence of the defence party as a whole, the defence will not be very effective, if not completely ineffective. Hence, the overarching rationale of the protection of the defendant’s realistic opportunity to have a thorough and effective defence justifies the obligation to appoint counsel ex officio for trials in absentia at all times. Already without mentioning the particularities of international criminal procedure appointment of duty counsel paid by the registrar lies in the interests of justice, if the defendant is physically absent. To add an additional layer to these findings, some scholars see per se need for the appointment of a counsel for every person accused in an international criminal setting in response of the particularity of these proceedings.478 There are several examples in the legal framework of ICTs that sustain this proposal. Firstly, Rule 45ter ICTY- and Rule 45quater ICTR-RPE – that have been adopted over the time of the ad hoc Tribunals’ existence – allow for the imposition of counsel upon the defendant when it lies in the interests of justice. The experience the ad hoc Tribunals had with “Tyrants on Trial”479 lead to the amendment of the RPE to mirror the difficulties of an inadequate and ineffective defence, which the judges tried to Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, paras. 9, 13. See also ICTY, Prosecutor v. Milosˇevic´, TC, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, Case No. IT-02-54-T, para. 40 and Prosecutor v. Krajisˇnik, AC, Decision on Krajisˇnik Request and on Prosecution Motion, 11 September 2007, Case No. IT-00-39-A, para. 41. Of the same view McDermott, Fairness in International Criminal Trials, 74; Trechsel, Human Rights, 263. 476 McDermott, Fairness in International Criminal Trials, 74. See also Trechsel, Human Rights, 265 who concludes that there may be certain procedures, in which states can require legal assistance to the defendant at all times and may accordingly appoint a counsel ex officio where the defendant is unrepresented. Similarly Ferguson, 5 CrimLR 2002, 554, 561; Frisch, FS-Paeffgen, 602, 607, 609, 610. 477 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to SelfRepresent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, Fundamentally Dissenting Opinion of Judge Schomburg, para. 4 (emphasis added). To that end he conducts a comparative analysis of several domestic procedures: ibid. para. 29 et seq. 478 Damasˇka, 10 JICJ 2012, 611, 617; Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 180, 183 et seq. Cf. also Tuinstra, Defence Counsel in International Criminal Law, 13, who finds “adequate legal assistance at international criminal courts sine qua non, the right of an accused to conduct his own defence notwithstanding.” 479 Wald, Tyrants on Trial.

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overcome with the chamber’s power to impose counsel on the defendant where the interests of justice so require.480 In a similar vein, Rule 59(F) STL-RPE allows for the imposition of counsel where ‘it is deemed necessary in the interests of justice and to ensure a fair and expeditious trial.’ By expressly referring to the fairness and expeditiousness, two components that will usually be concerned when balancing interests under the feature of the interests of justice,481 a presumption is made that counsel must be assigned when a fair or expeditious trial is in danger. Hence, the imposition of counsel facilitated.482 Finally, the last of the ICTs foresees mandatory legal representation where crimes punishable with a minimum of ten years imprisonment are concerned.483 Considering the atrocities ICTs deal with, mandatory defence will attach in the majority of cases. Further, the respective legal framework of many ICTs provides for the appointment of duty counsel for the defendant’s initial appearance.484 The application of the individual criteria that determine whether the appointment of counsel within the legal aid scheme lies in the interests of justice485 in procedures (in absentia) in the context of international criminal law further support this hypothesis. To briefly recapitulate, these criteria are the gravity of the crimes and severity of the punishment, complexity of the case and the personal capabilities and circumstances of the defendant. There is no doubt that the cases ICTs are seised with are of a high complexity both in factual and legal terms. The procedures are generally complicated and, as a sui generis system, not comparable to any domestic criminal procedure. Moreover, given the gravity of international crimes, the accused usually face long terms of imprisonment. The crimes are of the highest gravity and the penalty that may be imposed upon the defendant severe. It is scarcely possible to apply the last criteria, personal circumstances and abilities, in a general and abstract fashion. However, the ECtHR repeatedly concerned the unfamiliarity with a certain criminal justice system as balancing factor. Considering the particularities of international crimes and criminal procedure, even a lawyer trained in a domestic jurisdiction may not have the necessary broad understanding of the international criminal jurisdiction and the penalties that may be imposed upon the client.486 It is, therefore, not unreasonable to assume that the defendant may not be familiar with international criminal procedure. 480 Cf. Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 188. As similar regulation can be found in Rule 45(B)(ii) SCSL-RPE. 481 Sluiter, 3 JICJ 2005, 9, 12. 482 Cf. also Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 132. 483 Art. 21(5) KSCSt. 484 Regulation 73 ICC Regulations of the Court; Rule 61(A)(1) ICTY- and ICTR-RPE. A duty ad hoc counsel may also represent the general interests of the defence and not specifically one defendant. 485 See above E. III. 5. c) dd). 486 Cf. also Tuinstra, Defence Counsel in International Criminal Law, 15.

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Further, magnitude and complexity of international criminal cases presuppose the assistance by a professional defence team. Therefore, the ICTY adopted a remuneration scheme for persons assisting indigent self-represented accused.487 This clearly shows the reasonable presumption that a case in the field of international criminal law cannot be handled by a defendant alone.488 For example, at the outset only one defence counsel represented Tadic´ in the first case held at the ICTY. In course of his procedure the ineffectiveness of the defence, due to understaffing, became manifest.489 Henceforth, the defendants of ICTs were usually assigned a defence team regularly consisting of several counsels, a supportive defence team, investigators and language assistance.490 Especially, where the defendant is not present, adequate defence requires representation by counsel and the assistance of a defence team. bb) ICTs’ practice with regards to the appointment of ex officio counsel This finding is corroborated by the ICTs’ practice. Tribunals have often taken a paternalistic approach and assigned counsel to the defendant regardless of whether he chose to make use of his right to self-representation. That was to ensure the effectiveness of the accused’s defence.491 Accordingly, self-represented defendants at ICTs have always been assigned some sort of legal assistance in the form of standby counsel,492 court-assigned counsel493 or amicus curiae.494 RomeSt and KSC-RPE 487

ICTY Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused of 1 April 2010. 488 See also Tuinstra, Defence Counsel in International Criminal Law, 13, who, however, does not draw a connection to the enumeration scheme of the defence team. 489 ICTY, Third Annual Report of the ICTY, 16 August 1996, UN Doc. A/51/292-S/1996/ 665, para. 106. 490 ICTY Directive No. 1/94, IT/73. 10; Rule 20(1)(b), 22(1) ICC-RPE; Regulation 83(1) of the ICC Regulations of the Court. See as for the details Tuinstra, Defence Counsel in International Criminal Law, 23 et seq. See also Dieckmann/O’Leary, The Role of Defense Counsel in Pre-Trial, 263 et seq.; Zappalà, The Rights of the Accused, 1338. 491 See inter alia SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-04-14-T. 492 ICTY, Prosecutor v. Sˇ esˇelj, TC II, Decision on Motion 21, 27 October 2003, Case No. IT03-67-PT; Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009, Case No. IT-95-518-T; Prosecutor v. Karadzˇic´, AC, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT-95-5/18-AR73.6; ICTR, Prosecutor v. Barayagwiza, TC, Decision on the Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, Concurring and Separate Opinion of Judge Gunawardana; SCSL, Prosecutor v. Norman et al., TC, Consequential Order on Assignment and Role of Standby Counsel, 14 June 2004, Case No. SCSL-2004-14-T. 493 ICTY, Prosecutor v. Milosˇevic´, TC, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, Case No. IT-02-54-T. Earlier the TC decided to not generally impose duty counsel to the pro se defendant, but underlined its power to have Milosˇevic´ re-

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even expressly provide for exceptions to the right to self-representation, in case that the disruptive defendant may be ordered to leave the courtroom and will meanwhile be represented by counsel.495 Similarly, it was consolidated practice at the ad hoc Tribunals to assign counsel to the obstreperous defendant who has been removed from the courtroom if he is not already represented by counsel.496 On several occasions the defendant’s deliberate absence from the trial has been interpreted as disruptive behaviour and consequently counsel was appointed to represent the defendant in his absence in order to ensure the fairness of the proceedings.497 Finally, it should be noted that the STL, as the only international tribunal that conducts full in absentia proceedings, appoints duty counsel ‘with a view to ensuring full representation of the interests and rights of the accused’498 to the absentees, where they did not choose their own counsel. In fact, the four defendants in Ayyash et al. have been assigned eight defence counsels, including defence teams and defendant Merhi was provided with one defence counsel, who was able to pick a defence

moved from the courtroom when he behaves disruptively and to assign duty counsel to have him represented during his temporary absence: ICTY, Prosecutor v. Milosˇevic´, TC, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, Case No. IT-02-54-T, 4 April 2003, paras. 36 et seq., 40 et seq. 494 ICTY, Prosecutor v. Milosˇevic´, TC, Order Inviting Designation of Amicus Curiae, 30 August 2001, Case No. IT-02-54-T; Prosecutor v. Krajisˇnik, AC, Decision on Momcˇ ilo Krajisˇnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39A, para. 25. 495 Art. 63 RomeSt; Rule 61(2) KSC-RPE. 496 Cf. ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to Selfrepresent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, paras. 9, 13; Prosecutor v. Krajisˇnik, AC, Decision on Krajisˇnik Request and on Prosecution Motion, Case No. IT-00-39-A, 11 September 2007, para. 41. Being more reluctant in this regard as this was not the practice in domestic proceedings: ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to Self-represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, Fundamentally Dissenting Opinion of Judge Schomburg, para. 4. 497 ICTY, Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2005, Case No. IT-95-518-T, para. 19; ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T; SCSL, Prosecutor v. Taylor, TC, Prosecutor’s Opening Statement, Transcript of Records, 4 June 2007, Case No. SCSL-2003-01-T. See also SCSL, Prosecutor v. Sesay et al., TC, Decision on Application to Withdraw Counsel, 6 July 2004, Case No. SCSL-04-15-PT-180, para. 16, where the court found a boycott as the defendant tried to withdraw his counsel. It should be noted that ICTR Chamber did not appoint a duty counsel but rejected the withdrawal of Barayagwiza’s counsel. 498 Art. 22(2) STLSt, Rule 47(D)(viiii), 105bis(B) STL-RPE; Art. 25 STL Directive on the Appointment and Assignment of Defence Counsel.

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team.499 Likewise the new flexible approach with regard to the presence of defendants at the ICC, always requires representation by counsel during the defendant’s absence. cc) Other aspects for the obligation to appoint counsel ex officio to the defendant tried in absentia There are several other aspects that support the need for ICTs to assign duty counsel to the absentee when he did not send counsel of his own choosing. To begin with, the Strasbourg court has on several occasions not found a violation of Art. 6 ECHR notwithstanding the defendant’s absence in criminal proceedings inter alia on the ground that counsel has represented the defendant during his absence.500 Moreover, a defence counsel is an essential agent of the administration of justice,501 who monitors the regularity of the proceedings also in the court’s and public interest.502 The perception of the public that proceedings are conducted fairly is of utmost importance for the legitimacy of the ICTs and their judgments and the preservation of public confidence in the system of international criminal justice.503 The defence counsel is also meant to contribute to maintain public confidence

499 STL, Prosecutor v. Ayyash et al., Head of Defence Office, Commission d’Office de Conseils aux Fins de la Procédure par Défaut Tenue en Application de l’Article 106 du Règlement, 2 February 2012, Case No. STL STL-11-01/I/PTJ; Prosecutor v. Merhi, Head of Defence Office, Assignment of a Counsel for the in Absentia Proceedings Held Pursuant to Rule 106, 20 December 2013, Case No. STL-13-04/1/PTJ. Before the latter assignment of counsel the Head of Defence Office had already tried to assign ad hoc defence counsel to the defendant, ensuing from the submissions made in STL, Prosecutor v. Merhi, Defence Office, Observations of the Defence Office on the Assignment of Ad Hoc Defence Counsel to Mr. Hassan Habib Merhi and Request to Set Aside the Contested Order, 16 October 2013, Case No. STL-13-04/1/TC, because there was no statutory regulation prohibiting the prior assignment of counsel and this would ensure equality of arms and expeditiousness of the proceedings as the defence could already begin to familiarise itself with the case. The chamber, however, ordered the defence office not to assign counsel until the chamber has decided whether in fact to proceed in absentia: STL, Prosecutor v. Merhi, TC, Order to the Defence Office Regarding Assignment of Counsel to Hassan Habib Merhi, Case No. STL-13-04/1/TC. In the defence office’s motions, inherently there is critic as to the late appointment of counsel. Considering that counsel, according to the procedures foreseen in the RPE, was conducted on 20 December 2013, that is only 6 days after the intended assignment of ad hoc counsel, it is questionable whether the expeditiousness would have indeed be supported, if at all, only very marginally. 500 As for petty proceedings: ECtHR, Kammerer v. Austria, Judgment, 12 May 2010, Appl. No. 32435/06, para. 29. As for appeals on points of law: ECtHR, Ziliberberg v. Moldova, Judgment, 1 February 2005, Appl. No. 61821/00, para. 42; Abbasov v. Azerbaijan, Judgment, 17 January 2008, Appl. No. 24271/05, para. 33; Maksimov v. Azerbaijan, Judgment, 8 October 2009, Appl. No. 38228/05, para. 41. As for proceedings in the partial absence of the defendant: European Commission on Human Rights, Ensslin et al. v. Germany, Decision, 8 July 1978, Appl. Nos. 7572/76, 7586/76, 7587/76, pp. 64, 116. 501 Principle 12 UN Basic Principles on the Role of Lawyers. 502 E contrario Ferguson, 5 CrimLR 2002, 554, 561. 503 See above E. II.

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therein.504 The trial phase is subject to broad public attention both for victims, the affected community and the international community in general. Since the trial usually takes place remotely, distant from the affected region, the public trial stage is the only means for the public to control the fairness of the proceedings. In providing defence counsel and a supportive team for the absentee, the court ensures that the adversarial structure of confrontation of two parties as essence of the trial is upheld.505 It is notable that the institutionalisation of defence counsel at international criminal proceedings increases.506 The STL is the first court that established the defence office as fourth organ and equips the defence teams rather generously. It is perfectly reasonable to assume that this decision has been taken in order to counterbalance the possibility of trying defendants in absentia and foregoing any negative influence with regard to the perception of fairness of the institution. Ultimately, it is to be noted that the discussion on mandatory defence is held in light of the assumption that there are two different types of criminal justice, the liberal justice system, ideal typically embodied in the common law system and the more paternalistic one, ideal typically to be found in civil law countries.507 The former model highlights the defendant’s autonomy and will, whereas the latter might take positive steps as to the protection of the defendant against his will. These models, of course, in practice do not exist in purity and will certainly blend. The view represented here, similarly, combines both approaches. It gives effect to the defendant’s will by cumulatively protecting his defence rights. On the one hand, when taking the decision to try a defendant in his absence, the defendant’s will not to appear at court can, under certain circumstances, be respected by allowing him to voluntarily and intelligently waive his right or forfeit it. But on the other hand, the chamber is obliged to take positive action to protect the effectiveness of the defendant’s rights and fairness of proceedings by appointing defence counsel ex officio.508

504 ECtHR, Nikula v. Finland, Judgment, 21 March 2002, Appl. No. 31611/96, para. 45; SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-04-14-T, para. 23. See also ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 21. 505 Zappalà, Human Rights in International Criminal Proceedings, 64. In a similar vein Damasˇka, 83 ChiKentLRev 2008, 329, 357; Jørgensen, 4 JICJ 2006, 64, 72 see the need for the presentation of a defence case in order to ensure the adversarial battle. Cf. also Hoven, Rechtsstaatliche Anforderungen, 423. 506 Knoops, The Pionieering Role of Defense Counsel, 27 et seq. 507 Trechsel, Human Rights, 263; Tuinstra, Defence Counsel in International Criminal Law, 246 et seq.; cf. also Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 136. 508 Trechsel, Rights in Criminal Proceedings under the ECHR and the ICTY Statute, 187.

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dd) Rebuttal of counter-arguments that could be stipulated against the obligation to appoint counsel ex officio to the defendant tried in absentia The imposition of counsel against the defendant’s will is often challenged with the argument that an effective defence can only arise from a client-counsel relation that is based on trust and confidence.509 This argument is without merit in the case of the assignment of a defence counsel in the issue at hand. As far as a trial in absentia is concerned, a relationship between the officially appointed counsel and the absentee will regularly not exist. When a person is absent, he cannot build a relationship with his counsel, at least if the absentee is a fugitive and had no contact with his lawyer. Nevertheless, it has to be taken into account that a defence without instructions bears difficulties. The defendant is clearly the person that best knows how to challenge evidence and which exculpatory evidence to put forward in his defence.510 If counsel is left with no instructions how to conduct the defence and no investigative leads, the defendant’s interests cannot be taken care of in its most effective way.511 Also, the code of professional conduct for counsel appearing before the ICTY for example foresees that counsel is instructed by his client.512 In cases where the defendant’s whereabouts are unknown and there are no instructions from the client, it seems difficult to abide by this standard. Ethical concerns may arise.513 The counsel in Prosecutor v. Milosˇevic´ submitted that the assignment of legal assistance “to an unwilling and uncooperative Accused imposes an external pressure upon court assigned counsel that compromises their professional integrity”514. Similarly, the amici curiae complained that, “without the Accused’s 509

Wladimiroff, 12 LJIL 1999, 957, 967. Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 524; Robertson, Report on the International Crimes Tribunal of Bangladesh, 84, 86; cf. also Trechsel, Human Rights, 309. See already Judgment of the International Military Tribunal for the Trial of German Major War Criminals (with the Dissenting Opinion of the Soviet Member), Nuremberg, 30th September and 1st October 1946, 130. 511 Cohen, 36 FlaLRev 1984, 273, 283, 285; Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 524; Jordash/Parker, 8 JICJ 2010, 487, 500; Robertson, Report on the International Crimes Tribunal of Bangladesh, 84. Speaking of “fiction” as the defence presented is not the defendant’s defence: Faretta v. California 422 US 806, 821 (1975); Tuinstra, Defence Counsel in International Criminal Law, 249. See also ibid., 257 et seq.; Nsereko, 12 CrimLF 2001, 487, 505 for the difficulties of representing a defendant that refuses communication. Similarly, seeing difficulties in the conduction of the investigation without clients instructions: Zappalà, Human Rights in International Criminal Proceedings, 64. See also ICTR, Prosecutor v. Nyiramasuhuko, TC, Decision on Ntahobali’s Motion of Withdrawal of Counsel, 22 June 2001, Case No. ICTR97-21-T, para. 23. 512 Rule 8(A): ‘counsel shall: (i) abide by the client’s decisions concerning the objectives of representation; (ii) consult with the client about the means by which those objectives are to be pursued […]’. 513 Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel. 514 ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Defence Counsel’s Motion of Withdrawal, 7 December 2004, Case No. IT-02-54-T, para. 5. 510

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assertions as to what he believes to be the truth and his understandings of events, it is extremely difficult for an advocate to attempt to construct the thoughts and mindset of an Accused who is not his client.”515 These assertions without doubt apply to the in absentia situation and similar findings were made by defence counsel of Barayagwiza, who refused to be represented and did not attend trial.516 However, the Trial Chamber in Milosˇevic´ eventually refused to accept the withdrawal of court appointed counsel and argued that the continuous representation was necessary for a fair and expeditious conduct of the trial.517 The same reasoning was applied at the ICTR in Prosecutor v. Barayagwiza and the SCSL in Prosecutor v. Sesay et al. in regard to the accused Gbao.518 In any event, in regard to the finding in Prosecutor v. Milosˇevic´ that counsel was not right in withdrawing from his job representing his client during the conduction of criminal proceedings instituted against him, the Trial Chamber found that there are many valuable actions a counsel can fulfil without being instructed by his client, including “filing of written legal submissions on matters such as subpoenas and binding orders in respect of certain witnesses, as well as other important aspects of the conduct of the defence case.”519 Exculpatory evidence can also be brought to the focus of attention during the trial, as well as weaknesses and contradictions in the indictment and prosecution’s case.520 Finally, defence counsel can call witnesses on behalf of the defendant.521 With regard to cross-examination the missing instruction may have an impact on challenging the factual basis522, but credibility and reliability can be undermined as well as inconstancies with other witnesses, findings or prior

515 ICTY, Prosecutor v. Milosˇevic´, Amici Curiae, Submissions in Response to the Trial Chamber’s Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel, Dated 6 August 2004, 13 August 2004, Case No. IT-02-54, para. 18. 516 Nsereko, 12 CrimLF 2001, 487, 504. 517 ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Defence Counsel’s Motion of Withdrawal, 7 December 2004, Case No. IT-02-54-T, paras. 29, 33. Critically: Tuinstra, Defence Counsel in International Criminal Law, 257. 518 ICTR, Prosecutor v. Barayagwiza, TC, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 21; SCSL, Prosecutor v. Sesay et al., Decision on Application to Withdraw Counsel, 6 July 2004, Case No. SCSL-04-15-PT-180, para. 15. 519 ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Defence Counsel’s Motion of Withdrawal, 7 December 2004, Case No. IT-02-54-T, para. 32. 520 Tuinstra, Defence Counsel in International Criminal Law, 259 ; Zappalà, Human Rights in International Criminal Proceedings, 64. 521 Zappalà, Human Rights in International Criminal Proceedings, 64. 522 Nsereko, 12 CrimLF 2001, 487, 505, 507; Trechsel, Human Rights, 309. See also ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Defence Counsel’s Motion of Withdrawal, 7 December 2004, Case No. IT-02-54-T, paras. 3, 5, where the court appointed counsel sought to withdraw from his position as defence counsel since the client refused to communicate or give instructions. See as for this difficulties also Tuinstra, Defence Counsel in International Criminal Law, 257.

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statements can be pointed out.523 It should also be borne in mind that counsel – especially when coming from a common law background – is trained in properly examining witnesses and ask the right questions whereas the defendant usually lacks this propriety.524 It is further to be noted that defence counsel is not bound by his client’s decision as to the means by which the representation is conducted.525 The code of conduct of ICTs assumes that counsel will work out the defence strategy, make tactical decisions and take actions as to a proper defence independently.526 Counsel has, hence, authority over evidentiary matters.527 Further, one important argument the court assigned counsel in Prosecutor v. Milosˇevic´ raised to support the need for his withdrawal was that “acting against the expressed wishes of the Accused […] would be disloyal to their client and detrimental to the interests of justice”.528 This line of argument is, however, not persuasive as far as trials in absentia are concerned since the defendant most likely has not expressed his will.529 The defence counsel rather acts in the defendant’s perceived interests by ensuring that there is action taken on his behalf and that his interests are represented. Upon apprehension the defendant will in most cases have the right to retrial, so that any misinterpretation of the defendant’s best interests by counsel can be 523 Cf. Dieckmann/O’Leary, The Role of Defense Counsel in Pre-Trial, 240, 244; Gilligan/ Imwinkelried, 56 SCLRev 2005, 509, 524; Karnavas, The Role of the Defense in the Trial Stage, 283, 288. 524 Trechsel, Human Rights, 309. Similarly: ECtHR, Kamasinski v. Austria, Judgment, 19 December 1989, Appl No. 9783/82, para. 91: “For the purposes of Article 6 § 3 (d) […] Mr. Kamasinski must be identified with the counsel who acted on his behalf, and he cannot therefore attribute to the respondent State any liability for his counsel’s decisions in this respect.” 525 Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 527; Nsereko, 12 CrimLF 2001, 487, 491 et seq.; Rule 8(A)(ii) ICTY’s Code of Professional Conduct for Counsel Appearing before the International Tribunals. Cf. also Art. 14(2) ICC Code of Conduct. See also Rule 1.2 US Model Rule of Professional Conduct; Rule 4-5.2 American Bar Association Criminal Justice Standards for the Defece Function, 4th ed., https://www.americanbar.org/groups/criminal_justice/ standards/DefenseFunctionFourthEdition.html (last accessed: 7 February 2021). 526 Ibid. See also ICTR, Prosecutor v. Nyiramasuhuko, TC, Decision on Ntahobali’s Motion of Withdrawal of Counsel, 22 June 2001, Case No. ICTR-97-21-T, para. 23; ICTY, Prosecutor v. Blagojevic´, TC I, Decision on Independent Counsel for Vidoje Blagejovic´’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003, Case No. IT-02-60-T, paras. 104, 107. 527 Gilligan/Imwinkelried, 56 SCLRev 2005, 509, 527; see also Tuinstra, Defence Counsel in International Criminal Law, 203. 528 ICTY, Prosecutor v. Milosˇevic´, TC, Decision on Assigned Defence Counsel’s Motion of Withdrawal, 7 December 2004, Case No. IT-02-54-T, para. 5. Cf. also ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T. 529 This was different in the Barayagwiza case as the defendant refused to appear and instructed his counsel not to defend him. The Trial Chamber, however, refused the withdrawal of counsel as the legal representation was needed to ensure a fair trial: ICTR, Prosecutor v. Barayagwiza, TC I, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR-97-19-T, para. 21.

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healed during a trial conducted in presence of the defendant or at least with an authorised and instructed defence team. Critics might also find fault with the imposition of counsel upon the defendant as it limits the right to pro se defence.530 It is most certainly a paternalistic approach to assign a defence counsel to the absent defendant. However, the right to defend oneself in person is not encroached upon by the decision to appoint duty counsel to the absentee in order to represent the defendant’s interests. It is the decision to try the defendant in absentia that limits his right to defend himself in person. The decision to try the defendant in his absence – which goes along with encroaching on the defendant’s right to pro se defence – is counterbalanced by appointing counsel and ensuring that the defendant’s interests are represented. When taking the above considerations into account, it seems reasonable to assume that the assigned counsel can present an effective defence as long as he acts in the perceived best interests of his client. Ultimately, his role is not very different from a defence counsel that is instructed by the defendant since he controls the defence strategy and presentation of the defence case in both situations. Considering that the appointment of counsel not only serves the defendant’s interests but also the interests of justice and the public confidence therein, the advantages of appointing a counsel ex officio outweigh the disadvantages of the paternalistic approach. One last concern with regard to the ex officio appointment of counsel to the defendant is that trials in absentia will become the rule rather than the exception. If sufficient safeguards – such as the appointment of counsel – are mandatory, trials in the absence of the defendant could be used as powerful tool by ICTs to conduct expeditious criminal proceedings.531 It is feared that the right to be present will not be sufficiently respected since defence counsel takes over his client’s rights and no effort needs to be taken as to the defendant’s apprehension.532 However this argument confuses two different levels. It must be distinguished between the question whether it is reasonable to proceed in absentia and the subsequent question of which safeguards to install when the decision to try the defendant in absentia – which will be discussed further below533 – has been taken. Even if there is a presumption that defence counsel needs to be assigned to the absentee, the previous decision, whether to proceed in absentia, does not become superfluous.

530

In this direction arguably LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 682, 686. Wladimiroff, 12 LJIL 1999, 957, 967. 531 Cf. Orie, DD 1996, 1004, 1012. 532 Ibid. 533 See below G. III.

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ee) Exercising the defendant’s rights by appointing a standby counsel or amicus curiae A valid counter-argument may also be that appointing standby counsel or amicus curiae would suit the idea of having the defendant’s interests regarded better than a defence counsel taking over this job. Counsel can only act in the perceived interests of the client. It could be argued that by “only” appointing standby counsel or amicus curiae the limited possibilities of the defendant’s representative would be better reflected. Both the standby counsel’s or amicus curiae’s powers are limited, so there would be no façade of a defence that is actually not authorised and supported by the defendant. A standby counsel can be defined as assistance to the pro se defendant that takes over where necessary.534 As backup counsel, he must be prepared, at all times, when addressed by the chamber or asked to examine witnesses and step in when the defendant is not himself present in the courtroom.535 On the other hand, amicus curiae is Latin for “friend of the court”. The two decisive elements of an amicus curiae are neutrality and his expertise,536 i. e. he must be a “non-party” that assists the court with his expertise.537 In the history of ICTs standby counsel have been assigned to self-representing or obstreperous defendants.538 A prominent example is the case Prosecutor v. Karadzˇ ic´ where the pro se defendant was supplemented by standby counsel on occasions where the defendant did not appear at the hearing or needed support.539 It is ques534 Standby counsel is understood as counsel that assist the defendant while representing himself: ICTY, Prosecutor v. Sˇ esˇelj, TC, Decision on Prosecution’s Motions for Order Appointing Counsel to Assist Vojislav Sˇ esˇelj with his Defence, 9 May 2003, Case No. IT-03-67-PT, paras. 12 – 30. Cf. also Jørgensen, 4 JICJ 2006, 64, 72. 535 Ibid.; ICTY, Prosecutor v. Karadzˇic´, TC, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009, Case No. IT-95-518-T; Prosecutor v. Karadzˇic´, TC, Decision on Designation of Standby Counsel, 15 April 2010, Case No. IT- 95-5/ 18-T. See also the summary of the duties of standby counsel, highlighting that it is his job to step in where necessary: ICTY, Prosecutor v. Milosˇevic´, AC, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, Case No. IT-02-54-AR73.7, para. 20. 536 Kent/Trinidad, 29 LJIL 2016, 1081, 1083. 537 Law (ed.), Oxford – A Dictionary of Law, amicus curiae. 538 ICTY, Prosecutor v. Sˇ esˇelj, TC II, Decision on Motion 21, 27 October 2003, Case No. IT03-67-PT; Prosecutor v. Karadzˇic´, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009, Case No. IT-95-518-T; Prosecutor v. Karadzˇic´, Decision on Radovan Karadzˇ ic´’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, Case No. IT-95-5/18-AR73.6; ICTR, Prosecutor v. Barayagwiza, TC, Decision on the Defence Counsel Motion to Withdraw, 2 November 2000, Case No. ICTR97-19-T, Concurring and Separate Opinion of Judge Gunawardana; SCSL Prosecutor v. Norman et al., TC, Consequential Order on Assignment and Role of Standby Counsel, 14 June 2004, Case No. SCSL-2004-14-T. See also Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 128. 539 ICTY, Prosecutor v. Sˇ esˇelj, TC II, Decision on Motion 21, 27 October 2003, Case No. IT03-67-PT; Prosecutor v. Karadzˇic´, Decision on Appointment of Counsel and Order on Further

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tionable whether this is a sound option for trials conducted in absentia. In that respect it is necessary to differentiate full and partial trials in absentia. The appointment of standby counsel for an obstreperous or sick defendant who is temporarily absent from the courtroom seems reasonable in order to counterbalance the defendant’s occasional absence and have his rights represented meanwhile. This appointment keeps obstreperous or boycotting defendants in check and enables the expeditious and smooth conduction of the trial. Of course, recourse to standby counsel needs to be made only where counsel does not represent the partially absent defendant, as then his regular counsel would compensate the defendant’s absence. Considering standby counsel also for defendants who are fully tried in absentia seems troublesome. In full in absentia proceedings standby counsel would need to supplement the defendant’s presence for the entire procedure. Standby counsel would actually take on the work of a proper defence counsel representing the absentee’s interests. This runs counter the idea of a standby counsel which is literally a counsel being ready to be deployed immediately, if needed as backup. Similar concerns apply to the appointment of an amici curiae in order to represent the defendant’s interests in his absence. The remoteness of a proper defence counsel from his absent client arguably makes the defence counsel’s position comparable to an amicus curiae, who is independent from the defence party and not instructed by the defendant. It could, therefore, be argued that assigning amici curiae in order to present arguments for the defence is sufficient and no counsel need to be assigned to defend the absentee.540 This proposal is not persuasive for the following reasons. The relevant regulation for the appointment of amicus curiae at the ad hoc Tribunals provide that ‘a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber.’541 The ICC regulation makes clear that amici curiae can ‘submit in, in writing or orally, any observation on any issue the chamber deems appropriate.’542 Against this backdrop, the representation of defendants who are absent seems not to meet the idea of amici curiae: in an in absentia case “[i]t is the accused, not the court by appointing amicus curiae, who needs the legal assistance of a professional counsel, well-trained in criminal matters.”543 Then again, it seems not unreasonable for an amicus curiae to Trial Proceedings, 5 November 2009, Case No. IT-95-518-T. See for a thorough first hand assessment of the Karadzˇic´ case in the matter of self-representation by Karadzˇic´’s standby counsel himself: Harvey, Who Needs a Lawyer Anyway?, 100 et seq. 540 Tuinstra, Defence Counsel in International Criminal Law, 259 is of this view. 541 Rule 74 ICTY- and ICTR-RPE. The language of Art. 74 SCSL is almost the same. 542 Rule 103 ICC-RPE. Similar regulations can also be found in Rule 33 ECCC-IR; Rule 131 STL-RPE, the latter requiring that the parties be heard before any submission by amicus curiae can be made. 543 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcilo Krajisˇnik’s Request to SelfRepresent, 11 May 2007, Case No. IT-00 – 39-A, Dissenting Opinion of Judge Schomburg, para. 2.

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put forth an alternative affirmative case and “argue against the […] [evidence] advanced by the prosecution”.544 In Prosecutor v. Milosˇevic´ the court appointed counsels acting as amici curiae before they were eventually assigned as Milosˇevic´’s defence counsel. Already during their function as amici curiae their appearance in court came close to the functions of defence counsel.545 In regard to the issues, which the amici curiae were assigned to assist the Trial Chamber, they could make any submission or objection to evidence, cross-examine witnesses, and draw attention to exculpatory or mitigating evidence.546 However, this broad interpretation of amici curiae is troublesome when it comes to the examination of witnesses in an in absentia procedure. In a case where the defendant represents himself, there is still the defendant in the courtroom who can personally conduct the witness examination and present the defence’s side where the arguments put forward by an amicus curiae are not satisfying. However, that is not the case if the defendant is tried in absentia. As friend of the court amicus curiae are not assigned to one of the parties’ sides, so that adverse argument and cross-examination is impossible.547 More even, such an approach would run counter the very independence of amici curiae, which has been identified as the crucial element of their existence. In fact, the broad interpretation of the scope of amicus curiae’s duties taken in the Milosˇevic´ case has been a singular exception. The Appeals Chamber in Prosecutor v. Krajisˇnik strictly limited amici curiae’s role to assisting the chamber, thereby being independent of the defendant and prohibited the acting as a quasi-counsel.548 Following this latter – traditional – interpretation of amici curiae’s role as independent organ that assists the chamber, they cannot replace defence counsel to conduct an adequate defence in cases tried in absentia. In a similar vein, the amici curiae in the Milosˇevic´ case did not deem themselves counsel representing the defendant.549 Moreover, it is scarcely imaginable how amici curiae could be able to properly conduct the investigations as the assignment of counsel goes along with a number of defence team members which amici curiae do not have. It is on the parties to develop their case by adducing their 544

Ibid., para. 19 ICTY, Prosecutor v. Milosˇevic´, TC, Transcript, 3 September 2004, Case No. IT-02-54-T, p. 32388; Nsereko, 12 CrimLF 2001, 487, 506; Tuinstra, Defence Counsel in International Criminal Law, 250, 259. 546 ICTY, Prosecutor v. Milosˇevic´, TC, Order Inviting Designation of Amicus Curiae, 30 August 2001, Case No. IT-02-54-T. 547 In the Tolimir case, for example, a legal adviser has been denied to “act in [the] court room”: ICTY, Prosecutor v. Tolimir, TC II, Judgment, 12 December 2012, Case No. IT-05-88/2T, para. 25. 548 ICTY, Prosecutor v. Krajisˇnik, AC, Decision on Momcˇ ilo Krajisˇnik’s Request to SelfRepresent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, paras. 19 et seq.; Prosecutor v. Krajisˇnik, AC, Decision on Motion of Amicus Curiae Regarding Appellate Ground of Ineffective Assistance of Counsel, 20 July 2007, Case No. IT-00-39-A, para. 8. 549 ICTY, Prosecutor v. Milosˇevic´, Amici Curiae, Submission in Response to the Trial Chamber’s “Further Order on Future Conduct of the Trial Concerning Assignment of Defence Counsel” Dated 6 August 2004, 13 August 2004, para. 18. 545

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own evidence and arguments. Consequently, amici curiae lack the means to investigate in order to submit a positive defence case. The sole reliance on exculpatory evidence found by the prosecution is insofar not sufficient, the more so as the limited role of amici curiae makes disclosure questions more complicated, if possible, at all. Hence, the assignment of counsel and defence team is of inextricable importance in order to bring forward a defence case.550 Finally, similar objections as to the appointment of standby counsel apply: the lack of the amici curiae’s function as party to the proceedings would deprive the trial of its very nature of adverse opponents arguing the case.551 Then again, in favour of appointing amici curiae it could be argued that it is more efficient as amici curiae can assist the trial chamber with many different issues not solely in relation to the defence’s interests.552 As has been argued before, it is of crucial importance that both sides of the case are effectively represented. The engagement of the same amici curiae in additional matters, beyond the defence interests, can raise doubts as to their impartiality and proficiency in acting in the defendant’s interests. Finally, it should be kept in mind that a trial in absentia is an extraordinary procedure which takes place only under exceptional circumstances. When possible the proceedings should be conducted in the defendant’s presence. The initiation of a trial in absentia does not mean that the relevant authority can stop looking for the fugitive. The fundamental concern remains to find the defendant in order to bring him to court. In fact, the STL on a regular basis issues reports with regards to the efforts that have been taken by state authorities to seek the defendant at large who are currently tried in absentia before the STL. As prominent examples like Karadzˇ ic´ and Mladic´ show, unexpected state cooperation is feasible. A fugitive may also decide to surrender when proceedings against him have already started. In that case, it is preferable for the expeditiousness of the procedure to have a defence counsel that is thoroughly familiar with the case continuing the defence of his client. The course of action taken in Prosecutor v. Milosˇevic´ – appointing former amici curiae as defence counsel – is clearly unethical as a switch from an independent organ assisting the chamber to a counsel representing the defendant cannot easily be fulfilled.553 Hence, a chamber should not be tempted in taking that approach, especially since it has an adequate choice in appointing a defence counsel and defence team to the absentee.

550

Cf. also Zappalà, Human Rights in International Criminal Proceedings, 64. Ibid. Cf. also Jørgensen, 4 JICJ 2006, 64, 72. 552 Cf. Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 159 with regards to the appointment of amici curiae to disruptive defendants. 553 Tuinstra, Defence Counsel in International Criminal Law, 258. Similarly critical, although for slightly other reasons Zappalà, Human Rights in International Criminal Proceedings, 63 et seq. 551

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f) Implementation of the obligation to appoint ex officio counsel to the defendant tried in absentia In sum, it has been shown that as the very fairness is at stake where the defendant is tried in absentia, it should be obligatory for the relevant authority, be it the registry, chamber, or domestic criminal justice authorities, to appoint counsel in order to hold up the rule of law.554 It is further to be noted that appointing a duty counsel and allowing him to be present at the court hearings is not sufficient.555 It is upon the courts to counterbalance any prejudice of the accused caused by the lack of instruction.556 Moreover, once the duty counsel is appointed, it is upon the chamber to ensure that the defence is effectively conducted by the ex officio appointed counsel. By applying the above outlined standard of manifest ineffectiveness, the chamber is to replace counsel if he does not or cannot fulfil his duties effectively.557 The defendant is entitled to have “skilled legal assistance equal to the complex nature of the case”558 no matter whether he is represented by counsel in his presence or absence.

554

Also in favour of such mandatory defence: Hoven, Rechtsstaatliche Anforderungen, 442. See also SCSL, Prosecutor v. Norman et al., TC, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, Case No. SCSL-2004-14-T, para. 28. 555 ECtHR, Seliwiak v. Poland, Judgment, 21 July 2009, Appl. No. 3818/04, para. 63. According to LR-Esser, Art. 6 EMRK/Art. 14 IPBPR marginal nos. 682, 686 for domestic criminal proceedings in absentia, additionally, the defendant needs to express his wish to be represented by counsel appointed ex officio. However, considering that not only is there no right to be tried in absentia, there is also no right to remain unrepresented in absentia, because it lies in the interests of justice to have the absent defendant represented, this not convincing. Moreover, the notification requirement is not practicable in cases where the defendant deliberately fled from justice as the defendant will most likely not notify the respective criminal court in order to receive representation. 556 Jørgensen, 4 JICJ 2006, 64, 75 for the case that the counsel has not been instructed by his – albeit present – client, often in cases where the defendant does not trust court appointed counsel. The circumstances for defence counsel of a fugitive are comparable to those cases. 557 See above E. III. 5. c) bb), E. III. 5. c) and ECtHR, Artico v. Italy, Judgment, 13 May 1980, Appl. No. 6694/74, para. 36; Goddi v. Italy, Judgment, 9 April 1984, Appl. No. 8966/800, paras. 27, 30; Daud v. Portugal, Judgment, 21 April 1998, Appl. No. 11/1997/795/997, para. 38 et seq.; Lagerblom v. Sweden, Judgment, 14 January 2003, Appl. No. 26891/95, para. 56. 558 ECtHR, Öcalan v. Turkey, Grand Chamber, Judgment, 12 March 2003, Appl. No. 46221/ 99, para. 135. See also: ICTR, Prosecutor v. Akayesu, AC, Judgment, 1 June 2001, Case No. ICTR-96-4-A, para. 78; Prosecutor v. Kambanda, AC, Judgment, 19 October 2000, Case No. ICTR-97-23-A, para. 34. See as for the requirements to be legal aid counsel at ICTs: Tuinstra, Defence Counsel in International Criminal Law, 40 et seq.

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IV. Conclusions It has been shown that from the viewpoint of the defendant’s fundamental rights trials in absentia are not prima facie prohibited. The right to a fair trial gives the defendant a right to be present during instances at which the merits of the case are concerned. However, this right is not absolute. According to the human rights’ supervisory bodies case-law, proceedings in absentia are legitimate, in particular where the accused has validly – expressly or impliedly – waived his right to be present or has deliberately evaded justice. However, if the defendant simply remains absent from the proceedings, the court may only consider that he has waived his right to be present if it can prove that he was aware of the proceedings. This presupposes first and foremost that the criminal court has informed and summoned him properly. Further, the court must respect minimum guarantees for the protection of the absent defendant, which means in particular that a lawyer must represent the defendant at all times. The defence counsel, whether appointed by the defendant deliberately or ex officio, can effectively exercise the defendant’s rights and interests. The presence of defence counsel after all ensures confrontation between adverse parties, equality of arms and effective participation of the defence party. Similarly, the individual guarantees enshrined in the right to a fair trial, namely the right to be informed of the charges, have adequate time and facilities to prepare the defence, to defend oneself through legal assistance, if need be paid by the state and finally the right to confront can be effectively made use of by defence counsel. That is not least due to the fact that these rights are often understood as applying to the defence as a whole and not necessarily to the defendant personally. Without question it is not ideal to have someone assume rights of the defendant, but where the defendant deliberately chose not to attend or evaded justice it is upon defence counsel to represent the defendant’s rights and perceived interests during his absence. The fairness of proceedings also has an institutional component that requires a representation of the defence’s side in the adversarial setting like the trial phase at ICTs. In light of the need for an adverse argument at the trial stage, both duty counsel and amici curiae cannot replace a defence counsel in safeguarding the absentee’s due process rights. The particular shape of proceedings at ICTs makes representation of the defence party by defence counsel indispensable to ensure the effective implementation of the defendant’s interests and rights. Defence counsel must be assigned ex officio to the absent defendant when the decision to try him in absentia has been taken, no matter whether he is indigent. However, where the absence is very limited in time – for example where the obstreperous defendant is removed from the courtroom – the appointment of standby counsel seems equally reasonable. Precedents at the ICTs as regards both fully and partial in absentia trials show that ICTs generally comply with this standard and regularly appointed counsel to the (obstreperous) absentee. Any future tribunal or any change of the existing legal frameworks of ICTs that allows for trials in absentia must ensure that the absent

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defendant is adequately represented by counsel or, for short absences, assigned standby counsel. Lastly it must be noted that if the criminal court convicts the accused in his absence, he is entitled to a complete fresh determination of the merits of the case, unless he has waived his right to be present or has evaded justice. In respect to temporary tribunals, it appears appropriate – in contrast to the STL’s non-existent regulation – to make an explicit provision as to how the right to re-trial is guaranteed after the conclusion of the respective ICT’s mandate.

F. Trials in absentia as general principle? Having clarified what the sources are from which ICTs can draw and having identified general principles as a crucial source for international criminal procedure, the following chapter will assess whether there is a general principle, either of international (criminal procedural) law or as understood in the traditional sense to try defendants in absentia. Following the examination of the conditions for the determination of general principles, foreign law reports will survey the possibilities of proceedings in absentia in seven different jurisdictions. Finally, the analysis delves into the issue of determining a general principle.

I. Determination of general principles At least two scholars assert that the rule that an accused be tried in his presence is a general principle of law.1 However, in a next step Cassese, one of the two scholars, finds that there are exceptional situations, in which an in absentia trial is possible when strict conditions, which mirror to the safeguards proclaimed by the HRC and ECtHR, are observed.2 Moreover, it is to be noted that he formulates the principle positively by giving the defendant the right to be present; he leaves the possibility of (implicitly) waiving or otherwise losing such right untouched. In contrast, the SCSL found it to be a general principle that the defendant may be tried in his absence. It derived this principle from the jurisprudence of the ICTR.3 These opposing assertions unveil that the last word in the matter of general principles regarding proceedings in absentia is not yet spoken. It has been shown that a general principle of international criminal procedure can be determined by a generalisation from certain features common to all international tribunals. Also features of internationally recognised human rights may have an influence in this regard. The general principle recognised in the major legal systems of the world has not yet been closely assessed and will, therefore, be focused on in the following. 1

Cassese, International Criminal Law, 378; Raimondo, General Principles of Law, 169. Cassese, International Criminal Law, 389 et seq. Notably, he identifies other generally accepted principles, see above D. I. 3. b), which remain untouched in their generality, in contrast to the presence principle. 3 SCSL, Prosecutor v. Sesay et al., Ruling on the Issue of the Refusal of the Third Accused, Agustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, Case No. SCSL-04-15-T, para. 10. 2

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Arbitral tribunals before the establishment of the PCIJ – after which they lost importance – have often relied on this group of sources.4 Also the ICJ often fails to adequately corroborate its finding of a general principle.5 The ICJ seldom refers to the classical source general principle derived from national legal systems as a decisive basis in its judgments.6 International courts instead often referred to general principles of international law that were already part of international law and did not need to be transmitted into international law.7 Traces of comparative studies are, on the other hand, seldom to be found.8 Therefore, there is little precedent in the case law of international courts as to how to establish a general principle.9 In contrast, ICTs, beginning with the IMT – as typical for new branches of international law – took notice of general principles of legal systems of the world and used them on several occasions.10 General principles are attributed particular importance in procedural 4

Cassese, International Law, 190. MPEPIL-Gaja, General Priniples of Law marginal no. 20; cf. Raimondo, General Principles of Law, 46. See e. g. ICJ, Corfu Chanel Case, the UK and Northern Ireland v. Albania, Judgment, Merits, 9 April 1949, p. 18 only stating that “indirect evidence is admitted in all systems of law and its use is recognised by international decisions”, without any corroborating evidence or ICJ, Right of Passage over Indian Territory, Portugal v. India, Judgment, Preliminary Objections, 26 November 1957, p. 21: “It is a rule of law generally accepted, as well as one acted upon in the past by the Court that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its declaration, in whole or in part, cannot divest the Court of jurisdiction.” 6 Cassese, International Law, 192; Raimondo, General Principles of Law, 34 et seq., 71; MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 125. 7 Raimondo, General Principles of Law, 35, cf. also Malanczuk, Akehurst’s Modern Introduction to International Law, 48. 8 Cheng, General Principles of Law as Applied by International Courts and Tribunals, 392; Malanczuk, Akehurst’s Modern Introduction to International Law, 49; Mosler, To what Extend Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law, 179 et seq.; Raimondo, General Principles of Law, 46, 57. 9 Raimondo, General Principles of Law, 47, 57 et seq., outlines five reasons for this, the most important being that the general principles they relied on are such fundamental principles that apply in all legal systems, be it national or international, for example res judicata. Critical of the missing assessment: Mosler, To what Extend Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law, 180; Raimondo, General Principles of Law, 58, although the latter supposes that the judges behind closed doors take account of comparative surveys, e. g. when they were submitted by the parties. 10 See inter alia: ICC, Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, Case No. ICC-01/04-01/06, para. 41; ICTY, Prosecutor v. Tadic´, AC, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1, paras. 42 – 46; Prosecutor v. Tadic´, TC II, Judgment, 7 May 1997, Case No. IT-941-T, para. 535 et seq.; Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-9622-A, para. 57, ibid. Separate Opinion of Judge McDonald and Vohrah, paras. 40, 55 – 72; ibid., Separate Opinion Judge Li, para. 3; Prosecutor v. Delalic´ et al., TC IIquater, Judgment, 16 November 1998, Case No. IT-96-21-T, para. 402; ICTR, Prosecutor v. Akayesu, TC I, Judgment, 2 September 1998, Case No. ICTR-96-4-T, para. 501; SCSL, Prosecutor v. Norman et al., 5

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matters.11 To paraphrase Trial Chamber II in Kunarac et al., “the value of these sources is that they may disclose ‘general concepts and legal institutions’ which, if common to a broad spectrum of national legal systems, disclose an international approach to a legal question which may be considered as an appropriate indicator of the international law on the subject.”12

1. General principles recognised by the major legal systems of the world The following clarifies how a general principle recognised by the major legal systems of the world can be identified. It is long established that the source of general principles recognised by the major legal systems of the world does not mean a direct implementation of national law. The ICTY Trial Chamber found that “since international trials exhibit a number of features that differentiate them from national criminal proceedings[…], account must be taken of the specificity of international criminal proceedings when utilising national law notions. In this way a mechanical importation or transposition from national law into international criminal proceedings is avoided.”13 Rather, the identification of general principles follows a three-fold exercise: firstly, one has to engage in a comparative study of domestic systems, secondly, shared principles are to be distilled and, lastly, this common principle needs to be transported to the international level.14 a) Comparative Study It should be explained what a comparative study needs to contain in order to be the basis for the deduction of a general principle.

TC, Decision on Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 2 June 2004, Case No. SCSL-04-14-PT, para. 15. For a comprehensive overview covering the case law until 2007: Raimondo, General Principles of Law, 77 et seq. See as for the link to new branches of international law Bassiouni, 11 MichJIntlL 1990, 768, 769; Cassese, International Law, 193; Verdross/Simma, Universelles Völkerrecht, § 606. 11 Malanczuk, Akehurst’s Modern Introduction to International Law, 49. 12 ICTY, Prosecutor v. Kunarac et al., TC II, Judgment, 22 February October 2001, Case Nos. IT-96-23-t and IT-96-23/1-T, para. 439. 13 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1T, para. 178. Compare also: ICC, Situation in the Republic of Kenya: Muthaura et al., AC, Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”, 1 May 2012, Case No. ICC-01/09-02/11 OA 4, para. 11. See also Schabas, RomeSt Commentary, 525. See as for general international law Daillier/Pellet, Droit International Public, 351. 14 de Meester, The Investigation Phase, 32 et seq.; Pellet, Applicable Law, 1073; Raimondo, General Principles of Law, 45 et seq.

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Taking the wording of the RomeSt, as the latest and most precise reference – ‘national laws of legal systems of the world’ – it is clear, that not all domestic procedures need to be compared.15 “This would involve a practical impossibility and has never been the practice of the International Court of Justice or other international tribunals.”16 There is rather the need to compare the principal legal systems.17 These without doubt include the civil law and the common law tradition.18 According to some scholars, Islamic law should also be included.19 In fact, the ICC Trial Chamber lectured the prosecution, when it once only referred to two common law countries to corroborate that witness proofing was a general principle and did not regard the Romano-Germanic system.20 In fact, there are examples where ICTs did conduct broad comparative surveys, which predominantly included European countries, but also referred to domestic jurisdictions in Africa and South America.21 Some scholars 15 Akande, Sources of International Criminal Law, 52; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 38; de Meester, The Investigation Phase, 33; Pellet, Applicable Law, 1073; cf. Heinze, International Criminal Procedure and Disclosure, 49 et seq. 16 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge McDonald and Vohrah, para. 57. 17 See among many: ICTY, Prosecutor v. Tadic´, TC, Judgment, 15 July 1999, Case No. IT94-1-A, para. 225; ECCC, Prosecutor v. Ieng Thirith et al., PTC, Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, Case No. 002/19-09-2007-ECCC/OCIJ, para. 86; Barberis, Formación del Derecho Internacional, 246; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 38; Heinze, International Criminal Procedure and Disclosure, 50; Kadelbach/Kleinklein, 44 AVR 2006, 235, 257; Kress, 111 ZStW 1999, 597, 308 et seq.; Mosler, To what Extend Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law, 181; Pellet, Applicable Law, 1074; Verdross/Simma, Universelles Völkerrecht, § 602; MPEPIL-Wolfrum, General International Law (Principles, Rules and Standards) marginal no. 31; see also Art. 9 ICJSt. 18 ICC, Situation in the DRC: Prosecutor v. Lubanga, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, Case No. ICC-01/04-01/06, para. 41; Akande, Sources of International Criminal Law, 52; Ambos, Treatise Vol. I, 77; David, Les Grands Systèmes de Droit Contemporains (Droit comparé), 15 et seq.; Heinze, International Criminal Procedure and Disclosure, 105; Mosler, To what Extend Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law, 181; Pellet, Applicable Law, 1074; Pradel, Droit Pénal Comparé, marginal no. 89; Raimondo, General Principles of Law, 55. 19 Ambos, Treatise Vol. I, 77; Mosler, To what Extend Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law, 182; Pellet, Applicable Law, 1074. See generally for comparative studies: Heinze, International Criminal Procedure and Disclosure, 106. 20 ICC, Situation in the DRC: Prosecutor v. Lubanga, TC I, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, Case No. ICC-01/04-01/06, para. 41; cf. also ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 178; SCSL, Prosecutor v. Norman et al., TC, Decision on Prosecutor’s Motion for Judicial Notice and Admission of Evidence, 2 June 2004, Case No. SCSL-04-14-PT, para. 15. 21 See e. g.: ICC, Situation in the DRC: Prosecutor v. Lubanga, PTC I, Decision on the Practices of Witnesses Familiarisation and Witness Proofing, 8 November 2006, Case No. ICC01/01-01/06, para. 37 referring to Brazil, Spain, France, Belgium, Germany, Scotland, Ghana,

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observe a high selectivity of liberal criminal justice systems.22 Especially, European and Anglo-American domestic procedure are overrepresented.23 While I agree with the scholars that favour a broad comparative study as a basis for the deduction of a general principles recognised by legal systems of the world,24 limited language skills and accessibility as well as a matter of time, restricted my survey to only a few countries.25 However, where I believe to have found a common principle among the domestic criminal procedures that are part of the comparative study, I will try to include other jurisdictions for this particular issue, in order to make the finding more comprehensive and pluralistic. It is also to be noted that not every domestic jurisdiction needs to apply the principle in order to transmit it to the international level, much rather proof must be brought that a “representative majority” applies such feature.26

England and Wales and Australia; ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, para. 178 et seq. referring to Chile, China, Germany, Japan, the Former Republic of Yugoslavia, Zambia, Austria, France, Italy, Argentina, Pakistan, India, South Africa, Uganda, Australia (New South Wales), the Netherlands, England and Wales, and Bosnia and Herzegovina; ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1-T, Separate Opinion of Judge McDonald and Vohrah referring to a total of 30 countries of the “civil law systems”, “common law systems” and “criminal laws of other states”. One Chamber also referred to the “Marxist” legal system when referring to the former Yugoslavia and China: ICTY, Prosecutor v. Tadic´, TC II, Judgment, 7 May 1997, Case No. IT-94-1-T, para. 538. Other Decisions of the ICTY have placed those jurisdictions under the Romano-Germanic tradition: ICTY, Prosecutor v. Tadic´, AC, Judgment on Allegations of Contempt against Prior Counsel Milan Vujin, 31 January 2000, Case No. IT94-1-A-AR77, para. 16 et seq. 22 Gradoni, The Human Rights Dimension of International Criminal Procedure, 72; Raimondo, General Principles of Law, 182. 23 Raimondo, General Principles of Law, 182. Generally for comparative law and not particularly the determination of general principles: Heinze, International Criminal Procedure and Disclosure, 106. 24 See inter alia: Delmas-Marty, 1 JICJ 2003, 13, 18; Raimondo, General Principles of Law, 183; Werle/Jessberger, Principles of International Criminal Law, marginal no. 205. 25 A similar approach is taken in the ICTs practice: ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge McDonald and Vohrah para. 57: the courts “involve a survey of those jurisdictions whose jurisprudence is, as a practical matter, accessible to [them].” See in a similar vein: ICTR, Prosecutor v. Muhimana, AC, Judgment, 21 May 2007, Case No. ICTR-95-1B-A, Partly Dissenting Opinion of Judge Schomburg on the Interpretation of the Right to be Informed, para. 9 (“I would like to apologize for restricting my following comments to German law and jurisprudence. Unfortunately, the workload does not allow for in-depth comparative research. However, the quoted regulations and case law may serve as an example for many similar systems.”). Similarly, observing a practice of very narrow comparative studies: Delmas-Marty, 1 JICJ 2003, 13, 18; Malanczuk, Akehurst’s Modern Introduction to International Law, 49, who asserts considering that the missing reasoning is rather rule that exception, that it could not be titled as unlawful. 26 Triffterer/Ambos-de Guzman, Art. 21 marginal no. 38; Kadelbach/Kleinklein, 44 AVR 2006, 235, 257; cf. also ICTY, Prosecutor v. Tadic´, TC, Judgment, 15 July 1999, Case No. IT-941-A, para. 225.

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It is not clear whether the comparative survey should also include domestic jurisprudence.27 I would agree that the relevant case law is to be taken into account. Especially, when looking into legal systems with a common law heritage it seems necessary to include the jurisprudence but also for other legal regimes the law in action should be captured opposed to the law in the books or rather statutory regulations.28 Moreover, the ICC has done so in its case law, it even included the code of conduct of bar associations in its survey.29 It is common knowledge that criminal procedural law cannot solely be found in the relevant criminal procedural code. The domestic criminal law can rather be found in constitutions, legislation and judicial decisions.30 b) Extraction of principles Instead of a direct application of the national regulations, general principles that underlie the legal systems of the world are to be extracted.31 Modifications and divergences in the concrete procedural rules are usually inevitable and do not hinder the abstraction of a “common heritage”32 or principle that underlies these regulations.33 Hence, the concrete rules found in national jurisdictions need to be abstracted34 and one “must draw upon the general concepts and legal institutions common to all the major legal systems of the world. This presupposes a process of identification of the

27 Cogan, 27 YaleJIntlL 2002, 111, 117 with footnote 30; de Meester, The Investigation Phase, 33. 28 Sheffer/Hannken-Illjes/Kozin, Criminal Defence and Procedure, 10 et seq. Similar Raimondo, General Principles of Law, 48; arguably of other opinion as he mentions only the laws that are in effect at the times of the survey: Barberis, Formación del Derecho Internacional, 242. It is to be noted that common law countries, as seen in the survey above, use a considerable amount of positivist statutory regulations and do not solely rely on case law. Nevertheless, the influence of the court’s decisions is still very high, but this is, likewise, important in countries predominately using civil law features in order to interpret the regulations. 29 ICC, Situation of the DRC: Prosecutor v. Lubanga, PTC I, Decision on the Practices of Witnesses Familiarisation and Witness Proofing, 8 November 2006, Case No. ICC-01/01-01/ 06, para. 36 et seq. 30 Pradel, Droit Pénal Comparé, marginal no. 39 et seq. 31 ICJ, International Status of South West Africa, Advisory Opinion, 11 July 1950, Separate Opinion of Judge McNair, p. 24; ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge McDonald and Vohrah, para. 57; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 35. 32 Mégret, The Sources of International Criminal Procedure, 71. 33 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1T, para. 181; Triffterer/Ambos-de Guzman, Art. 21 marginal no. 38; cf. also Raimondo, General Principles of Law, 155. 34 See regarding the problem of too much abstraction that might lead to vagueness and inapplicability: Raimondo, General Principles of Law, 49 et seq. with further references.

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common denominators in these legal systems so as to pinpoint the basic notions they share.”35

c) Transposition to the international sphere Finally, the transposition of the principle of the major penal systems of the world to the international legal order is necessary. Lauterpacht speaks of an analogy in this regard.36 This step has to be taken with outmost care and one needs to take due regard to the unique characteristics of international criminal proceedings.37 Cassese eloquently explored why abstracted principles may not be “mechanically imported into international criminal proceedings”38 and cautions that the “combination or amalgamation [of adversarial and inquisitorial elements] is unique and begets a legal logic that is qualitatively different from that of each of the two national criminal systems: the philosophy behind international trials is markedly at variance with that underpinning each of those national systems. [The ICTs] take up the accusatorial (or adversarial) system and adapt it to international proceedings, while at the same time upholding some elements of the inquisitorial system.”39 However, an analogy may reasonably be drawn “when international law itself offers a basis to place an international institution on an analogous footing with its domestic equivalent.”40 Adjustment and adaptation of the principle abstracted from domestic law to the international requirements can give such principle an autonomous significance in international criminal proceedings41 and make them an im35 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1T, para. 178; cf. also ICTY, Prosecutor v. Kunarac et al., TC, Judgment, 22 February 2001, Case Nos. IT-96-23-t, IT-96-23/1-T, para. 439. 36 Lauterpacht, Private Law Sources and Analogies of International Law, 81 et seq. 37 ICTY, Prosecutor v. Furundzˇija, TC, Judgment, 10 December 1998, Case No. IT-95-17/1T, para. 178.; Prosecutor v. Kupreskic´, TC II, Judgment, 14 January 2000, Case No. IT-95-16-T, para. 677; ICC, Situation in the DRC: Prosecutor v. Lubanga, TC, Judgment, 14 March 2012, Case No. ICC-01/04-01/06-2842, para. 976; Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Prosecutor’s Application for Witness Summonses and Resulting Request for State Party Cooperation, 17 April 2014, Case No. ICC-01/09-01/11, para. 65; Pellet, Applicable Law, 1074. 38 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 2. In a very similar wording: Lammers, FS-Van Panhuys, 61. See also ICJ, International Status of South West Africa, Advisory Opinion, 11 July 1950, Separate Opinion of Judge McNair, p. 24. 39 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 4; similarly concerned: Gärditz, 451 AVR 2007, 1, 9; cf. also Jung, 43 AVR 2005, 525, 534. 40 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, TC V(A), Decision on Prosecutor’s Application for Witness Summonses and Resulting Request for State Party Cooperation, 17 April 2014, Case No. ICC-01/09-01/11, para. 65. 41 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 6.

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portant source of law. Hence, the search for certain shared basic principles does not seem superfluous. The following survey will show that, in particular for procedural features, a harmonisation even in a matter at the heart of the state’s sovereignty such as criminal (procedural) law is not impossible. Institutions such as the ECtHR and the EU promote hybridisation of criminal procedure, at least in European countries. Beyond that geographical sphere, a certain convergence of criminal procedure can be found in most laws under the influence of human rights, especially the right to a fair trial.42 Yet, heedless implantations of analogies to domestic principles should not be made and general principles of penal systems of the world established carefully. I will come back to this shortly.

II. Reports on foreign law The following will outline the frameworks of in absentia proceedings in a number of domestic criminal procedures. The legal orders that will be looked at are Germany, Austria, Switzerland, the Netherlands, Italy, England and Wales, and the USA.43 Whereas the latter two are associated with the common law tradition, the other five countries come from the civil law tradition. Despite the association with the same legal tradition, the Continental-European countries’ domestic procedures surveyed below tend to have broad differences in their procedural set up, which may explain the quantitative imbalance in the choice of countries. The following survey aims to unveil whether a common denominator in form of a general principle recognised by the legal systems of the world can be identified. A predominance of common and civil law countries exists in the following comparative study. That is, among many other reasons, due to the fact that the ultimate goal of this study is to find the solution to a international criminal procedural problem, a branch of law, which is usually described as a mix of the civil and common law tradition.44

1. Adversarial and inquisitorial model of criminal procedure It is very common for comparative studies to divide the criminal procedural traditions45 into the Continental-European inquisitorial and the Anglo-American 42

Pradel, Droit Pénal Comparé, marginal no. 89 et seq.; Raimondo, General Principles of Law, 177. Also with regard to the common law civil dichotomy and the philosophical basis underpinning the respective model an increasing approximation takes place: ibid., 186 et seq. 43 See also Quattrocolo, Personal Participation in Criminal Proceedings including several other European countries in the comparative study on in absentia trials in Europe. 44 See inter alia: Heinze, International Criminal Procedure and Disclosure, 106; Keen, 17 LJIL 2004, 767; Schuon, International Criminal Procedure, 11. 45 The term traditions has been deliberately chosen in order to reflect the difference of a legal system that in this study is understood as coherent operating body of procedure, rules and

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adversarial approach; interchangeable names are Romano-Germanic or civil law for the former and common law for the latter. Also for the object under investigation those classifications exist. It is claimed that procedures in absentia are typically held in countries using the inquisitorial model, whereas this approach is alien to the adversarial model.46 While this assertion is certainly historically founded and likely holds true to the ideal-typical understanding of these notions, it may not be true at the present time of converging systems of criminal procedure.47 However, in regard to ICTs we have already seen that there is no clear pattern as far as proceedings in absentia are concerned. At the very least, it cannot be asserted that ICTs that are significantly modelled after a civil law procedure conduct proceedings in absentia whether others do not do so. The comparative study will certainly shed light on the stereotype and unveil whether it still holds true that countries with civil law heritage conduct trial in absentia, whereas countries from a common law tradition do not. In any event, it is of little help to refer to a dichotomy of civil and common law or inquisitorial and adversarial without briefly exploring what the important differences of the inquisitorial and adversarial model of proceedings are.48 As held by the Ontario Court of Appeals: “A trial is not intended to be a scientific exploration with the presiding judge assuming the role of a research director; it is a forum established for the purpose of providing justice for the litigants”49. That describes the common law approach to criminal proceedings of a party driven competition that unveils the truth through favouring the strongest competitor before a institutions such as each country has a domestic legal system, the states within a federal state may have their own legal system and, finally, institutions such as the UN or ICTs operate within their own legal system. A legal tradition, on the other hand, generally includes several legal systems that have a common denominator in certain institutions, rules or procedure that originate in the legal tradition. Legal tradition is, therefore, more of a term that systematises the different legal systems. In a similar vein, Merryman, The Civil Law Tradition, 1 et seq. The term legal family may be used interchangeably: Heinze, International Criminal Procedure and Disclosure, 104. 46 Jalloh, Self-Representation and the Use of Assigned, Standby and Amicus Counsel, 155; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 74; Raimondo, General Principles of Law, 76. See also Cassese, International Criminal Law, 389, who gives examples where this generalisation does not apply; Hoven, Rechtsstaatliche Anforderungen, 423. 47 Contumacy proceedings were common practice on the European continent: Hélie, Traité de l’instruction criminelle ou théorie du code d’instruction criminelle, 331 et seq.; Negri, L’imputato presente al processo, 89 et seq.; Pfenninger, 52 SJZ 1956, 134. See for a brief historical overview of trial in absentia on the European continent: ibid. and for a very detailed interpretation of the historical sources: Meyer, Das Strafverfahren gegen Abwesende geschichtlich dargestellt, 50 et seq. On the other hand, the defendant’s presence was a necessity in ancient English procedures of ordeal and later duels used to establish the defendant’s guilt: Cohen, 36 FlaLRev 1984, 273, 274; Starkey, 53 StJohn’sLRev 1979, 721, 722. 48 See for a brief but comprehensive overview where the following is predominately based on: Jörg/Field/Brants, Are Inquisitorial and Adversarial Systems Converging?, 42 (general differences), 47 et seq. (pre-trial stage), 50 et seq. (trial stage); Heinze, International Criminal Procedure and Disclosure, 107 et seq.; Schuon, International Criminal Procedure, 3 et seq. 49 Phillips v. Ford Motor Company, 18 DLR (3d) 641 (Ontario Court of Appeal 1971).

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neutral umpire50 and is in stark contrast to the civil law tradition that aims for the establishment of substantive truth through application of clear concepts and legal principles in a one-case approach.51 To begin with there are differences with regard to the role of the judge and the particular conduction of the presentation of evidence. Whereas the impartial and independent judge in the inquisitorial model assumes a leading role, is actively involved in the truth-finding, and is responsible for the summoning and questioning of witnesses; the adversarial system gives the impartial judge a passive role. He is rather an arbitrator ensuring that the contest between equal parties is conducted according to the complex procedural rules, as opposed to, having influence on the content of the trial proceedings. The more so, when considering that traditionally a jury finds the verdict. The parties present the evidence by making their respective case and witnesses are generally cross-examined. In spite of this, the parties are guided by a rather strict set of procedural rules. The judge in an inquisitorial model oversees the fair conduction of the proceedings and is responsible for the finding of the facts. The presentation of evidence and questioning of witnesses to a great extend depends on his discretion. Although proceedings are generally held orally, the judge is aware of the case file and its content so that the trial merely verifies or falsifies the case file. In contrast, in the adversarial system the evidence collected during the pre-trial phase is generally not of relevance for the oral trial. A significant difference is the reliance and attribution of power to private actors in the common law, as opposed to public actors in the inquisitorial model. For the issue at hand, the role of the defendant during the proceedings is of particular importance. The role is different in the adversarial and inquisitorial model, especially in regard to the trial phase. The defendant has a more active role in Continental-Europe in comparison to the common law countries where defence counsel is usually the central figure of the defence party.52 Accordingly, his questioning is a central element of the procedure. Against that background, on the European continent the defendant is directly questioned by a judge during trial, he is usually the first to be questioned, he can respond to the evidence presented throughout the hearing and has the right to the last word.53 Also in an adversarial shaped trial, the defendant may take the stand. However, the defendant’s testimony follows the prosecutions’ case and if he decides to remain silent, no further attempt of questioning him will be made.54 50

Leyh, Procedural Justice?, 70; Schuon, International Criminal Procedure, 4. Heinze, International Criminal Procedure and Disclosure, 107, 110; Koch, 25 MichJIntlL 2003, 1, 33; Leyh, Procedural Justice?, 70. 52 At least after the plea has been taken, which is genuinely a personal act. In inquisitorially shaped systems the defendant ideally contributes actively to the establishment of truth. 53 Hodgson, Conceptions of the Trial in Inquisitorial and Adversarial Procedure, 235; Spencer, Introduction, 24. They find trial to be based on a dialogue between judge and defendant. 54 Spencer, Introduction, 24. 51

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Against this background, the assertion that trial in absentia are common in the civil law tradition but alien to the Anglo-American procedural system gains substance. Though the role of the defendant during trial is more active in civil law countries, if thinking of an ideal-typical independent investigator being responsible for the investigations and the establishment of substantive truth by collecting both exculpatory and inculpatory evidence, the defendant’s presence is not necessarily required for the process of truth-seeking.55 In a more adversarial model, the presence of both adversaries is of greater importance if not crucial. Either party is responsible for presenting their evidence, so that the defence remains unsupported where the defendant and his counsel are absent.56 It is an old principle that “the foundation of jurisdiction is physical power”57 of the court over the defendant. Only then can the offender be punished and the ultimate goal of the procedure achieved.58 Criminal trials in civil law countries are less of a contest between parties; instead they aim to restore the public order.59 This explains the aim to conclude criminal trials in a timely manner, if need to be, without the defendant in order to restore the societal injustice that manifested itself by the criminal offence.60 In spite of this, the following will show that, likewise to the diminishing of pure Anglo-American and civil law approaches, there are mechanisms to try defendants in absentia in both countries that have a civil law and a common law heritage. Time and again the presumption of a pure dissociation into an adversarial and an inquisitorial model has been criticised.61 Indeed these spheres no longer exist in their 55

Friman, Trying Cases in the Absence of the Accused?, 346; Oehmichen, FS-Kühne, 619; Zappalà, Human Rights in International Criminal Proceedings, 128. 56 Friman, Trying Cases in the Absence of the Accused?, 346; Oehmichen, FS-Kühne, 619. 57 McDonald v. Mabee, 243 US 90, 91 (1917). 58 Zappalà, Human Rights in International Criminal Proceedings, 128. 59 Gardner, 43 GeoWashIntlLRev 2011, 91, 100. 60 Oehmichen, FS-Kühne, 619; Riachy, 8 JICJ 2010, 1295, 1297. 61 Fedorova, The Principle of Equality of Arms, 92; Summers, Fair Trials, 3 et seq. See also: Spencer, Introduction, 5; Jörg/Field/Brants, Are Inquisitorial and Adversarial System Converging?, 42 et seq., who only criticise the application in their purity but still divide the two models and find a convergence only in certain elements. Heinze, International Criminal Procedure and Disclosure, 117 et seq. criticises the ignorance of the different meanings of the term adversarial and inquisitorial. He identifies five such meanings: the traditional, the theoretical, the procedural, the ideal and the historical. Langer, 45 HarvIntlLJ 2004, 1 identifies three core levels, the technique for handling cases, the procedural culture and ways to distribute powers and responsibilities between the main actors, which serve the proper understanding of the adversarial/inquisitorial dichotomy as they can be shaped in either of these types. See also Langer, The Long Shadow of the Adversarial and Inquisitorial Categories. There are other models that have been introduced for the comparison of different domestic criminal procedural or justice systems. Among many others, these are some prominent examples: already in 1964 Packer, 113 UPaLRev 1964, 1 introduced the criminal justice model of “due process” and “crime control” to describe two competing value systems in the common law countries. This idea has been extended with further models beyond these two; see as for a comprehensive overview: Heinze, International Criminal Procedure and Disclosure. That was followed by Damasˇka, The Faces of Justice and State Authority, who distinguishes between the “conflict-

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purity. Although a certain procedure is based on either a continental or common law heritage, certain features have been borrowed from the other tradition.62 Already in the 19th century the Continental-European legal systems, having a clear inquisitorial heritage, which is characterised by arbitrary, secret and written procedures, introduced a public trial with an independent judiciary that is influenced by the submissions of the opposing parties.63 A more recent example is the Italian criminal procedure. Italy changed its criminal procedural model from an inquisitorial to an adversarial model in 1988. However, meanwhile several inquisitorial elements have been reintroduced.64 Similarly, Japan introduced an adversarial system after the Second World War but did not introduce a jury as fact-finder but lay judges, although the former is often seen as an essential part of such system.65 Even in the USA, actual jury trials make up a dwindling small part of the criminal trials held in total.66 Finally, in England and Wales, a contested oral trial is rather a peripheral phenomenon.67 Several scholars observe a movement away from the adversarial tradition in direction of the inquisitorial approach.68 In contrast, another part of the scholars sees a general shift to the adversarial tradition.69 These opposing assertions underline the presolving” and “policy implementing” functions and description of governmental structures as either “hierarchical” or “coordinative”. Vogler, AWorld View of Criminal Justice introduced the methodical trial modes of inquisitorial justice, adversarial justice and popular justice, which ideally apply balanced in one criminal justice system. Finally, normative approaches to describe the criminal trial have been taken by Duff, et al., The Trial on Trial and Ashworth/Redmayne, The Criminal Process, 20 et seq. 62 Heinze, International Criminal Procedure and Disclosure, 158; Hodgson, 35 NCJIintlL & Com Reg 2009, 319, 320; Kessel, European Trends towards Adversary Styles in Criminal Procedure and Evidence, 225, 227; Delmas-Marty, 1 JICJ 2003, 13, 18; Merryman, The Civil Law Tradition, 126; Roberts/Zuckerman, Criminal Evidence, 43 et seq. 63 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 15; Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 4 marginal no. 12; Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 5; Summers, Fair Trials, 124 et seq., Chapter 2. See also: Leyh, Procedural Justice?, 72; Spencer, Introduction, 21. See for the reformed inquisitorial criminal process introduced in Austria, Germany and Switzerland: Dannecker, 97 ZVglRWiss 1998, 409, 416; Roxin/Schünemann, Strafverfahrensrecht, § 17 marginal no. 5 et seq. 64 Dannecker, 97 ZVglRWiss 1998, 409, 421; Honert, 106 ZStW 1994, 427, 427. Hence, it can still be seen as a mixed procedure. 65 Kessel, European Trends towards Adversary Styles in Criminal Procedure and Evidence, 241; Shinomiya, Adversarial Procedure without a Jury. 66 Burns, The Death of the American Trial, 86; Heinze, International Criminal Procedure and Disclosure, 159. 67 Hodgson, 35 NCJIintlL & Com Reg 2009, 319, 320. 68 See inter alia: Carey, 36 LoyUChiLJ 2005, 433; Duff, Changing Conceptions of the Scottish Criminal Trial, 48; Merryman, The Civil Law Tradition, 128; Roberts/Zuckerman, Criminal Evidence, 48 et seq.; Smith, CrimLR 2004, 971, 971. 69 Cf. Amodio, 52 Am J Comp L 2004, 489, ibid.; Hodgson, CrimLR 2003, 165, 176; Kessel, European Trends towards Adversary Styles in Criminal Procedure and Evidence, 225; Panzavolta, 30 NCJIintlL & Com Reg 2005, 577, 578; Jörg/Field/Brants, Are Inquisitorial and Adversarial System Converging?, 56, although the latter reach that conclusion only in regard to the adversarial principle set forth by the ECtHR. See as for this above E. III. 3.

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sumption that a strict differentiation between the two models is not reasonable. The more so when considering that criminal procedures in Europe converge due to the ECtHR’s jurisprudence.70 Notably, also in regard to the ECtHR’s harmonisation of procedural systems, there is continuing disagreement on whether it pushes proceedings in a more adversarial71 or inquisitorial72 direction. The same pattern can be observed in international criminal proceedings. While the sui generis character of international criminal proceedings has been widely accepted,73 the adversarial-inquisitorial dichotomy is still not overcome. Claims that international criminal proceedings are generally stronger adversarially shaped74 are as common as suggestions of significant inquisitorial influence on international criminal proceedings.75 Altogether, there are elements of both traditions and their magnitude and particular embodiment differ between the tribunals.76 In brief, a trend of hybridisation77 of the 70

Fedorova, The Principle of Equality of Arms, 93 et seq.; Spencer, Introduction, 46 et seq. with examples where the ECtHR jurisprudence influenced domestic legislation. See also Jörg/ Field/Brants, Are Inquisitorial and Adversarial System Converging?, 41. 71 See e. g.: Hodgson, CrimLR 2003, 165, 176. 72 See inter alia: de Meester, The Investigation Phase, 107 referring of the increasing implementation of investigative rules in England and Wales due to Strasbourg’s jurisprudence. Esser, Auf dem Weg, 855 et seq. sees a fair balance of both approaches. 73 See inter alia Ambos, 3 ICLR 2003, 1; Ambos/Bock, Procedural Regimes, 541; Bensouda, 36 NCJIintlL & Com Reg 2010, 277, 279; de Meester, The Investigation Phase, 82; Jalloh, SelfRepresentation and the Use of Assigned, Standby and Amicus Counsel, 138; Keen, 17 LJIL 2004, 767, 795, 811; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 40; Ohlin, 14 UCLAJIntlL&ForeignAff 2009, 77, ibid.; ICTY, Prosecutor v. Tadic´, TC, Decision on the Defence Motion on Hearsay, 5 August 1996, Case No. IT-96-1-T, para. 14; Prosecutor v. Delalic´, TC, Decision on the Motion on Presentation of Evidence by the Accused, Essad Landzˇ o, 1 May 1997, Case No. IT-96-21, para. 15. Critically, as he fears that this will lead to a termination of the analysis of the process within known structures: Heinze, International Criminal Procedure and Disclosure, 161. 74 Consider inter alia Boas, et al., International Criminal Law Practitioner Library, 15; Sluiter, 6 ICLR 2006, 605, 614; Tuinstra, Defence Counsel in International Criminal Law, 246; ICC, Situation in the CAR: Prosecutor v. Bemba, TC III, Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 24 November 2010, Case No. ICC-01/05-01/08-1039, Partly Dissenting Opinion of Judge Kuniko Ozaki, para. 20. 75 Boas, et al., International Criminal Law Practitioner Library, 15; Cassese, FS-Asbjørn Eide, 51; Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 39. See also Bohlander, 45 NYIL 2014, 331, who pleads de lege ferenda for the implementation of a procedure emerging from the Continental-European approach. 76 The ICC is considered to have an adversarial model but with strong inquisitorial elements: Ambos, 3 ICLR 2003, 1; Orie, Accusatorial v. Inquisitorial Approach; Schuon, International Criminal Procedure, 307; Sluiter, 6 ICLR 2006, 605, 616. For the hybrid courts there is likewise no clear answer. The ECCC is clearly embedded in a civil law structure, thereby following the national Cambodian procedure to a large extend: Arens, Die Strafverfahrenswirklichkeit am Khmer Rouge Tribunal; Carter/Pocar, The Challenge of Shaping Procedures in International Criminal Courts, 13; de Meester, The Investigation Phase, 91. The SPSC’s approach to introduce a investigative judge, which was unknown to the Lebanese domestic

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legal systems is noticeable.78 Vivid example for this is the development of the criminal procedures held before the ad hoc Tribunals. They started off with a set of procedural rules that was dominated by the adversarial model.79 As time progressed and the RPE have several times been amended in order to meet the particularities of international criminal proceedings, several essential civil law elements have been adopted.80 Thus, it seems reasonable to assume that international criminal procedure borrows from both traditions. Comparative studies tend to use the ideal-typical terms to classify the domestic procedures, nevertheless.81 In order to better understand certain procedural features, the reliance on the adversarial and inquisitorial ideal-types in the Weberian sense is still of importance; the ideal-types somewhat guide the interpretation of procedural features by highlighting differences and proximity to one of the models, which can help to unveil the logic of the respective feature.82 They “provide orientation for confronting various mixtures of procedural form which are the norm in actual systems”.83 If anything, having regard to the cultural and socio-political heritage is of importance to better understand (international) criminal procedure.84 Being aware that the purity of the civil law – common law dichotomy in criminal proceedings does not exist, it will be utilised in this study as a starting point to address two ideal-typical criminal procedural traditions to simplify the understanding of different approaches. This study, therefore, remains with the inquisitorial and adversarial dichotomy where suitable. criminal procedure has been criticised in retro perspective: Reiger/Wierda, The Serious Crimes Process in Timor-Leste, 26. 77 The term is borrowed from: Delmas-Marty, 1 JICJ 2003, 13. 78 Cassese, FS-Asbjørn Eide, 51; Delmas-Marty, 1 JICJ 2003, 13; see also Orie, Accusatorial v. Inquisitorial Approach, 1493 et seq.; ICTY, Prosecutor v. Mucic´ et al., TC, Decision on the Motion of the Joint Request of the Accused Persons Regarding the Presentation of Evidence Dated 24 May 1998, 12 June 1998, Case No. IT-96-21, para. 31. 79 The ad hoc Tribunals are largely described as being overly adversarial: ICTY, First Annual Report, 29 August 1994, UN Doc. A/49/342 S/1994/1007, para. 71. 80 Carter/Pocar, The Challenge of Shaping Procedures in International Criminal Courts, 12 et seq.; de Meester, The Investigation Phase, 84; Kwon, Procedural Challenges, 1417; Mundis, 14 LJIL 2004, 367; Schuon, International Criminal Procedure, 307. 81 See among many others: Fedorova, The Principle of Equality of Arms, 92 et seq.; Hodgson, Conceptions of the Trial in Inquisitorial and Adversarial Procedure; Spencer, Introduction, 5 et seq. See also: Delmas-Marty, 1 JICJ 2003, 13, 18; Merryman, The Civil Law Tradition, although the latter is not a comparative study as such it defines the civil law tradition by demarcation from the socialists and common law tradition. See also for this observation: Fedorova, The Principle of Equality of Arms, 92; Heinze, International Criminal Procedure and Disclosure, 106; Jörg/Field/Brants, Are Inquisitorial and Adversarial System Converging?. 82 Ambos, Treatise Vol. III, 5; Fedorova, The Principle of Equality of Arms, 97; Heinze, International Criminal Procedure and Disclosure, 180 et seq.; Langer, 45 HarvIntlLJ 2004, 1, 8 et seq. 83 Damasˇka, The Faces of Justice and State Authority, 98. 84 de Meester, The Investigation Phase, 89 et seq.; Sluiter, 6 ICLR 2006, 605, 611.

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2. Continental-Europe To start with, the reports for countries stemming from a Continental-European heritage will be outlined. The report on the German framework on proceedings in absentia is followed by reports on the Swiss and Austrian regulations to prosecute defendants in absentia. Subsequently, the foreign law reports for the Netherlands and Italy will follow as both jurisdictions, though standing in a civil law tradition, are known to have a mixed criminal procedural system. a) Germany85 German criminal procedure attaches great importance to the defendants presence at trial and is reluctant to conduct a criminal procedure against a defendant who is not present, which is based on a comprehensive duty to be present at one’s trial that is imposed upon the defendant.86 German law understands the defendant’s presence at trial as both a duty and a right.87 Accordingly, as a general rule, German criminal procedure does not provide for a trial in absentia if the defendant has not been notified of the proceedings. It expressly states in Section 230(1) StPO that ‘no main hearing shall be held against a defendant who fails to appear’ and Section 285(1) StPO that ‘no main hearing shall be held in respect of a person who is absent’. These provisions date back to the beginnings of German criminal procedure.88 For the investigative, the intermediate and the appeals stage89 there is no such expressive exclusion of procedures in absentia. However, the strict exclusion of a trial against the absent defendant can be a procedural obstacle to initiate other stages of the criminal process in absentia. In particular, the intermediate proceedings can be 85

See for a brief overview Eibach, Abwesenheitsverfahren, 54 et seq. Sections 230, 231(1), 285(1) StPO. Some scholars do not agree with this strict approach and plead for the defendant’s autonomy to decide whether to be present at his trial: Bernsmann, FS-Kriele; Gaede, 129 ZStW 2017, 911, 953 et seq.; Julius, GA 1992, 295; Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 217 et seq.; Stein, 97 ZStW 1985, 303; Volk, FS-Böttcher. 87 BGHSt 26, 84 (90); LR-Becker, Section 231 marginal no. 1; SK-Deiters, Section 231a marginal no. 1; KMR-Eschelbach46th, Section 230 marginal no. 1 et seq.; Riess, JZ 1975, 265, 266; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal nos. 2, 4. Following the RStPO of 1877 trials in absentia were a common feature but have been abolished after a peak during the Nazi regime. See as for a brief historical overview: Elberling, The Defendant in International Criminal Proceedings, 37; Niethammer, FS-Rosenfeld, 137; LR-Stuckenberg, Before Section 276 marginal no. 5. 88 Elberling, The Defendant in International Criminal Proceedings, 37; Laue, JA 2010, 294, 294. For a detailed illustration of the genesis of the regulations in regard to hearings in the absence of the accused see: Dünnebier, FS-Heinitz; Niethammer, FS-Rosenfeld. 89 Of other opinion Eibach, Abwesenheitsverfahren, 55 who concludes a necessity of the defendant’s presence during an appeal of points of fact (Berufung) from Section 329. See further below F. II. 2. a) ee) (1). 86

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affected since the absence of the accused impedes the opening of the main hearing.90 Also, the prosecution could consider it to be more convenient to provisionally suspend investigations instead of charging an absent suspect against whom a trial cannot be conducted.91 aa) Investigative stage and its in absentia framework The autonomous procedural step of the investigation is of great importance for the criminal procedure as a whole as the investigated facts significantly shape and influence the trial procedure.92 In fact, the investigative phase gains more and more importance.93 The prosecution and, under its authority, the police are the main authorities that conduct the investigations.94 Following the inquisitorial roots of German criminal procedure the criminal justice authorities generally investigate secretly.95 Thus, as a general rule, investigations are conducted in absentia. The defendant’s participation and presence rights during this procedural phase are barely regulated and criticised as poorly protecting the defendant.96 There are, however, certain measures where the defendant and his counsel97 have a right to be present. That is especially the case for investigative acts taken by the investigating judge such as questioning of witnesses and judicial inspections.98 It is possible for the defendant and his counsel to follow these judicial examinations via video link.99 Naturally, the defendant’s presence is also required for his questioning by the police or prosecution, an investigative act that generally has to be carried out before submitting the in90

Section 205(sentence 1) StPO. SK-Frister, Section 285 marginal no. 5. 92 Wagner, 109 ZStW 1997, 545, 556 et seq.; cf. Kühne, Strafprozessrecht, marginal no. 351. 93 See inter alia Greco, GA 2016, 1, 9 with further references; Schünemann, StV 2000, 159, 163; Wagner, 109 ZStW 1997, 545, 557 et seq. with further references. Also in Germany, in most of the cases no main hearing is conducted: Radtke, GA 2012, 187, 200. 94 Sections 160, 161 StPO. 95 BVerfG, Decision, 15 January 2004, 2 BvR 1895/03, wistra 2004, 179; Bürger, 128 ZStW 2016, 518, 544; Freyschmidt/Ignor, NStZ 465, 466; Kühne, Strafprozessrecht, marginal no. 351. Cf. also: Schroeder/Verrel, Strafprozessrecht, § 12 marginal no. 82, § 16 marginal no. 101; Weigend, Reform Proposals on Dutch Criminal Procedures, 165. The secret character can also be deduced e contrario Section 169 GVG. 96 Kühne, Strafprozessrecht, marginal no. 351. See especially for the defence rights: Soyer/ Schuman, StV 2012, 495. 97 It is to be noted that already the suspect has the right to choose a counsel during the investigations: Section 137 StPO. However, a duty counsel is only assigned in very narrow boundaries. See as for the details e. g.: Schroeder/Verrel, Strafprozessrecht, § 12 marginal no. 82. However, the regulations on compulsory defence already during the investigative phase have recently been extended. See as for the details e. g.: Böss, NStZ 2020, 185. 98 Sections 168c(2), 168d StPO. See for the exceptions and more details: Vogler, Report on Germany, 130. 99 Section 168e StPO. 91

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dictment.100 Further, the suspect has a duty to appear at interrogations carried out by the prosecution or investigative judge and might be forcibly brought before the respective authority.101 However, in practice cases occur in which no interrogation took place before the submission of the indictment.102 The defence counsel has, in principle, the right to access the files at any time during the procedure.103 In fact, only after completion of the investigations does this right attach without restrictions. During the investigations there are often times restrictions, for example, where opening the files were to jeopardise the purpose of the investigations.104 The investigative phase ends with the submission of the bill of indictment to the competent court or the termination of proceedings instituted against the suspect.105 bb) Procedures in absentia against the ‘absent defendant’ Section 285 et seq. StPO provide for three different procedures for the ‘absent’ accused that are applicable in all stages of the proceedings, although they are mainly used during the investigative phase or the trial at first instance.106 These procedures have the common objective to try the defendant in person, i. e. to bring about the suspect’s107 presence.108 No trial can be held against a defendant who is absent in a 100

Section 163a(1), (3) StPO; Art. 103(1) GG. See as for the details: Wagner, 109 ZStW 1997, 545. Upon the first questioning the defendant is to be informed about the charges and the defence rights such as to remain silent, consult with a defence counsel and apply for the taking of evidence: Sections 136, 163a(3), (4) StPO. 101 Sections 133(1), 134, 135 163a(3) StPO. 102 LG Düsseldorf, NStZ 1986, 138. 103 Section 147(1) StPO. 104 Sections 147(2), 169a StPO. The defendant who has no counsel can obtain solely copies of the files: Section 147(7) StPO. 105 Sections 170, 190(1) StPO. 106 SK-Frister, Section 285 marginal no. 11, 13 et seq.; LR-Stuckenberg, Before Section 276 marginal no. 8. Of other opinion: LG Verden, NJW 1974, 2194; Kaiser, NJW 1964, 1553, 1555, not applying the rule in the appeals stage. Ever since Sections 276(2) – 284 StPO have been deleted this debate is rather theoretical and does not have much impact as the procedure are very seldom used outside the investigative or (pre-)trial stage. Especially in the appeals stage, the security of evidence will naturally not be used very often as there should exist a trial record from the lower court. 107 In case that the indictment has already been submitted the suspect (Beschuldigter) becomes the defendant (Angeschuldigter) and after the confirmation of the indictment the accused (Angeklagter). 108 StV 1982, 601, 602; BayObLG, NJW 1964, 301; Börner, NStZ 2005, 547; KK-Greger, Section 290 marginal no. 1; Gössel, JR 1979, 174; KMR-Kulhanek96th, Section 290 marginal no. 1; SSW-Werner, Section 285 marginal no. 3 With regard to the seizure of property it is subject to debate whether there are other objectives the seizure aims for. Some scholars see safeguarding the victim’s civil damage claims as secondary objective of seizure: AK-Achenbach, Section 290 marginal no. 1; Hilger, NStZ 1982, 374, 375. The Higher Regional Court Düsseldorf also argues that the seizure can be used to secure the state’s interests to inflict

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technical sense since it is a fundamental principle of constitutional rank that the defendant be heard before his conviction.109 Therefore, the StPO distinguishes the ‘absent defendant’ – in a technical sense – from the one that failed to appear. According to Section 276 StPO, the accused is deemed absent (1) if his whereabouts are unknown, or (2) if he is abroad and presence before the court does not appear to be (a) feasible or (b) reasonable. The defendant’s whereabouts are unknown when the investigative authorities do not have knowledge about the defendant’s whereabouts and the whereabouts will not become known even after taking into account further proportionate investigative measures.110 The first option describes the defendant at large or fugitive and presumably uninformed – at least not personally informed – defendant. Section 276 StPO makes clear that there is a nonrebuttable presumption as to the defendant’s absence whenever the prerequisites are fulfilled.111 The defendant’s presence appears not to be feasible, if neither summons nor compulsory actions can provide for his presence.112 Unfeasibility of compulsory measures include that an extradition is either impossible or is not to be expected to take place in the foreseeable future. The court decides on whether the extradition is feasible after weighing all circumstances.113 Finally, the defendant’s presence appears to be unreasonable if administrative effort and costs for bringing the defendant before court seem disproportionate to the interests of prosecuting the case.114 When the defendant is deemed absent due to one of the three options there are three possible procedures: Firstly, evidence may be secured for future proceedings,115 secondly the absentee’s money in Germany may be frozen and thirdly the suspect can be granted safe conduct, but no trial can be initiated against the absentee.

punishment, so that seizure can be imposed upon a fugitive convict: OLG Düsseldorf, NStZ 1997, 103. It deducts the possibility of seizure from Section 457(3) StPO. With regard to safe conduct, there are possibly other objectives such as enforcement of the suspect’s summons to testify in another procedure KK-Greger, Section 295 marginal no. 1. 109 Roxin/Schünemann, Strafverfahrensrecht, § 62 marginal no. 1; LR-Stuckenberg, Section 285 marginal no. 1; SSW-Werner, Section 285 marginal no. 1. 110 SK-Frister, Section 295 marginal no. 3; KMR-Kulhanek96th, Section 276 marginal no. 5. 111 KMR-Kulhanek96th, Section 276 marginal no. 4; LR-Stuckenberg, Section 276 marginal no. 1. That is even the case when the accused’s whereabouts are in fact – undetected – within the court’s power. 112 BGHSt 37 115; OLG Frankfurt, NJW 1972 1875; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 3. 113 LR-Stuckenberg, Section 276 marginal no. 7 with further references. Oppe claims that the nonfeasability requires an attempt to provide for the defendant’s presence failed: Oppe, NJW 1966, 2237, 2238 et seq. This, however, goes beyond the wording of Section 276 StPO and causes an unnecessary delay when the extradition’s impracticability is certain. 114 SK-Frister, Section 295 marginal no. 8; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 3. 115 Section 285(1)(s. 2) StPO.

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(1) Security of evidence for future proceedings When the indictment has not yet been issued, the prosecution is to secure the evidence for future proceedings.116 When the case has already reached the intermediate proceedings the court is the responsible authority to take investigative measures and secure evidence. The same applies when trial proceedings have already been opened.117 However, in such a case a comprehensive elucidation of the facts is conducted that goes beyond the sole preservation of evidence.118 When the evidence has been secured proceedings will be provisionally terminated.119 (2) Seizure of the absent defendant’s property Another, very seldomly used, possibility is to freeze the defendant’s property in Germany, until his appearance or until the proceedings otherwise end.120 The seizure of property cannot be applied for minor offences and the freezing of property prerequisites, in addition to the accused’s absence, the submission of the indictment and that there are grounds of suspicion that would justify the issuing of an arrest warrant.121 The seizure shall be revoked when the reasons no longer apply.122 The court, therefore, reviews the seizure ex officio in reasonable time intervals.123 The order to freeze the property such as its revocation has to be published in the Federal Gazette.124 (3) Granting safe conduct to the absent defendant Finally, the court can give the suspect safe conduct with the consequence that pretrial detention will not be enforced.125 The assurance of nonenforcement can be 116 Meyer-Gossner/Schmitt-Schmitt, Section 285 marginal no. 2. The prosecution can also request investigative measures from the local court. See for the court’s investigative measures Section 162 StPO. 117 Section 285 StPO. 118 Section 294(1) StPO. See also Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 1. 119 Section 205 StPO, which by way of analogy applies to the prosecution. See LRStuckenberg, Section 285 marginal no. 9. 120 Section 190 et seq. StPO. With regard to the seldom use: Börner, NStZ 2005, 547. 121 Section 290(2) StPO. Suspicion exists when the defendant is strongly suspected of the commitment of offences and a ground of arrest such as the danger of suppression of evidence: Section 112 et seq. StPO. 122 Section 293(1) StPO. 123 KK-Greger, Section 295 marginal no. 1. 124 Sections 291, 293(2) StPO. 125 Section 295 StPO. Regardless of the safe conduct that has been ordered a suspect, who follows a subpoena is granted safe conduct due to Art. 12(2) ECMACM for all acts that have not been mentioned in the subpoena, which similarly applies to all Members of the Council of Europe.

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granted at any stage of the proceeding, but does not require the issuance of an actual arrest warrant.126 The absence of the accused is a prerequisite to grant safe conduct, but the suspect’s appearance does not revoke the assurance. However, the assurance of nonenforcement expires with a verdict to imprisonment or, in case of a timely limited assurance, with the expiration of the fixed time period.127 (4) Safeguards during the procedures against the absent defendant Section 286 StPO provides for the possibility to be represented by counsel or a relative, whereby the latter does not need to be authorised by the defendant.128 Hence, there is no mandatory defence in such proceedings. However, if the indictment has already been submitted, the appointment of a defence counsel will be mandatory in many cases.129 Information duties can attach with regard to the defendant’s representative or counsel.130 The suspect, on the other hand, has no right to be informed about the progress of the proceedings, yet the court can decide to inform him.131 Finally, there is a possibility to request the defendant’s appearance publicly with appropriate media coverage.132 cc) Intermediate procedure in absentia Upon submission of the indictment combined with the motion to open trial proceedings, the intermediate procedure starts at the competent court of first instance.133 The court reviews the indictment and case file and decides whether sufficient grounds exist to believe that the person accused has committed the criminal offence charged.134 In this case the trial is to be opened. The intermediate procedure is a non-public procedure. The indictment is to be served on the defendant, who has the 126

SK-Frister, Section 295 marginal nos. 1, 4. Section 295(3) StPO; LR-Stuckenberg, Section 295 marginal no. 14. 128 This notion also applies to the investigative phase although Section 286 StPO uses the term defendant. The use of the term defendant opposed to suspect can, thus, be seen as editorial oversight: SK-Frister, Section 285 marginal no. 2; LR-Stuckenberg, Section 285 marginal no. 6. 129 Section 140(1) and (2) StPO. A counsel will be appointed ex officio once the indictment is submitted to the court of first instance, except for minor cases before the Single Judge (Strafrichter), see Section 140(1) no. 1, 141(2) StPO. See also SK-Frister, Section 285 marginal no. 2. 130 See e. g.: Sections 168c(5), 224 StPO, which concern the information about the scheduling of hearings for examinations. 131 Section 287 StPO. 132 Section 288 StPO. 133 Section 199(1) StPO. 134 Sections 190(1), 203 StPO. Critically as to the existence of the intermediate procedure as it is expandable: Loritz, Kritische Betrachtungen zum Wert des strafprozessualen Zwischenverfahrens. 127

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opportunity to make a statement on the charges and apply for the taking of further evidence.135 In practice, the defence rarely takes these steps.136 The decision whether to open the main proceedings is issued in the defendant’s absence.137 However, the defendant will be questioned during trial, which is seen to rectify the missing involvement of the defendant during the intermediate procedure.138 For minor offences, upon application of the prosecution, an accelerated procedure may be instituted that immediately leads to the main hearing without confirmation of the indictment in the intermediate procedure.139 dd) Trial stage and its in absentia framework Though the StPO does not expressly provide for a right to be present at one’s trial, it is not subject to debate that there is such right.140 The right unequivocally follows from Art. 6 ECHR and Art. 14 ICCPR that are, albeit not of constitutional rank, directly applicable.141 Additionally, there is also a fair trial right according to German principles, enshrined in the German conception of the rule of law Art. 20(3) GG (Rechtsstaatsprinzip) in conjunction with the general freedom of action of Art. 2(1 first sentence) GG and the personal freedom Art. 2(2) GG.142 Contrary to the international fair trial provisions, the German conception of the right to a fair trial has constitutional rank.143 Finally, the right to be present can be deduced from Art. 103(1) GG, the right to a fair hearing in court.144 135 Section 201(1) StPO. As seen in fn. 1569 a defence counsel will in most cases be appointed ex officio. 136 Weigend, Germany, 263. 137 Sections 201(2), 203, 204 StPO. 138 BGHSt 29, 224; 33, 167. 139 Sections 417 – 429 StPO. See as for the details: Kühne, Strafprozessrecht, marginal no. 623 et seq. 140 See only Riess, JZ 1975, 265, 266. 141 BVerfGE 74, 358 (370) with further references to earlier BVerfG judgments see only Kühne, Strafprozessrecht, marginal no. 29. See for an eloquent overview of the relation between German fair trial and the ECHR’s concept of a fair trial: Jahn, 127 ZStW 2015, 549, 567 et seq. 142 BVerfGE 26, 66 (71); 38, 105 (111); 57, 250, (274 et seq.); 63, 380, 390; 66, 313, 318; BVerfG, 1st Chamber of the 2nd Senate, Decision, 05 November 2013, 2 BvR 1579/11, para. 11; BGHSt 32, 44 (47); 37, 10 (13); 221 (228); KMR-Eschelbach46th, Section 230 marginal no. 13; Gollwitzer, FS-Tröndle, 460; KK-Fischer, Introduction marginal no. 111; SK-Rogall, Before Section 133 marginal nos. 101, 103. The legal literature sometimes adds other provisions the fair trial right is deduced from: Hassemer, JuS 1986, 25, 27 for example adds Art. 19 (2), (4). Roxin/Schünemann, Strafverfahrensrecht, § 11 marginal no. 4 add the Sozialstaatsprinzip. See for an eloquent overview of the different positions: Jahn, 127 ZStW 2015, 549. See also Kühne, Strafprozessrecht, marginal no. 286 et seq., who equals fairness with paternalistic aspects. Critically to the process of deduction of the fair trial principle and its necessity: Bottke, Konkretisierung strafprozessualer Fairness, 75 et seq. In this direction arguably Heubel, Der “fair trial”. 143 Cf. Roxin/Schünemann, Strafverfahrensrecht, § 11 marginal no. 4; SK-Deiters, Section 231a marginal no. 1; Heubel, Der “fair trial”, 27 et seq. Nonetheless, Art. 6 ECHR is an

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The defendant also has a duty to be present at the main hearing. Coercive means that can be imposed upon the defendant whose absence is not sufficiently justified in order to compel his presence at trial include forced transportation before court or ‘contumacy’ custody for the duration of the trial.145 The imposition of a duty to be present is inter alia justified with the paternalistic implementation of the right to a hearing in court and the principle to ascertain the truth in criminal proceedings.146 In fact, the defendant’s perspective – if he chooses to share it with the court – is a central element of that truth.147 These aspects are already expressed in the motives for a German criminal code of procedure.148 Further, the sensual perception of the defendant is seen to be necessary in order to render a just verdict.149 Generally, a defendant cannot waive his right to be present at the main hearing.150

important source to interpret the German fair trial notion and is often used by lower courts and endorsed by many scholars: BayObLG, StV 1989, 394 (395); KG, NJW 1970, 482 (483); NStZ 1995, 146 (147); OLG Düsseldorf, StV 1986, 204 (206); OLG Hamm, GA 1974, 374 et seq.; OLG Koblenz, NStZ 1987, 283; Bottke, Konkretisierung strafprozessualer Fairness, 75 et seq.; Jahn, 127 ZStW 2015, 549, 561; SK-Rogall, Before Section 133 marginal no. 101; Roxin/ Schünemann, Strafverfahrensrecht, § 11 marginal no. 4 et seq. 144 The official translation uses the term ‘fair hearing’. As this is likely to be confounded with the right to fair trial, the term right to a hearing, which is used by the BVerfG as well, will be used henceforth. See BVerfG, Order, 25 October 2005, 1 BvR 1696/98, para. 17; SK-Deiters, Section 231a marginal no. 1; Kamp, FS-Rudolphi, 664; SK-Rogall, Before Section 133 marginal no. 85; Schroeder/Verrel, Strafprozessrecht, § 28 marginal no. 206; Fezer, Strafprozessrecht, Chapter 11 marginal no. 58. 145 Section 230(2) StPO. It should be noted that compelling the defendant’s presence via Section 230(2) StPO is subsidiary to forcibly bring him to court according to Sections 133, 134 StPO where the defendant has been properly summoned and the circumstances would justify the issuance of an arrest warrant. However, in practice, contumacy custody is often not used as subsidiary measure: Morgenstern, JR 2016, 237, 239. For the label of contumacy custody e. g.: LG Saarbrücken, StV 2001, 344; OLG Hamburg, Decision, 16 January 2012, 2 Ws 13/12. Critically as to the regulation and suggestion a reformation in order to comply with the principle of proportionality: ibid. 146 BGHSt 26, 84 (90); 38, 251 (257) the latter only concerning the establishment of the facts; LR-Becker, Section 231 marginal no. 1; KMR-Eschelbach46th, Section 230 marginal nos. 2, 5; KK-Gmel, Section 232 marginal no. 1; Hassemer, JuS 1986, 25, 27 et seq.; Jäger, Die Anwesenheit des Angeklagten in der Hauptverhandlung, 182 et seq., 191 et seq.; Kamp, FSRudolphi, 664; Krüger, FS-Kielwein, 90; Lampe, MDR 1974, 535, 539; Maatz, DRiZ 1991, 200, 201; Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 79; Roxin/Schünemann, Strafverfahrensrecht, § 44 marginal no. 42; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 3; cf. also Niethammer, FS-Rosenfeld, 128. 147 BVerfG, Order of 15 December 2015 – 2 BvR 2735/14, para. 58. 148 Hahn, Die gesamten Materialien zu den Reichs-Justizgesetzen; auf Veranlassung des kaiserlichen Reichs-Justizamts herausgegeben, 185 et seq. 149 BverfGE 63, 332, 337 et seq.; Eisenberg, Beweisrecht der StPO, marginal no. 755; Roxin/Schünemann, Strafverfahrensrecht, § 44 marginal no. 42. 150 BGH NJW 1973, 522; NStZ-RR 2015, 51; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 2.

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Nonetheless, the StPO foresees in Section 231 et seq. StPO trials in both the defendant’s entire or partial absence when he fails to appear after he has been properly summoned. This means, other than the defendant who is absent in the technical sense, he is generally within the court’s reach and can be presumed to have knowledge of the proceedings.151 (1) Trial entirely held in absentia In cases where a very limited punishment is expected152 the StPO provides for proceedings in the defendant’s entire absence. Section 232 StPO allows for the main hearing to be conducted in the defendant’s absence when he has been properly, generally personally, summoned one week before the conduction of the trial hearing.153 The summons needs to include the information that the trial might be conducted in the defendant’s absence upon nonappearance.154 Serving the summons on the defence counsel is only sufficient where he has been especially empowered for this purpose.155 However, service of the summons to family members and persons living in the same household or to the mailbox of the defendant’s domicile equal the personal service.156 Finally, upon failure to submit the summons, the defendant can be informed of the deposition of the summons at a post office or district court with respective notification of the defendant is sufficient.157 Section 232(2) StPO expressly excludes the possibility of a trial in absentia against the defendant that has been solely publicly notified. Beyond the proper summons and the minor gravity of the crime, the defendant’s absence must be deliberate.158 The defendant acts deliberately if he intentionally and unjustified or unexcused does not comply with the duty to be present.159 151

Cf. Roxin/Schünemann, Strafverfahrensrecht, § 60 marginal no. 3. Imprisonment is not included, but the defendant can for example be fined or banned from driving. 153 Sections 216, 217(1), 232(2) StPO. 154 Sections 216, 232(2) StPO. 155 Section 145a(2) StPO. 156 Sections 216, 37 StPO read together with Section 178(1), 180, 181(1) ZPO. 157 Sections 216, 37 StPO read together with Section 181(1) ZPO. 158 LR-Becker, Section 231 marginal no. 14; KK-Gmel, Section 232 marginal no. 9; Gollwitzer, FS-Tröndle, 459; Meyer-Gossner/Schmitt-Schmitt, Section 285 marginal no. 11, Section 231 marginal no. 10 et seq. 159 “Eigenmächtig handelt, wer ohne Rechtfertigungs- oder Entschuldigungsgründe wissentlich seiner Anwesenheitspflicht nicht genügt”: BGHSt 37, 249 (251); BGH NStZ-RR 2008, 285; NStZ 2003, 561 et seq.; 1998, 476 (477). The regulation bases on the concept of abuse of rights: cf. Gollwitzer, FS-Tröndle, 458. However, SK-Deiters, Section 231a marginal no. 19 et seq. and Julius, GA 1992, 295, 306 on the other hand, require a free and autonomous decision to waive the right to be present. Accordingly, they see the waiver of the right to be present as concept behind the notion. The impact of the different concepts is rather small since the prevailing opinion sees a deliberate act in the (implicit) waiver of the right to be present: LRBecker, Section 231 marginal no. 15. 152

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Upon request, the accused can further be released from his duty to be present at the main hearing.160 However, he does not lose his right to be present.161 In both cases – failure to appear after having been sufficiently notified and request to be absent – it lies in the court’s discretion to proceed in the defendant’s absence and release the defendant from his duty to be present.162 Both regulations allowing for in absentia trial are applicable also to the hearing of an appeal on fact and law.163 During the full trial in absentia a number of safeguards attach in order to protect the defendant’s procedural rights. Firstly, the defendant can authorise a defence counsel to represent him at the hearing who can make statements in the name of the defendant.164 Secondly, the punishment needs to stay within the limits set out in Sections 232 and 233 StPO. There is, thus, a prohibition to impose a graver punishment when the defendant was tried in his absence. Further, the record of the defendant’s examination by a judge – if there is any – must be read out at the hearing.165 If the accused is released from the obligation to be present at his request, such record regularly exists since a judge must hear the defendant in relation to the indictment before releasing him from his duty.166 However, this is not part of the main hearing but fulfills the defendant’s right to be heard.167 Thus, a full trial in absentia takes place.168 (2) Deliberately bringing about the unfitness to stand trial – Section 231a StPO Section 231a StPO expands the possibility to try defendants in their absence to all types of crimes – regardless of their gravity – under the condition that the defendant deliberately brought about his unfitness to stand trial. The regulation was introduced by the legislature to enable the Higher Regional Court in Stuttgart to conduct the socalled Baader-Meinhof trial against major Red Army Fraction members.169 This trial certainly dealt with grave crimes and not minor offences. The regulation is an expression of the values of a speedy trial and the proper functioning of the administration of justice.170 It is based on the idea of abuse of rights, as it requires a de160

Section 233 StPO. BGHSt 12, 367 (371). 162 SK-Deiters, Section 231a marginal no. 9; KK-Gmel, Section 232 marginal no. 11. 163 LR-Becker, Section 231 marginal no. 4; SK-Deiters, Section 231a marginal no. 2. For the appeals on point of law solely Section 233 StPO applies: ibid., marginal no. 4. 164 Section 234 StPO. 165 Section 232(3) StPO. See also LR-Becker, Section 231 marginal no. 21. 166 Section 233(2) StPO. An examination via video link is possible. 167 SK-Deiters, Section 231a marginal no. 15; KK-Gmel, Section 232 marginal no. 11. 168 Roxin/Schünemann, Strafverfahrensrecht, § 44 marginal no. 45. 169 Cf. BT-Drs. 7/2989, p. 5. 170 Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 45. 161

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liberate act to impede the conduction of the hearing.171 The regulation is seen to be contrary to the StPO’s system for it makes very broad exceptions to the general rule of the defendant’s constant presence at trial.172 The majority of scholars, therefore, plead for a restrictive application of Section 231a StPO.173 Section 231a StPO requires that the defendant places himself in a condition where he is unfit to stand trial and the unfitness arises before he has been heard on the charges.174 Examples for such self-inflicted unfitness range from alcohol and drug abuse, a failed suicide attempt, a hunger strike or working oneself up into a psychopathological condition.175 The refusal to undertake a complicated medical procedure cannot be considered as placement into the status of being unfit.176 With regard to the refusal of routine procedures there is no consolidated case law so far.177 In addition, the defendant needs to act intentionally and culpably.178 The unfitness to stand trial, further, needs to prevent the proper continuation or commencement of the main hearing and the defendant needs to act knowingly in this regard. This is certainly not the case for brief trial interruptions.179 Rather, it is necessary to have a disruption of trial that undermines the principle of a speedy trial.180 The two highest German courts ruled in the above-mentioned Baader-Meinhof trial that Section 231a StPO was applicable where the defendants’ unfitness lasted, at most, three hours per day.181 As a further condition, the court needs to find the accused’s presence not to be 171 BT-Drs. 7/2989, p. 5; Riess, JZ 1975, 265, 269; cf. LR-Becker, Section 231 marginal no. 1, 4 et seq.; KMR-Eschelbach48th, Section 231a marginal no. 1; Rudolphi, JA 1979, 1, 6 et seq. Cf. also BVerfGE 41, 246. 172 SK-Deiters, Section 231a marginal no. 4; KMR-Eschelbach48th, Section 231a marginal nos. 2, 5; Rudolphi, JA 1979, 1, 7; of other opinion: Riess, JZ 1975, 265, 269. It should also be noted that the fugitive cannot be tried in absentia, although he similarly sabotages criminal proceedings. 173 SK-Deiters, Section 231a marginal no. 5 et seq.; KMR-Eschelbach48th, Section 231a marginal no. 3 et seq.; Rudolphi, JA 1979, 1, 7. In the same direction BGHSt 19, 144 (148) in regard to Section 231(2) StPO: “eine derart die Rechte des Angeklagten einschränkende Vorschrift darf nicht ausdehnend ausgelegt werden”. 174 BT-Drs. 7/2989, p. 6. The defendant must be liable for his act or omission: BGHSt 26 228 (235 et seq.). 175 BVerfGE 41, 246; BGHSt 16, 178; 26 228; BGH NStZ 1986, 372; Rudolphi, JA 1979, 1, 7; critically in regard to the suicidal accused: Baxhenrich, Die Verhandlungsfähigkeit des Angeklagten, 171 et seq.; KMR-Eschelbach48th, Section 231a marginal no. 5; Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 132 et seq., in particular 137 et seq.; Riess, JZ 1975, 265, 269. 176 BVerfGE 89, 120 (130). 177 See, on the one hand: LG Nürnberg-Fürth NJW 1999, 1125; and, on the other, OLG Nürnberg NJW 2000, 1804. 178 BVerfGE 41, 246 (249). 179 LR-Becker, Section 231 marginal no. 9. 180 SSW-Grube, Section 231a marginal no. 7; Riess, JZ 1975, 265, 269. 181 BVerfGE 41, 246; BGHSt 26, 228 (232 et seq.); critically: Grünwald, JZ 1976, 767, 768 et seq.; Rudolphi, JA 1979, 1, 7; similarly broad: BGH NJW 1981, 1052 et seq.; critically to a

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indispensable.182 Ultimately, the accused needs to have the opportunity to make a statement on the charges before the court or a commissioned judge.183 After the hearing of a physician as an expert, the court files a decision on whether to hold the hearing in the absence of the accused.184 Notably, the court has no margin of appreciation in this regard. If the prerequisites are fulfilled, the main hearing has to be conducted in the defendant’s absence.185 Section 231a(4) StPO foresees that the defendant be assigned a defence counsel in order to have him represented during his absence. Moreover, the court has a duty to inform the accused about the crucial events of the main hearing after reobtaining his fitness to stand trial.186 Another safeguard is the defendant’s possibility to immediately file a complaint (Beschwerde) to a higher-instance court against the decision to proceed or commence the trial in absentia.187 (3) Remedies against judgments rendered in absentia Since a full in absentia trial is a rare event in Germany, except for the regulation in Section 231a StPO, there are no special remedies against in absentia judgments. However, the defendant has the possibility to file the regular remedies, namely appeal on points of fact and law (Berufung) and appeal on points of law (Revision). In the former the merits of the case will be newly determined. When the defendant is to contest the lawfulness of the conduction of the trial in his absence, he can also file a Revision. It is an absolute reason for review, i. e. the judgment is considered to be based on an error of law, if the hearing was conducted in the defendant’s absence unless an exception obtained.188 The time limit of one week for either of the remedies broad interpretation: AK-Keller, Section 231a marginal no. 6; Roxin/Schünemann, Strafverfahrensrecht, Section 44 marginal no. 48; positive in regard to a broad interpretation: LRBecker, Section 231 marginal no. 3; Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 104 et seq.; Pawlik, NJW 1964, 779. The fifth Chamber of the BGH also tends to have more restrictive approach and does not apply the rule when the inability to stand trial is only temporarily BGHSt 19, 144 (147); see also Eisenberg, Beweisrecht der StPO, marginal no. 773a. 182 BT-Drs. 7/2989, p. 6. This can for example be the case where an identity parade is necessary. 183 Section 231a(1)(s. 1)StPO. Critically to this requirement: KMR-Eschelbach48th, Section 231a marginal no. 30 et seq. According to no. 122 RiStBV stipulates that the prosecutor is to work towards ensuring that the accused, if there are indications that he is unable to stand trial through his own fault, is given an early opportunity to make a statement on the charges before a judge, 184 Section 231a(1)(s. 1), (3)(s. 1) StPO. 185 Ibid.; Grünwald, JZ 1976, 767, 768; Meyer-Gossner/Schmitt-Schmitt, Section 285 marginal nos. 2, 17. 186 Section 231a(2) StPO. 187 Section 231a(3)(s. 3) StPO. 188 Section 338(no. 5) StPO. However, the absence must concern a substantial part of the trial: Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 36.

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does not start earlier than the service of the judgment on the defendant, unless especially empowered counsel represented him. In the latter case, the time limit starts upon the delivery of the judgment.189 The defendant also has the possibility of applying for the extraordinary remedy of restoration of the status quo ante (Wiedereinsetzung in den vorigen Stand) if the in absentia hearing was conducted according to Section 232 StPO and he missed the hearing without culpability.190 (4) Trial partially held in absentia The StPO also foresees the possibility of conducting hearings in the partial absence of the defendant. First of all the above-mentioned exceptions are also applicable where the defendant remains partially absent. The trial continues, for example, in the accused’s presence when he recovers from the inability to stand trial.191 Similarly, the unfit defendant can, following his right to be present, (temporarily) attend the hearings.192 Further, the defendant can request to be absent from parts of the court hearings. On the other hand, the court is generally not allowed to excuse the defendant from being present at trial. It rather has the power – in all cases, even when the court is entitled to conduct the proceedings in the accused’s absence – to use its residual right to compel the defendant’s presence if necessary in order to conduct the main hearing.193 However, in practice the courts tend to assure the defendant that they will not make use of the compulsory measure when the defendant fails to appear.194 Thus, court and defendant can make an informal agreement that allows the defendant to remain absent. (a) Semel praesens semper praesens – Section 231(2) StPO Following the maxim semel praesens semper praesens according to Section 231(2) StPO the trial can proceed in absentia if the defendant absented himself in the course of a hearing after he has been heard on the charges. However, the 189

Sections 314(2), 341(2) StPO. Sections 235, 44 et seq. StPO. The time limit of one week starts with the delivery of the judgment. There is no time limit where the defendant was not properly summoned to the trial hearing. 191 LR-Becker, Section 231 marginal no. 30. 192 BGHSt 26, 228 (234). Giving him the right to be present but no possibility to intervene or actively participate: ibid., marginal no. 26; KMR-Eschelbach48th, Section 231a marginal no. 43; AK-Keller, Section 231a marginal no. 11. Restricting the participation rights but giving him the possibility to make a statement: SK-Deiters, Section 231a marginal no. 45. Rejecting the right to be present when unfit to stand trial: Grünwald, JZ 1976, 767, 768; Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 166 et seq. Comprehensively: Warda, FS-Bruns. 193 Sections 230(2), 236 StPO. 194 LR-Becker, Section 231 marginal no. 22; Elberling, The Defendant in International Criminal Proceedings, 39. The BGH did not intervene such approach, so far: BGHSt 37, 249 (252 et seq.). 190

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court needs to exercise its discretion, as to whether the defendant’s continuing presence is necessary. Again the defendant needs to act deliberately when he absents himself.195 Section 231(2) StPO further applies when the accused, after the beginning of the main hearing, deliberately brings about his unfitness to stand trial in the knowledge that this will preclude proceedings in his presence.196 The defendant is seen to have abused his right to be present.197 There are no special safeguards provided for by law. However, it usually lies in the court’s interest and duty of care to inform the defendant about the content of the prior proceedings when he returns after a time of absence.198 (b) Misconduct by the defendant – Section 231b StPO The accused can further be removed from the courtroom due to his disorderly conduct if the court deems his presence not necessary. The removal can only be ordered if the defendant’s presence significantly disrupts the conduction of the hearing.199 The defendant can be excluded until there is no more sign that his presence is seriously detrimentally to the conduction of the proceedings.200 Regardless of his misconduct, the defendant needs to have the opportunity to make a statement on the charges.201 He will be informed about the crucial content of the proceedings during his absence upon return.202 (c) Trial against several defendants – Section 231c StPO In proceedings against several defendants the court may also authorise a defendant to absent himself during parts of the hearing that do not concern his case.203

195 Neuhaus, Der Grundsatz der ständigen Anwesenheit des Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 85 with further references. Critically: Eisenberg, NStZ 2012, 63, 65. 196 If he brought about the unfitness before the beginning of the main hearing, Section 231a StPO applies. See for example Eisenberg, NStZ 2012, 63, 66; AK-Keller, Section 231a marginal no. 19; Graf-Gorf, Section 231a marginal no. 7. Of other opinion: SK-Deiters, Section 231a marginal no. 9, who wants to apply a corrective interpretation of Section 231a StPO in order to apply the regulation to all cases where the defendant brought about his unfitness to stand trial. 197 Gollwitzer, FS-Tröndle, 459. 198 BGH NStZ-RR 2003 1, 2; Eisenberg, NStZ 2012, 63, 64 et seq. Of other opinion: AKKeller, Section 231a marginal no. 19 as the legislator deliberately distinguished between the defendant who has been heard on the charges and the one that has not. 199 Laue, JA 2010, 294, 297. 200 Section 231b StPO; RG 54, 110 (115). 201 Section 231b(1)(s. 2) StPO. 202 Section 231b(2) StPO in conjunction with Section 231a(2) StPO. 203 Section 231c StPO.

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However, this provision is rarely applied, as it is often difficult to predict whether the defendant will be affected by the proceedings.204 (d) Witness protection and importance as to the establishment of substantive truth – Section 247 StPO The court may further order the defendant to leave the courtroom and conduct exparte hearings during the examination of a co-defendant or a witness in the interests of establishing the truth or in order to protect the health of the person testifying or of the defendant.205 However, the defendant must be enabled to submit questions to the witness.206 (e) Safeguards during trial partially held in absentia In cases in which the main hearing, under the provisions of Section 231 et seq. StPO can be held in the defendant’s absence, he is entitled to be represented by a counsel empowered by a written power of attorney.207 The exceptions to the general presence rule further need to comply with the principle of proportionality208, at least where the decision to try the defendant (partially) in absentia lies in the court’s discretion. Again the regular remedies can be lodged against the conviction in the defendant’s partial absence. ee) Appeals stage and its in absentia framework The two regular remedies are an appeal on points of fact and law only against judgments of the lowest court (Berufung)209 and the appeal that is solely based on errors of law (Revision). (1) Appeal on grounds of fact and law – Berufung210 In Berufung proceedings, the presence of the accused is given slightly less importance than during trial. According to Section 329(2) StPO, the hearing must be 204

BGH NStZ 2010, 227; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 15 Section 247 StPO. Critically because of the broad interpretation of the criminal court in regard to liaison officers: Hassemer, JuS 1986, 25, 27 et seq. 206 BGH NStZ 2011, 534. 207 Section 234 StPO. 208 KMR-Eschelbach46th, Section 230 marginal no. 7. 209 This remedy is only applicable to first instance judgments rendered by the lowest court (Amtsgericht), i. e. the punishment does not exceed 4 years of imprisonment. 210 Due to a decision ECtHR, Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, the regulations of the Berufung have recently been amended. See for a detailed overview of the new regulation: Spitzer, StV 2016, 48. See also Frisch, NStZ 2015, 69, 72 et seq.; Böse, FS-Paeffgen, 586. 205

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conducted in the absence of the defendant, if a specifically empowered counsel211 is present or where the prosecution initiated the appeal212, unless the defendant’s presence is deemed necessary.213 The court finds the defendant’s presence essential in order to establish the truth or with a view to ensuring a fair trial.214 In that case the court is to summon and order him to appear. The defendant can further be forcibly brought to court.215 If he fails to show up, the appeal will be dismissed without hearing on the merits.216 The same applies if both the defendant and the empowered counsel do not appear to the opening of the appeal hearing, initiated by the defendant’s appeal, without sufficient excuse.217 There is, hence, a fiction that the defendant revoked his appeal.218 If the defendant properly empowered a counsel to defend him at the appeals hearing in his absence, both the defendant’s and counsel’s absence must cumulatively lack sufficient excuse.219 Similarly, the hearing is postponed where counsel or defendant have not been properly summoned to the hearing.220 In this regard, it is to be noted 211

The sole appearance of a legal representative is not sufficient to proceed in absence of the defendant. For the special power it is necessary for the defendant to personally empower counsel to represent him during a specific hearing of the Berufung in his absence: Section 329(1)(s. 1) StPO. See also Section 234 StPO; OLG Hamm, Decision, 22 November 2016, BeckRs 2016, 111318; BeckOK-Eschelbach, Section 329 marginal no. 32; Mosbacher, NStZ 2013, 312, 314; Spitzer, StV 2016, 48, 49; Walter, 128 ZStW 2016, 824, footnote 30. 212 Upon appearance of a specifically empowered counsel or the defendant personally, the hearing proceeds regularly but the appearing person is to be informed about the content of the hearing(s) that have been conducted before, Section 329(5) StPO. 213 Section 329(2) StPO. 214 SK-Frisch, Section 329 marginal no. 48. 215 Section 329(3) StPO. 216 Section 329(4)(s. 2) StPO. Against dismissal decision the defendant has two possible remedies. He can cumulatively apply for Wiedereinsetzung in den vorigen Stand and Revision: Section 342 StPO. See for details: Walter, 128 ZStW 2016, 824, 839 et seq. 217 Section 329(1)(s. 1) StPO. It should be noted that the opening of the appeal hearing not necessary refers to the first hearing. If there are several hearings, a default judgment can follow upon the unjustified absence: BeckOK-Eschelbach, Section 329 marginal no. 13; Spitzer, StV 2016, 48, 49. 218 Spitzer, StV 2016, 48, 49. See already for the old regulation: RGSt 61, 278 (280); BGHSt 15, 287 (289); 24, 143 (150). Of other opinion, also mentioning the idea of abuse of rights: BeckOK-Eschelbach, Section 329 marginal no. 13. 219 BT-Drs. 18/3562, p. 69; Spitzer, StV 2016, 48, 50; Walter, 128 ZStW 2016, 824, footnote 31. For example, a delay of up to 15 minutes does not justify a dismissal decision: LG Hamm, NStZ-RR 2009, 251; OLG Düsseldorf, NStZ-RR 2001, 303; OLG Frankfurt, NStZ-RR 2012, 258. Although this time frame has been mentioned in regard to sentence 2 it is also applicable to sentence 1: Spitzer, StV 2016, 48, 50. On the other hand, sickness of either counsel or defendant excuses the absence; the court cannot dismiss the appeal and needs to re-schedule the hearing: OLG Köln, Decision, 12 January 2016, LSK 2016, 06108; Decision, 24 June 2016, BeckRs 2016, 12522. See for a list of possible reasons: BeckOK-Eschelbach, Section 329 marginal no. 13. 220 OLG Köln, Decision, 24 June 2016, BeckRs 2016, 12522, para. 6; BayObLG, Decision, 19 March 2001, NStZ-RR 2001, 374 where, however, the appeal on points of law was finally

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that service by publication is an additional option to summon the defendant to the appeal hearing.221 The Berufung will further be dismissed if the defence counsel, representing the absent defendant, leaves the hearing or decides to no longer defend his client, or the, at the outset present, defendant disappears and is not represented by a counsel and, picking up Section 231a StPO, when the defendant is placing himself in circumstances where he is unfit to stand trial.222 Hence, the legislator decided to not apply the semel praesens semper praesens rule. In order to prevent a dismissal decision, the defendant can request to be released from his duty to be present during the appeal hearing such as he could in first instance.223 The defendant can apply for a restoration of the status quo ante if his (or his counsel’s) absence from the appeals hearing was nonculpable or they were not properly summoned.224 (2) Appeal on grounds of law – Revision A defendant may choose not to attend and to have himself represented by counsel in a hearing on an appeal on points of law.225 It is to be noted that a hearing in cases of Revision is conducted very seldomly.226 Generally, both the defendant and his counsel are to be informed of date and time of the hearing.227 In cases of mandatory defence dismissed as it was not asserted that counsel would have influenced the appeal judgment in favour for his client when he had been summoned. See also Spitzer, StV 2016, 48, 50. 221 E contrario Section 232(2) StPO. According to Section 145a(2) StPO, a summons to the defence counsel is possible. The usual time limit, summons one week before the hearing, is applicable: Section 217(1) StPO. 222 Section 329(1)(s. 2) StPO. As Spitzer, StV 2016, 48, 52 eloquently shows it is necessary also in these cases that there is no excuse for the absence. It should further be noted that Section 329(s. 2)(no. 3) StPO is not identical to its counterpart in Section 231a StPO. See for the details ibid. 223 Section 232 StPO similarly applies to the appeals stage. See inter alia Spitzer, StV 2016, 48, 51 . 224 Sections 329(7), 44(1) StPO. 225 Section 350(2) StPO. 226 According to Art. 349(1)-(4) StPO, the court can set the appeal aside by order where the appeal is not admissible or manifestly ill-founded and order the contested judgment to be set aside where it finds for the defendant’s benefit. This simplified procedure is in practice predominately used: Fezer, StV 2007, 40; KK-Gericke, Section 350 marginal no. 1; MeyerGossner/Schmitt-Schmitt, Section 338 marginal no. 7. In 2015 solely in about 7 % of the cases a main hearing was conducted: Übersicht über den Geschäftsgang bei den Strafsenaten des Bundesgerichtshofes im Jahre 2015, p. 3, www.bundesgerichtshof.de/SharedDocs/Downloads/ DE/Service/StatistikStraf/jahresstatistikStrafsenate2015.pdf?__blob=publicationFile (last accessed: 7 February 2021). 227 LR-Franke, Section 350 marginal no. 4. Also public notification is possible: KK-Gericke, Section 350 marginal no. 4.

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the defence counsel must be summoned.228 Hence, there is – except for the cases of mandatory defence – no duty neither for the defendant nor his counsel to be present, but they have a right to be present.229 The defendant can occasionally be ordered to personally appear where the court finds this necessary.230 The defendant in custody, on the other hand, is generally not entitled to take part in the hearing.231 He has no right to be present but he can request to be brought before court.232 Consent to this request is left to the (dutiful) discretion of the court.233 The appearance of the defendant in custody can occasionally also be ordered ex officio.234 A representation by counsel is mandatory for the defendant in custody.235 The hearing must be postponed if the defence counsel is unable to appear.236 The judgment that is on appeal has to inform the defendant that the appeals hearing may be conducted in his absence.237 ff) Video link procedure Video link procedures are made available especially in order to protect witnesses and victims.238 In these cases, the defendant remains in the courtroom and the testifying witness is located outside the court. However, as mentioned above, where the defendant is, upon his request, released from the duty to be present, a video link can be installed in order to question the defendant, which is a mandatory prerequisite when trying the defendant in absentia upon his request.239 The questioning via video link is, strictly speaking, not part of the main hearing, but a questioning conducted apart from the main hearing. Hence, the defendant is not entitled to follow the trial proceedings via audio-visual means when he is physically absent from court.

228

Section 350(1)(s. 2) StPO. LR-Franke, Section 350 marginal no. 6; BeckOK-Wiedner, Section 350 marginal no. 8. 230 Section 236 StPO. 231 Section 350(2)(s. 2) StPO. The BVerfG deems that not to be contrary to the constitution. See only: BVerfGE 65 171 (177). In this regard it is to be noted that Germany asserted a reservation to Art. 14(4)(d) ICCPR to make sure it can exclude the defendant in custody from the hearing of an appeal on points of law. 232 Section 350(3)(s. 1) StPO. 233 Critically, as to their opinion EU law requires the defendant’s presence: https://anwalt verein.de/de/newsroom/pm-30-18-gesetz-zur-staerkung-des-rechts-des-angeklagten-auf-anwe senheit-in-der-verhandlung-verfehlt-seinen-zweck?pdf=2 (last accessed: 7 February 2021). Supportive of the new regulation: KK-Gericke, Section 350 marginal no. 1. 234 Ibid., marginal no. 10; BeckOK-Wiedner, Section 350 marginal no. 9; OLG Koblenz, NJW 1958, 2027 (2928). 235 Section 140(1)(no. 4 and 5) StPO. 236 KK-Gericke, Section 350 marginal no. 6. 237 Section 35a StPO. 238 Section 247a StPO. 239 Section 433(2)(sentence 3) StPO. 229

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gg) Special procedures and their in absentia framework The following two special procedures are foreseen in the StPO which are regularly conducted in absentia. (1) Private prosecution In the case of some comparatively minor offences that affect the general public to such an insignificant extent that there is no public interest in prosecution, the injured party can nevertheless pursue his need for satisfaction for the injustice suffered by enforcing the state’s right to punishment by way of private prosecution.240 The offences that allow a private action do not lead to a high penalty. During a main hearing, which is conducted in the way of private prosecution, the defendant can empower defence counsel in writing to represent him during the hearing.241 In that case, the counsel replaces the defendant. However, it lies in the court’s power to order the defendant’s appearance where it is deemed to help establishing the facts or could lead to a settlement242 which is often the case in practice.243 (2) Penal order procedure German criminal procedure foresees an inaudito reo procedure in form of the penal order.244 Less than 15 % of the criminal procedures are terminated with a penal order.245 It is also a common surrogate upon the defendant’s nonappearance at trial.246 A judicial penal order can be issued only for minor crimes. Where counsel represents the defendant – a duty counsel may be appointed for that purpose – punishment of up to one-year imprisonment can be imposed upon the defendant.247 The defendant is, generally, to be heard by the prosecution before the issuance of the penal order. However, in practice, the missing hearing has no consequences for the defendant as he has the possibility to file an objection against the penal order that leads to the conduction of a regular trial.248 Therefore, usually the right to be heard is not granted 240

See Section 375 et seq. Section 387(1) StPO. 242 Section 387(3) StPO; Meyer-Gossner/Schmitt-Schmitt, Section 338 marginal no. 6. 243 SSW-Jofer, Section 387 marginal no. 4. 244 Critically: Ambos, Jura 1998, 281; Maleika, Freiheitsstrafe und Strafbefehl. See also Bommer, GA 2019, 1 et seq. 245 In 2017 13 % of investigations were terminated by issuance of a penal order: https: //www.destatis.de/DE/Themen/Querschnitt/Jahrbuch/jb-justiz.pdf?__blob=publicationFile (last accessed: 7 February 2021). Morgenstern, JR 2016, 237, 238 speaks of half of the proceedings, though this includes also penal orders upon nonappearance of the defendant. 246 Sections 408a, 418(3) StPO; Schroeder/Verrel, Strafprozessrecht, § 25 marginal no. 184; Weigend, Reform Proposals on Dutch Criminal Procedures, 171. 247 Sections 407, 408b StPO. 248 Sections 163a, 410, 411 StPO. 241

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before the penal order.249 The objection may be filed within 14 days after reception of the penal order. Following the defendant’s objection, specifically empowered counsel can represent the defendant.250 However, upon unjustified nonappearance of neither counsel nor defendant the court is to render a default judgment and dismiss the objection.251 hh) Summary While criminal investigations tend to be secret, German criminal procedural law attaches particular importance to the presence of the defendant during the trial instituted against him in order to enable the court to ascertain the truth. Trial in the full or partial absence of the defendant can only be conducted under narrow conditions or special proceedings. With the exception of minor crimes, the accused cannot voluntarily waive his right to be present. The principle of presence applicable in German criminal proceedings therefore includes both a comprehensive right and duty to be present. Moreover, no main hearing will be conducted against the untraceable defendant. In contrast, during appeals proceedings the defendant’s presence is of lesser importance. b) Switzerland For a long time, there was no uniform criminal procedural law in Switzerland. Each canton regulated criminal proceedings individually and had its own criminal procedural code. Accordingly, regulations for the conduction of procedures in absentia varied significantly.252 However in 2011 the federal CH-StPO has been introduced and is applicable to all alleged misconduct to the Federal Criminal Code. Regional procedures remain applicable for cantonal offences. However, the federal legislator advocates that the cantons should also apply the federal unified criminal procedure for these cases.253 The following remarks will, therefore, only address the federal CH-StPO. The right to be present during criminal proceedings is not expressly provided for in Swiss (criminal procedural) law. It, however, follows from a wide range of provisions. Pertinent international law norms, such as Art. 6 ECHR and Art. 14 ICCPR, bind the Swiss criminal justice institutions as – following a monistic tradition – they are part of the domestic legal order. In addition to those international norms, the right 249

Kühne, Strafprozessrecht, marginal no. 1129 Section 411(2) StPO. 251 Sections 412, 329 StPO. 252 See for details: Denz, Zulässigkeit und Umfang des Strafverfahrens gegen Abwesende, 162 et seq. For the general diversity in the cantonal laws: Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 15. 253 BBl 2006 1127. 250

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to a fair trial is ensured by the constitutional provision of Art. 29(1) BV. The right to be present can further be deduced from the right to be heard which is acknowledged in Art. 29(2) BV. Both rights, the right to a fair trial and the right to be heard, are derived from the protection of human dignity, which is of constitutional rank and the highest principle of Swiss law.254 Its main provision with regard to criminal procedure is to treat the parties concerned by a criminal procedure as subjects and not mere objects of the proceedings.255 On some occasions, especially during trial – except in cases of minor offences – the defendant is also obliged to be present. Nonetheless, there are several exceptions to the general presence requirement. aa) Investigative stage and its in absentia framework Although the defendant already during the investigations has a right to be present, the defendant generally has no duty to be present during criminal investigations. Only as an exception a duty to be present imposed upon him, which requires his physical presence. Whenever a duty to be present exists, the accused has to be properly summoned.256 The defendant is required to follow the summons, regardless of whether his assistance during the procedural step he was summoned for is indeed required.257 As a compulsory measure the summons affects the defendant’s fundamental rights.258 The issuance of a summons, therefore, requires a reasonable suspicion that an offence has been committed and needs to be in line with the principle of proportionality.259 The typical example for an obligation to be present is naturally the questioning of the accused by the state authorities, which may occur at any stage of the proceedings.260 Another case where the presence of the accused is required during the investigations or the main proceedings is the visual inspection ‘combined with the 254

Art. 7 BV; Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 25 et seq. The human dignity concerns not only criminal proceedings but any acting by state authorities. See as for the human dignity in Swiss law: BSK-StPO-Thommen, Art. 3. Swiss doctrine is based on the German public law professor Dürig, 81 AöR 1957, 127, who again significantly relies on Kant, Akademie Ausgabe von Immanuel Kants gesammelten Werken, Vol. VI: Metaphysik der Sitten, 462 “denn der Mensch kann von keinem Menschen [..] bloß als Mittel, sondern muss jederzeit zugleich als Zweck gebraucht werden und darin eben besteht seine Würde.” 255 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 25. 256 BBl 2006 1217; Art. 201 et seq. CH-StPO; cf. also Denz, Zulässigkeit und Umfang des Strafverfahrens gegen Abwesende, 165, 171 et seq. 257 Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 983. 258 BBl 2006 1215 et seq. 259 Art. 197(b), (c) CH-StPO As for the details of content, service, competent authority etc. see Christen, Anwesenheitsrecht, 108 et seq. 260 Art. 157(1) CH-StPO. The defendant as means of evidence is treated as object to the proceedings: Pieth, Schweizerisches Strafprozessrecht, 88; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 668.

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reconstruction of the crime or a confrontation hearing’.261 This does not include an obligation to assist the on-site inspection.262 If the defendant opposes the summons, other compulsory measures can and shall be taken to secure his appearance.263 The record of the on-site inspection can, however, be used as evidence regardless of his (unexcused) nonappearance.264 The investigation, or pre-trial procedure, is the key element of Swiss criminal proceedings as most of the evidence is taken during the investigative phase.265 It is, hence, decisive for the outcome of the criminal procedure.266 The pre-trial procedure usually starts with investigations by the police267 and is followed by investigations conducted by the prosecution. Having clarified that, it is important to note that the majority of the procedural rights given to the defendant only apply as of the investigations by the prosecution,268 the right to a defence counsel and his presence during the suspect’s examination by the police is the only exception.269 The investigation by the police can, therefore, be described as a secret procedure, which is generally conducted in the defendant’s absence. The defendant has no right to be present, nor rights to participate in the proceedings.270 Naturally, his presence is required during his examination by the police. That is, at the same time, the only procedural act where the defence counsel is allowed to participate, in that function known as “counsel of the first hour”.271 A majority of the doctrine is rather critical as

261

Art. 193(5)(b) CH-StPO. BBl 2006 1214; Riklin, Art. 193 marginal no. 8; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 964. 263 Christen, Anwesenheitsrecht, 213 et seq. 264 Donatsch/Hansjakob/Lieber-Donatsch, Art. 193 marginal no. 36. 265 Trechsel, 96 ZStR 1979, 337, 391; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 1206; cf. also Riedo/Fiolka/Niggli, Strafprozessrecht sowie Rechtshilfe in Strafsachen, Section 53 marginal no. 2425; differently BGE 116 Ia 36 E.3.b.aa asserting that the trial is the core element of the criminal procedure. This is, however, not in line with the practical approach. 266 Christen, Anwesenheitsrecht, 68; Hürlimann, Die Eröffnung einer Strafuntersuchung, 66. 267 Starting point of the investigative phase is the beginning of investigative actions by the police and does not require a formal act of opening: Art. 300(1)(a) CH-StPO. Theoretically this stage can be skipped when the prosecution opens the proceedings before any investigative actions have been taken by the police: Art. 300(1)(b). 268 Ruckstuhl/Dittman/Arnold, Strafprozessrecht, 292 et seq. 269 Art. 129, 159(1) CH-StPO. Additionally, the right to communicate freely with the counsel when being in custody. That can be deducted from Art. 147(1), 159 CH-StPO. It was, however, differently before implementation of the federal procedural code. See the overview by Erni, 125 ZStR 2007, 229 et seq. 270 BBl 1187; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 821. 271 See only: BSK-Schleiminger, Art. 147 marginal no. 6. 262

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to the lack of rights during police investigations and notices that an undermining of defence rights has to be prevented.272 This status lasts until the prosecution formally opens the investigations, if there is a reasonable suspicion that an offence has been committed.273 In the moment when the prosecution has taken lead of the investigations, both the defendant and his counsel have comprehensive rights to be present and participate in all procedural steps and investigative measures and can study the case file274 ; restrictions are only allowed within narrow boundaries.275 This also applies when the police carry out examination hearings and investigative measures on behalf of the prosecution.276 In order to meet the requirements of the right to confrontation both the prosecution and the defendant can test the evidence and especially examine witnesses and potential victims.277 This prevents the need for repetition during the trial phase.278

272

Camenzind/Imkamp, 117 ZStR 1999, 199 et seq.; Hürlimann, Die Eröffnung einer Strafuntersuchung, 65 et seq.; Trechsel, 96 ZStR 1979, 337, 391; more reserved Goldschmid/ Maurer/Sollberger, Art. 306, 309; Schubarth, Die Rechte des Beschuldigten im Untersuchngsverfahren, besonders bei Untersuchungshaft, 230. Most of these critical voices, however, apply to the cantonal procedures during most of which considerable parts of the investigation were carried out by the police: Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 75 marginal no. 35; Müller-Hasler, Die Verteidigungsrechte im zürcherischen Strafprozess, 36. As for the CH-StPO: Christen, Anwesenheitsrecht, 194 et seq. In this regard the legislators guidance that the prosecution shall open the proceedings if there is any doubt as to the sufficiency of the suspicion can be positively noted, BBl 2006 1263. Especially in regard to the counsel of the first hour Pieth, Schweizerisches Strafprozessrecht, 96 et seq. is pleased that the counsel of first hour has been introduced but is still critical as to the effectiveness of the regulation as the files cannot be inspected before the first examination. 273 Art. 309 CH-StPO. For the problem of formal and substantive opening of the procedure by the prosecution see Hürlimann, Die Eröffnung einer Strafuntersuchung, 163 et seq. 274 Art. 107, 147, 312(2) CH-StPO. Though the full right to inspect the case file only starts after the defendant’s first interrogation, Art. 101(1) CH-StPO. 275 Riklin, 112 ZStW 2014, 173, 178. See for the restrictions Art. 108 CH-StPO. 276 Art. 15(2), 142(2), 312 CH-StPO; BBl 2006 1265 et seq.; Albertini, Einstellung des Verfahrens und Anklageerhebung, 559; Riklin, Art. 147 marginal no. 1. This has to be strictly distinguished from the possibility to return the files to the police pursuant to Art. 309(2) CHStPO as the prosecution in this case does not see sufficient indications that an offence has been committed and returns the files for purposes of further enquiries by the police. In this case, the investigations by the prosecution have not been opened, so that the phase of investigations by the police has never been left. Some scholars want to extend Art. 312(2) CH-StPO to all procedural actions taken on behalf of the prosecution as they do not see why the defence rights shall be undermined for other actions taken during additional enquiries: Christen, Anwesenheitsrecht, 196 et seq.; Donatsch/Hansjakob/Lieber-Landshut/Bosshard, Art. 312 marginal no. 11a; against this: Brunner/Heimgartner, FS-Donatsch, 285; Goldschmid/Maurer/Sollberger, Art. 147. 277 Cf. Riklin, 112 ZStW 2014, 173, 180. 278 Ibid.

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(1) Proceedings in absentia against the defendant whose whereabouts are unknown Apart from measures to trace the whereabouts of the defendant,279 no investigations by the prosecution are conducted against an accused person whose whereabouts are unknown.280 If the defendant’s whereabouts remain unknown, the prosecution may temporarily suspend the proceedings,281 save for the gathering of evidence that might otherwise be lost.282 If the defendant never appears, a suspension is permanent. That is, as will be shown further below, due to the fact that a main hearing in absentia requires that the defendant had the possibility of giving a statement beforehand.283 (2) Proceedings in absentia during the taking of evidence by the prosecution According to Art. 147 CH-StPO, the defendant has the right to be physically present during any taking of evidence and to question and confront witnesses, victims and other persons providing information.284 If the right to be heard has been restricted and the reason for the restriction has ceased to apply, the right to be heard must be granted in a suitable form retrospectively.285 It can, therefore, exceptionally be healed in a higher instance.286 This may require the repetition of certain acts that did not recognise the accused’s defence rights or the defendant needs to have the opportunity to comment on the evidence that has been taken and ask follow up questions.287 Notwithstanding the clear wording, partial absences of the accused during the taking of evidence are permitted where it is required for the safety of persons or to safeguard private or public interests in preserving confidentiality.288 The latter for

279

Art. 210 CH-StPO; Jeanneret/Kuhn, FS-Donatsch, 362 et seq. Commentaire Romand-Cornu/Grodecki, Art. 314 marginal no. 7; Jeanneret/Kuhn, FSDonatsch, 362; Schmid, Art. 367 marginal no. 10. 281 Art. 314(1)(a) CH-StPO. 282 Art. 314(3) CH-StPO. 283 Jeanneret/Kuhn, FS-Donatsch, 363; see below F. II. 2. b) bb) (1) (b). 284 BBl 2006 1187; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 821; Donatsch/Hansjakob/Lieber-Wohlers, Art. 149 marginal no. 5. 285 Art. 108(5) CH-StPO. 286 Instead of many: BGE &B_194/2009 E.2.4; 130 I 234 E. 4.2; 130 I 132 E.3.1; 129 I 361 E.2.1, 126 I 72 E.2. 287 BBl 2006 1187; Christen, Anwesenheitsrecht, 156. However, the older jurisprudence deemed it sufficient when the accused person has been given the possibility to use his defence rights once during the proceedings instituted against him. This, however, does not seem in line with the wording of Art. 147 CH-StPO of the new CH-StPO: ibid., 199 et seq. Similarly critical as to the healing: Bischoff, Die Anonymisierung gefährdeter Zeugen im Stafprozess, 87; Trechsel, Human Rights, 102 et seq. with further references. As for the ECHR: Gaede, Fairness als Teilhabe, 299 et seq. 288 Art. 108(b) CH-StPO. 280

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example applies to business secrets289 or protection of privacy.290 The possibility to proceed in absentia for the safety of persons is regulated in more detail in Art. 149 et seq. CH-StPO. It is mainly applicable for the purpose of witness protection. However, the threshold for conducting such ex-parte hearings is high. It requires the exposure to a serious danger to life and limb or any other serious prejudice such as for example mental injuries or grave property damages.291 With regard to the protection of victims, Art. 152(3) CH-StPO foresees the possibility of a victim’s request to not encounter the defendant. That implies that the victims’ interests generally outweigh the accused’s right to be heard and present.292 In return, the presence of the defence counsel can generally not be restricted for reasons of victims’ protection since this substitutes the defendant’s restriction of rights.293 Additionally, both restrictions supporting the witness protection require that the defendant’s rights to be heard and to effectively make use of his defence rights need to be respected.294 The law remains silent as to the manner in which this can be implemented. Doctrine and jurisprudence speak of measures of substitution (Ersatzmaßnahmen) such as questioning in writing, through counsel or via video link.295 To accommodate the right to be heard some scholars further request that the questioning be broadcast via video link to the defendant.296 289 Christen, Anwesenheitsrecht, 150; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 114. 290 BBl 2006 1165. 291 Art. 149(1) CH-StPO; Donatsch/Hansjakob/Lieber-Wohlers, Art. 149 maraginal no. 7. Justification for the proceedings in absence of the accused are in particular Art. 149(1)(b), (c) CH-StPO. It has to be noted that the standards are stricter for liaison officers in line with ECtHR, van Mechelen et al. v. the Netherlands, Judgment, 23 April 1997, Appl. No. 21363/93, para. 60, and contrary to the old BG jurisprudence, e. g. BGE 103 I a 490 E.8, 112 I a 18 E.5, more strict. 292 Cf. BGE 1P.650/2000 E.3.d; Christen, Anwesenheitsrecht, 157. 293 BBl 2006 1189; Frei, Mitwirkungsrechte im Strafprozess, 126; Hug, 116 ZStR 1998, 404, 413, who finds the counsel’s presence a necessity in order to effectively substitute the defendant’s rights; Schmid, 11 AJP 2002, 619, 625; Weder, 113 ZStR 1995, 39, 49; Weishaupt, Die verfahrensrechtlichen Bestimmungen des Opferhilfegesetzes (OHG) unter besonderer Berücksichtigung ihrer Auswirkungen auf das Zürcher Verfahrensrecht, 166 et seq. 294 Art. 149(5), 152(3) CH-StPO. 295 Christen, Anwesenheitsrecht, 206; Demko, 122 ZStR 2004, 416, 431; Hug, 116 ZStR 1998, 404, 413; Pieth, Schweizerisches Strafprozessrecht, 105; Scheidegger, Minderjährige als Zeugen und Auskunftspersonen im Strafverfahren, 243 et seq., especially in regard to children: 249 et seq.; Schleiminger, Konfrontation im Strafprozess, 315 et seq. The latter two give a wide range of examples for possible Ersatzmaßnahmen. Cf. also BGE 129 I 151 E.5; Weder, 113 ZStR 1995, 39, 49; Donatsch/Hansjakob/Lieber-Wohlers, Art. 149 marginal no. 10. As regards Art. 152 CH-StPO consent by the defendant is necessary in order for the Ersatzmaßnahme to have a supplementing function: Weder, 113 ZStR 1995, 39, 49. 296 Christen, Anwesenheitsrecht, 206; Scheidegger, Minderjährige als Zeugen und Auskunftspersonen im Strafverfahren, 249 et seq.; Schleiminger, Konfrontation im Strafprozess, 315 et seq.; Weder, 113 ZStR 1995, 39, 49. Cf. also BGE 129 I 151 E.5; Donatsch/Hansjakob/ Lieber-Wohlers, Art. 149 marginal no. 10.

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According to Art. 145 CH-StPO, the criminal justice authorities can invite a person, who is to be examined to provide a written report to substitute the examination or to supplement it.297 Reports are often requested from expert witnesses.298 However, the report can only be used as evidence if the defendant had the possibility to make use of his participation and confrontation rights.299 Art. 144 CH-StPO further allows for the examination of a witness via video link. As it infringes the defendant’s right to be physically present, the video link testimony is only subsidiarily applicable when the appearance of the person to be questioned is not possible or only possible with unreasonable trouble and expense.300 In view of the short distances in Switzerland, the video link seems relevant only to testimonies of international nature carried out abroad in context of a request for mutual assistance or illness of the person to be questioned.301 According to Art. 148 CH-StPO, the examinations conducted upon a request for mutual assistance can generally be conducted in absentia. Allowing a video link can, hence, extend the defendant’s rights, as he usually is only entitled to question a witness, examined in context of mutual legal assistance, in writing.302 Restrictions to be present can also be imposed on the accused when there is a justified suspicion that he is abusing his rights.303 All exceptions have to be in line with the principle of proportionality.304 These measures are exclusively applicable for a limited time period and individual procedural acts.305 They, further, do not apply to the defence counsel, unless the counsel gives personal cause to impose a restriction upon him.306

297

Donatsch/Hansjakob/Lieber-Godenzi, Art. 145 marginal no. 4. Riklin, Art. 146 marginal no. 2; cf. also Christen, Anwesenheitsrecht, 206. 299 Donatsch/Hansjakob/Lieber-Godenzi, Art. 145 marginal no. 10. 300 Ibid. 301 Riklin, Art. 144 marginal no. 1. 302 Art. 148(1)(c) CH-StPO; Christen, Anwesenheitsrecht, 211. 303 Schmid, 11 AJP 2002, 619, 625. 304 Ibid.; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 115. The Zürich court for example found the acoustic broadcast not proportional as the accused needed to see the witness: Blätter für Zürcherische Rechtsprechung, 105 (2006) Nr. 44 E.7.2.4. 305 Art. 108(3) CH-StPO. 306 Art. 108(2) CH-StPO. Of other opinion: Graf, Parteien und andere Verfahrensbeteiligte, 172 et seq. who submits that the interest to investigate the criminal offence requires a broad application of the statutory regulations to both counsel and accused in order to prevent any abuse as the damage the abuse of rights might cause, cannot be reverted. Not only is this interpretation against the wording, it also disregards the principle of proportionality, to which Art. 108 CHStPO is obviously dedicated to. Finally, the legislator made clear that the exposure of interests to conduct criminal proceedings alone does not justify restrictions to the right to be heard: BBl 2006 1164; Christen, Anwesenheitsrecht, 155; as for the restriction of the right to inspect the files similarly: Pieth, Schweizerisches Strafprozessrecht, 93 et seq. 298

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F. Trials in absentia as general principle?

With regard to the taking of items of evidence, Art. 192 CH-StPO foresees the right of the parties to access the files and inspect these items immediately after they have been taken. This regulation takes account of the fact that the defendant’s presence, while taking items of evidence is regularly de facto not possible and, therefore, conducted in his absence.307 Also, the visual on-site inspection can in some cases be conducted in absentia, although the defendant generally has a right to be physically present.308 That is, if there is any risk of delay or the objective can only be reached via unannounced inspection.309 The accused likewise has to be given the opportunity to comment on the visual inspection taken in his absence.310 The defendant has to be notified on the recourse to other files according to Art. 194 CH-StPO, so he can inspect the files as it seems de facto impracticable to be present during the process of requesting the files.311 Finally, the criminal justice authorities can ask for official reports, medical assessments any other information relevant to clarify the personal circumstances of the defendant.312 As for the safeguards, one has to note that the defence counsel can – in case of a mandatory or duty defence, must – exercise the defence rights throughout the investigative actions conducted in absentia.313 (3) Private settlement hearing During a hearing aiming for a settlement agreement the defendant’s presence is not required. According to Art. 316(4), 93 CH-StPO the defendant is in default if he without excuse fails to appear. It will be interpreted as a lack of intention to settle and the investigation proceeds.314 The defendant has to be notified about this rather strict 307 Ruckstuhl, Vertretung von Tatverdächtigen im Vorverfahren, 118. That is for example when a person is required to surrender items: Christen, Anwesenheitsrecht, 212. 308 Art. 193(2) and 147(1) CH-StPO. 309 Armbruster/Vergères, Sachliche Beweismittel, 297; Christen, Anwesenheitsrecht, 213; Frei, Mitwirkungsrechte im Strafprozess, 132; Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 65 marginal no. 18; Oberholzer, Grundzüge des Strafprozessrechts, 1062; cf. also BGE 121 V 150 E.4.b; 113 Ia 81 E.3.a; 112 Ia 5. 310 Christen, Anwesenheitsrecht, 213; Frei, Mitwirkungsrechte im Strafprozess, 132; Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 65 marginal no. 18; cf. also BGE 121 V 150 E.4.b; 113 Ia 81 E.3.a; 112 Ia 5. 311 Christen, Anwesenheitsrecht, 214; Donatsch/Hansjakob/Lieber-Donatsch, Art. 193 marginal no. 10 et seq. 312 Art. 195 CH-StPO. It has to be noted that there is no requirement for private persons to comply with the request if he has the right to refuse to give evidence such as the defendant’s doctor, Riklin, Art. 195 marginal no. 4. 313 Jeanneret/Kuhn, FS-Donatsch, 363. 314 Donatsch/Hansjakob/Lieber-Landhut/Bosshard, Art. 316; Jeanneret/Kuhn, FS-Donatsch, 365.

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consequence in the invitation to the settlement hearing.315 It is possible to be represented by counsel during the hearing, provided the counsel is authorised to make a settlement for the defendant.316 In that respect, it should be noted that the settlement does not include an admission of guilt by the defendant, which would certainly require a personal statement.317 bb) Trial stage and its in absentia framework The comprehensive right to be present also attaches during the trial. According to Art. 336(1) CH-StPO, the defendant is obliged to be present during the main hearing if the trial concerns misdemeanours or felonies. This obligation is predominantly justified with the criminal justice authorities’ duty to establish the substantive truth and the state’s duty of care to guarantee the defendant’s right to be heard.318 Others refer to the personal impression of the accused a judge can only gain if the defendant is present.319 In spite of this, Swiss criminal procedure expressly provides for trial in absentia. (1) Trial entirely held in absentia – Kontumazialverfahren The actual trial in absentia in Swiss Criminal procedure is – and already was before the CH-StPO in most of the cantonal procedures – designed as contumacy procedure.320 Accordingly it is known as Kontumazialverfahren and is regulated in Art. 366 – 371 CH-StPO. In practice, the Kontumazialverfahren no longer plays a major role. In 2014 only 327 judgments were rendered after a trial in absentia.321 315

Jeanneret/Kuhn, FS-Donatsch, 365; Schmid, Art. 147 marginal no. 5. Christen, Anwesenheitsrecht, 198. 317 Ibid. 318 Donatsch/Hansjakob/Lieber-Gut/Fingerhuth, Art. 336 marginal no. 5; Schmid, FSRehberg, 287. To my understanding there is not such broad discussion as to the defendant’s duty to be present at one’s trial as there is in German doctrine. This is most likely in virtue of the fact that there is in fact a proceeding in absentia provided for and particularly because of the minor importance of the main hearing compared to the pre-trial proceedings. The justification of an imposition of a duty to be present will be discussed further below G. II. 2. 319 Christen, Anwesenheitsrecht, 17 et seq.; Marti, Das Verfahren gegen Abwesende nach der neuen aargauischen Strafprozeßordnung vom Jahre 1958, 84. 320 See for the former cantonal proceedings: Denz, Zulässigkeit und Umfang des Strafverfahrens gegen Abwesende, 179 et seq. Critically in regard to the trial in absentia and pleading for its abolition especially the older doctrine: Gertsch, Das Kontumazialverfahren nach der Französischen, Deutschen und Schweizerischen Strafprozessgesetzgebung, 133 et seq.; Pfenninger, 93 SJZ 1957, 333, 336 et seq.; Stooss, 23 ZStR 1910, 241, 242 et seq. 321 In contrast, in the last five years prior to the introduction of the federal CH-StPO, 8.885 in absentia judgments were rendered. See Bundesamt für Statistik, Strafurteilsstatistik 1984 – 2014 (https://www.bfs.admin.ch/bfs/de/home/statistiken/kataloge-datenbanken/publikationen. assetdetail.350337.html (last accessed: 7 February 2021)). 316

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F. Trials in absentia as general principle?

The nonappearance of the accused at the main hearing is, according to more recent voices, interpreted as waiver of his right to be present.322 The waiver allows the court to initiate the Kontumazialverfahren. This has several implications as to the requirements for the conduction of such trial in absentia. (a) Proper summons and summoning to a second hearing Firstly, an unequivocal waiver requires sufficient information. Hence, the trial in absentia can only be conducted after the defendant has been properly summoned. The proper summons is, therefore, the first requirement to conduct a main hearing in the accused’s absence. The summons is generally to be served either personally or to another person living in the household to the domicile or habitual place of residence of the defendant.323 Additionally, the summons can be delivered via public notice, i. e. publication in the official gazette, when the whereabouts of the accused person are unknown, the service via the usual means is impossible or exceptionally inconvenient.324 Knowledge of the trial procedure instituted against the defendant is, hence, not certain unless the defendant was summoned personally. When the accused does not appear at the main hearing, before conducting a trial in absentia, a second hearing will be set and the defendant will newly be summoned.325 According to Art. 366(2) CH-StPO, the trial in absentia generally only starts if the defendant fails to appear at this re-arranged hearing. Exceptionally, the trial in absentia can be conducted immediately. This is possible when the defendant deliberately brought about his unfitness to stand trial or if he is in custody and refuses to be transferred to the court.326 Finally, although not expressly mentioned, the court has to take all reasonable steps to provide for the defendant’s presence.327 That is to take all possible means to bring about the defendant’s presence (Gestellungsmaßnahmen), namely the imposition of a fine or issuing a warrant of appearance.328

322

Jeanneret/Kuhn, FS-Donatsch, 365. Art. 85 et seq. CH-StPO. 324 Art. 88(1), 202(2) CH-StPO; critically – although in regard to the previous cantonal procedures – as this leads to a fiction of a proper summons: Gertsch, Das Kontumazialverfahren nach der Französischen, Deutschen und Schweizerischen Strafprozessgesetzgebung, 133; Marti, Das Verfahren gegen Abwesende nach der neuen aargauischen Starfprozeßordnung vom Jahre 1958, 54. 325 Art. 366(1) CH-StPO. 326 Art. 366(3) CH-StPO. 327 BBl 2006 1299; Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 91 marginal no. 5; Riklin, Art. 366 marginal no. 2; as for the Zürich Procedural Law: Schmid, FS-Rehberg, 287; as for the previous procedural laws: Pfenninger, 52 SJZ 1956, 134, 136 et seq. 328 Art. 205(4) CH-StPO; Chen, Der Verzicht auf Verfahrensrechte durch die beschuldigte Person im Schweizerischen Strafprozess, 188. 323

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(b) Prior statement by the defendant and sufficient evidence Art. 366(4) CH-StPO establishes two further prerequisites. Firstly that the accused has had the opportunity to give a statement on the charges and secondly that sufficient evidence is available to reach a verdict in the absence of the accused. As for the former requirement, the vast majority of the scholars sees only a statement to the prosecution – or on behalf of it – as sufficient.329 The requirement of a prior statement is the reason why the Swiss procedure does not allow trying a fugitive in absentia who has never appeared before the criminal justice authorities. In contrast, when the defendant absconded after he has been given the opportunity to make a statement, a trial in absentia, following the public notice of the summons, is possible. In this regard, it is certain that the defendant had knowledge of the criminal procedure instituted against him. The latter requirement, sufficiency of evidence, underlines the fact, that the standard of proof does not differ from ordinary proceedings because the accused is tried in absentia.330 (c) Court’s discretion If one of these essential conditions is not met, the court either suspends or abandons the proceedings altogether.331 Where the requirements for a trial in absentia are met, it lies in the court’s discretion whether to proceed in absentia. This discretion exists throughout the proceedings in absentia. The court can, after the conclusion of the parties’ submissions, decide, whether to render a judgment or to suspend the proceedings until the defendant appears.332 When the court decides to conduct a trial in absentia, in principle, the rules of the ordinary proceedings in the first instance apply.333 The parties then have the possibility to make submissions and the judgment shall be based on the evidence taken in the pre-trial proceedings and during the main hearing.334

329 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 326; Riedo/Fiolka/Niggli, Strafprozessrecht sowie Rechtshilfe in Strafsachen, marginal no. 2708; Schmid, Art. 366 marginal no. 9; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 1401; Donatsch/Hansjakob/Lieber-Summers, Art. 368 marginal no. 23; cf. also Hauser/ Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 91 marginal no. 12. BSKMaurer, Art. 366 marginal no. 16 sees only for minor crimes the possibility that the police can take the accused’s statement. 330 Jeanneret/Kuhn, FS-Donatsch, 366; this point is also stretched by Pfenninger, 52 SJZ 1956, 134, 138, who sees this an essential requirement to justify a trial in absentia. 331 Art. 329(2), (4) CH-StPO; Jeanneret/Kuhn, FS-Donatsch, 366. 332 Art. 367(2) CH-StPO. Schmid, Art. 366 marginal no. 7 asserts that the suspension of the proceedings before the conduction of the main hearing in absentia will be usually preferable. 333 Art. 367(4) CH-StPO. 334 Art. 367(1), (2) CH-StPO.

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(d) Safeguards As for the safeguards, in case of mandatory defence, the counsel has to be present and plead,335 in other cases he at least has the right to be present and represent the defendant.336 (e) Remedies against in absentia judgments The in absentia judgment needs to be served personally; a public notification is not sufficient.337 Upon notification, the convicted person has ten days to apply for a re-assessment of the case by submitting a brief explanation why he was unable to attend the proceedings.338 The application is to be rejected when the convict was duly summoned and had no excuse for his nonappearance.339 Thus, the accused’s failure to appear must be culpable.340 The requirements regarding the excusal are, however, modest and include any objective or subjective impossibility to appear, possibly also due to personal reasons or an error.341 Despite the accused’s burden to justify his nonappearance, the burden of proof is placed on the state authorities.342 A new hearing will be set for the re-assessment where decision upon the application will be taken.343 If the application is granted, an entirely new main hearing with taking of all relevant evidence will be conducted, which leads to a new judgment which replaces the judgment in absentia when it becomes binding.344 The prohibition of reformatio

335

Jositsch, Grundriss des schweizerischen Strafprozessrechts, marginal no. 563; Schmid, Art. 367 marginal no. 1. 336 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 326; cf. Pfenninger, 52 SJZ 1956, 134, 138; Riedo/Fiolka/Niggli, Strafprozessrecht sowie Rechtshilfe in Strafsachen, 2714. 337 Art. 368(1), (2) CH-StPO; Jeanneret/Kuhn, FS-Donatsch, 368; Riklin, Art. 368 marginal no. 1; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 1409; Donatsch/Hansjakob/Lieber-Summers, Art. 368 marginal no. 2. 338 Art. 368(1) CH-StPO. 339 Art. 368(3) CH-StPO. Critically in regard to the requirement that the absence was not culpable: Pfenninger, 52 SJZ 1956, 134, 142. 340 Schmid, Art. 368 marginal no. 6; Poncet/Sträuli, FS-Schmid, 685. 341 BGE 127 I 213 E.3.a; 129 II 56 E.6.4; Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 327; Donatsch/Hansjakob/Lieber-Summers, Art. 368 marginal no. 8 et seq.; see also Schmid, Art. 368 marginal no. 6, who even asserts that the application for re-assessment is generally to be granted. 342 BBl 2006 1301 et seq.; Riklin, Art. 368 marginal no. 2; Donatsch/Hansjakob/LieberSummers, Art. 368 marginal no. 12 et seq. 343 Art. 369(1) CH-StPO; Riklin, Art. 369 marginal no. 1. 344 Art. 370(2) CH-StPO. See regarding the impacts on the statutes of limitation for enforcement and the statute of limitation for investigations which is broadly discussed: Clerc, 69 ZStR 1954, 194; Pfenninger, 52 SJZ 1956, 134, 143 et seq.; Riklin, 113 ZStR 1995, 161. One has to note that the evidence taken during the in absentia hearings are still to be used where the newly taking of evidence is impossible, Schmid, Art. 369 marginal no. 3.

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in peius does not apply.345 If the convicted again fails to appear at the newly set hearing, the judgment in absentia remains valid.346 The defendant can also appeal the conviction rendered in his absence on the ground that the requirements for a procedure in absentia were not met.347 The result is similar to the re-assessment of the case: the case will then be quashed and sent back to the first instance.348 However, the re-assessment precedes the appeal. Thus, the convicted person can only file an appeal where he withdraws the request for re-assessment or such application was rejected by the court.349 (2) Trial partially held in absentia Swiss Criminal procedure also provides for several options to try defendant’s partially in their absence. (a) Preliminary hearing Before the trial hearing, the court can decide to conduct a preliminary hearing in preparation and organisation of the main hearing. Art. 332(1) CH-StPO speaks of a summons to said hearing, which indicates that a duty to be present is imposed upon the defendant. Nevertheless, according to the doctrine no obligation to be present exists; organisational dispositions can be made in absentia.350 During these preliminarily proceedings, settlements can be made. In regard to the defendant’s presence the same regulations as discussed above apply.351 (b) Semel praesens semper praesens On the other hand, after preliminary matters have been dealt with in the defendant’s presence, he can leave the court and the hearing resumes.352 In this regard, leaving the procedure equates the case where the defendant deliberately brings about

345

Jeanneret/Kuhn, FS-Donatsch, 368; BSK-Maurer, Art. 366 marginal no. 13. Art. 369(4) CH-StPO. 347 Jositsch, Grundriss des schweizerischen Strafprozessrechts, marginal no. 569. 348 Art. 409 CH-StPO. 349 Art. 369(4), 371 CH-StPO; Jeanneret/Kuhn, FS-Donatsch, 372. If another party filed the appeal, the appeals procedure will be suspended; with rendering of the new judgment the appellate proceedings and any decisions taking therein become void: Art 369(2) CH-StPO; Donatsch/Hansjakob/Lieber-Summers, Art. 368 marginal no. 9 et seq. Against the new judgment the accused can lodge the usual remedies: Art. 370(1) CH-StPO. 350 Christen, Anwesenheitsrecht, 198; Jeanneret/Kuhn, FS-Donatsch, 365; Riklin, Art. 332 marginal no. 4. 351 Art. 332(2), 316 CH-StPO. 352 Art 340(1)(b) CH-StPO. Critical: Christen, Anwesenheitsrecht, 218 et seq. 346

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his unfitness to stand trial.353 Following the principle semel praesens, semper praesens the hearing proceeds as if the defendant was present.354 The trial is, hence, not considered to be a trial in absentia in the technical sense. The defendant is seen to have waived his right to be present.355 E contrario it can be concluded that, if the defendant absents himself before the preliminary matters have been addressed, the main hearing has to be repeated another time. (c) Protective measures for witnesses and victims The right to be present and participate during the taking of evidence generally applies to the trial hearing. In virtue of the duty to be present, the defendant is even obliged to take part in the trial hearing.356 The above explored exceptions, where the taking of evidence can be conducted in absentia apply mutatis mutandis to the trial phase.357 (d) Defendant’s request to remain absent Further, upon request, the presiding judge can dispense the defendant from his general obligation to be present when he shows good cause and his presence is not indispensable.358 However, appearance of a duty or mandatory defence counsel is required.359 In any case, this shows the general dispensability of the duty to be present.360 (e) Misconduct by the defendant The hearing can also be conducted in partial absence due to disorderly behaviour of the defendant.361 This requires a prior warning, followed by repeated misconduct. The order to leave the court also needs to be in line with the principle of pro-

353 Like this at least: Blätter für Zürcherische Rechtsprechung, 81 (1983) No. 25; Schmid, FS-Rehberg, 290 for the Zürich criminal procedure. 354 Bühler, Das Abwesenheitsverfahren im zürcherischen Strafprozessrecht, 26 et seq.; Jeanneret/Kuhn, FS-Donatsch, 366; Schmid/Jositsch, Handbuch des schweizerischen Strafprozessrechts, marginal no. 1319; as for the Geneva criminal procedure: Poncet/Sträuli, FSSchmid, 683. 355 Christen, Anwesenheitsrecht, 218; cf. also Schmid, FS-Rehberg, 290. 356 Art. 147(1) CH-StPO; Christen, Anwesenheitsrecht, 219. 357 These are mainly protective concerns. See as for the protective measures for victims and witnesses Donatsch/Hansjakob/Lieber-Gut/Fingerhuth, Art. 336 marginal no. 8a. 358 Art. 336(3) CH-StPO. 359 Art. 336(2), (5) CH-StPO; as for the Zürich criminal procedure: Schmid, FS-Rehberg, 289. 360 Chen, Der Verzicht auf Verfahrensrechte durch die beschuldigte Person im Schweizerischen Strafprozess, 189. 361 Art. 63(2), (4) CH-StPO.

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portionality.362 E contrario Art. 63(5) CH-StPO, it can further be concluded that the counsel’s presence is required during his client’s absence. The hearing will be adjourned if counsel is ordered to leave the courtroom.363 cc) Appeals stage and its in absentia framework Apart from the special remedy against judgments rendered after a full trial in absentia, Swiss criminal procedure foresees two regular remedies, namely the appeals on points of fact and law (Berufung)364 and the appeals on point of law (Strafrechtsbeschwerde zum Bundesgericht). (1) Appeals on points of fact and law – Berufung A Berufung can be filed based on errors of fact and constitutes a second instance on the merits of the case.365 Art. 405 CH-StPO indicates that the appeals procedure is generally conducted in an oral hearing.366 If it is indeed conducted orally, the defendant has a duty to be present at the hearing.367 Upon application he can in ‘simple’ cases be released from the duty to be present and submit reasoned applications in writing.368 The legislator had cases in mind where the accused’s presence is not indispensable,369 that is for example the case where no personal examination is required370 or his application is duly reasoned.371 Law and legislator, however, remain 362 Donatsch/Hansjakob/Lieber-Brüschweiler, Art. 63 marginal no. 2; Riklin, Art. 63 marginal no. 3; Christen, Anwesenheitsrecht, 198. 363 Goldschmid/Maurer/Sollberger, Art. 63; Riklin, Art. 63 marginal no. 3. 364 The procedure under this designation in German Procedure is not exactly the same; this is especially true for the Revision, which in German law concerns an appeal for reasons of law whereas in Swiss procedure it concerns newly evidence, which in Germany is designated as Wiederaufnahme. 365 Art. 398 CH-StPO. According to Art. 398(4), contraventions (Übertretungen) can only be appealed on errors of law. 366 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 354; Jeanneret/Kuhn, FS-Donatsch, 373. 367 Art. 405 CH-StPO; Donatsch/Hansjakob/Lieber-Hug/Scheidegger, Art. 407 marginal no. 3; Jeanneret/Kuhn, FS-Donatsch, 373; Riklin, Art 405 marginal no. 2. If the appeal is filed by the prosecution or if the private claimant, the defendant’s presence is only required if the appeals concerns questions of sentence or verdict. See only Schmid, Art. 405 marginal no. 6. According to Art. 406 CH-StPO, the appeals procedure can be conducted in writing especially when it concerns solely legal issues. In this case it naturally takes place in absentia. As for Übertretungen the appeals is according to Art. 398(4) CH-StPO only possible on errors of law, so that the procedure will usually be conducted in writing: cf. Ruckstuhl/Dittman/Arnold, Strafprozessrecht, marginal no. 1164. 368 Art. 405(2) CH-StPO. 369 BBl 2006 1316. 370 Goldschmid/Maurer/Sollberger, Art. 405. 371 Schmid, Art. 405 marginal no. 7.

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silent on when a case is simple. Indications can be the complexity of the facts and the gravity of the punishment.372 If the party who filed the appeal, including the defendant, fails to appear at an oral hearing without excuse and is not represented by counsel or the filing party cannot be summoned, the Berufung is deemed withdrawn.373 The defendant has to be notified about these consequences.374 The accused’s default – noncompliance with the duty to be present – causes a rather grave loss of rights, whereby the reasons for the nonappearance are irrelevant.375 According to Art. 94 CH-StPO, the person in default can apply for a new time limit. In that case, reasons and excusal for the nonappearance have to be made credible.376 However, default only occurs when both counsel and the defendant fail to appear, which is known as total default.377 Hence, counsel is treated as a replacement for the defendant. Therefore, it lies in the defendant’s interest, even amounts to an obligation, to stay reachable and arrange for his legal representation in order to prevent default. That essentially means that a Berufung in absentia solely takes place if the prosecution appeals the judgment on questions of the sentence or verdict and the accused’s failure to appear remains unexcused.378 If the defendant sends an authorised counsel, the hearing is not considered to be a procedure in absentia in the technical sense. If defendant and prosecution file a joint appeal, the withdrawal fiction applies to the defendant’s application, whereas the prosecutions’ appeal on point of the sentence and verdict is conducted in absentia.379 If an appeal hearing is conducted in absentia, the rules for the trial procedure apply mutatis mutandis.380 Finally, according to Art. 407(3) CH-StPO, an appeal decision will be taken based on the files and outcome of the main proceedings when the private claimant appeals on points of civil law matters and when the accused fails to appear.

372

Donatsch/Hansjakob/Lieber-Hug/Scheidegger, Art. 407 marginal no. 4. Art. 407(1) CH-StPO; as for the latter option Christen, Anwesenheitsrecht, 238 et seq. is – for reasons of equality with the first option – of the view that no default occurs if the accused person cannot be summoned but is represented by counsel. 374 Riklin, Art. 407 marginal no. 1. 375 Poncet/Sträuli, FS-Schmid, 684; Riklin, Art. 407 marginal no. 1; cf. BGE 117 Ia 297 E.3.c. 376 Christen, Anwesenheitsrecht, 237; Riklin, Art. 407 marginal no. 1. 377 Riedo/Fiolka/Niggli, Strafprozessrecht sowie Rechtshilfe in Strafsachen, 2929. Critically: Donatsch/Hansjakob/Lieber-Hug/Scheidegger, Art. 407 marginal no. 4. 378 Art. 407(2) CH-StPO. 379 Christen, Anwesenheitsrecht, 238. 380 Jeanneret/Kuhn, FS-Donatsch, 373. See for the whole: BGE 6B_1293/2018 E.3.3.2 et seq. 373

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(2) Objection before the BGer – Beschwerde in Strafsachen The Beschwerde in Strafsachen usually controls solely errors of law and is normally conducted in writing, but an oral procedure can be arranged according to Art. 57 BGG. A personal hearing is not necessary during the sole control of errors of law, as facts are only considered with regard to arbitrariness.381 It is, however, exceptionally possible to take evidence. Then the defendant has a right to be present.382 That is especially the case where the BGer addresses questions of guilt.383 There are, however, exceptions in Art. 56(2) BGG: where it is deemed necessary to conduct an ex-parte taking of evidence due to overwhelming public or private interests. That is for example business secrets, protection of privacy or security reasons.384 The exceptions need to respect the principle of proportionality and be outweighed against the defendant’s right to be heard.385 Again, the exclusion only applies to the defence counsel where his personal behaviour requires his exclusion.386 As a safeguard, Art. 56(3) BGG provides that the person concerned is informed about the essential parts of the evidence taken ex parte when the court wants to rely on that evidence and be given the opportunity to comment on it and to provide counterevidence. There is no duty to be present at the proceedings before the BGer. The failure to appear is interpreted as a waiver of the right to be present and the proceedings take place regularly in absentia.387 dd) Video link procedure Witness testimonies may also be carried out via video link, especially in order to protect vulnerable witnesses.388 Usually, the defendant sits in another room and observes the questioning in the courtroom via video link.389 However, in practice these measures are uncommon.390

381

Hauser/Schweri/Hartmann, Schweizerisches Strafprozessrecht, Section 104 marginal no. 57; Oberholzer, Grundzüge des Strafprozessrechts, 2235; Ruckstuhl/Dittman/Arnold, Strafprozessrecht, 1175. 382 Art. 105(2), 55, 56 BGG. 383 BSK-BGG-Heimgartner/Wiprächtinger, Art. 57 marginal no. 13, 16 with further references as to the old regulations. 384 BSK-BGG-Gelzer, Art. 56 marginal no. 10 et seq. 385 Christen, Anwesenheitsrecht, 240; BSK-BGG-Gelzer, Art. 56 marginal no. 15. 386 Christen, Anwesenheitsrecht, 240. 387 Ibid., 242; BSK-BGG-Heimgartner/Wiprächtinger, Art. 57 marginal no. 16. 388 Art. 78(6) CH-StPO. 389 Art. 149 et seq. CH-StPO. 390 Riklin, 112 ZStW 2014, 173, 181.

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ee) Special procedures and their in absentia framework Swiss criminal procedure also foresees a number of special procedures, which are conducted in absentia. (1) Summary penalty order As for minor offences the CH-StPO provides for a summary penalty order, which allows the prosecution to immediately complete the criminal procedure when the accused consents (impliedly).391 It has enormous significance in practice as the majority of the cases in Switzerland are settled by a summary penalty order.392 The prosecution can, instead of opening an investigation, issue a summary penalty order when the defendant has accepted responsibility for the offence or his responsibility has been otherwise satisfactorily established and the punishment is within the limits of Art. 352(1) CH-StPO, that is up to six months of imprisonment.393 If the defendant does not take any action after receiving the summary penalty order, it becomes a final and binding verdict.394 As seen above, the investigation by the police, except for the defendant’s interrogation, takes place in his absence. The summary penal order can, therefore, be seen as a procedure fully held in absentia; there is especially no need for an interrogation of the defendant by the prosecution.395 The defendant has, however, the possibility to object to the order, which leads to the taking of further evidence by the prosecution, including the defendant’s interrogation.396 The objection will be treated as withdrawn if the accused fails to appear at this interrogation without excuse.397 This regulation is widely criticised by scholars as incompatible with the right to a fair trial.398 The legislator’s prioritisation of procedural economy over fundamental procedural guarantees is also criticised.399 In a similar vein, courts tend to interpret the provision restrictively.400 391

Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 299. Critical in regard to the summary penalty order e. g.: Gilliéron/Killias, FS-Riklin; Pfenninger, 32 ZStR 1919, 340, 376; Pieth, Schweizerisches Strafprozessrecht, 251 et seq.; Schubarth, FS-Riklin. 392 Donastch/Hansjakob/Lieber-Schwarzenegger, Art. 365; Thommen, 128 ZStR 2010, 373, 374 et seq. 393 Art. 352(1), 309(4) CH-StPO. 394 Art. 354(3) StPO. 395 Riklin, Art. 352 marginal no. 3; Thommen, 128 ZStR 2010, 373, 379 et seq., who is very critical in this regard. 396 Art. 355(1), (2) StPO; Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 303. 397 Art. 355(2) CH-StPO. 398 See e. g.: Christen, Anwesenheitsrecht, 221 et seq.; Jeanneret/Kuhn, FS-Donatsch, 369 et seq.; Riklin, Art. 355 marginal no. 2; Ruckstuhl/Dittman/Arnold, Strafprozessrecht, 1052; Donastch/Hansjakob/Lieber-Schwarzenegger, Art. 365 marginal no. 2. 399 See e. g.: Christen, Anwesenheitsrecht, 221 et seq.; Jeanneret/Kuhn, FS-Donatsch, 369 et seq.; Riklin, Art. 355 marginal no. 2; Ruckstuhl/Dittman/Arnold, Strafprozessrecht, 1052; Donatsch/Hansjakob/Lieber-Schwarzenegger, Art. 365 marginal no. 2.

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After having examined further evidence, the prosecution can decide to stand by its decision to issue the summary penalty order. In that case, a main hearing is conducted and the charges in the summary penalty order will be used as indictment.401 The fiction of withdrawal similarly applies, if the defendant fails to appear before the court.402 However, in case of the conduction of a hearing following an objection the defendant can be represented by counsel and does not need to appear personally. In order to comply with the information duties, the defendant has to be informed about these consequences in the summary penalty order.403 (2) Separate subsequent decisions The court has the possibility of issuing separate subsequent decisions to amend the punishment imposed upon the defendant.404 According to Art. 365(1) CH-StPO, it lies within the courts discretion whether to issue such subsequent decision on the basis of the files or after an oral hearing. As a general rule, courts tend to conduct a written procedure.405 (3) Contravention procedure E contrario Art. 336(1) CH-StPO can be concluded that the defendant has no duty to be present during contravention proceedings. He can, however, be summoned where his presence seems indispensable. The CH-StPO applies the rules for summary penalty order, so that the above explored applies mutatis mutandis. (4) Procedure where the accused is not legally responsible due to a mental disorder A criminal procedure against the accused who is not legally responsible due to a mental disorder, can be conducted in absentia for the protection of the accused’s privacy or health.406 This, further, requires that the defendant’s presence is not indispensable.407 400 The Court of St. Gallen for example decided that a summons for the examination needs to be issued at least ten days beforehand (Anklagekammer St. Gallen, Decision, of 25 October 2012, BGer 20. 2. 2013, 1B_759/2012); the BGer also requires that the defendant to be unequivocally informed and fully understands the consequences of nonappearance: BGer 2013 6B_152/2013, Erw. 4.5.1. 401 Art. 356(1) CH-StPO. 402 Art. 356(4) CH-StPO. 403 BGE 1P.673/2000 E.3.b; Ruckstuhl/Dittman/Arnold, Strafprozessrecht, 1052. 404 Art. 363 et seq. CH-StPO. 405 Donatsch/Schwarzenegger/Wohlers, Strafprozessrecht, 324; Riklin, Art. 355 marginal no. 1; Donatsch/Hansjakob/Lieber-Schwarzenegger, Art. 365 marginal no. 1; cf. also Jositsch, Grundriss des schweizerischen Strafprozessrechts, marginal no. 559. 406 Art. 374 CH-StPO.

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ff) Summary In summary, it can be said that in Swiss criminal proceedings, the defendant usually has to be present during the proceedings held against him. During the investigations of the prosecutions – which follow investigations by the police – broad participation rights already apply. In light of this the prosecution does not investigate against the untraceable defendant except for the tracing of the defendant and preservation of evidence. A duty to be present seldomly exists during the investigations but during the trial. However, there are numerous exceptions to the principle of presence. Although it no longer plays a major role in practice, there is still a default procedure: the Kontumazialverfahren. The competent criminal courts can try the defendant in absentia under relatively low conditions, irrespective of the threat of punishment after he has been heard on the charges. Partial absences of the defendant are possible under narrow conditions. In contrast, during appeals proceedings the absence of the defendant is not unusual. c) Austria Austrian criminal procedure, alongside with many Continental-European countries, used to allow contumacy proceedings. The accused was considered to be disobedient – or in other words in contumacy – if a personal summons failed due to his absence and he did not appear in court even after a subsequent public summons. The trial was then conducted in absentia.408 However, the possibility to conduct contumacy trials was abolished in 1993.409 Notably, Austria was also the first European country to abolish procedures against the untraceable defendant who is considered to be a fugitive.410 A comprehensive right of the defendant to be present in criminal proceedings follows from Art. 6 ECHR which has constitutional rank. During the trial of first instance, the defendant is generally also obliged to be present. In spite of this, there are still possibilities to try defendants in absentia. aa) Investigative stage and its in absentia framework Per statutory conception, investigative power was held by the public prosecutor (Staatsanwaltschaft). However, following long practice, the AT-StPO now acknowledges the police as the main authority in conducting the preliminary actions under authorisation of the prosecution as head of the investigations.411 Following the 407

Riklin, Art. 374 marginal no. 6. Section 422 et seq. AT-StPO in the original version of 1975. 409 StPÄG 1993, BGBl 526. 410 Pfenninger, 52 SJZ 1956, 134, 134. See already Section 412 AT-StPO in the original version of 1975. 411 Sections 20(1), 101(1), 102(1), 103(1) AT-StPO. As for the years-long practice to act contra legem due to the lack of practicability: Bertel, 53 ÖRZ 1975, 97 – 101; Fabrizy, 68 ÖRZ 408

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statutory conception, the pre-trial investigations have preparatory and supportive character whereas the main hearing is the most significant part of the criminal procedure.412 Many scholars, however, observe a de facto importance of the investigative stage as it lays the foundations for the subsequent trial and its importance was strengthened through the 2008 reform of Austrian criminal procedure.413 The reformation of the investigative phase has resulted in a clear regulation with regard to inspection of the case files and the possibility to apply for the taking of evidence, already in this early stage of the procedure. Hence, the defendant’s procedural rights have been strengthened.414 Nonetheless, the investigations are mainly conducted secretly and without the presence of the accused or his counsel. The only two exceptions are the reconstruction of the crime site or an adversarial examination of the accused or witness, where it is to be feared that the examination cannot be conducted during the prospective trial for legal or factual reasons.415 In these cases, a court, rather than the police conducts the investigative measure in order to guarantee a fair

1990, 134, 137 et seq.; Seiler, FS-Geerds, 527 et seq. As for the former regulation which divided the pre-trial phase in Vorerhebungen by the prosecution and gerichtliche Voruntersuchungen by the Investigative Judge and the already then divergent practice: Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 134 et seq.; Seiler, FS-Geerds, 520 et seq. Also after the reform of the pre-trial proceedings, in practice, the police has de facto the investigative power: Birklbauer, et al., ÖJZ 2011, 852, 854 et seq., 867, who also observe a lack of communication between the two criminal justice authorities; Venier, ÖJZ 2009, 591, 592; cf. Seiler, FS-Geerds, 529 et seq., who asserted this already before the reform. 412 Section 12(2) AT-StPO. Fabrizy, Section 13 marginal no. 1; Seiler, Strafprozessrecht, marginal no. 64. 413 Schumann/Bruckmüller, JSt 2011, 175; Fuchs, Reform des Haupt- und Rechtsmittelverfahrens, 25; Pilgermair, Staatsanwaltschaft im 21. Jahrhundert, 443; Seiler, Strafprozessrecht, marginal nos. 65, 759; cf. also Lechner, Die Stellung des Beschuldigten und seines Verteidigers im reformierten Vorverfahren, 120; Seiler, FS-Geerds, 531. Similar: Fuchs, Rechtsdogmatische & rechtspolitische Überlegungen, 33 et seq., who is of the view that the investigations and, therefore, the pre-trial proceedings should be the most important part of criminal proceedings, whereas the trial is merely to control the pre-trial proceedings. Krückl, 62 Österreichisches Anwaltsblatt 2000, 66, 70 asserts that the reformation has not been broad enough. Critically as to the delay enormous pre-trial proceedings will have: Pilgermair, Staatsanwaltschaft im 21. Jahrhundert, 443 et seq. 414 That is appreciated among scholars: Fuchs, Rechtsdogmatische & rechtspolitische Überlegungen, 21; Lechner, Die Stellung des Beschuldigten und seines Verteidigers im reformierten Vorverfahren, 121, 206; Pilgermair, Staatsanwaltschaft im 21. Jahrhundert, 442; Seiler, ÖJZ 1999, 251, 260 (in regard to the first draft of the Ministry of Justice); Sigl, Verteidigungsrechte im Ermittlungsverfahren, 95, 125. More reserved with regard to the general increscent of defendant’s and defence counsel’s rights in the pre-trial phase, but finding it still not sufficient: Venier, ÖJZ 2009, 591, 594 et seq. So far the right to apply for evidence to be taken already in the pre-trial phase has been used very seldom: Sigl, Verteidigungsrechte im Ermittlungsverfahren, 96 et seq. However, in practice, the right to consult with a defence counsel during the investigations is very seldom used: Birklbauer, et al., ÖJZ 2011, 852, 862 et seq.; Sigl, Verteidigungsrechte im Ermittlungsverfahren, 73 et seq. 415 Sections 150, 165 AT-StPO.

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procedure and the parties’ participation and confrontation rights.416 The defendant’s right to be present can be limited when his presence is contrary to the objectives of the proceedings – that is if the assertion of the truth is in danger – or special interests so require.417 It is, however, not possible to restrict the presence and participation rights of defence counsel with regard to the reconstruction of the crime.418 Further, Section 104 AT-StPO foresees a relict of the previous judicial pre-investigations: especially in politically delicate cases of public interest the court conducts an adversarial questioning of the accused or a witness.419 Both defendant and his counsel have a right to participate and confront the witness in these cases.420 A duty to be present does not exist. The confrontation rights can also be ensured via video link in the case of young witnesses or for health reasons following the court’s discretion or upon the prosecution’s request.421 bb) Investigations against the untraceable defendant The investigations against an untraceable or unknown suspect are to be provisionally suspended.422 However, before suspending the investigations, the criminal justice authorities exhaust all possibilities to provide for the defendant’s appearance,423 including granting safe conduct to the defendant.424 An arrest warrant or application to detect his whereabouts can also be issued. The reason for the suspension of the proceedings is that it is de facto impossible to investigate against a fugitive.425 Notwithstanding the suspension, evidence can be secured where necessary. Investigative measures that usually give the accused a right to be present or participate can in this case be conducted in absentia. In any event, the suspension is

416 Lechner, Die Stellung des Beschuldigten und seines Verteidigers im reformierten Vorverfahren, 122. 417 Section 150(2) AT-StPO refers to Section 250 AT-StPO. 418 Fabrizy, Section 150 marginal no. 2; Lechner, Die Stellung des Beschuldigten und seines Verteidigers im reformierten Vorverfahren, 122. 419 Section 101 AT-StPO; Hinterhofer, ÖJZ 2007, 883, 884; Seiler, FS-Geerds, 537. Sigl, Verteidigungsrechte im Ermittlungsverfahren, 87 even interprets the rule as binding; thus the prosecution has no discretion to involve the court but is rather obliged to. Admittedly, the rule is of rather small practical importance: WK-Flora130th, Section 101 marginal no. 19. 420 OGH 15 Os 177, 178/03 of 22 April 2004; Fabrizy, Section 165 marginal no. 2 et seq.; Mayerhofer/Salzmann, Section 165 marginal no. 2, 12; Seiler, Strafprozessreform 2004, marginal no. 428. This right is according to the OGH (implicitly) waivable and cannot be contested with legal remedies after such waiver: OGH 12 Os 48/05 h; 12 Os 5/03. 421 Section 165(2), (3) AT-StPO. 422 Section 197 AT-StPO. 423 WK-Nordmeyer266th, Section 197 marginal no. 2. 424 Section 197(4) AT-StPO. 425 Fabrizy, Section 197 marginal no. 1; Seiler, Strafprozessrecht, 681; cf. WK-Nordmeyer266th, Section 197 marginal no. 5.

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not permanent and the investigations are to be resumed upon the suspect’s appearance.426 cc) Trial stage and its in absentia framework Section 13(1) AT-StPO clarifies that the trial is the key stage of the criminal proceedings. During this crucial stage, Austrian criminal procedure conceptualises the presence of the accused both as a right and a duty.427 The right to be present is seen as one of the greater procedural rights that guarantees a fair trial and the right to be heard.428 The procedural structure of the trial phase also assumes the defendant’s presence: the defendant is to be questioned and cautioned at the outset of the criminal trial429, he can question witnesses after their testimony and comment on their statements or documents that have been read out,430 he can consult with his counsel at any time during the main hearing,431 he is to be asked whether he accepts exhibits that serve the establishment of the facts,432 and finally, he has the right to the last word433 and is to be informed about possible remedies.434 In some cases, a duty to be present is imposed upon the defendant.435 In fact, according to Section 6(1) AT-StPO, the defendant has a duty to be present during the main hearing, which can – if necessary – be enforced by coercive means.436 The duty to be present during trial is to a large extent based on the state’s duty of care in regard to the right to be heard, the principle to ascertain substantive truth, the principles of 426

Last sentence of Section 107(1) AT-StPO. Section 6(1) AT-StPO; WK-Bauer259th, Section 427 marginal no. 1; Denz, Zulässigkeit und Umfang des Strafverfahrens gegen Abwesende, 141; Lohsing/Serini, Österreichisches Strafprozessrecht, 391; Mayer, Section 427 marginal no. 13. 428 OGH 12 Os 131-138/78 ZfRV 1979, 64 with comments Liebscher; Bachner-Foregger, Section 6; Lohsing/Serini, Österreichisches Strafprozessrecht, 391; Schwaighofer, FS-Platzgummer, 265; cf. Bertel/Venier, Strafprozessrecht, marginal no. 430; Fabrizy, Section 6 marginal no. 3. 429 Section 240 AT-StPO. 430 Section 248(3), 249, 252 AT-StPO. As for the questioning of expert witnesses, a support person may be consulted in order to support the questioning by defendant/counsel. The support person is, however, not allowed to actively put questions to the expert: Section 247 AT-StPO. 431 Section 245(3) AT-StPO. 432 Section 253 AT-StPO. 433 Section 255(3) AT-StPO. 434 Section 268(second sentence) AT-StPO. 435 WK-Bauer259th, Section 427 marginal no. 157; Schwaighofer, FS-Platzgummer, 265 et seq. 436 OGH 15 Os 42/92; JBl 1994, 345 (350); Bertel/Venier, Strafprozessrecht, marginal no. 29; Fabrizy, Section 6 marginal no. 3; Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 61; Seiler, Die Stellung des Beschuldigten im Anklageprozess, 203; Triffterer, ÖRZ 1996, 150, 157. See Section 427(2) AT-StPO. That is for example by arrest warrant. 427

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immediacy and orality, the principle of inquisition and special and general preventive aspects.437 Following this, as a general rule, the trial is held in the presence of the defendant. In order to ensure that the defendant can make use of his defence rights and knows about his duty to be present, he has to be properly summoned.438 The summons needs to include information about the consequences of the nonappearance, including a possible procedure in absentia.439 Notably, no in absentia trial is conducted where the defendant solely fails to appear for the rendering of the judgment.440 His absence does not hinder the delivery of the verdict. (1) Rescheduling of the hearing if the defendant is hindered to appear Already before the trial starts, it might be necessary to reschedule the hearing if the defendant is unable to appear. According to Section 226 AT-StPO, it lies in the court’s discretion to re-schedule the hearing either ex officio or upon a reasoned request when the defendant is for inevitable or important reasons impeded to appear at the main hearing, for example if the defendant falls sick before the trial started. In case of a temporary inability to stand trial, there is no room for the court’s discretion and the main hearing has to be re-scheduled.441 In a similar vein, if the inability to stand trial due to sickness appears after the commencement of the trial, Section 275 AT-StPO orders a postponement of the hearing, unless the defendant has consented to a conduction of a trial in his absence and the reading out of his prior statement. Additionally, the defendant’s presence must not be inevitable, especially with regards to the assertion of substantive truth.442 Section 275 AT-StPO is lex specialis and supersedes Section 427 AT-StPO allowing trials in absentia only for misdemeanours (Vergehen443).444 The continuation of a trial can, therefore, possibly be conducted in absence of the defendant, even if the criminal

437 See further below G. II. 2. for a detailed discussion on whether compelling the defendant to be present is justified. Critically as to the imposition of a duty to be present: Schwaighofer, FS-Platzgummer; Triffterer, ÖRZ 1996, 150, 151 et seq.; Triffterer, ÖRZ 1996, 186, 189. The latter sees no limit in Section 427 AT-StPO that prevents the defendant from a waiver for certain – for him – unimportant parts of the criminal proceedings. 438 Section 221 AT-StPO. 439 OGH 7 Os 258/58, ÖRZ 1959, 48; Mayerhofer/Salzmann, Art. 6 marginal no. 25. 440 OGH 14 Os 8/02, ÖJZ 2002, 566 (570); Mayerhofer, Section 427 marginal no. 24c. 441 Sections 275, 276, 226 AT-StPO; Schwaighofer, FS-Platzgummer, 268; cf. also Fabrizy, Section 227 marginal no. 2a; OGH SSt 27 (1956) No. 31. That is even the case where the requirements of conduction a trial in absentia outlined further below are met. 442 Mayerhofer, Section 275 marginal no. 1; WK-Schwaighofer101th, Section 275 marginal no. 19; Triffterer, ÖRZ 1996, 150, 161. 443 That is, according to Section 17(2) AT-StGB, a criminal offence with less than three years imprisonment as minimum punishment or crimes that have been committed negligently. 444 Fabrizy, Section 277 marginal no. 1; Mayerhofer, Section 275 marginal no. 3; WKSchwaighofer101th, Section 275 marginal no. 20.

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proceedings concern a crime (Verbrechen445). Hence, under the condition that the defendant is sick and consents, the principle semel praesens, semper praesens applies. This is remarkable, considering that said notion is generally not applicable. Normally, any request to conduct a trial in absentia by the defendant is to be rejected.446 (2) Trial in absentia at the Landesgericht447 The conduction of a main hearing in absence of the defendant at the Landesgericht, which has jurisdiction over crimes and graver misdemeanours,448 generally leads to its nullity.449 In order to prevent these consequences, the defendant can be compelled to appear in court.450 There are, however, several exceptions to this rule. One of them is enshrined in Section 427 AT-StPO allowing for trial in absentia under certain circumstances. Section 428 AT-StPO speaks of a contumacy procedure. However, the prevailing opinion submits that the conceptual basis is an implicit and deliberate waiver of the defendant’s right to be present, rather than the defendant’s contumacy.451 It can, thus, be seen as an editorial oversight. In any event, a main hearing in absentia can be held when the following four requirements are met and the court decides to commence the trial in absentia: The first prerequisite is that the defendant has been duly summoned, i. e. that the summons has been served personally.452 The summons needs to include the warning that the trial might take place in his absence in case he fails to appear at the scheduled

445 Section 17(1) AT-StPO defines Verbrechen as intentional offences which are punishable with a minimum of three years imprisonment. 446 OGH SSt 27 (1956) No. 31; SSt 54/75; see also EvBl 1952/348, SSt 34/42. Schwaighofer, FS-Platzgummer, 270 sees this critically as he draws a parallel to the sick defendant and interprets the departure as implied agreement that the hearing be conducted in the defendant’s absence. 447 The elaborations concern all kinds of trials at the Landesgericht – Jury, court of layassesors (Schöffengericht) and single judge. 448 Section 31 AT-StPO. 449 Section 427(1) AT-StPO; Bachner-Foregger, Section 427 comment I; Seiler, Strafprozessrecht, marginal no. 753. 450 Section 427(2) StPO. 451 Triffterer, ÖRZ 1996, 150, 157; cf. also: Bachner-Foregger, Section 427 comment I; Schwaighofer, FS-Platzgummer, 269. Of other opinion Mayerhofer, Section 427 marginal no. 1 et seq., who sees it still as a response to the defendant’s contumacy. Considering that the older jurisprudence (OGH 2 Os 149, ÖJZ, 270 (271)) acknowledged that contumacy was defined willfully and deliberately not complying with a summons – the difference can only be seen in the terminology. 452 Sections 82, 83 AT-StPO read together with Zustellgesetz, SSt 19/157, EvBl 1964/20.

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hearing.453 The summons includes the information on the crimes charged and the crucial facts the charges are based on.454 The appearance of the defence counsel at the main hearing does not cure the defect of the missing summons.455 If the hearing is postponed, the defendant has to be newly summoned.456 Secondly, the alleged criminal misconduct needs to be considered a Vergehen, an offence punishable with a maximum of three years imprisonment. In cases concerning a Verbrechen, offences with a minimum penalty of more than three years, personal appearance is indispensable, regardless of whether defendant and/or his counsel agreed to a trial in absentia.457 Thirdly, the defendant’s presence may not be indispensable. The court must be able to establish the facts without the present defendant. Finally, it is an accepted, unwritten requirement that the court have no knowledge of an obvious important reason that hindered the defendant’s appearance.458 Upon unreasoned nonappearance, it will, however, be presumed that there were no such circumstances459 since nonappearance without excusal, following a proper summons, is interpreted as waiver of the right to be present.460 453 WK-Bauer259th, Section 427 marginal no. 11; WK-Ratz219th, Section 281 marginal no. 243. 454 OGH 15 Os 50/91 SSt 61/54; WK-Bauer259th, Section 427 11; Stricker, ÖJZ 2015, 61, 63. 455 Fabrizy, Section 427 marginal no. 6; Mayerhofer, Section 427 marginal no. 12. 456 OGH SSt 22/45. 457 EvBl 1994/6. It is, however, subject to debate which point of reference is relevant for the determination of a misdemeanour: WK-Bauer259th, Section 427 marginal no. 7; WK-Ratz219th, Section 281 marginal no. 243 plead for the judgment, meaning that it does not hinder the judge to conduct a trial in absentia where a crime is charged as long as the conviction leads to a misdemeanour; whereas Bertel/Venier, Section 427 marginal no.1 want to apply both indictment and the subsequent judgment. Jurisprudence, e. g. OGH 11Os 165/81, and Stricker, ÖJZ 2015, 61, 62 apply the indictment as only decisive point of references. However, the OGH did change his opinion in regard to the point of reference where mandatory defence applies and now finds the legal determination of the criminal offence in the judgment decisive: OGH 14 Os 173/ 10p JBl 2011, 807. Schwaighofer, FS-Platzgummer, 280 et seq. found fault with the regulation as there was no difference to the accused, who brought about his unfitness to stand trial. In the latter case the conduction of the trial in the defendant’s absence – where the defendant consented – is expressly provided for. He, therefore, suggests that the trial can proceed in absentia when the defendant was present at the opening of the trial and agrees that the trial be conducted in his absence. However, he later is of the other view and considers an analogy impermissible, probably because it is the expressive wording of Section 427 AT-StPO: WK-Schwaighofer101th, Section 275 marginal 21. 458 OGH SSt 27 (1956) No. 31; OGH 5 Os 59 459/56, JBl 1957, 192; WK-Bauer259th, Section 427 marginal no. 14; Fabrizy, Art. 427 marginal no. 1. See also Mayerhofer, Section 427 marginal no. 4 et seq. who requires contumacy against a court’s order to appear, i. e. willing and deliberate nonappearance. In this direction also: OGH 14 Os 82/97, 459 (460) with comments Platzgummer; OGH 1 Os 386/48, JBl 1948, 594. 459 Fabrizy, Section 427 marginal no. 12; Schwaighofer, FS-Platzgummer, 269. 460 Schwaighofer, FS-Platzgummer, 269.

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Ultimately, it lies in the court’s discretion whether the defendant’s presence is indispensable and whether to conduct the trial in absentia when all requirements are met.461 Some scholars are of the view, that – in order to synchronise it to Section 275 AT-StPO – a trial in absentia may also take place after the defendant’s unequivocal waiver of the right to be present.462 Furthermore, during the trial against the absent defendant, the indicted facts may not be enlarged or the alleged misconduct qualified differently, as this would infringe his right to be heard.463 Non-hazardous is, however, the appearance of new evidence.464 (3) Trial in absentia at the Bezirksgericht As for the proceedings at the Bezirksgericht the prerequisites to conduct trials in absentia are not as strict. A conduction of a main hearing in the defendant’s absence does not per se lead to its nullity. The Bezirksgericht is concerned with minor offences. The criminal procedure starts with a demand for punishment (Strafantrag) and not an indictment in the formal sense.465 When the defendant is not in custody and his counsel appears – for this occasion counsel is named Machthaber – the trial is not deemed to be held in absentia since counsel replaces his client.466 This presumption can, however, be lifted by a summons to appear at the judge’s discretion.467 Such as for the proceedings at the Landesgericht, a proper summons personally served upon the defendant is required.468 This includes, the information about the possibility to conduct a trial in his absence if he fails to appear or does not send a Machthaber in order to be represented.469

461 OGH 15 Os 97/96; Bertel/Venier, Section 427 marginal no. 5; Seiler, Strafprozessrecht, marginal no. 821; Stricker, ÖJZ 2015, 61, 62. 462 WK-Ratz262th, Section 478 marginal no. 1. Cf. also in this direction: Schwaighofer, FSPlatzgummer, 280 et seq. 463 OGH 14 Os 20/99, ÖJZ 1999, 653; OGH SSt 47 (1976) No. 78; Fabrizy, Section 427 marginal no. 9, 12; Stricker, ÖJZ 2015, 61, 63. 464 OGH 14 Os 138/93. 465 Section 31 AT-StPO. In the end, the difference between a formal indictment and a demand for punishment is very small as the latter solely lacks reasoning and the supporting evidence as required by Section 211(2) AT-StPO for indictments. 466 WK-Bauer262th, Section 455 marginal no. 5; Pilnacek, ZIS 2009, 97, 98. 467 Section 455 AT-StPO; WK-Bauer262th, Section 455 marginal no. 3; Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 178. 468 Section 455(1) AT-StPO. 469 Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 177 et seq.

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(4) Remedies against in absentia judgments The defendant can file a special remedy, namely the objection (Einspruch),470 and the regular appeal on point of law (Nichtigkeitsbeschwerde)471 complaining that he was unlawfully tried in absentia.472 (a) Objection – Einspruch The objection is a remedy specifically attacking the infringement of the right to be present but cannot attack the merits of the judgment. It rather aims for a re-assessment of the case, whereby no reformatio in peius is possible.473 The judgment in absentia needs to be served personally.474 Upon service the convicted person has fourteen days to file an Einspruch by submitting an explanation, why he was unable to attend the proceedings.475 The application is to be granted if an inevitable impediment hindered the defendant’s appearance. Such reasons may include illness, accidents or a natural phenomenon which made the appearance impossible.476 The impediment inevitably hinders the appearance if a conscientious person in the situation of the defendant would have likewise failed to appear following the claimed reason for nonappearance.477 The burden of proof lies upon the defendant.478 However, no high threshold is placed upon him for proving the inevitability of the impediment.479 When the trial in absentia took place at the Landesgericht usually the OLG decides upon the motion; if another remedy is combined with the objection, it can also come before the OGH.480 Whereas for trials in absentia conducted at the Bezirksgericht the court of the first instance decides on the application.481 In the latter

470

Sections 427(3), 478 AT-StPO. Section 281(No. 3) AT-StPO. 472 Of course, any other remedy may be filed, but there is no specific reason of appeal concerning the trial in absentia. 473 OGH SSt 17 (1937) No. 98, 19 (1946 – 48) No. 157; OGH 10 Os 35-39/69, RZ 1963, 105; WK-Bauer259th, Section 427 marginal no. 17; Fabrizy, Section 427 marginal nos. 15, 18. 474 Fabrizy, Section 427 marginal no. 13; Seiler, Strafprozessrecht, marginal no. 823. 475 SSt 16/73; Mayerhofer, Section 427 marginal no. 40. 476 Bertel/Venier, Strafprozessrecht, marginal no. 669; Fabrizy, Section 427 marginal no. 15; Hager/Meller, Nichtigkeitsbeschwerde und Berufung, 134 et seq.; Mayerhofer, Section 427 marginal no. 48; Stricker, ÖJZ 2015, 61, 64. 477 WK-Bauer259th, Section 427 marginal no. 21; Bertel/Venier, Section 427 marginal no. 7. 478 OGH 10 Os 148/68; Mayerhofer, Section 427 marginal no. 42. 479 Bertel/Venier, Strafprozessrecht, marginal no. 669; Fabrizy, Section 427 marginal no. 15; Hager/Meller, Nichtigkeitsbeschwerde und Berufung, 134 et seq.; Mayerhofer, Section 427 marginal no. 48; Stricker, ÖJZ 2015, 61, 64. 480 Section 280 AT-StPO. 481 WK-Bauer259th, Section 427 marginal no. 18; Stricker, ÖJZ 2015, 61, 65. 471

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case, however, the defendant can file a complaint (Beschwerde) to a higher court when the objection has been rejected.482 (b) Appeal on points of law – Nichtigkeitsbeschwerde The defendant also has the possibility to file a Nichtigkeitsbeschwerde if the requirements of Section 427 AT-StPO to conduct a trial in absentia were not met.483 The defendant cannot file such remedy if he unequivocally waived his right to be present during the trial, which he appeals against.484 Where the remedy is granted, the judgment in absentia is null and void and a new trial will be conducted.485 (5) Trial partially held in absentia Several possibilities to try defendants in their partial absence besides Section 275 AT-StPO exist. (a) Removal due to misconduct by the defendant According to Section 234 AT-StPO, the defendant can be removed from the courtroom for his disorderly conduct. However, prior to his removal the defendant must be warned and have continuously engaged in misconduct. This notion is seen either as an implicit waiver486 or – predominately – as an abuse487 of the defendant’s right to be present. Following the wording, the defendant can be excluded fully for the remainder of the proceedings. The doctrine, however, interprets the possibility of removing the defendant restrictively and deems it possible only for short time periods.488 It should be noted that there is no obligation to inform the defendant about the occurrences during his absence.489 In order to comply with the requirements of a fair trial, most scholars suggest informing the defendant regardless of the fact that there is no such obligation.490

482

Section 478 AT-StPO. Section 281(No. 3) AT-StPO. 484 WK-Ratz219th, Section 281 marginal no. 244. 485 Section 288(2) AT-StPO. 486 Schwaighofer, FS-Platzgummer, 272. 487 OGH 13 Os 164/85; 9 Os 79/80; Lohsing/Serini, Österreichisches Strafprozessrecht, 393; Triffterer, ÖRZ 1996, 150, 160; but see: Triffterer, ÖRZ 1996, 186, 188. 488 Schwaighofer, FS-Platzgummer, 273 allows the removal for up to one session; Mayerhofer, marginal no. 4 applies no restrictions. 489 OGH 9 Os 104/64, RZ 1965, 122; Seiler, Strafprozessrecht, marginal no. 775. 490 WK-Danek/Mann269th, Section 234 marginal no. 4; Lohsing/Serini, Österreichisches Strafprozessrecht, 393; Stricker, ÖJZ 2015, 61, 66; Triffterer, ÖRZ 1996, 186, 188. 483

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(b) Trial against several defendants and witness protection Further, according to Section 250(1) AT-StPO, the accused can exceptionally be ordered to leave the courtroom during the testimony of a witness or co-defendant. The regulation has no further requirements. The removal is completely up to the court’s discretion. However, the defendant’s removal is only reasonable in exceptional circumstances, especially when there are reasons to believe that the witness may give a false statement when the defendant is present.491 The defendant must be informed about the content of the testimony that was given in his absence. Otherwise the evidence is null and void and cannot be used.492 It is possible, especially in long proceedings, that the defendant waives his right to be present for certain parts of the proceedings.493 An analogy to Sections 234, 275 and 250 AT-StPO justifies this unwritten exception.494 (c) Nonappearance at a trial for minor offences after personal summons Moreover, where the requirements for a full trial in absentia are met, Section 427 AT-StPO can also justify partial proceedings in absentia. Accordingly, the defendant has the right to file an Einspruch according to Section 427(3) AT-StPO, even when he was absent only for a very short time period. Stricker,495 therefore, suggests to interpret the provision restrictively since a de minimis absence should not lead to a de novo trial, hence, an objection should not be allowed. Especially where the defendant solely missed formal parts of the procedure which did not concern the merits of the case. (d) Absence during the delivery of the judgment Finally, it is not mandatory for the defendant to attend the delivery of the judgment. Sections 234 and 269 AT-StPO foresee the possibility that a member of the court personally delivers the judgment, in addition to the public delivery in court, when the accused is not present for the scheduled judgment delivery. Section 269 AStPO allows delivering the judgment by serving a written copy to the defendant.

491 Schwaighofer, FS-Platzgummer, 273. For the sake of his own safety the youth defendant can also be ordered to leave the courtroom but has to be informed about content and outcome of the debate that took place in absentia. 492 Section 250(2) AT-StPO. 493 OGH 14Os 79/99; WK-Bauer259th, Section 427 marginal no. 15, 24; WK-Ratz219th, Section 281 marginal no. 244; Triffterer, ÖRZ 1996, 186, 193 et seq. See as for the delivery of the judgment Section 269 AT-StPO. 494 WK-Bauer259th, Section 427 marginal no. 15; Triffterer, ÖRZ 1996, 150, 153. The former only concerns Section 275 AT-StPO. Of other opinion: Stricker, ÖJZ 2015, 61, 68, who asserts that waiver cannot include the duty to be present. 495 Stricker, ÖJZ 2015, 61, 66 et seq.

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(e) Safeguards during trial partially held in absentia No special safeguards attach to proceedings held in the defendant’s partial absence. Needless to say that where the defence is mandatory, a counsel must be present during the partial absence of the defendant.496 (6) Appeals stage and its in absentia framework During appeals proceedings the defendant’s presence is not give such great importance as in the trial phase.497 Also there is no requirement that the defendant is present during the delivery of the appeals judgment.498 Austrian criminal procedure knows two regular remedies – Berufung and Nichtigkeitsbeschwerde. (a) Appeals on point of fact and law – Berufung The Berufung against judgments of the Bezirksgericht or Landesgericht is the remedy coming closest to a “full revision of the facts”.499 However, the Appeals Chamber usually relies on the facts of the judgment of first instance.500 The defendant has to be summoned if a public hearing is conducted and where necessary he can be forcibly brought to court.501 The defendant in detention is always to be forcibly brought before the court, unless he waived his right to be present.502 For reasons of equal treatment, a defendant who is not detained can similarly waive his right to be present. E contrario upon nonappearance of the defendant and his missing waiver, the hearing will be suspended.503

496

Seiler, Strafprozessrecht, marginal no. 761; cf. Triffterer, ÖRZ 1996, 186, 195. ECtHR, Cooke v. Austria, Judgment, 8 February 2000, Appl. No. 25878/94, para. 37; WK-Ratz219th, Section 281 marginal no. 85. That is not least because the remedies mainly focus on the control of errors of law: Stuefer, JSt 2014, 105, 107. She, therefore, pleads for a reform of the appeal possibilities. Of other opinion: Kier, ÖJZ 2013, 1013. 498 Section 291 AT-StPO. 499 Schünemann, Reformaspekte des strafrechtlichen Haupt- und Rechtsmittelverfahrens, 21. 500 Ibid. As for the Nichtigkeitsberufung claiming nullity reasons, there is generally no newly establishment of the facts: WK-Ratz216th, Before Section 280 – 296a marginal no. 12. 501 Sections 294(5), 296(3), 471 AT-StPO. WK-Ratz264th, Section 296 marginal no. 14. This was already asserted by Triffterer, ÖRZ 1996, 150, 159 et seq. before the statutory regulations have been changed to the current version, making clear that the defendant’s presence is generally necessary. Only where the appeal is rejected on formal grounds, no hearing takes place, Section 294(4) AT-StPO. 502 Sections 294(5), 296(3), 471 AT-StPO. 503 OGH 15 OS 73/00; WK-Ratz264th, Section 296 marginal no. 2. 497

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(b) Appeals on points of law – Nichtigkeitsbeschwerde As for the Nichtigkeitsbeschwerde against judgments of a chamber, the procedure usually takes place in a non-public session.504 If a public hearing takes place, the defendant has to be properly notified.505 However, there is no duty to be present. In fact, the detained defendant can also decide to be represented by defence counsel.506 Upon nonappearance, the written arguments will be simply read out.507 The regulations, again, are based on an (implicit) waiver of the right to be present.508 dd) Special procedures and their in absentia framework In Austrian criminal procedure two special procedures exists during which the defendant is generally not physically present. (1) Penal order procedure – Mandatsverfahren For very minor offences inaudito reo proceedings occur upon issuance of a penal order, after the defendant has had the opportunity to make a statement.509 The punishment imposed by a penal order can only be a fine or, where the defendant is represented by counsel, a suspended sentence of imprisonment with a maximum of one year. No main hearing will be conducted, unless the defendant objects. However, upon objection, which does not need to be reasoned, a main hearing will be conducted. Thus, if the defendant decides not to file an objection, he is seen to have implicitly waived his right to be present at a possible main hearing.510 (2) Procedure where the accused is not legally responsible due to a mental disorder According to Section 430(5) AT-StPO, a criminal procedure instituted against the defendant, who is not legally responsible due to a mental disorder, can be conducted in absentia. That is especially the case where his condition makes the participation at the hearing under timely aspects impossible or in order to protect the defendant’s health. The in absentia procedure can be conducted even against the expressive will of the defendant and/or his counsel as the legislator in this case prioritised the state’s

504

Section 285b et seq. AT-StPO. Section 286(1) AT-StPO. 506 Section 286(2) AT-StPO. 507 Section 287(3) AT-StPO; Platzgummer, Grundzüge des österreichischen Strafverfahrensrecht, 201. 508 Triffterer, ÖRZ 1996, 150, 159. 509 Section 491 AT-StPO; OGH EvBl 1994/41. As for the details see only: Fabrizy, Section 491; Seiler, Strafprozessrecht, 975 et seq. 510 Triffterer, ÖRZ 1996, 150, 157. 505

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duty of care.511 In any event, the procedure is not a proper trial. It solely serves to decide whether the defendant be placed in an institution for mentally abnormal lawbreakers.512 As a safeguard, especially in light of his inability to make use of his rights due to his mental disorder, the defendant has to be represented by counsel throughout the proceedings.513 ee) Summary Following predominately secret investigations, presence at trial – which is both a right and a duty – is of great importance. It is only for offences with minor severity and under narrow conditions that a full trial in absentia or a penal order procedure may be conducted. At the lowest court – Bezirksgericht – the defence counsel can regularly replace his client. Thus, the defendant need not be physically present. In contrast, against an untraceable defendant, proceedings are to be suspended. However, there are some possibilities for trial in the partial absence of the defendant. During the appeals proceedings the defendant’s presence is of lesser importance but the during the Berufung the court can compel the defendant’s presence. d) Italy The procedure in absentia has a long tradition in Italian criminal procedure and has always been an ordinary procedure.514 Its general acceptance has not changed with adoption of the new CPP in 1989 which introduced a number of adversarial elements into the traditionally inquisitorial criminal procedure in Italy.515 There have, however, been a number of legislative changes in the matter of proceedings in absence of the defendant – the latest in 2014516 – completely overturning the old

511

Ibid., 157 et seq. Section 26 AT-StGB. 513 Section 430(3) AT-StGB; WK-Murschetz232th, Section 430 marginal no. 7; Schwaighofer, FS-Platzgummer, 272; Triffterer, ÖRZ 1996, 150, 158. 514 Bricchetti/Cassano, Il procedimento in absentia, 4; Lattanzi, 24 Legislazione Penale 2004, 595, 595 et seq. See for a brief overview of the development up until the recent changes: Casiraghi, La disciplina del giudizio senza imputato: quadro restrospettivo. 515 The new CCP introduced adversarial proceedings with a strict differentiation between investigative and trial stage. See Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 130; Dannecker, 97 ZVglRWiss 1998, 409, 421; Hein, Länderbericht Italien, 153 et seq., 190; Honert, 106 ZStW 1994, 427, 427 et seq.; Parlato, ZIS 2012, 513, 513. Highlighting the strict division between investigations and the trial stage: Stile, 104 ZStW 1992, 429, 431 et seq. However, several changes have been made by courts and the legislator in order to include more inquisitorial elements. See Dannecker, 97 ZVglRWiss 1998, 409, 421; Hein, Länderbericht Italien, 153 et seq., 190; Honert, 106 ZStW 1994, 427, 427 et seq.; Parlato, ZIS 2012, 513, 513. 516 Legge no. 67/2014. 512

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regulations. The latest change broke with the tradition of contumacy proceedings.517 The legislator’s action has predominately been triggered by the ECtHR jurisprudence convicting Italy on various occasions for the lack of the absentee’s effective possibility of receiving a fresh determination of the merits of the case.518 Further, several scholars have asked for these changes.519 Finally, the Italian Constitutional Court contributed to this development by establishing far-reaching fundamental principles that influenced the subsequent legislation.520 In this regard the court recognised a comprehensive right to effective defence during the trial and thereafter.521 The Constitutional Court found the defendant’s autonomy over his right to defence to be “irreplaceable”.522 Not to speak of the increased importance that is attached to the defendant’s right to be present at trial, especially when considering his essential role within the adversary principle.523 aa) Investigative stage and its in absentia framework The mixed nature of the criminal proceedings arises, in particular, in the role of the prosecution. The prosecutor is, on the one hand, seen as party to the proceedings but, on the other hand, as a judicial body obliged to investigate inculpatory as well as exculpatory evidence.524 The judicial police (polizia giudizaria) are subordinated to

517 The previous regulation distinguished between the defendant in contumacia and the absent defendant. See as for the old regulations: Lattanzi/Lupo-Blaiotta, Art. 420bis et seq.; Tonini, Manuale di Procedura Penale, 621 et seq.; brief but comprehensive: Tonini, Lineamenti di Diritto Processuale Penale, 329. 518 Most notably: ECtHR, Colozza v. Italy, Judgment, 12 February 1995, Appl. No. 9024/ 80; Somogyi v. Italy, Judgment, 18 May 2004, Appl. No. 67972/01; Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00. 519 Inter alia among many others: Caprioli, 24 Legislazione Penale 2004, 586; Chiavario, 25 Legislazione Penale 2005, 253; Filippi, 45 Cassazione Penale 2005, 2193, 2106; Lattanzi, 24 Legislazione Penale 2004, 595, 600; Mangiaracina/Zappalà, Garanzie Partecipative e Giudizio in Absentia; Moscarini, La contumacia dell’imputato; Quattrocolo, 46 Cassazione Penale 2006, 2948; Ubertis, 24 Legislazione Penale 2004, 606, 609; Ubertis, 45 Cassazione Penale 2005, 1091, 1094. 520 Bricchetti/Cassano, Il procedimento in absentia, 4. 521 Art. 24(2) Italian Constitution; Corte Costituzionale, Judgment, No. 125/1979. See also Mangiaracina, Report on Italy, 231. 522 Corte Costituzionale, Judgment, No. 9/1982: “insostituibilità”; see also Corte Costituzionale, Judgment, No. 99/1975: 523 Art. 111 of the Constitution has implemented the principle of contraddittorie. See for the details: Mangiaracina, Report on Italy, 231. 524 Art. 358 CPP; Corte Costituzionale, Judgment, No. 88/1991; Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 132 cf. Hein, Länderbericht Italien, 158 et seq. It is further to be highlighted that an independence – comparable to the judge’s independence – arises from the constitution as both are magistrati, Tonini, Manuale di Procedura Penale, 106; Siracusano/Galati/Tranchina/Zapallà, Diritto Processuale Penale, 95 et seq.

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the prosecution and are the de facto authority to conduct the investigations.525 The defence is also authorised to conduct investigations, possibly through a private detective.526 The defence counsel can also consult experts.527 He can further apply to the prosecutor to summon witnesses, a request the prosecutor generally has to comply with.528 In this regard it is to be noted that the assistance of a defence counsel is mandatory throughout the criminal proceedings.529 If the defendant has not chosen defence counsel, the criminal justice authorities appoint a counsel ex officio. In any case, the prosecution is in charge of the investigations.530 The defendant is usually not involved during the secretly conducted pre-trial investigations531, unless he is interrogated. The investigations are the mechanism to establish sufficient facts to submit an indictment. Its outcome is, as a general principle, not relevant for the main hearing.532 Only on rare occasion evidence taken during the investigations is admissible during trial.533 That is only the case when the defence counsel was present during the taking of evidence.534

525 Art. 327 CPP; Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 134; Izzo, Diritto Processuale Penale, 67. 526 Art. 327bis, 391bis CPP. For a period of about ten years this right was rather theoretical as for the lack of legislative rules it could not be made use of in practice. Regarding the old legal conditions see: Corte di Cassazione, Judgment, 18 August 1992, Burrafato, Cassazione Penale (33) 1993, 1502; Hein, Länderbericht Italien, 159. See for the new regulations introduced in 2000: Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 142; Illuminati, El sistema acusatorio en Italia, 155. See for the details: Filippi, Processo Penale, 5 et seq.; Parlato, Le nuove disposizioni in materia di indagini difensive. 527 Art. 327bis(3) CPP. 528 Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 142, 144; Frigo, L’indagine difensiva da fonti dichiarative, 229; Furgiuele, Colloquio ed assunzione di dichiarazioni scritte e di informazioni nell’ambito dell’attività investigativa del difensore, 187 et seq. with further references. 529 Art. 97 CPP. See also Quattrocolo, Personal Participation in Criminal Proceedings, 457. 530 However, an investigative judge must authorise the use of severe coercive means or restriction on the defendant’s fundamental rights. Art. 327 CPP; Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 133; Honert, 106 ZStW 1994, 427, 429; Orlandi, 108 ZStW 1996, 429, 433; Parlato, ZIS 2012, 513, 516; Stile, 104 ZStW 1992, 429, 434 et seq. The investigative judge can further intervene upon request of the parties. But the Italian concept of the investigative judge is not comparable to the Judge of Instruction who has the power to conduct investigations. The reform rather intended to abandon the model of the Judge of Instruction. See also: ibid. 531 Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 144; Dannecker, 97 ZVglRWiss 1998, 409, 422; Orlandi, Länderbericht Italien, 96; Art. 329(1) CPP. See as for the secrecy also Mangiaracina, Report on Italy, 235. 532 Parlato, ZIS 2012, 513, 516; Siracusano, et al., Diritto Processuale Penale, 391 et seq.; Stile, 104 ZStW 1992, 429, 432. 533 Parlato, ZIS 2012, 513, 513. 534 Art. 403(1) CPP.

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The investigations end with the prosecutor’s decision to apply for the closing of procedures (archiviazione)535 or the application to indict. Both suspension and the initiation of pre-trial proceedings are subject to judicial control as a judge is to decide on either application.536 In case the prosecutor decides to indict, he has to inform the defendant about the forthcoming indictment and the facts supporting the charges.537 A full evidentiary disclosure has to take place.538 bb) Right and duty to be present during judicial proceedings With the start of judicial proceedings, the defendant has a comprehensive right to be present both at trial and preliminary judicial proceedings. Such right is deduced from several notions, first and foremost from Art. 111(2), (3) Costituzione – the principle of an adversary process – and the international notions of a fair trial, namely Art. 6 ECHR and Art. 14 ICCPR.539 The right to participate at the trial instituted against oneself is considered to be the essential part of the constitutional right to defence, as well as a binding principle of civilised nations.540 The notion of the adversary principle especially underlines the significant role the defendant plays as protagonist in criminal proceedings and thereby highlights the right to be present and participate at trial.541 The right to participate as well as the right to confront witnesses can only be used effectively when the defendant is present.542 The right to be present does not generally correspond with a duty to be present.543 On the contrary, it corresponds to the autonomy of the defendant to be absent.544 535

It is merely a suspension and investigations can be resumed if the newly investigation seems necessary: Art. 434 CPP. See also: Grande, 72 Am J Comp L 2000, 227, 234, 242; Parlato, ZIS 2012, 513, 517; Stile, 104 ZStW 1992, 429, 437. 536 Art. 328 CPP; Parlato, ZIS 2012, 513, 516. As for the details: Stile, 104 ZStW 1992, 429, 436 et seq.; Tonini, Manuale di Procedura Penale, 549. 537 Art. 415bis CPP. See as for the details: Siracusano, et al., Diritto Processuale Penale, 517 et seq. 538 Grande, 72 Am J Comp L 2000, 227, 234. 539 Corte Costituzionale, Judgment, No. 186/1973; Biscardi, Processo Penale e Giustiza 2014, 103, 103 et seq.; Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 35. 540 Illuminati, La presunzione d’innocenza dell’imputato, 181: “La partecipazione dell’imputato al giudizio rappresenta il nucleo essenziale del diritto costituzionale di difesa, oltre che un inderogabile principio di civiltà”. The right to defence stems from Art 24(2) Costituzione. 541 Corte Costituzionale, Judgment, No. 186/1973; Mangiaracina, Report on Italy, 231. 542 Bricchetti/Cassano, Il procedimento in absentia, 36 et seq. 543 Corte Costituzionale, Judgment No. 301/1994; Judgment, No. 498/1989; Judgment, No. 125/1979; Chiavario, Diritto Processuale Penale, 187; Negri reaches the same result after comprehensively analysing the doctrine of the duty to be present starting from the German doctrine Zwangsgedanke in the second half of the 19th century and applying such to the current Italian criminal procedure: Negri, L’imputato presente al processo, 87 et seq. 544 Corte Costituzionale, Judgment No. 301/1994; cf. also Judgment, No. 117/2007.

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Some scholars see this to imply a right to be absent.545 The court has, however, the power to forcibly order the defendant to a hearing where it deems his presence necessary for reasons other than his examination, which he can deliberately refuse.546 Therefore, no unrestricted right to be absent exists. cc) Pre-trial stage and its in absentia framework Upon submission of the indictment, except for very minor offences,547 the judicial pre-trial proceedings (udienza preliminare) follow. This is a confirmation of charges led by a judge,548 who decides on whether to open the main hearing or acquit the defendant.549 The udienza preliminare is often criticised as it developed to a lengthy and extensive procedure, which has little in common with the intended filter function.550 It is a non-public hearing with participation of prosecution and the mandatory defence counsel.551 E contrario the defendant’s presence or participation is not obligatory. He has, however, a right to be present and participate.552 The defendant is, accordingly, to be summoned to the confirmation hearing. The summons needs to include the warning that upon non-appearance the confirmation will be conducted in his absence.553 dd) Trial stage and its in absentia framework The trial (dibattimento) is almost purely adversarial. The evidence is taken in the manner of cross-examination of witnesses, experts and – if he so wishes – the defendant upon application of the parties.554 The parties are to submit a list of the evidence to be tendered prior to the trial.555 The court can reject the evidence tendered 545 Mangiaracina, Report on Italy, 231, 232, 234. See also Quattrocolo, Personal Participation in Criminal Proceedings, 461. 546 Art. 132(1), 490 CPP; Corte Costituzionale, Judgment, No. 301/1994. 547 In case the jurisdiction lies with the pretore (single judge of first instance), the prosecution issues the summons to the main hearing immediately and no filter proceedings are conducted before the trial: Art. 555 CPP. 548 Art. 422 CPP: other than in the main hearing, the judge is the person to conduct the examination. 549 Art. 425, 429 CPP. The decision of acquittal can, however, be rejected, upon arising off new evidence. 550 Parlato, ZIS 2012, 513, 517; cf. also Stile, 104 ZStW 1992, 429, 446 et seq. 551 Art. 420(1) CPP; Grande, 72 Am J Comp L 2000, 227, 241; Hein, Länderbericht Italien, 162; Tonini, Lineamenti di Diritto Processuale Penale, 328. 552 Tonini, Lineamenti di Diritto Processuale Penale, 329. 553 Art. 419(1) CPP. 554 Art. 190, 418, 501, 503 CCP; Jescheck, FS-Kaufmann, 662. 555 Art. 468 CPP. In exceptional circumstances a later tendering is possible: Art 493(3) CPP. Similarly, the regulation for counter-evidence is not as strict: Art. 468(4) CPP. Art. 431 CPP lists the documents provided for the fascicolo del dibattimento. Grande, 72 Am J Comp L 2000,

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only in exceptional cases of inadmissibility laid down in Art. 190 read together with Art. 187 CPP.556 The defence counsel can submit applications and suggestions as to the taking of evidence to the prosecution.557 However, there is no duty for the prosecution to consider these, nor is there a right to ask for the taking of the best evidence.558 (1) Trial entirely held in absentia – dibattimento in assenza The new legislation on trial in absentia introduced a unitary procedure in absentia that is applicable to both the pre-trial and trial proceedings.559 A novelty has been introduced with the regulation providing for the suspension of the trial for untraceable defendants. This new regulation takes account of the principle that it is not lawful to conduct a criminal procedure against the untraceable and, hence, uninformed suspect; a principle long established among scholars.560 Instead, the new regulation focuses on the proper notification – personally to the defendant’s hands – of the confirmation or trial hearings instituted against him.561 If the defendant was notified personally, the procedure takes place in absentia according to the general rules as knowledge of the proceedings instituted against the defendant is certain at that point.562 However, the (pre-)trial in absentia can only be conducted in certain determined cases. The judge establishes ex officio whether the following requirements are met.563 227; Tonini, Manuale di Procedura Penale, 34. Especially, Art. 493(4) CPP prohibits the reading out of bits of the fasciolio: Maiwald, Einführung in das italienische Strafrecht und Strafprozeßrecht, 222 et seq.; Tonini, Manuale di Procedura Penale8th, 549. 556 The court is to decide upon the tendering of evidence separately from the judgment: Art. 495(1) CPP. See as for the details: Hein, Länderbericht Italien, 180 et seq. There is no need to immediately object where there is an infringement of the rules of evidence. Complaints can be raised anytime: Art. 191 CPP. See also Grande, 72 Am J Comp L 2000, 227, 248 pointing out the diverge approach to the American system. 557 Art. 367 CPP. 558 Hein, Länderbericht Italien, 184. 559 The statutory regulations on proceedings in absentia can be found in the section for the udienza preliminare, but they likewise apply to the dibattimento of first instance: Art. 484(2bis) CPP. 560 Caprioli, 24 Legislazione Penale 2004, 586, 587; Ciavola, DPC 2015, 196, 210 et seq.; Conso/Illuminati-Nofri, Art. 420quinquies II.4; Tonini, Lineamenti di Diritto Processuale Penale, 332. Already the Constitutional Court highlighted this: Corte Costituzionale, Judgment, No. 399/1998. 561 Ibid. However, Tonini, Lineamenti di Diritto Processuale Penale, 330 criticises that still specific determined acts indicate knowledge of the procedure held against the defendant and based thereon a presumption that the date of the hearing is known and finally the inference of a deliberate waiver to attend the hearing in question. 562 Filippi, 45 Cassazione Penale 2005, 2193, 2205; Marzaduri, 24 Legislazione Penale 2004, 611, 615; Tonini, Lineamenti di Diritto Processuale Penale, 332. 563 Conso/Illuminati-Nofri, Art. 420quinquies marginal no. III.2.

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Then the defendant is declared to be in absence when the conditions apply and no rescheduling according to Art. 420ter CPP is to order.564 (a) Waiver of the right to be present or presumed knowledge of the proceedings and nonappearance at the hearing The first circumstance, in which a trial in absentia takes place, is where the defendant expressly waives his right to be present.565 It is an unquestionable principle that such waiver needs to be unequivocal.566 The wording seems to exclude the implicit waiver.567 Secondly, a trial in absentia can be instituted, if the defendant does not appear but received notice of the proceedings or there are certain elements, from which the defendant’s knowledge can be interfered. Hence, the defendant must be aware of the absence.568 Awareness of the proceedings is presumed if the defendant at some point during the procedure against him chose or declared a domicile,569 suffered a limitation of personal freedom – namely detention, provisional arrest or precatory measures570 –, when he appointed counsel or when the summons or notification of procedural steps to be taken was served personally on the defendant.571 Further, when 564 Art. 420bis(3) CPP. The false declaration of absence causes its nullity according to the general rules ex Art. 178(c), 180, 182 CPP; other than normally – Art. 180(1) CPP – the nullity can also be determined in the appeals stage, hence, after the deliberations: Conso/IlluminatiNofri, Art. 420quinquies marginal no. III.2. It is, further, reason to appeal. Haunting as for the manner in which the declaration has to be made: ibid., marginal no. VII with references to other opinions in the doctrine. The outcome of his assessment is that there is no strict formality, but the adversary principle must be complied with. Hence, the defence counsel needs to have the possibility to intervene. 565 Art. 420bis(1) CPP; Art. 159(1), (2bis) CPP. It is to be noted, that the waiver of the right to be present includes the waiver of the other defence rights, especially the right to pro se defence and participation: Lattanzi, 24 Legislazione Penale 2004, 595, 596. 566 See for the ECtHR G. I. 2. c) cc) (1)(b). As for Italian literature e. g.: Biscardi, Processo Penale e Giustiza 2014, 103, 104. 567 Ibid., 107; Negri, Il processo nei confronti dell’imputato “assente” al tortuoso crocevia tra svolgimiento e sospensione, 208 et seq.; Conso/Illuminati-Nofri, Art. 420quinquies marginal no. III.5. The former jurisprudence allowed for an implicit waiver. See only: Corte di Cassazione, Sez. I, Judgment, 7 July 2010, No. 33510, Cassazione Penale (51) 2011, 2300. 568 Tonini, Lineamenti di Diritto Processuale Penale, 331 “assenza consapevole” (advertent absence). 569 According to Art. 161, 157 CPP. The declaration of the domicile to be notified can be made in front of a judge, the public prosecutor or the police during the investigations. See also Mangiaracina, Report on Italy, 256 with footnote 87. 570 Very critical in regard to the latter element: Ciavola, DPC 2015, 196, 201 et seq. 571 Art. 420bis(2) CPP. As for the latter personal service already Corte di Cassazione, 25 January 2011, Macrì, 2496360 asserting it to be the best possible solution to assure the defendant’s knowledge. Similarly: Biscardi, Processo Penale e Giustiza 2014, 103, 107; Ciavola, DPC 2015, 196, 200. Critically in regard to the announcement of the counsel as it does not provide for certain knowledge and puts the burden of information on the counsel: Biscardi,

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the judge is convinced that the defendant has obtained knowledge of the proceedings against him by other means.572 Finally, if the defendant deliberately avoided to take notice of the proceedings or certain procedural acts.573 The latter case covers the fugitive deliberately evading justice.574 (aa) Proper notification – vocatio in iudicium or summons The circumstances under which a trial can be held in absentia do not expressly speak of the requirement for a proper summons, vocatio in iudicium or other notification of the proceedings, but knowledge certainly presupposes the correct and proper serving of either of these documents, as a suspension has to take place where the defendant’s knowledge is uncertain due to his untraceability.575 Similarly, a voluntary waiver presupposes that the defendant was properly notified of the confirmation or trial hearing.576 In a similar vein, the jurisprudence determined that effective knowledge of the proceedings instituted against the defendant is a prerequisite to waive the right to be present at one’s trial or to appeal the in absentia judgment.577 The notion “effective” is to be highlighted in this regard. It indicates that the vague understanding of criminal proceedings against oneself is not sufficient.578 As a general rule, the status when notification is necessary is reached at the moment or procedural act that makes the defendant’s notification necessary in order to enable the defendant to effectively make use of his right to defend himself.579 This can, and will usually be, the proper summons to the trial hearing or vocatio in iudicium, as Processo Penale e Giustiza 2014, 103, 108; Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 46. 572 Art. 420bis(2) CPP. The term certainty is seen as possible point of references for the judge to include discretion: Conso/Illuminati-Nofri, Art. 420quinquies marginal no. V.7. 573 Art. 420bis(2) CPP. Like this already: Corte di Cassazione, Sez. II, 21 February 2006, No. 9105, Dioum, CED 233514. 574 Conso/Illuminati-Nofri, Art. 420quinquies marginal no. VI.2. 575 Art. 420bis(3) CPP. The deliberate waiver, similarly, requires knowledge. Hence, a proper summons or notice otherwise given. Cf. Ciavola, DPC 2015, 196, 200; Moscarini, Udienza preliminare e presenza dell’imputato, 320 et seq.; Conso/Illuminati-Nofri, Art. 420quinquies III.6; Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 44; Quattrocolo, DPC 2014, 97, 99. 576 Corte di Cassazione, Sez. I, 28 February 2007, No. 14613, Kafilai, CED 2365575. 577 Corte di Cassazione, Sez. II, 10 November 2005, No. 42589, Lena, CED 232607. See inter alia: Biscardi, Processo Penale e Giustiza 2014, 103, 114; Filippi, 45 Cassazione Penale 2005, 2193, 2206; Lattanzi, 45 Cassazione Penale 2005, 1125, 1126. 578 Bricchetti/Cassano, Il procedimento in absentia, 32; cf. Quattrocolo, DPC 2014, 97, 98. The doctrine considers knowledge of the vocatio in iudicium or the proceedings as a whole necessary: Bricchetti/Cassano, Il procedimento in absentia, 34; de Caro, Archivio Penale 2014, 1, 14; Papagano, Contumacia e processo equo, 25; Quattrocolo, DPC 2014, 97, 98. 579 Bricchetti/Cassano, Il procedimento in absentia, 35; Spagnolo, 46 Cassazione Penale 2006, 1115, 1117. The scholars predominately put forward as reasoning that the legislator replaced the negative requirement of not deliberately hindering the reception of the information with the positive demonstration that the deliberate waiver to be present occurred.

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these enable the defendant to take part at the proceedings.580 On some occasions, in order to give full effect to the defendant’s right to a proper defence,581 notification might already be necessary upon the completion of the investigation.582 (bb) Regulation on the service of notifications and summons The summons583 and notifications are, generally, to be served in person or to the defendant’s usual place of residence and can be received by certain third parties, namely family members or other persons usually living in the same household.584 Subsequent notifications and summonses can be served on the defendant’s counsel of choice (difensore di fiducia).585 However, where the summons cannot be delivered to the defendant’s domicile or he has not announced one, all notifications, including the first one, can be delivered to the difensore di fiducia.586 The counsel’s code of conduct requires him to communicate the received material to his client, so the defendant’s knowledge of the vocatio in iudicum is presumed by fictio iuris.587 However, the difensore di fiducia, additionally, has the possibility of rejecting the burden to receive and communicate the trial related documents to his client.588 Otherwise, the notifi-

580 Bricchetti/Cassano, Il procedimento in absentia, 36; Marzaduri, 24 Legislazione Penale 2004, 611, 615; Papagano, Contumacia e processo equo, 25 et seq.; cf. Ubertis, 24 Legislazione Penale 2004, 606, 608. 581 Corte di Cassazione, Sez. II, 23 February 2011, No. 11502, B., CED 249776. 582 So Corte di Cassazione, Sez. I, 23 June 2005, Kellici; Sez. IV, 19 June 2006, Hudorovic; Sez. II, 22 January 2010, Sadraoui. 583 Caprioli, 24 Legislazione Penale 2004, 586, 586 et seq.; Ciavola, DPC 2015, 196, 213; Izzo, Diritto Processuale Penale, 131. 584 Art. 157 CPP. The doctrine broadly criticises the notification regulations. It is suggested to ensure awareness of the proceedings by personally notifying the defendant, at least for the first procedural act: Caprioli, 24 Legislazione Penale 2004, 586, 586 et seq.; Ciavola, DPC 2015, 196, 213; cf. Filippi, 45 Cassazione Penale 2005, 2193, 2205 et seq. Only then a deliberate waiver can be concluded from his subsequent behaviour. 585 Art. 157(8bis) CPP. See for the former regulation only: Corte di Cassazione, Sez. Unida, 27 September 2005, No. 36634, Niane, CED 231809; Bricchetti/Cassano, Il procedimento in absentia, 37; Cassano, Il problematico rapporto tra l’art. 175 C.P.P. e il sistema delle notificazioni, 45 et seq. 586 Art. 161(4) CPP; Papagano, Contumacia e processo equo, 19; Quattrocolo, 46 Cassazione Penale 2006, 2948, 2954; Quattrocolo, 25 Legislazione Penale 2005, 292, 292, 296. All are rather critical to this regulation. Should the defendant have announced or elected a domicile during the procedure according to Art. 161 CPP, this is the only possible address for notification. Service to the counsel leads to its nullity: Corte di Cassazione, Sez. Unite, 15 May 2008, No. 19602. 587 Bricchetti/Cassano, Il procedimento in absentia, 38; Casiraghi, La disciplina del giudizio senza imputato: quadro restrospettivo, 23; Papagano, Contumacia e processo equo, 19; Tonini, Lineamenti di Diritto Processuale Penale, 331 with footnote 4. 588 Izzo, Diritto Processuale Penale, 132; Papagano, Contumacia e processo equo, 19; Tonini, Lineamenti di Diritto Processuale Penale, 331 with footnote 4; Quattrocolo, 25 Legislazione Penale 2005, 292, 296.

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cation of counsel equates with personal delivery.589 On the other hand, the notification of the duty counsel (difensore di ufficio) does not per se lead to the presumption of the defendant’s knowledge; the counsel must consent to receive the defendant’s notifications.590 (b) No absolute impossibility to appear Art. 420ter CPP excludes the procedure in absentia, notwithstanding the fulfilment of the above conditions, where the defendant was absent due to the absolute impossibility to appear as a result of unforeseeable circumstances, force majeure, or other legitimate obstacles.591 The likeliness of one of the circumstances, which hinder the defendant’s presence, is already sufficient to exclude a procedure in absentia.592 The impediments of force majeure and unforeseeable circumstances are characterised by inevitability, whereas the other legitimate obstacles might as well concern moral and social impediments.593 The mere difficulty to participate, on the other hand, does not run counter the conduction of a procedure in absentia.594 It is considered to be an insurmountable obstacle when the defendant is detained abroad and his extradition rejected.595 The judge investigates ex officio whether one of the impediments is applicable.596 In fact, the court schedules a new hearing and orders the renewed summons of the defendant where there is such impediment.597 The same applies if the defence counsel is hindered from attending due to the same reasons.598 A waiver of the right to be present, however, outweighs the exclusion by Art. 420ter CPP and potential legitimate impediments must not be assessed.599 In this case the judge’s assessment relates only to the unequivocality of the waiver.

589 Bricchetti/Cassano, Il procedimento in absentia, 40; Cassano, Il problematico rapporto tra l’art. 175 C.P.P. e il sistema delle notificazioni, 47; Papagano, Contumacia e processo equo, 24. Critically as the defendant knowledge is not certain: Casiraghi, La disciplina del giudizio senza imputato: quadro restrospettivo, 23; Papagano, Contumacia e processo equo, 19; Quattrocolo, 25 Legislazione Penale 2005, 292, 296 et seq. 590 Rat 162(4bis) CPP. 591 Art. 420ter(1) CPP. See as for examples for impediments: Conso/Illuminati-Nofri, Art. 420quinquies VII et seq. 592 Art. 420ter(2) CPP. 593 Chiavario-Cavallari, Art. 175, 264 et seq.; Moscarini, La contumacia dell’imputato, 292, 297; Conso/Illuminati-Nofri, Art. 420quinquies III.5, IV.2. 594 Conso/Illuminati-Nofri, Art. 420quinquies III.5. 595 Bricchetti/Cassano, Il procedimento in absentia, 5. 596 Conso/Illuminati-Nofri, Art. 420quinquies V.1; Tonini, Lineamenti di Diritto Processuale Penale, 331. 597 Leading to the absolute nullity if such notification and/or summons do not occur: Conso/ Illuminati-Nofri, Art. 420quinquies. 598 Art. 420ter(5)(sentence 1) CPP. 599 Conso/Illuminati-Nofri, Art. 420quinquies III.3; Tonini, Lineamenti di Diritto Processuale Penale, 331; Quattrocolo, DPC 2014, 97, 98; cf. also: Ciavola, DPC 2015, 196, 199.

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(c) No suspension of the trial due to the defendant’s untraceability Apart from the determined cases, proceedings against the absent defendant are to be suspended.600 An order of suspension also takes place where the summons is null.601 The judge, before suspending the procedure, orders the personal notification of the vocatio in iudicium to the defendant’s hands by the judicial police to ensure that he knows of the proceedings instituted against him.602 Where the notification in persona fails, the judge suspends the procedure, unless the court was to acquit the defendant for formal or substantial reasons.603 Acquittal precedes the suspension of the proceedings, so they are closed altogether.604 During suspension, the parties can apply for the taking of evidence which otherwise might be lost.605 Following the order of suspension, according to Art. 429quinquies CPP, every year a new search for the accused shall take place in order to notify him of the proceedings instituted against him.606 Should this search turn out positive, or if, in the meantime, did the defendant announce a difensore di fiducia, a counsel of his own choosing, it is proven with certainty that the defendant obtained knowledge of the proceedings. The suspension order is to be revoked and where appropriate a new hearing must be scheduled.607 When the judge comes to the conclusion that the defendant is to be acquitted in line with Art. 129 CPP, the suspension order is to be revoked and proceedings are terminated.608

600 Bricchetti/Cassano, Il procedimento in absentia, 74, 84; Conso/Illuminati-Nofri, Art. 420quinquies marginal no. IV.7; Quattrocolo, DPC 2014, 97, 103. As the legislator introduced a maximum period for the limitation of criminal offences (Art. 161 CPP) – except for very grave crimes – during the suspension this period might be reached with the consequence that the suspension is to be revoked and the defendant is to be acquitted according to Art. 129 CPP. This has been broadly discussed during the preparatory work. All proposals in this regard have been rejected. See as for this problem and possible solutions both with further references de Caro, Archivio Penale 2014, 1, 22; Ciavola, DPC 2015, 196, 213 et seq. Fear that the scheme will be abused by defendants in order to flee: Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 55; Quattrocolo, DPC 2014, 97, 104. Already long before the reform, suggesting the introduction of the suspension for the untraceable defendant: Caprioli, 24 Legislazione Penale 2004, 586, 592 et seq.; Filippi, 45 Cassazione Penale 2005, 2193, 2206. It should be noted that the suspension includes the statute of limitation of the alleged crimes. 601 Art. 420quater(2) CPP. 602 Art. 420quater(1) CPP; Tonini, Lineamenti di Diritto Processuale Penale, 332. 603 Art. 129, 420quater(2) CPP. 604 Bricchetti/Cassano, Il procedimento in absentia, 83. 605 Art. 420quater(3) CPP. 606 An earlier attempt is possible to the judges’ discretion: Ciavola, DPC 2015, 196, 211. 607 Art. 420quinquies(2)-(3) CPP. See as for the details: Conso/Illuminati-Nofri, Art. 420quinquies; Quattrocolo, DPC 2014, 97, 103 et seq. 608 Ibid.

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(d) Safeguards Art. 420bis(3) CPP foresees as a safeguard the requirement that counsel represents the absent defendant throughout the procedure in absentia. Further, the declaration of absence is to be cancelled upon appearance of the defendant at any time during the procedure before the final judgment is rendered.609 The hearing that took place in absentia is to be repeated if the defendant proves that he was inculpably not aware of the on-going proceedings or was absolutely hindered to attend the hearing due to unforeseeable circumstances, force majeure, or other legitimate obstacles and he is not culpable for his delay.610 He can then also apply for the admission and repetition of gathering of certain evidence and decisions that have been taken in his absence.611 This can be seen as a special remedy to a fresh determination of the merits of the case upon appearance during the ongoing trial in absentia.612 (e) Reception of the new in absentia rules by the doctrine It is criticised that the new regulation relies on certain determined conditions that automatically presume the voluntariness of the absence – or in other words the implicit waiver – whereby the court has no discretion.613 Also, it is not certain 609 Art. 420bis(4) CPP. The omission of the formal revocation of the declaration of absence has no further consequences as the requirement for the absence terminates ipso iure. See e. g.: Conso/Illuminati-Nofri, Art. 420quinquies marginal no. X.2; Moscarini, La contumacia dell’imputato, 350 speaks of nullity; as for the old regulation also Corte di Cassazione, Sez. V, Judgment, 16 February 2005, Graziani, Cassazione Penale (46) 9/2006, 2896. 610 Art. 420bis(4) sentences 2, 3 CPP. 611 Art. 420bis(4) sentences 2 – 4 CPP. Scholars point out that the scope of application in the udienza preliminare is rather small and it is merely a regulation that applies where the defendant missed the beginning of the trial: Conso/Illuminati-Nofri, Art. 420quinquies marginal no. X.7; Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 52. Critically to this remedy due to its inconsistency with the system of remedies: di Paolo, La revoca dell’ordinanza che dispone il giudizio in assenza, 204. 612 Biscardi, Processo Penale e Giustiza 2014, 103, 113; Bricchetti/Cassano, Il procedimento in absentia, 82; Ciavola, DPC 2015, 196. It is questionable if this complies with the adversary principle laid down in the constitution and with the regulation of the ECtHR that ask for a repetition of the trial and not just certain acts: Conso/Illuminati-Nofri, Art. 420quinquies marginal no. X.7. Moscarini, Udienza preliminare e presenza dell’imputato, 342 et seq., therefore, suggests revoking all acts that have been conducted in absence of the adversary principle. However, in the overall assessment of the restutory remedies are seen postiv as they allow for the “full recovery of procedural chances” and are innovative: Quattrocolo, DPC 2014, 97, 101. 613 Biscardi, Processo Penale e Giustiza 2014, 103, 110 et seq.; Bricchetti/Cassano, Il procedimento in absentia, 79 et seq.; Conso/Illuminati-Nofri, Art. 420quinquies marginal no. V.3, 6. They, however, do not see a general incompatibility with the ECtHR rules. Especially regarding the criticism of the defendant’s determined indicative actions being far ahead of the procedure: ibid., marginal no. V.3; de Caro, Archivio Penale 2014, 1, 16 et seq.; Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 46.

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whether the defendant has in fact knowledge of the celebration of the process.614 Lastly, the doctrine questioned the compatibility of the in absentia regulations with the new adversarial system615 and the ECHR’s requirements.616 (2) Remedies against judgments rendered in absentia Several remedies aimed at repetition of the missed occurrences at the trial in absentia exist. First of all, as just seen, Art. 420bis(4) CPP provides for a remedy during the pre-trial or trial proceedings, before the rendering of the judgment of first instance, upon an appearance of the defendant that allows for the repetition of evidence that has already been taken.617 Secondly, the legislator amplified the errores in procedendo that can be claimed in an application to appeal (ricorso per cassazione) leading to annulment of the trial judgment and the referral of the case to the first instance.618 If the defendant was wrongly declared to be absent, i. e. the hearing should have been suspended or the defendant was not properly summoned to the hearing it is a reason for absolute nullity.619 The judgment rendered in absentia will be declared null and the Appeals Chamber will refer proceedings to the court of first instance.620 The Appeals Chamber further revokes the judgment in absentia and refers it to the first instance if the defendant proves that he had no knowledge of the

614 Silvestri, Le nuove disposizioni in tema di processo “in assenza” dell’imputato, 43; Mangiaracina, Report on Italy, 259. However, Bricchetti/Cassano, Il procedimento in absentia, 80 and Ciavola, DPC 2015, 196, 206 follow from the wording of Art. 420bis(2) – ‘certainty of the knowledge of the proceedings’ – that the court can implement a high threshold for assuming the defendant’s effective knowledge. Conso/Illuminati-Nofri, Art. 420quinquies marginal no. V.6 prefers to apply discretion in the proof that the defendant did not have effective knowledge. 615 Bricchetti/Cassano, Il procedimento in absentia, 6, 12; Ciavola, DPC 2015, 196; Moscarini, La contumacia dell’imputato, 493 et seq.; Lattanzi, 24 Legislazione Penale 2004, 595, 598, 600. 616 Among several others: Mangiaracina, Report on Italy, 274; Marzaduri, 24 Legislazione Penale 2004, 611, 615 et seq.; Quattrocolo, 25 Legislazione Penale 2005, 292, 303 et seq. See as for the discussion and proposals of the doctrine: Bricchetti/Cassano, Il procedimento in absentia, 11 et seq.; Ciavola, DPC 2015, 196. 617 See above H. II. 2. d) dd) (1) (d). 618 Art. 623(1)(b) CPP. The chamber respectively judge has to be different from the one that had conducted the trial in absentia: Biscardi, Processo Penale e Giustiza 2014, 103, 119. 619 According to Art. 420ter CPP, this is the case where the (possibility) exists that the defendant could not present himself for reasons of absolute impossibility because of unforeseeable reasons, force majeure or other legitimate reasons. This also applies where the defence counsel does not show up, Art. 420ter(5) CPP. See also Conso/Illuminati-Nofri, Art. 420quinquies marginal no. XI.2 and for the previous regulations Moscarini, Udienza preliminare e presenza dell’imputato, 334; Papagano, Contumacia e processo equo, 47. 620 Art. 604(5bis)(first sentence) CPP.

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on-going proceedings without fault.621 This similarly applies to proceedings before the Corte di Cassazione.622 Further, the legislator introduced an extraordinary remedy against final in absentia judgments – rescissione del giudicato. Upon successful application the res judicata in absentia judgment will be quashed and referred back to the first instance in order to give the defendant a fresh determination of the merits of the case.623 This remedy is seen as last resort, when the other remedies – in the trial or appeals stage – did not succeed.624 Its purpose is to ensure the defendant’s ability to make effective use of his right to defend himself and participate at the proceedings instituted against him.625 The remedy is given if the entire process until the rendering of the judgment took place in absentia, and if the convict626 shows that his absence was not due to culpable lack of knowledge of the proceedings instituted against him.627 The competent authority for the extraordinary remedy is the Court of appeal.628 The application is to be submitted within thirty days after the defendant personally or his specifically authorised counsel629 took effective knowledge of the judgment in absentia.630 The burden of proof for the nonculpable lack of knowledge of the pro621 Art. 604(5bis)(second sentence) CPP. The automatism that refers the procedure back to the first instance is criticised by some scholars, as it is inconsistent with the general rule that the reinsertion takes place in the moment where the error leading to the nullity occurred: Bricchetti/ Cassano, Il procedimento in absentia, 105 et seq., 155 et seq. 622 Art. 623(lit. b) CPP. See also Mangiaracina, Report on Italy, 259. 623 Art. 629bis CPP. Until 2017 the regulation could be found in Art. 625ter CPP. As for the qualification as extraordinary remedy: Bargis, DPC 2015, 160, 161, who asserts it to be hybrid remedy as there is a strict time limit of the admissibility of the application of 30 days. 624 Bargis, DPC 20151, 160, 161 625 Diddi, Novità in materia di impugnazione e di restitutio in integrum, 224; Ranaldi, Processo Penale e Giustiza 2015, 123, 124. 626 The conviction must be a custodial sentence or the application of security measures (misura de sicureza). 627 Art. 625bis CPP. Critical in regard to the restricted scope of application with regard to the old regulation: Bricchetti/Cassano, Il procedimento in absentia, 155; Conso/IlluminatiScomparin, Art. 625ter marginal no. II.1. 628 Until 2017 the competence to decide of the renewal of the trial of first instance was with the Corte di Cassazione which was broadly criticised in the doctrine: Bargis, DPC 2015, 160, 162 et seq.; Chinnici, Archivio Penale 2014, 1, 12; de Caro, Archivio Penale 2014, 1, 24 . The latter propose to have the judge of first instance decide on the matter. Others prefer the judge of execution as competent authority: Bargis, DPC 2015, 160, 169. 629 Art. 583(3) CPP. Previously no special authorisation was necessary. That was, however, criticised as the defendant’s knowledge of the judgment was not certain: Bricchetti/Cassano, Il procedimento in absentia, 9. 630 Art. 625ter(2) CPP speaks of the proceedings, the ratio, however, makes clear that it must be the judgment rendered in absentia, which also implies that there was a trial beforehand: Bargis, DPC 2015, 160, 164; Biscardi, Processo Penale e Giustiza 2014, 103, 119. Otherwise the defendant tried in absentia under correct application of Art. 420bis(2) CPP (e. g. where he appointed counsel or published his domicile address) could apply for the remedy and prove that he, in fact, had not such knowledge. As for the competency of reception of the application: Corte

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ceedings lies with the absentee.631 Papagano speaks of probatio diabolica in this regard.632 The court revokes the in absentia judgment, terminates the sentence and refers the proceedings – always, no matter in which instance the in absentia judgment was rendered – to the court of first instance633 if the defendant brings sufficient proof. This is accompanied by a suspension of the execution of the sentence.634 The defendant is to be newly summoned to the reinstated trial hearing.635 However, it is subject to debate whether the prohibition of a reformatio in peius applies to the rescissione del giudicato.636 ee) Trial partially held in absentia Under certain circumstances trial can also be held partially in absentia. Whenever the defendant is temporarily absent his defence counsel must represent him.637 The Constitutional Court deems presence of the defence counsel necessary to ensure the principio del contraddittorie of the criminal trial.638 (1) Semel praesens semper praesens Following the notion semel praesens, semper praesens, the defendant who absents himself after his initial appearance or does not present himself to subsequent trial Cassazione, Sez. Unite, 17 July 2014, Burba, No. 36848; Art. 582(1); 583(3) CPP. Some scholars prefer the sole applicability to the court that rendered the judgment: Bargis, DPC 2015, 160, 164; Biscardi, Processo Penale e Giustiza 2014, 103, 119; Tonini, Lineamenti di Diritto Processuale Penale, 535; Quattrocolo, DPC 2014, 97, 102. Other scholars see solely the Corte di Cassazione as competent addressee: de Caro, Archivio Penale 2014, 1, 24. 631 Corte de Cassazione, Sez. Unite, 17 July 2014, n. 36848, Burba, CED 259991; Bricchetti/Cassano, Il procedimento in absentia, 167. Generally supporting this: Conti, DPC 2015, 2. 632 Papagano, Contumacia e processo equo, 79. Critical as to the shift of the burden of proof: Bargis, DPC 2015, 160, 165; Ciavola, DPC 2015, 196, 208; de Caro, Archivio Penale 2014, 1, 25; Diddi, Novità in materia di impugnazione e di restitutio in integrum, 232; Conso/IlluminatiScomparin, Art. 625ter marginal no. II.1; Quattrocolo, DPC 2014, 97, 102, 106. 633 Critically in this regard: de Caro, Archivio Penale 2014, 1, 23. 634 Conti, DPC 2015, 3. Following an overall interpretation of the ratio of Art. 625bis(2), 666(7), 670(2) CPP. Already during the procedure the provisional suspension of the execution can be asked for: Corte de Cassazione, Sez. Unite, 17 July 2014, No. 36848, Burba, CED 259991; Biscardi, Processo Penale e Giustiza 2014, 103, 120. 635 Bricchetti/Cassano, Il procedimento in absentia, 176; Conti, DPC 2015, 4. 636 Pro: Biscardi, Processo Penale e Giustiza 2014, 103, 119; Conti, DPC 2015, 5; cf. also Corte Costituzionale, Judgment, No. 113/2001. Contra: Belluta, Le impugnaziono come rimedi ripristinatori, 273; Chimichi, Art. 625ter: la rescissione del giudicato, 325. 637 Art. 420bis(3) CPP; Corte di Cassazione, Sez. III, Judgment, 25 February 2009, Melise, Cassazione Penale (51) 2/2011, 654. See as for the representation of the disruptive defendant who was removed from the courtroom: Chiavario, Diritto Processuale Penale, 187; Negri, L’imputato presente al processo, 267. 638 Corte Costituzionale, Judgment, No. 421/1997.

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hearings after having attended a hearing before, is deemed to be present.639 Unless his absence was involuntary, for example, where objective obstacles prevented him from attending trial, the conduction of the trial in his absence is not deemed a trial in absentia in the sense of Art. 420ter CPP.640 (2) Removal of the defendant due to his misconduct Art. 475 CPP provides for the exclusion of the defendant due to repeated intolerable disorderly behaviour after a prior warning.641 Considering the significance of the infringement of both the right to be present and right to defence, the judge’s order of removal of the defendant needs to be ultima ratio.642 When the defendant is removed from the courtroom, a fiction of presence remains.643 However, the defendant needs to be represented by counsel.644 In any event, the defendant should generally be let into the courtroom before closure of the trial in order to allow him to make use of his right to the last words.645 ff) Appeals stage and its in absentia framework The appeals proceedings (appello) can be held according to the general rules646 – in a public hearing and according to the general in absentia rules. However, appeal proceedings will be held in camera – i. e. without a public hearing but with attendance of the parties – after a summary trial or in cases where the appeal challenges the sentencing.647 In this case with regard to procedures in absentia Art. 599 CPP foresees a special regulation.648 According to this rule, the appeals hearing is to be postponed if the defendant did not appear due to a legitimate impediment when he had declared before that he was willing to appear to the appeals hearing.649 Hence, the defendant’s presence and especially pro se defence is given special importance when

639 Art. 420bis(3) CPP; Tonini, Lineamenti di Diritto Processuale Penale, 331. Already with regard to the old regulations: Bricchetti/Cassano, Il procedimento in absentia, 78; Moscarini, La contumacia dell’imputato, 359. 640 Corte di Cassazione, Sez. III, Judgment, 25 February 2009, Melise, Cassazione Penale (51) 2/2011, 654; Conso/Illuminati-Nofri, Art. 420quinquies marginal no. XII.4. 641 Negri, L’imputato presente al processo, 272. 642 Ibid., 267. 643 Chiavario, Diritto Processuale Penale, 187; Negri, L’imputato presente al processo, 267. 644 Chiavario, Diritto Processuale Penale, 187; Negri, L’imputato presente al processo, 267. 645 Corte di Cassazione, Sez. I, Judgment, 25 January 1986, No. 171695. 646 Art. 598 CPP 647 Art. 443, 599 CPP. 648 Elaborately: Mangiaracina/Zappalà, Garanzie Partecipative e Giudizio in Absentia, 194 et seq. 649 Art. 599(2) CPP.

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the defendant – up to a few days before the hearing650 – declared his willingness to appear. The appeals judgment is null where such postponement did not take place although the requirements were met.651 However, the appeal on points of law in front of the Corte di Cassazione – the Court of last instance – which do not concern the merits of the case are usually held ex-parte.652 The defendant must specifically assign a counsel who is registered at the Corte di Cassazione in order to lodge the appeal.653 Again it is possible to conduct the procedure publicly.654 In that case, specially announced counsels represent the parties during the adversarial hearing.655 On the other hand, the appeal can also be held in camera. In that that case, the procedure is held in writing.656 gg) Video link procedure – dibattimento a distanza The Disposizioni di attuazione del CPP introduced the possibility of conducting the trial a distanza,657 i. e. the defendant’s participation via means of video link. The video link procedure has been introduced in order to ensure a speedy criminal trial, to avoid that defendant’s accused of serious crimes have contact with criminal organisations they allegedly committed crimes for and to hinder intimidation and impact on the witnesses.658 Thus, the legislator took special measures with regard to the notorious mafia cases. However, in 2017 the video link participation was expanded to other fields of grave criminality and even a defendant who is at liberty.659 There are several cases in which a trial a distanza may be conducted. Firstly, this includes cases where the defendant is detained abroad. Upon refusal of the state of his 650

Mangiaracina/Zappalà, Garanzie Partecipative e Giudizio in Absentia, 201. According to the general rules: Art. 178 CPP. 652 The procedure is called procedimento in camera di consiglio. See e. g.: Corte de Cassazione, Sez. Unite, 17 July 2014, No. 36848, Burba, CED 259991; Art. 611 CPP. Critically: Bargis, DPC 2015, 160, 166; Biscardi, Processo Penale e Giustiza 2014, 103, 120. Generally for the procedimento in camera di consiglio: Izzo, Diritto Processuale Penale, 118. 653 Art 613(1) CPP. 654 Art. 611, 613 CPP. See as for the details: Mangiaracina/Zappalà, Garanzie Partecipative e Giudizio in Absentia, 224 et seq. 655 Art. 613(1) CPP. Tonini, Manuale di Procedura Penale, 881. 656 Mangiaracina, Report on Italy, 246. 657 Negri, L’imputato presente al processo, 281; Corte Costituzionale, Order, No. 483/2002. See also Mangiaracina, Report on Italy, 249. Video link procedures are also foreseen for the testimony of witnesses who underlie protective measures, for other security reasons or if public interests are concerned, further to prevent the prolongation of complex trials, unless the witness’s and defendant’s simultaneous presence in the courtroom is considered an absolute necessity: Art. 147bis Disposizioni di attuazione del CPP. See as for the details: Tonini, Manuale di Procedura Penale, 701 et seq. 658 Ibid. 659 Legge 103/2017. See also Quattrocolo, Personal Participation in Criminal Proceedings, 461. 651

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detention to cooperate in the process of letting the defendant physically participate at the procedure, a video link can be installed to conduct the trial, unless the defendant does not consent.660 The general rules on the procedure in absentia apply, especially where the defendant waives his right to be present and participate at the procedure.661 Also, in mafia and organised crimes cases a trial a distanza is foreseen for defendants detained in Italy if there are concerns as to the public security or public order or where due to lengthy hearings physical presence might unduly prolong the hearing.662 For defendants of these organised crimes who are detained due to a final conviction or precautionary measures apply, the appearance via video-conference is the rule due to a recent modification of the law.663 The right to defence needs to be fully guaranteed during procedures a distanzia. Therefore, clear visibility during the video link is necessary.664 At procedures concerning several accused this includes the simultaneous visibility of all co-accused, both to the courtroom and each other.665 The counsel or a substitute can be present at the premises of his client, but counsel or his replacement can also decide to be present in the courtroom.666 It is also necessary to give the client and his counsel time to confer confidentially.667 Finally, the defendant’s appearance may be ordered where necessary, for example, to conduct a confrontation or identification by a witness.668 A criticism is that the participation via video link diminishes the defendant to a sole means of evidence, whereas as the prosecution remains a full party to the proceedings.669 Further, it is submitted that the defendant is not able to properly crossexamine witnesses remotely since the video link disturbs the dynamic of the examination process.670 Notwithstanding the critics, the Corte Costituzionale, after balancing the right to defence and the public interests, did not see an infringement of constitutional rights, in particular regarding the right to defence and the adversary 660

Art. 205ter CPP; Scaparone, Procedura Penale, Vol. I, 168. Art. 205ter(4) CPP. 662 Art. 146bis(1) Disposizioni di attuazione del CPP. See also Law No. 11, 7 January 1998 read together with Art. 3 Law No. 279/2002. 663 The for more details and further references: Mangiaracina, Report on Italy, 249 et seq. 664 Art. 146bis(3) Disposizioni di attuazione del CPP. 665 Ibid. 666 Art. 146bis(4) Disposizioni di attuazione del CPP; Tonini, Manuale di Procedura Penale, 702; Scaparone, Procedura Penale, Vol. I, 168; cf. also: Corte Costituzionale, Judgment, No. 342/1999. 667 Art. 146bis(4) Disposizioni di attuazione del CPP. Corte Costituzionale, Judgment, No. 342/1999. 668 Art. 146bis(7) Disposizioni di attuazione del CPP. 669 Negri, L’imputato presente al processo, 283 et seq. 670 Ibid., 285 et seq. According to him, only in cases where the security or public order is severely endangered, the preponderance of such interests might succeed, i. e. especially in cases where the defendant belongs to a criminal organisation: ibid., 288 et seq. 661

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principle because the video link participation ensures minimal defence rights.671 The court admitted that the effectiveness of the right to defence was diminished by the defendant’s physical absence.672 However, the Constitution solely requests personal and conscious participation, which were obtained through a technically sound video link, which the judge is by law obliged to ensure.673 In conclusion, the room where the defendant is located can be regarded as an extension of the courtroom.674 hh) Special procedures and their in absentia framework The CPP foresees a number of special procedures that abbreviate the criminal procedure.675 (1) Accelerated procedure – giudizio abbreviato The defendant can apply for an accelerated procedure (giudizo abbreviato) in order to prevent the conduction of a proper trial and to reduce the penalty by onethird.676 It requires an unequivocal expression of the waiver of the right to a trial and knowledge of the investigative files.677 However, the defendant’s counsel can also submit the request.678 By virtue of the written form of the proceedings and the decision on the record, which gives the investigative files full probative value, physical presence is only required if the defendant asks to be interrogated.679 (2) Penal order procedure – procedimento per decreto The highly inquisitorial penal order procedure (procedimento per decreto), on the other hand, does not require the defendant’s participation. The prosecution can request a penalty order where it anticipates a monetary penalty and reduces it up to half the amount foreseen by law.680 The investigative judge, if granting the request, issues 671

Corte Costituzionale, Judgment, No. 342/1999; Order, No. 483/2002. Corte Costituzionale, Order, No. 483/2002. 673 Ibid. 674 Art. 146bis(5) Disposizioni di attuazione del CPP. 675 Critical of these abbreviated proceedings: Jescheck, FS-Kaufmann, 677 et seq. Another accelerated procedure is the patteggiamento, a bargain which is made upon request of the defendant and, therefore, not in his absence. Se for a more detailed description of abbreviated proceedings: Mangiaracina, Report on Italy, 238 et seq. 676 Art. 438 et seq. CPP. 677 Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 133; Grande, 72 Am J Comp L 2000, 227, 253; Conso/Illuminati-Negri, Art. 438 marginal no. VI.2, V.1 et seq.; Zacchè, Trattato di procedura penale, Vol. XXXV.2: Il giudizo abbreviato, 67 et seq. 678 Mangiaracina, Report on Italy, 239. 679 Art. 441(1), 421(2) CPP. 680 Art. 459(1), (2) CPP. 672

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a penalty order inaudita altera parte. Hence, without having heard the defendant.681 The defendant can, however, upon reception of the penal order, file an objection (opposizione) within 15 day.682 As a safeguard, the penal order needs to be provided to the defendant and his counsel of choice or a court-appointed lawyer if he has not chosen one.683 A court-appointed defence counsel will assist a defendant who does not have a domicile in Italy.684 If the service of the penal order fails, the judge revokes the order.685 ii) Summary In sum, the investigations generally take place in absence of the defendant, although there are some exceptions where the defendant has a right to be present. During trial and appeals on points of fact, the defendant has a comprehensive right to be present while during appeals on points of law, the defendant’s presence is of lesser importance. The defendant generally has no obligation to be present in any of the instances. He can autonomously decide not to attend trial, unless the court exceptionally compels the defendant to appear. A full trial in absentia takes place following a waiver of the right to be present or upon nonappearance after the defendant has been notified of the trial instituted against him. The notification is based on certain determined conditions and not in all cases is actual knowledge of the defendant certain. Although proceedings against the untraceable defendant are to be suspended, a trial in absentia may take place against a defendant who has not with certainty gained knowledge of the proceedings instituted against him. In certain proceedings, in particular those concerned with serious crimes, the defendant may also appear via video link. e) The Netherlands Dutch criminal procedure has elements of both accusatorial and inquisitorial nature but is not typical for either of them.686 It is known for being a very efficient and pragmatic criminal procedure.687 Also the Dutch approach to proceedings in absentia has changed recently due to several convictions by the ECtHR.688 681 Illuminati/Caianiello, The Investigative Stage of the Criminal Process in Italy, 133. This is according to the Corte Costituzionale in line with the constitution as a potential subsequent involvement may occur when objecting the order: Corte Costituzionale, Judgment, No. 46/ 1957. Generally critical as to the penal order procedure: Ruggeri, Eucrim 2016, 42. 682 Art. 461 CPP. 683 Art. 460 CPP. 684 Corte Costituzionale, Judgment, No. 225/1993. 685 Art. 460(4) CPP. 686 Kamerstukken, Tweede Kamer, 1913 – 14, 286 (MvT), No. 3, p. 51 et seq.; Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 253. 687 Ibid., 262.

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aa) Pre-trial stage and its in absentia framework Generally, the pre-trial stage is heavily emphasised in Dutch criminal proceedings. The trial is merely used to verify the data collected during the pre-trial phase in the case file and most of the witnesses do not appear again at the trial hearing.689 The prosecution is in charge of the investigations, but can delegate investigative actions.690 Consequently, the police are de facto the main authority to conduct the investigations. However, far-reaching coercive or secret investigative measures depend on the investigative judge’s (rechter-commissaris) consent.691 The rechtercommissaris can also carry out certain investigative measures ex officio or upon request of either the defence or the prosecution.692 The statement of the accused is regarded to be key evidence.693 While the police are not capable of (forcibly) summoning the defendant,694 the rechter-commissaris can summon the defendant and upon non-appearance combine a second summons with an order to forcibly bring him to the questioning.695 The investigative power, however, remains at all times with the prosecution.696 688 See inter alia ECtHR, Pelladoah v. the Netherlands, Judgment, 22 September 1998, Appl. No. 16737/90. Lala v. the Netherlands, Judgment, 22 September 1998, Appl. No. 14861/ 89; 689 Corstens, Het Nederlands strafprocesrecht, 651; Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 261; Knigge, 26 DD 1996, 991, 996; Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 172; Reyt, Niederlande, 299 et seq. Already Hart/Simmelink, FS-Remmelink, 179; Veen, 15 DD 1985, 3, 3 et seq. Of other opinion arguably Verbaan, Straf(proces)recht Begrepen, 240, who sees the main hearing as most relevant part of the criminal procedure. The ECtHR has condemned the Netherlands as courts tend to not call witnesses during trial although the accused has not had the opportunity to confront that witness beforehand. See in that respect e. g.: ECtHR, Bocos-Questa v. the Netherlands, Judgment, 10 December 2005, Appl. No. 5489/00. Weigend, Reform Proposals on Dutch Criminal Procedures, 157 sees the reason for this in the fact that no lay persons are involved in the judicial findings. 690 Art. 148 Sv, Art. 13 Politiewet; see also Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 157. 691 Franken, The Judge in the Pre-Trial Investigation, 35; Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 156. 692 Art. 180 – 183 Sv; Kamerstukken Tweede Kamer, 2009 – 10, 32177 No. 3, pp. 8 – 11. This was implemented by a legislation that was in name only aimed to extending the position of the Judge of Instruction (wet versterking van positie van de RC). The before mentioned example is, however, one of the few changes that actually enlarged his powers. The legislation rather solidifies his position as supervisor of the investigations. 693 Verbaan, Straf(proces)recht Begrepen, 251. 694 Unger/Hajda, Strafverfahren in den Niederlanden, der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik, 71. It should also be noted that the interrogation that is not delegated is to be strictly differentiated from the examination of the defendant as party to the criminal proceedings: Corstens, Het Nederlands strafprocesrecht, 348. 695 Art. 200, 205 Sv. The Public Prosecution Service will enforce the order, Art. 553 Sv. 696 Corstens, Het Nederlands strafprocesrecht, 288. It is upon the prosecution to decide whether it abandons investigations or carries on investigating: Art. 238(1) Sv. Cf. also

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If the judge conducts examinations of (expert) witnesses, the defendant’s counsel can usually be present and submit questions to be asked. The judge may also give the defendant such participation and presence opportunities when he finds it desirable for the investigations. However, both the defendant and his counsel can be excluded when the interests of the investigation so require.697 The same applies for sensible information or the prejudice of state interests.698 The defendant and his counsel, as well as the prosecutor have to be summoned where the judge fears that the witness may not be able to testify during the main hearing, as the right to confront the witness has to be safeguarded.699 However, an infringement of this rule has no consequences as to the use of the evidence at trial.700 As the counsel’s right to be present and participate is broader during pre-trial proceedings than the defendant’s, the defendant can be – unless he does not waive the right to be assisted by counsel – assigned a counsel if he is not legally represented.701 The defendant and his defence counsel can also participate in hearings conducted abroad in the course of legal assistance if they give notice of their intention to participate sufficiently in advance.702 As a general rule it can be said that during the pre-trial phase the procedural defence rights can be restricted in the interests of the investigations.703 Only at the trial stage when the defendant becomes a fully adequate party to the proceedings do his defence rights attach more comprehensively.704 Quite polemically the doctrine considers the “interest of the investigation [… to be] a synonym for the desire to bring a case quickly and efficiently to an end.”705 Other factors weighed against the defence’s participation rights are financial interests and expediency.706

Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 275; Hulst, Eucrim 2013, 131, ibid.; Prakken/ Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 156. See also Art. 170(2) Sv. 697 Art. 186a Sv. 698 Art. 187d Sv. 699 Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 258; Reyt, Niederlande, 296, 309. 700 HR, 26 September 1978, NJ 1979, 61. 701 Art. 187a Sv. 702 HR, 14 September 1987, NJ 1988, 301. The preparation of questions to be asked is also possible: HR, 31 March 1987, NJ 1988, 216. 703 Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 174. 704 Corstens, Het Nederlands strafprocesrecht, 652; cf. Veen, 15 DD 1985, 3, 3. See also: de Hulle/Plaisier, 26 DD 1996, 614, 615; Reijntjes, FS-Taru Spronken, 193. 705 Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 177; similarly critical as to the focus on judicial efficiency rather than the accused’s guarantees: Corstens, 25 Years of Criminal Procedure in the Netherlands, 9. 706 Cf. Prakken/Spronken, The Investigative Stage of the Criminal Process in the Netherlands, 172.

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The pre-trial proceedings, if not suspended – according to the prosecutor’s discretion707 – end with the issuance of a summons (dagvaarding) by the prosecution. The dagvaarding also serves as indictment and lists the defendant’s rights and – as the name indicates – summons him to appear to the trial hearing.708 There is generally no intermediate procedure. The defendant can, however, object to the dagvaarding, which leads to an intermediate procedure where a judge decides whether to confirm or reject the indictment.709 bb) Trial and appeals stage and their in absentia framework The trial in Dutch criminal procedure is significantly adversarial.710 The parties influence much of the course of the procedure. Nevertheless, the court is the one to primarily question the witnesses and plays an active role.711 The defendant has a comprehensive right to be present at the judicial proceedings instituted against him.712 With regard to the presence of the defendant before the court Dutch criminal procedure does not distinguish between the gravity of the offence,713 trial or appeals stage and the level of the competent court. The right to be present applies similarly to all stages and courts and so does the in absentia procedure.714 It is, however, to be noted that presence during the appeals procedure on fact and law (hoger beroep) is considered to be of particular importance since it is the last chance to participate at the criminal procedure instituted against oneself that concerns the merits of the case.715 Further, the second instance can have a healing effect as to the infringement of presence and participation rights that occurred in earlier instances.716 The right to 707

The expediency principle – opposed to the principle of legality – governs Dutch criminal procedure. 708 Art. 260 et seq. Sv, Art. 44(2) Sv; Reyt, Niederlande, 297; Unger/Hajda, Strafverfahren in den Niederlanden, der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik, 181; Verbaan, Straf(proces)recht Begrepen, 226. 709 Art 262(1) Sv; Unger/Hajda, Strafverfahren in den Niederlanden, der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik, 181. 710 See e. g.: Art 359(2) and (3) Sv. See as for the possibilities of consensual out-of-court settlements: Kooijmans, The Extrajudicial Disposal of Criminal Cases. Of other opinion: Landen, Internal Access in Preliminary Investigations, 111. 711 Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 255. 712 Myjer, 36 NJB 1994, 1229, 1231. 713 This was, however, differently before the Lala-judgment, as a replacement of the defendant by counsel was – without specific authorisation – possible for crimes that had no punishment of imprisonment. See for the old regulations: ibid., 1232. Generally, Dutch criminal law distinguishes between misdrijven that include minor and serious offences and overtredingen, which include only very minor offences. 714 Art. 280 Sv as for the rechtbank; Art. 398, 392 Sv as for the kantonsrechter; Art. 367, e contrario Art. 374(2) Sv as for the politierechter. 715 Plaisier, Het verstek in strafzaken, 232, 243. 716 Reijntjes, FS-Taru Spronken, 197.

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be present is also enshrined in the right to a fair trial and right to be heard. Moreover, it is closely linked to the principles of immediacy and confrontation.717 The defendant – except when he is a juvenile718 – is not generally required to be present during judicial proceedings.719 However, the Hoge Raad recognised that a subsidiary duty to be present exists, as the judge can order the defendant to appear at any time if the court finds it suitable.720 A personal impression of the defendant might be of relevance for sentencing.721 The Dutch legislator has considered – a move, endorsed by some scholars722 – imposing a strict duty to be present upon the defendant. Such an approach was, however, rejected by the following arguments:723 first of all the defendant’s status as autonomous party to the proceedings runs counter to the idea of a state’s duty of care. Rather, the defendant is seen to be capable of judging over his procedural strategy and the use of his procedural rights.724 Secondly, in absentia proceedings were considered to prevent the loss of evidence. Imposing a duty to be present upon the defendant would also mean that in absentia proceedings must be abandoned. Such approach was not in line with the long established practice of in absentia proceedings in the Netherlands. The legislator in this regard also mentions the assumption that the public trial constitutes a greater suffering than the actual punishment for most defendants.

717

Plaisier, Het verstek in strafzaken, 14. Art. 495a(2), (3) Sv obliges the court to forcibly bring the juvenile defendant to the hearing if he does not appear. There is, hence, a duty to be present. See as for the details: ibid., 24 et seq. See as for the principle of immediacy: Langemeijer, 6 DD 1976, 97. Until the middle of the twentieth-century scholars concluded that a duty to be present exists for the procedure to establish the identity of convicted persons or other sentenced persons. However, in both cases the general rules now apply. The court can compel the defendant to appear where it so wishes: Plaisier, Het verstek in strafzaken, 155. 719 See Art. 258(2), 278(2) Sv. Also Art. 28(1) Sv suggests that there is a duty to be present during the trial. Scholars, however, agree that such duty cannot to be derived from it. See: Corstens, Het Nederlands strafprocesrecht, 93; Verbaan, Straf(proces)recht Begrepen, 240. 720 HR, 14 January 1992, NJ 1992, 360 with comments by ThWvV; see also Royakkers, NJB 1995, 666, 666. See for the possibility to order the appearance: Art. 272, 398(2) Sv, the latter concerns the procedure in front of a kantonsrechter. Pleading for the implementation of a duty to be present for more serious offences: Knigge, Preadvies Deel II, 75 et seq. 721 Orie, DD 1996, 1004, 1012; Veen, 15 DD 1985, 3, ibid. 722 Plaisier, Het verstek in strafzaken, 5 et seq. 723 Kamerstukken, Tweede Kamer, 1913 – 14, 286, No. 3 (MvT), § 268, p. 117. 724 Plaisier, Het verstek in strafzaken, 7. See as for the legislators reasoning to not oppose a duty to be present on the defendant: Kamerstukken, Tweede Kamer, 1913 – 14, 286, No. 3 (MvT), § 268, p. 117. 718

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(1) Trial or appeals entirely held in absentia – Verstekbehandeling With the verstekbehandeling Dutch criminal procedure expressly provides for trials in absentia, a procedure that is commonly used.725 It is equally applicable to the trial and appeals stage and all types of crimes and offences. The possibility of a trial in absentia is based on the notion of an (implicit) waiver of the right to be present at one’s trial.726 If no authorised counsel appears, it is concluded that the defendant similarly waived his right to be legally represented during his absence.727 The waiver is considered to be a procedural right that underlines the defendant’s status as rational agent.728 The waiver – as often criticised in the doctrine – is inferred quite commonly by the jurisprudence even when no notice of reception of the summons occurred.729 Further, a fugitive is generally considered to have waived his right to be present.730 The verstekbehandeling has the following prerequisites: Upon nonappearance of the properly summoned defendant or the nonappearance of an authorised counsel, it lies within the courts discretion whether to reschedule the hearing or to proceed with the trial in absentia. (a) Nonappearance of the defendant or an empowered counsel upon opening of the hearing Whether the regulations on trials in absentia apply significantly depends on whether the defendant appears to the opening of the trial. In this regard, one has to note that the defendant’s counsel is seen to replace the defendant. If the defendant’s counsel appears at the trial hearing and declares that he has been specifically empowered to act as representative to the absentee, he can take the place of his client.731 Unless the court finds the defendant’s presence to be indispensable and summons him 725 Corstens, Het Nederlands strafprocesrecht, 673; Fokkens, Trema 1995, 29, 29; de Hulle/ Plaisier, 26 DD 1996, 614, 620; Plaisier, Het verstek in strafzaken, 128, 148. 726 HR, 12 March 2002, NJ 2002, 317; Plaisier, Het verstek in strafzaken, 188 et seq.; Wöretshofer, 28 DD 1998, 1034, 1054; cf. de Hulle, 44 AA 1995, 615, 621; Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 222; cf. also: Orie, DD 1996, 1004, 1015. It is to be noted that some scholars translate waiver with verwerking. 727 Kamerstukken, Tweede Kamer, 1996 – 97, 24 692, No. 6, p. 5. 728 Plaisier, Het verstek in strafzaken, 199. 729 HR, 15 September 1997, NJ 1998, 115. Critically e. g. with further references: Knigge, Preadvies Deel II, 79; Plaisier, Het verstek in strafzaken, 189 et seq., 337; Wöretshofer, 28 DD 1998, 1034, 1055. 730 HR, 19 November 1996, NJ 1997, 191. Agreeing: Plaisier, Het verstek in strafzaken, 197 et seq. 731 Art. 279(1) Sv. See also Art. 331(1), 314(2) Sv, which expressly grant equal rights and powers to the counsel substituting the absent defendant. See as for the motivations that has led to the introduction in 1998: Wöretshofer, 28 DD 1998, 1034, 1035 et seq. Critically, as this regulation results in a limitation of the adversary procedure, it does not seem just that the timelimit for appeals starts before the personal notification of the defendant: de Hulle/Plaisier, 26 DD 1996, 614, 625 et seq.; Knigge, 26 DD 1996, 991, 999.

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to appear or closes the proceedings upon nonappearance, the court has to accept the defence counsel’s appearance.732 However, the defence counsel must be specifically empowered by the defendant to act on his behalf for it shows that the defendant took notice of the proceedings instituted against him.733 Despite the defendant’s physical absence, the trial in that case is not deemed a trial in absentia in the technical sense as expressly stated in Art. 279(2) Sv. The counsel takes the procedural position of the defendant which gives him equal rights.734 (b) Proper summons or notice of the proceedings – Daagvarding Nonappearance can indicate a waiver of the right to be present only if the defendant had knowledge of the trial instituted against him.735 A verstekbehandeling can, therefore, only be held after the proper service of the dagvaarding.736 The court ex officio examines the validity of the summons and proceedings must be suspended if this requirement is not met.737 It is also possible to reschedule the hearing when there are grounds to believe that there was no fault in not receiving the 732

HR, 16 November 2004, NJ 2005, 44. Generally in favour of such substitute regulation: Myjer, 36 NJB 1994, 1229, 1237, but asserting that the defendant has to take both advantages and disadvantages, the latter especially regarding shorter time limits for appeals, as the delivery of the judgment is decisive. Welcoming the regulation as to the introduction of the possibility to be defended by counsel during in absentia proceedings, but not agreeing on the assumption that it should have negative consequences: de Hulle, 44 AA 1995, 615, 618. See already earlier: Hart/Simmelink, FS-Remmelink, who criticised the impediment of ECHR’s requirements. 733 Kamerstukken, Tweede Kamer 1996 – 97, 24 692, No. 6 (Notas n.a.v. Verslag), p. 5. See also: Wöretshofer, 28 DD 1998, 1034, 1039, 1056 et seq. who is critical in this regard. It is to be noted that the counsel’s power does not generally include the possibility to waive the right to legal remedies. The defendant can, however, empower his counsel, after having received notice of the judgment, to waive such right: Art. 364(2) Sv. Critical as to this classification: Plaisier, Het verstek in strafzaken, 229. He would have preferred a regulation within Art. 279 Sv. 734 Art. 331(1) Sv. There is dispute on whether the defence counsel can also accept or offer community service for his client, as this might be considered compulsory labour. In favour of this: Kamerstukken, Tweede Kamer, 1996 – 97, 24 692, No. 6 (Nota n.a.v. het Verslag), p. 6; Wöretshofer, 28 DD 1998, 1034, 1045; against this: HR, 19 April 1995, NJ 1996, 73, which request a written offer or acceptation by the defendant; similarly Plaisier, Het verstek in strafzaken, 182. 735 HR, 25 January 1983, NJ 1983, 414; Knigge, 26 DD 1996, 991, 1003; Orie, DD 1996, 1004, 1008; Plaisier, Het verstek in strafzaken, 129; Wöretshofer, 28 DD 1998, 1034, 1054; cf. Fokkens, Trema 1995, 29, 33, who sees no possibility to conduct an appeals hearing in absentia where the whereabouts of the defendant are unknown, as he, additionally to the lack of knowledge, has no right to attack the judgment in absentia. See also de Hulle, 44 AA 1995, 615, 621; de Hulle/Plaisier, 26 DD 1996, 614, 622; Orie, DD 1996, 1004, 1008. 736 It is interesting to note that, although dagvaarding must be properly served upon the defendant before the commencement of the in absentia trial, the defendant does not have to be notified about a subsequent amendment of the dagvaarding if it does not prejudice his defence rights: Art. 314(2) Sv; Plaisier, Het verstek in strafzaken, 177. Critically in this regard: de Hulle, 44 AA 1995, 615, 612 et seq.; Fokkens, Trema 1995, 29, 33. 737 See as for the appeals procedure: Art. 422(2) Sv.

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dagvaarding.738 In that case the defendant is to be newly summoned to the new hearing in the same manner.739 The service of the dagvaarding has to comply with Art. 586 et seq. Sv.740 According to these statutory rules, the summons must be served to the defendant’s address registered with by the gemeentelijke basisadministratie (GBA address) via mail, exceptionally via service of a police officer.741 Authorised recipients are – besides the defendant personally – persons empowered to receive the summons, family members or the other persons present at the defendant’s address.742 However, the criminal justice authorities have to take reasonable efforts to investigate the defendant’s whereabouts and take the usual measures to serve the summons personally.743 But the possibility to serve the dagvaarding to the registrar of the court that has jurisdiction over the criminal case in question is foreseen where the service to the GBA address fails.744 On the other hand, if the defendant has been caught red-handed with the accusation of a minor offence, it is sufficient to send a notice of appearance.745 The defendant of a minor offence can also be summoned immediately at the police station, where he will be notified of the exact charges, at the latest three days before the trial hearing.746 No proper summons is needed to start a trial. With regard to the appeals stage, it is notable that the appeal notice filed by the prosecution has to be served personally to the defendant or his defence counsel when

738

HR, 12 February 1991, NJ 1991, 480; Plaisier, Het verstek in strafzaken, 149. HR, 4 February 1997, NJ 1997, 348; ibid., 131; of other opinion: Reijntjes, De dagvaarding in strafzaken, 55. If authorised counsel was present when the case was suspended, he has a duty to inform his client about the court’s decision: HR, 29 June 1993, NJ 1993, 717. 740 As for the details: Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 101 et seq. 741 Art. 586, 587 Sv. The notification via formal address was introduced in 1994 to ensure that official documents can be served more easily and the service will not frequently be deemed null and void: Plaisier, Het verstek in strafzaken, 131; Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 127; Verbaan, Straf(proces)recht Begrepen, 226 et seq. 742 Art. 588, 588a Sv. 743 HR, 30 January 1996, NJ 1996, 601; de Hulle/Plaisier, 26 DD 1996, 614, 622; Verbaan, Straf(proces)recht Begrepen, 227. As for the summons for the appeals hearing: HR, 15 September 1997, NJ 1998, 115; HR, 12 September 2006, NJ 2006, 510. Some scholars therefore suggest that the defendant be obliged to name an address for the service of the judgment respectively summons: Knigge, Preadvies Deel II, 115; Royakkers, NJB 1995, 666. 744 Art. 588(3)(c) Sv. Special regulations apply for the defendant abroad: a fictio iuris of a personal summons exists upon notice that the daagvarding has been served personally by the state of the defendant’s residence, Art. 588(2) Sv. 745 Art. 383, 385 Sv. 746 Art. 370a Sv. 739

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he is empowered to defend his client on appeal.747 If the defendant filed the appeal personally, he has an obligation to ensure that the summons to the appeals hearing can be properly served on him.748 (c) Court’s decision to proceed in absentia It is up to the court’s discretion to determine whether the trial can take place without the presence of the defendant.749 The court weighs the defendant’s interests to be present against the state’s interests of conducting the criminal process in due time.750 If the postponement of the trial seems unreasonable, the court declares default (verstek) upon the defendant and starts the trial in absentia.751 The court is not generally concerned with investigating whether the defendant had a good reason for his nonappearance. In certain exceptions, when the case file gives indications for a good reason, the court has to investigate these reasons and consider suspending the proceedings.752 According to Art. 278 Sv, the defendant – or his counsel upon opening of the hearing753 – may also apply for a postponement of the hearing. Upon rejection of this request the trial proceeds in absentia otherwise the proceedings will be suspended.754 Whenever the court decides – even after the opening of a trial in absentia – that the defendant’s presence is indispensable, the defendant can be summoned to appear and the trial suspended until the arrival of the defendant.755 Further, the verstekbehandeling is to be suspended if the defendant or an empowered counsel appears after the beginning of the trial in absentia. A new trial starts, whereby it is up to the 747

Art. 409(2) – (4), Art. 450(2) and Art. 588(3)(b) Sv. In the latter case only a fictio iuris as to the personal knowledge exists. Critically: Plaisier, Het verstek in strafzaken, 141 et seq.; European Commission on Human Rights, Menckeberg v. the Netherlands, 16 October 1996, Appl. No. 25514/94, para. 49 et seq. 748 HR, 21 November 1996, NJ 1997, 279; HR, 30 January 1996, NJ 1996, 601; Kamerstukken, Tweede Kamer, 1995 – 96, 24510, No. 3, p. 6; critical in this regard: ibid., 144 as it does not ensure the defendant’s knowledge of the date of the hearing. However, not fully opposing this scheme of notification: ibid., 149. 749 Orie, DD 1996, 1004, 1015; Reijntjes, De dagvaarding in strafzaken, 60; cf. Corstens, Het Nederlands strafprocesrecht, 651, 673. 750 HR, 27 January 1987, NJ 1987, 667; 1 November 1994, NJ 1995, 86; 26 November 1996, NJ 1997, 279; 17 February 1998, NJ 1998, 428; Fokkens, Trema 1995, 82, 83; Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 125 et seq. 751 Art. 280(1)(b) Sv. 752 HR, 4 December 1984, NJ 1985, 340; Fokkens, Trema 1995, 82, 83; Myjer, 36 NJB 1994, 1229, 1232; cf. also Reijntjes, De dagvaarding in strafzaken, 58 et seq. Highlighting the crucial importance of that decision: Knigge, 26 DD 1996, 991, 1001; based on him: Plaisier, Het verstek in strafzaken, 156. 753 HR, 11 October 2005, NJ 2007, 454; Plaisier, Het verstek in strafzaken, 157. 754 Art. 278(3), (4) Sv. 755 Art. 258(2), 278(2) Sv; HR, 14 January 1992, NJ 1992, 360; Royakkers, NJB 1995, 666; Veen, 15 DD 1985, 3, ibid., 5; Verbaan, Straf(proces)recht Begrepen, 251.

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courts’ discretion if investigative acts that have been taken during the verstekbehandeling will be repeated.756 (d) Safeguards during the verstekbehandeling During the trial in absentia the defendant cannot personally make use of the defence rights he is usually entitled to.757 But, as seen above, the defendant can specifically authorise a defence counsel to represent him in his absence.758 However, a counsel who is not specifically empowered to represent the absentee cannot represent the defendant’s interests in his absence.759 The reason for this differentiation is that with the authorisation of the defence counsel it seems certain that the defendant has knowledge of the proceedings.760 In spite of this, the doctrine finds, if a counsel appears at the hearing but is not empowered in the manner Art. 279 Sv requests, he should be able represent the defendant’s interests during the in absentia procedure.761 However, other voices point in the opposite direction. It is feared that where counsel could be appointed to represent the defendant’s interests while absent that the right to 756

Art. 280(3) Sv. See expressly Art. 329, 331(2) Sv; Corstens, Het Nederlands strafprocesrecht, 673. 758 Art. 279 Sv. However, earlier the Hoge Raad held that the defendant in verstek was only in exceptional circumstances entitled to have his defence conducted by counsel. See inter alia HR, 23 November 1971, NJ 1972, 293; HR, 19 May 1987, NJ 1988, 217; 10 October 1989, NJ 1990, 293; 19 December 1989, NJ 1990, 407. Learned scholars broadly criticised the lack of adequate defence possibilities in the in absentia trials in the former practice: Jitta, NJB 1970, 909, 910 et seq.; Lensing/Balenka, Advocatenblad 1985, 499, 501; Rüter, 35 AA 1986, 309; Hart/Simmelink, FS-Remmelink, 175, 177 et seq. 759 HR, 8 April 2003, NJ 2003, 723; HR, 23 October 2001, NJ 2002, 77. He, however, left room for the possibility of being defended in the absence in exceptional cases. This is in line with the legislator’s reasoning: Kamerstukken, Tweede Kamer, 1995 – 96, 24 692, No. 3 (MvT), p. 14. See as for the conclusion that the legislator did not foresee legal representation during the verstek procedure: Wöretshofer, 28 DD 1998, 1034, 1053. That line of case law is broadly criticised as being formalistic and not in line with the ECHR requirements: Knigge, 26 DD 1996, 991, 1000; Plaisier, Het verstek in strafzaken, 225; Wedzinga/Neut, Advocatenblad 1998, 615. The latter are more reserved as they generally sees the new regulations to be compatible with the ECHR. Nonetheless, they are critical as to the formalistic approach. 760 Kamerstukken, Tweede Kamer, 1996 – 97, 24 692, No. 6, p. 5. The differentiation is important, as the time limit for the appeals starts with the delivery of the judgment – regardless of whether a trial in absentia or an adversarial hearing took place – when the defendant had knowledge of the trial hearing, Art. 408(1), 432, 585 Sv. This is applicable to the counsel substituting the absent defendant: Kamerstukken, Tweede Kamer, 1995 – 96, 24 692, No. 3 (MvT), p. 13. The defendant in case of legal representation but not substitution would be privileged, as the time limit to file an appeal starts later, namely upon service of the judgment upon the defendant. Very critical as to the substitution regulations as it shortens time limit of the appeals: de Hulle/Plaisier, 26 DD 1996, 614; Knigge, 26 DD 1996, 991, 999; Wöretshofer, 28 DD 1998, 1034, 1050. A little more reluctant: Orie, DD 1996, 1004, 1012 as he sees the danger that the right to be present will be completely disregarded by the courts due to economic reasons. 761 Hart/Simmelink, FS-Remmelink, 175, 177 et seq.; Verbaan, Straf(proces)recht Begrepen, 251. 757

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be present could completely be disregarded and in absentia proceedings would rather become the rule than the exception for process economic reasons.762 In any event, according to the Hoge Raad an infringement of any of the defendant’s participation rights can be healed in the second instance. Disregarding the right to participate or to be represented by counsel during the in absentia trial at first instance – e. g. by not giving the counsel the possibility to speak or question witnesses – can be healed in the hearing at the appeals stage.763 In order to give the defendant the possibility of representing himself during a trial in absentia, scholars suggest the implementation of a written defence during in absentia proceedings without prejudice to the general principle of orality.764 Under the current regulation only the defendant that was initially absent can submit written documents upon his appearance. Then he can implement any written submission he may have filed, simply by referring to them verbally during trial.765 In any event, upon arrival the trial in absentia will be suspended and a new trial initiated. During the in absentia trial the legal requirements for the court record are gradually more stringent. The court record cannot be abridged, especially in regard to the questioning of (expert) witnesses and victims, and the judgment rendered will be part of the court record.766 On the other hand, the procedure is shortened by the possibility of omitting the reading out or by summary of certain documents and other means of evidence.767 (e) Remedies against judgments in absentia The regular remedies apply to a judgment that has been rendered following a verstekbehandeling, albeit the prerequisites slightly differ and make the appeal against in absentia judgments somewhat easier. The ordinary remedy to enter into the appeals stage is hoger beroep, functioning as a second instance on the merits of the case.768 Generally, there is no possibility to file hoger beroep against judgments that imposed very minor punishment, unless leave to appeal has been granted.769 However, this restriction does not apply to in absentia judgments when the summons to the trial has not been served personally on the 762

Orie, DD 1996, 1004, 1012. HR, 5 October 2004, NJ 2004, 686; de Hulle, 44 AA 1995, 615, 620; Reijntjes, FS-Taru Spronken, 197; critically: Fokkens, Trema 1995, 29, 31. 764 Plaisier, Het verstek in strafzaken, 179. 765 HR, 19 June 1979, NJ 1979, 556. 766 Art. 327a, 378, 395(2)(d), 425(2)(d) Sv. 767 Art. 374 Sv. 768 It is, however, to be noted that a full revision of the judgment and the hearing in first instance is not necessary: Tweede Kamer, 2005/06, 30 320, No. 3 (MvT), p. 22. 769 Art. 404(2), Art. 410a Sv. See as for the details: Bemmelen/Veen, Strafprocesrecht, 618 et seq. 763

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defendant and he has not otherwise known from date and time of the trial hearing.770 However, the presumption of the leave to appeal for in absentia judgments, does not apply to trials held by the kantonrechter, i. e. very minor offences.771 Did the defendant not appear at the trial of first instance, an appeal hearing will regularly be conducted upon the defendant’s request.772 There is no need to submit further reasoning, except that the nonappearance was inculpably.773 Unless the defendant was summoned personally to the trial hearing, the time limit of fourteen days to appeal starts after the defendant has been notified about the judgment in absentia.774 The defendant who is tried in absentia, albeit personally summoned, is hence obliged to stay informed about the date of the rendering of the judgment and the outcome of the trial in order to file the notice of appeal in time.775 A specifically empowered counsel can also file the remedy.776 Only in exceptional cases will the case be sent back to the first instance. If the Hoge Raad finds that the summons in the first instance should have been declared null and void, he can remit the case back to the court of first instance, upon request of the defendant.777 Otherwise the remittal takes place if the defendant is not present at the appeals hearing, has not been personally summoned to appear, and there are no circumstances pointing to the fact that the defendant took notice of the appeal proceedings whatsoever.778 The Hoge Raad, however, in practice, despite declaring the daagvarding of first instance null and void, does not remit the case to the court of first instance.779 That is also true for cases where the first instance was unlawfully conducted in absentia.780 If the hoger beroep has been held in absentia, there is no possibility to file a remedy concerning factual questions since the Hoge Raad is the highest authority. 770 Art. 404(3) Sv. Critically: Bemmelen/Veen, Strafprocesrecht, 620 as it is not far-reaching and for example does not include the defendant that was present at the beginning of the trial but could – inculpably – not attend the latter hearing. Then he has, similarly, no knowledge of the judgment of first instance. 771 Ibid.; Kamerstukken, Tweede Kamer, 2005 – 06, 30 320, No. 3 (MvT), p 50. 772 Kuiper, NJ 2009, 166, 167. 773 Art. 410(4) Sv. 774 Art. 404, 408, 432 Sv. Kuiper, NJ 2009, 166, 167; Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 204. 775 Cf. Bemmelen/Veen, Strafprocesrecht, 615. 776 Art. 450(1) Sv. 777 Art. 422a(1) Sv. 778 Ibid. 779 HR, 2 March 2010, LJN: BK6313; supporting this: Bemmelen/Veen, Strafprocesrecht, 630. 780 HR, 17 January 2006, NJ 2006, 662; but see HR, 14 March 2000, NJ 2000, 423 where the case is remitted to the court of first instance as the defendant was physically present at the courthouse but was not called into the courtroom. Critical of this, not quite understandable, differentiation: Bemmelen/Veen, Strafprocesrecht, 631.

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Some scholars, therefore, plead for possibilities to have a retrial of the appeal at Hoge Raad.781 The usual remedies apply if counsel replaced the defendant, which is not deemed to be an in absentia judgment, despite the defendant’s physical absence. The time limit starts with the delivery of the judgment to the defence counsel and not upon service or notification to the defendant.782 The defendant, therefore, bears the risk of being properly informed by his counsel.783 The defendant subsidiarily has also the possibility of applying for beroep in cassatie, which concerns questions of law and formal errors in criminal procedure. It is, however, only applicable if no other remedy can be filed.784 As the prerequisites for filing hoger beroep in verstek judgments is simplified, it is not likely that beroep in cassatie will be applied for. Let alone the fact that beroep in cassatie will only be granted where questions to safeguard the interest of legal unity or the development of law are concerned. (2) Trial and appeal partially held in absentia The Dutch criminal procedure foresees several possibilities to conduct court hearings in the defendant’s partial absence. They all have in common that the trial is conducted as an ordinary contradictory hearing and is handled as if the defendant were present.785 (a) Semel praesens semper praesens Following the idea of semel praesens semper praesens after the defendant or his empowered counsel has appeared for the opening of the proceedings they can subsequently decide to abandon the further hearing(s).786 Some scholars want the defendant to be freshly summoned before the termination of trial in order to give the defendant the opportunity to have the last word.787 The Hoge Raad, however, made clear that the right to the last word is not of such significance that it would lead to the 781 Fokkens, Trema 1995, 29, 33; Myjer, 36 NJB 1994, 1229, 1238. He, however, requires that the defendant proves that he has not known about the date of the hearing; Laméris-Tebbenhoff Rijnenberg, Dagvaarding en berechting in aanwezigheid, 227 proposes a regulation similar to the “Wiedereinsetzung in den vorherigen Stand” depending on the defendants lack of fault. Similarly critical: de Hulle, 44 AA 1995, 615, 612 et seq. See already for the old regulation of in absentia proceedings: Plaisier, Het verstek in strafzaken, 177 et seq.; Rüter, 35 AA 1986, 309. See also Veen, 15 DD 1985, 3 that considers in absentia to take the heart from criminal trials. 782 Tweede Kamer 1996 – 97, 24 692, No. 3 (MvT), p. 14. 783 Bemmelen/Veen, Strafprocesrecht, 616. 784 Art. 78(6) RO. Similarly, the restriction as to very minor crimes apply: Art. 427(2) Sv. 785 Art. 273(3) Sv. 786 Corstens, Het Nederlands strafprocesrecht, 669; Myjer, 36 NJB 1994, 1229, 1232. 787 Verbaan, Straf(proces)recht Begrepen, 249.

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nullity of the judgment where the opportunity for the last statement has not expressly and newly been given.788 If the defendant’s counsel is present he can also speak the last word on behalf of his client.789 (b) Removal due to misconduct by the defendant Additionally, the presiding judge can decide to remove the defendant due to his disorderly conduct.790 This requires as a prerequisite a prior warning as to the possibility to be removed due to repeated misconduct. In this regard it should be noted that Art. 14 ICCPR was only accepted under the reservation that the defendant might be ordered to leave the courtroom for reasons of a smooth criminal procedure.791 The Dutch legislator anticipated that an exception to the general right to be present must exist in order to efficiently conduct a trial. (c) Trial against several defendants Further, the questioning of a co-accused can, depending on the presiding judges’ discretion, take place without the defendant.792 (d) Protection of witnesses and the reliability of their testimony The presiding judge can also order the defendant to leave the courtroom during the testimony of a witness.793 This lies in the court’s discretion and has no further prerequisites. The judge, however, considers whether there is good reason for the removal and whether the removal would unduly restrict the rights of the defence.794 Cases recognised by jurisprudence and doctrine where the removal is reasonable, primarily concern witness or victim’s protection and the need to ensure the reliability of a testimony.795 The defendant has to be informed about the content of the testimony that was given in his absence.796 Further, he can submit questions that may be asked by the judge in case he is not legally represented during the questioning of the witness.797 788

HR, 12 May 2015, NJ 2015/298 with comments N. Rozemond; agreeing: Mols/Mols, FS-Spronken, 177, who assert that it is not a significant part of the right to a fair trial. 789 HR, 14 October 1997, NJ 1998, 243. 790 Art. 273(3) Sv. The conduct can also be nonverbal: Verbaan, Straf(proces)recht Begrepen, 249. 791 Tractatenblad 1978 No. 177, p. 29. 792 Art. 286(3) Sv. 793 Art. 297(3) Sv. 794 Reijntjes, FS-Taru Spronken, 198. 795 See e. g.: HR, 4 February 1992, NJ 1992, 530; Corstens, Het Nederlands strafprocesrecht, 667; Plaisier, Het verstek in strafzaken, 160. 796 Art. 297(4) Sv. 797 Plaisier, Het verstek in strafzaken, 160.

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(3) Safeguards during trial partially held in absentia One safeguard to ensure that the defence rights are not disregarded during a partial trial in absentia is that counsel can be continually present. Thus, the possibilities to partially conduct the hearing in absence of the defendant do not apply to his counsel.798 cc) Video link procedures Nowadays it is possible to extensively use video conferencing in Dutch criminal procedure whenever persons are examined or questioned.799 It lies in the presiding judge’s discretion, whereby he has to take the interests of justice, and where applicable submissions by prosecution and or defence, into account.800 It is, however, in practice not yet frequently used.801 dd) Special procedures and their in absentia framework Dutch criminal procedure knows the following two special procedures which are regularly conducted in absentia. (1) Procedure against defendants who are believed to be suffering from a mental disorder In proceedings against defendants who are believed to be suffering from mental disease or defect a trial in absentia is possible in the court’s discretion where it finds the presence of the defendant in person not to be necessary or desirable.802 A defence counsel is required to act on the absentee’s behalf.803 (2) Penal order procedure The criminal justice authorities804 may also file a penal order for minor crimes that do not exceed imprisonment of six years and minor offences (overtredingen).805 The 798

Corstens, Het Nederlands strafprocesrecht, 668. Art. 131a(1) Sv. See as for the details: Handboek telehoren, version 6 July 2010. 800 Art. 131a(2) Sv. 801 Groenhuijsen/Selçuk, 126 ZStW 2014, 248, 262. 802 Art. 509d Sv. See also Art. 300 Sv: upon the parties’ application or ex officio, the questioning about the defendant’s mental capacity may be held without the defendant’s physical presence during a regular trial. See for the details: Corstens, Het Nederlands strafprocesrecht, 668; Blok/Besier, Het nederlandsche strafproces, Vol. II, 75. 803 Conclusion of prosecutor Langmeijer in: HR, 23 November 1971, NJ 1972, 293. 804 This is generally the public prosecutor. However, in certain cases the investigative officer may also file a punishment order. 799

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penal order can be issued without prior hearing of the defendant; hence, inaudito reo, if the guilt for the punished offence is established.806 However, in the majority of cases the prosecutor has to hear the defendant prior to the issuance of the order.807 Further, the defendant can object to the penal order. In that case a trial hearing according to the regular rules will be conducted.808 ee) Summary During the predominately secret investigations the defendant and his counsel – the latter much more comprehensively – can participate only in investigative measures carried out by the rechter commissaries. In contrast, both during the trial and the appeals proceedings, the defendant has a comprehensive right to be present. In order to underline his autonomy the defendant is in none of the instances generally obliged to be present. However, the court can – if necessary forcibly – request the defendant to appear. A full trial in absentia – the so called verstekbehandeling – upon nonappearance after the defendant has been notified of the trial instituted against him which is considered to be a waiver of the right to be present. The notification bases on certain determined conditions and not in all cases actual knowledge of the defendant is certain. Following a conviction in absentia, the possibilities for lodging an appeal are facilitated. The defendant may prevent a conviction in absentia proceedings by authorising a defence counsel to replace him during the proceedings.

3. Common law In the following, the possibilities to prosecute defendants in absentia in the tradition of common law will be discussed using the examples of the USA809 and England and Wales. a) USA Since in the US no comprehensive criminal procedural code exists, the criminal procedure is broadly shaped and standardised by the Supreme Court and its interpretation of the Constitution which led to a more uniform system of criminal pro805 Art. 257a et seq. Sv. Critically: Corstens, 25 Years of Criminal Procedure in the Netherlands, 6 et seq. Rather positively: Kooijmans, The Extrajudicial Disposal of Criminal Cases. Overtredingen can be found in Art. 424 et seq. Wetboek van de Strafrecht. 806 Kamerstukken, Tweede Kamer, 2004 – 05, 29 849 (Amendment von het lid Wolfsen), No. 9. 807 Art. 257c Sv. That is especially the case where rather high payments are imposed upon the defendant: Kooijmans, The Extrajudicial Disposal of Criminal Cases, 96. 808 Art. 257e, 257f Sv. 809 See also the short overview in Eibach, Abwesenheitsverfahren, 73 et seq.

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cedure, despite the distinction of federal and states’ law.810 As for proceedings at the federal level, however, the FRCrP embody rules of criminal procedure. Although most of the proceedings are held in state courts and according to state law,811 the following outlines the regulations of the FRCrP and standardised procedures that generally apply across all states but may differ in their details. This results not least from the fact that the FRCrP has served as a model for the states in the design of their procedural law.812 When it comes to the particularities of the in absentia regime, it will be pointed out when certain states take an approach that substantially differs from federal procedure. aa) Investigative stage and its in absentia framework The investigative phase in the American criminal procedure is to a great extent inquisitorial.813 Criminal proceedings usually start upon complaint, i. e. a written statement of the essential facts constituting the offense charged,814 ex officio when the police took notice of an alleged criminal offence or the arrest of a suspect. The investigations prior to an arrest are usually aimed at establishing whether a criminal offence has been committed and whether a suspect can be identified. When enough evidence to establish a probable cause is gathered, the suspect can be arrested.815 At this stage, proceedings are generally conducted in absence of the defendant, unless he is interrogated. A defence counsel is similarly not engaged at this stage of the proceedings.816 The police are the main authority of the pre-arrest investigations and the prosecution is usually only involved after basic investigations such as witness, victims, and suspects’ interviews and collection of evidentiary material has occurred.817 In some severe cases, especially those involving political corruption, or 810 Bradley, United States, 519; Whitebread/Slobogin, Criminal Procedure, 1. See as for the importance of the constitution in the matter of criminal procedure: Allen, et al., Comprehensive Criminal Procedure, 81, 103. Of crucial importance are insofar the 4th, 5th and 6th Amendments that over time are applicable across all states See inter alia: Mapp v. Ohio, 367 US 643 (1961); Ker v. California, 374 US 23 (1963); Malloy v. Hogan, 378 US 1 (1964); Pointer v. Texas, 380 US 400 (1965); Duncan v. Louisiana, 391 US 145 (1968). See also for an overview of the relevant court decisions: Whitebread/Slobogin, Criminal Procedure, 3. 811 Allen, et al., Comprehensive Criminal Procedure, 83; Bradley, United States, 538. 812 Lafave/Israel/King/Kerr, Criminal Procedure, p. 6. 813 McNeil v. Wisconsin, 501 US 171, 181 footnote 2 (1991). 814 Rule 3 FRCrP. It is to be made under oath before a magistrate and usually initiated by a victim or the investigating police officer. 815 Lafave, et al., Criminal Procedure, 8; Weaver, et al., Principles of Criminal Procedure, 6. This is certainly different where the suspect is immediately arrested at the crime scene. The establishing of a probable cause that he committed the crime then follows the arrest, but similar investigative actions will be taken. Of course the police have also to preserve exculpatory evidence: Arizona v. Youngblood, 488 US 51 (1988); Lafave/Israel/King/Kerr, Principles of Criminal Procedure: Investigation, 33. 816 Weaver, et al., Principles of Criminal Procedure, 7. 817 Ibid.; Lafave, et al., Criminal Procedure, 9.

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organised crime, as well as capital cases,818 the grand jury can engage in secret investigations with the great advantage of being able to subpoena witnesses and evidence.819 Grand jury proceedings are generally held secretly and ex-parte, which also excludes the defence counsel from participating. The return of the indictment by a grand jury following the secret procedure is to be delivered in open court; the defendant’s presence is not required but he has a right to be present.820 If the police find a probable cause that a suspect committed a criminal offence the suspect will be arrested. Ultimately, however, it lies in the prosecutor’s discretion whether to proceed with the investigation and to formally charge the defendant.821 After his formal charging, that is either through arraignment – known as initial appearance after an arrest –, grand jury indictment or prosecutional information, the suspect’s status shifts to the status of a defendant. With this shift he has the rights of the 6th Amendment, especially the right to counsel.822 Usually, the suspect is only formally charged after he has been arrested. As it is in the prosecutor’s discretion whether to prosecute and proceed to trial, it is most unlikely that in a case where the whereabouts of the defendant are unknown a formal charging occurs. A relevant factor for this decision may not least be that the costs of tracing a fugitive suspect may be excessive and are hardly predictable.823 However, the investigative authority would try to collect as much evidence as possible and may interview witnesses and make depositions. Considering that there is no procedure where a judge may take evidence and that no defence attorney is present at that stage, the evidence collected during the investigation will not be of much help for a future trial upon apprehension of the suspect as the evidence was not established in an adversarial manner. bb) Pre-trial procedure and its in absentia framework Court proceedings generally start with the initial appearance before a magistrate, a brief procedure where the defendant is informed of the charges and his various rights,

818 This includes true capital cases and former capital cases, now punishable with life imprisonment. 819 Blair v. United States, 250 US 273 (1919); United States v. Williams, 504 US 36 (1992); Rule 6 FRCrP; Bradley, United States, 540; Lafave, et al., Criminal Procedure, 10; Whitebread/ Slobogin, Criminal Procedure, 11. Some states give the possibilities to subpoena witnesses also to their investigative authorities. In a similar vein the US attorney in the federal system is able to issue administrative subpoenas. See as for the details and possible problems as well as a general outline on pro and cons regarding the grand jury: Lafave, et al., Principles of Criminal Procedure: Investigation, 376 et seq. 820 Rule 6(f) FRCrP; Johnson v. United States, 318 US 189 (1943); Orfield, Criminal Procedure under the Federal Rules, VI, 13. 821 Weaver, et al., Principles of Criminal Procedure, 341 et seq. 822 Bradley, United States, 537; Lafave, et al., Principles of Criminal Procedure: Investigation, 534; Weaver, et al., Principles of Criminal Procedure, 9; Rules 5(d), 58(b)(2) FRCrP. 823 Cf. Lafave, et al., Criminal Procedure, 852 et seq.

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counsel is appointed and hearings are scheduled.824 According to the FRCrP, counsel can defend the defendant, and if necessary is paid by the state.825 There are different types of procedure that follow depending on the gravity of the crime. In petty cases the defendant is already at the first appearance asked to enter a plea and his status of custody, bail and its circumstances, will be determined.826 The same applies if the defendant in a misdemeanour case consents to be tried by a magistrate.827 The magistrate may proceed in trying the defendant immediately after his initial appearance following a not guilty plea.828 In more serious cases, preliminary hearings follow the formal charging by complaint. Usually a magistrate determines in an adversarial hearing at which attendance of the defence counsel is mandatory,829 whether there is a probable cause.830 The defendant may waive the preliminary hearing.831 If there is probable cause or the defendant waived the hearing, the case will be bound over to the relevant trial court or grand jury. The federal system and some of the states still provide for a grand jury that screens the case presented by the prosecution in a secret procedure and issues an indictment in capital and severe cases when seeing a probable cause.832 The prosecution may decide to start proceedings immediately with an indictment to circumvent the preliminary hearing. Following this, an arraignment is conducted at the trial court where the defendant is informed of the felony or misdemeanour charges in the indictment and is to take his plea.833 The arraignment or formal charging is normally held with all parties present. The actual plea is generally to be taken in 824 Hollander/Bergman/Stephenson/Duncan, § 7.3; Lafave, et al., Principles of Criminal Procedure: Investigation, 13; Weaver, et al., Principles of Criminal Procedure, 333; Whitebread/Slobogin, Criminal Procedure, 11. See as for the federal jurisdiction: Rule 5 FRCrP. 825 Rule 44(a) FRCrP; Whitebread/Slobogin, Criminal Procedure, 12. However, the constitutional right to defence does not entitle the defendant to representation at this stage, since the initial appearance is not a substantial part of the trial. See 6th Amendment of the US-Constitution. 826 Weaver, et al., Principles of Criminal Procedure, 334. 827 Rule 5.1(a)(5) FRCrP. 828 Whitebread/Slobogin, Criminal Procedure, 11. 829 Coleman v. Alabama, 399 US 1 (1970). 830 Weaver, et al., Principles of Criminal Procedure, 12. 831 Rule 5.1(a)(1) FRCrP; Bradley, United States, 540; Lafave, et al., Criminal Procedure, 16 et seq.; Weaver, et al., Principles of Criminal Procedure, 353. 832 See 5th Amendment of the US-Constitution; Lafave, et al., Principles of Criminal Procedure: Investigation, 369 et seq.; Weaver, et al., Principles of Criminal Procedure, 12. The regulations among the states that still use a grand jury broadly differ in extend of the jury’s power and the practical use of it. Also, this procedure is not mandatory for the states and many introduced an additional procedure of charging, namely the information. The information is issued by the prosecution with the relevant trial court and embodies the charges. See Rule 10 and 11 FRCrP; Lafave, et al., Criminal Procedure, 18; Weaver, et al., Principles of Criminal Procedure, 11, 13. 833 Rule 10 and 11 FRCrP; Lafave, et al., Criminal Procedure, 18; Weaver, et al., Principles of Criminal Procedure, 11, 13.

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person and naturally requires the defendant’s presence.834 It is, however, accepted that a not guilty plea is assumed where the defendant fails to enter a plea.835 Additionally, the defendant can waive his presence at the arraignment and plead guilty in writing. This requires the signature of both defendant and his counsel confirming that he waives his presence at the arraignment, received a copy of the indictment or information and pleads not guilty.836 Also, prior bargaining negotiations between prosecution and defence are usually held without the defendant, who is represented by counsel.837 The grand majority of the cases are solved upon a guilty or nolo contendere838 plea.839 A comparably small number of far less than ten per cent of the cases make it to the trial stage.840 Pre-trial motions to supress evidence and disclosure especially of all exculpatory material841 follow before trial when a not guilty plea was taken.842 cc) Trial stage and its in absentia framework Whether the trial will be conducted as a jury or bench trial depends firstly on the severity of the offence – only in felony cases a jury trial is applicable. In misdemeanour cases, generally no jury trial takes place.843 Secondly, it is up to the defendant’s discretion. In felony cases he is entitled to a jury trial but may waive such 834

United States v. Denniston, 89 F.2d 696 (2nd Cir. 1937); United States v. Tortora, 464 F.2d 1202, 1208 (2nd Cir. 1972); United States v. Turner, 532 F.Supp. 913 (United States District Court, Northern District California 1982); Orfield, Criminal Procedure under the Federal Rules, VI, 14. 835 Rule 11(a)(4) FRCrP. 836 Rule 10(b) FRCrP. 837 Rule 11(c)(1) FRCrP; Whitebread/Slobogin, Criminal Procedure, 601. It is to be noted that in some jurisdictions judges may also be involved in the bargaining process. They are concerned with monitoring and may give advice as to the possible sentence. See as for the details: ibid., 605. 838 Nolo contendere is an assertion that the charges are not contested but no admission of guilt, so a nolo contendere plea cannot be used in civil cases to establish the defendant’s guilt. It is, hence, popular in commercial criminal law where civil litigation often follows the criminal. 839 See as for the plea procedure Rule 11 FRCrP and the leading case Boykin v. Alabama, 395 US 238 (1969). It is necessary for the judge to establish in open court that a knowing, including the understanding of the rights that he waives when deciding not to proceed to trial, and voluntary waiver of the right to trial and a factual basis for the plea exists. 840 Whitebread/Slobogin, Criminal Procedure, 12, 597; Weaver, et al., Principles of Criminal Procedure, 387; Lafave, et al., Criminal Procedure, 19. 841 Brady v. Maryland, 373 US 83 (1963). 842 Bradley, United States, 541; Weaver, et al., Principles of Criminal Procedure, 14, 368; Whitebread/Slobogin, Criminal Procedure, 12. See as leading case for discovery granting the defendant a basic constitutional right to disclosure Armstrong v. Manzo, 380 US 545 (1965). The details and broader rights are to be found in federal and state’s statutes, see e. g. Rule 16 FRCrP. 843 On the state level such trials are in the first instance often held in municipal court before a magistrate. See Weaver, et al., Principles of Criminal Procedure, 5.

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right and will be tried in a bench trial instead, although in capital cases the waiver might be impermissible depending on the state’s jurisdiction.844 In a bench trial, the judge is trier of fact and imposes the sentence. In jury trials, where the jury acts as trier of fact, voire dire proceedings are held in which prosecution and defence select a jury panel, consisting of a minimum of six jurors,845 suitable to their respective interests. The actual trial is predominately adversarial:846 both sides present their respective cases and the prosecution has to prove the defendant’s criminal responsibility beyond a reasonable doubt.847 During trial a comprehensive right to be present exists.848 Such right is predominately derived from the right to confrontation, which gives the defendant the right to be present during the testimony of witnesses.849 Moreover the 5th Amendment enables the defendant to receive a fair trial, which includes the right to be present at the procedure instituted against him.850 It is a right of utmost importance held to be “scarcely less important to the accused than the right of trial itself.”851 The right is also derived from common law852 and laid down in Rule 43(a) FRCrP853 as well as in most state constitutions.854 According to the Supreme Court, the right to be present beyond its constitutional demands takes on policy functions for a proper administration of 844

Lafave, et al., Criminal Procedure, 20. Williams v. Florida, 399 US 78 (1970); Ballew v. Georgia, 435 US 223 (1978). On the federal level and often for serious crimes in the state’s jurisdictions a panel of 12 jurors is usual. 846 See as for a critical voice regarding the adversary excess of the American criminal process: Kessel, 67 Notre Dame Law Review 1991, 403, 426 et seq. 847 Whitebread/Slobogin, Criminal Procedure, 12. 848 Bradley, United States, 544; Chemerinsky/Levenson, Criminal Procedure, 268; Lafave/ Israel/King/Kerr, Principles of Criminal Procedure: Post-Investigation, 560; Diaz v. United States, 223 US 442 (1912); United States v. Hayman, 342 US 205 (1952); Illinois v. Allen, 397 US 337, 338 (1970); cf. also United States v. Gagnon, 470 US 522 (1985); Crosby v. United States, 506 US 255 (1993) banning trials in absentia. The right to be present was already asserted as early as 1892 in: Lewis v. United States, 146 US 370, 371 (1892). 849 Coy v. Iowa, 487 US 1012 1017, 1019 (1998); Maffei, The European Rights to Confrontation in Criminal Proceedings, 33. 850 United States v. Gagnon, 470 US 522 (1985); Schwab v. Berggren, 143 US 442, 448 (1892); Chemerinsky/Levenson, Criminal Procedure, 268; Cohen/Adelman/Abramson, Criminal Procedure, 465; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 561. 851 Diaz v. United States, 223 US 442 (1912). See already in a similar vein Schwab v. Berggren, 143 US 442, 448 (1892). See also Illinois v. Allen, 397 US 337: “the most basic of the rights guaranteed by the Confrontation Clause is the accused right to be present in the courtroom at every stage of his trial”. 852 Schwab v. Berggren, 143 US 442, 448 (1892); Lewis v. United States, 146 US 370 (1892); United States v. Gregorio, 497 F.2d 1253 (4th Cir. 1974); United States v. Peterson, 524 F.2d 167, 183 (4th Cir. 1975). 853 Rule 43 FRCrP was intended to broaden the constitutionally existing right to be present: United States v. Alessandrello, 637 F.2d 131 (3rd Cir. 1980). 854 Cohen/Adelman/Abramson, Criminal Procedure, 645. See e. g. as for Washington: Art. I, Section 22 Constitution of the State of Washington. 845

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justice and provides both protection on the institutional and the individual level for the following reasons.855 In regard to its institutional function, the Supreme Court finds the right to be present to prevent the loss of public confidence in courts as instruments of justice.856 As for the individual safeguards, it allows the defendant to aid in his defence and thereby protects the integrity of trial.857 Finally it ensures undisturbed communication between counsel and client.858 Nonetheless, according to the Supreme Court the right to be present solely attaches in any stage or portion of the procedure that “has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge”.859 That is the case if presence is necessary for the defendant to test the evidence presented against him and his absence would affect his ability to defend himself properly and to receive a fair trial.860 Accordingly, there is no right to be present during in-chamber pre-trial conferences and other conferences that do not touch upon the substance of the case.861 The defendant’s counsel also has a right to be present.862 In some cases the defendant is obliged to be present. As regards the federal level, it was pointed out that “Rule 43, of course, requires the presence of the defendant at every stage of the trial, including the impanelling of the jury. I take it that the requirement is but codification of prior law.”863 Generally, in felony cases the defendant is required to be present at the initial appearance, arraignment, plea, the trial and

855 New Jersey v. Hudson, 574 A.2d 434, 438 (Supreme Court of New Jersey 1990); Igielski, 19 SeattleULRev 1996, 633, 637. These features originate in the common law root of that right: United States v. Peterson, 524 F.2d 167, 184 (4th Cir. 1975); New Jersey v. Hudson, 574 A.2d 434, 438 (Supreme Court of New Jersey 1990). 856 United States v. Peterson, 524 F.2d 167, 184 (4th Cir. 1975); New Jersey v. Hudson, 574 A.2d 434, 438 (Supreme Court of New Jersey 1990). 857 Illinois v. Allen, 397 US 337, 344 (1970); United States v. Peterson, 524 F.2d 167, 184 (4th Cir. 1975); New Jersey v. Hudson, 574 A.2d 434, 438 (Supreme Court of New Jersey 1990). Pointing at the benefits for the cross-examination: Douglas v. Alabama, 380 US 415, 418 (1965). 858 Illinois v. Allen, 397 US 337, 344 (1970); New Jersey v. Hudson, 574 A.2d 434, 438 (Supreme Court of New Jersey 1990). 859 Snyder v. Massachusetts, 291 US 97, 105 (1934). 860 Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 561; United States v. Gagnon, 470 US 522 (1985); Kentucky v. Stincer, 482 US 730 (1987); it is to be noted that in both cases the defence counsel was present during the procedure that was held in the defendant’s absence. 861 Ibid.; Whitebread/Slobogin, Criminal Procedure, 685. See inter alia: United States v. Gagnon, 470 US 522 (1985); Kentucky v. Stincer, 482 US 730 (1987); United States v. Peterson, 385 F.3d 127 (2nd Cir. 2004); United States v. Perez, 612 F.3d 879 (7th Cir. 2010). 862 Rogers v. United States, 422 US 35 (1975); United States v. Walls, 577 F.2d 690 (9th Cir. 1978). Notably, the right to be present is applied more relaxed in misdemeanour prosecutions where constitutionally no right to be present is guaranteed: Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 561; Lafave, et al., Criminal Procedure, 1358. 863 United States v. Brest, 23 FRD 103, 106 (District Court Pennsylvania 1958).

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sentencing.864 In a similar vein, many of the states oblige the defendant to be present during trial for capital cases.865 Similarly, Rule 43 FRCrP excludes the possibility to waive the right to be present at a sentencing hearing if capital punishment is at stake.866 The defendant can, further, be forcibly brought to the hearing to enable the court to identify him.867 Then again, the Supreme Court of Florida in Nixon for example submitted that a forcible transportation of the defendant to trial might prejudice him in the eyes of the jury.868 (1) Trials held entirely in absentia – initiation of the trial in absentia It seems that the initial appearance of the defendant is the critical line that needs to be crossed to proceed with a trial in absentia, save for misdemeanour cases, where the punishment to imprisonment does not exceed one year; there the defendant can simply decide not to attend the hearing.869 The Supreme Court in Crosby explicitly ruled out proceedings held in the absence of the defendant under Rule 43 FRCrP if he absconds prior to the initiation of trial.870 According to the Supreme Court, the wording of the regulation ‘except as otherwise provided’ clearly indicated the exclusion of trial in absentia in cases not mentioned in the regulation.871 Thus, a fugitive, not having had his initial appearance, cannot be tried in his absence in federal criminal cases. However, in state jurisdictions – i. e. when Rule 43 FRCrP is not applicable – there are many precedents in the case and state law, showing that trials can commence in absence of the defendant – also in felony cases.872 Before Crosby lower state courts regularly allowed for the initiation of trials in absentia even when the defendant has

864 Rule 43(a) FRCrP; Evans v. United States, 284 F.2d 393 (6th Cir. 1960); United States v. Tortora, 464 F.2d 1202, 1208 (2nd Cir. 1972); United States v. Arias, 984 F.2d 1139 (11th Cir. 1993). 865 Cohen/Adelman/Abramson, Criminal Procedure, 649; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 563; Lafave, et al., Criminal Procedure, 1359. 866 Rule 43(c)(1)(B) FRCrP. 867 Cohen/Adelman/Abramson, Criminal Procedure, 649. 868 Nixon v. State, 572 So.2d 1336 (Supreme Court of Florida 1990). 869 Rule 43(b)(2) FRCrP. Similar rules generally apply at the state level: Hollander, et al., § 7.5. 870 Crosby v. United States, 506 US 255 (1993). 871 Ibid.; see also Pinkney v. Maryland, 711 A.2d 205 (Court of Appeals Maryland 1988); Cuoco v. United States, 208 F.3d 27 30; United States v. Sterling, 738 F.3d 228 (11th Cir. 2013). 872 Section 9.1 Arizona Criminal Procedure (1973); Rule 3.16 New Jersey Court Rules. The first authority allowing for the initiation of a felony trial in absence of the defendant was Section 287 Model Code of Criminal Procedure requiring the presence only for the arraignment and plea proceedings. This has been taken over by Arizona and ever since applied. Finally, in United States v. Tortora, 464 F2d 1202, 1208 et seq. (2nd Cir. 1972) that approach has been upheld by the United States Court of Appeals, 2nd Circuit.

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never appeared, but had notion of the proceedings instituted against him.873 The United States Appeal Court has regularly approved that practice across many of the circuits.874 Even after Crosby, several state courts deviated from the Supreme Court findings, since they determined it to be unpersuasive and non-binding upon states.875 For example, the United States Court of Appeals for the Second Circuit explored on whether to commence a trial in absentia was in line with the constitution. It held that both the federal as well as the states’ constitution did allow for a trial in absentia, regardless of whether the defendant had initially appeared, unless he was not aware of the date and venue of the hearings and was voluntarily absent.876 Beyond the requirement of a knowing and voluntary waiver, a balancing of the public interest in proceeding versus the interest of the voluntarily absent defendant in attending his trial is a second requisite to initiate a trial in absentia.877 While the first element, the knowing and voluntary waiver is required by the constitution, the second element is not constitutionally rooted but underlines the court’s discretion on whether to conduct a trial in absentia.878 873 United States v. Tortora, 464 F.2d 1202, 1208 et seq. (2nd Cir. 1972); People of New York v. Hicks, 90 Misc.2d 609 (Supreme Court New York County 1977); Washington v. LaBelle, 18 Wash. App. 380, 386 et seq. (Court of Appeals of Washington 1977); People of New York v. Thomas, 97 Misc.2d 845 (Supreme Court Kings County 1978); Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 565. 874 United States v. Tortora, 464 F.2d 1202, 1208 et seq. (2nd Cir. 1972); Government of the Virgin Islands v. Brown, 507 F.2d 186 (3rd Cir. 1975); United States v. Peterson, 524 F.2d 167 (4th Circuit 1975); United States v. Hernandez, 842 F.2d 82 (5th Cir. 1988); United States v. Houtchens, 926 F.2d 824 (9th Cir. 1991); United States v. Camacho, 955 F.2d 954 (4th Cir. 1992); Smith v. Mann, 173 F.3d 73, 76 et seq. (2nd Cir.1999). The aforementioned cases all concerned trials of multiple defendants. Some appeal circuits were a bit more hesitant in allowing trials in absentia where only one defendant was tried as there was no contrary interest of the co-defendants to a speedy trial. See e. g.: United States v. Lochan, 674 F.2d 960 (1st Cir. 1982); United States v. Hernandez, 842 F.2d 82, 85 (5th Circ. 1988). Others were not hesitant in this regard and found the voluntariness of the waiver and knowledge of the on-going trial to be decisive: Government of the Virgin Islands v. Brown, 507 F.2d 186, 188 et seq. (3rd Cir. 1975); United States v. Houtchens, 926 F.2d 824, 826 et seq. (9th Cir. 1991). 875 Gillespie v. State, 634 N.E.2d 862, 863 et seq. (Indiana Court of Appeal 1994); State v. Butler, 278 N.J. Super. 93, 101 (New Jersey Superior Court of Appeal Division 1994); Kirk v. Dutton, 38 F.3d 1216 (6th Cir. 1994); State v. Sanderson, 182 Ariz. 534 541 et seq. (Arizona Court of Appeal 1995). But see, on the other hand, abiding by the Crosby standards and regarding them as persuasive: Washington v. Hammond 121 Wash.2d 787 (Supreme Court of Washington 1993); Meadows v. Alabama, 644 So.2d 1342 (Court of Criminal Appeal Alabama 1994); Sandoval v. State, 631 So.2d 1659 passim (Mississippi Reports 1994); Jarrett v. Florida, 654 So.2d 973 (Florida District Court of Appeal 1995); Smith v. Mann, 173 F.3d 73, 76 et seq. (2nd Cir. 1999). 876 Pinkney v. Maryland, 711 A.2d 205 (Court of Appeals Maryland 1998); Smith v. Mann, 173 F.3d 73, 76 (2nd Cir. 1999). 877 United States v. Tortora, 464 F.2d 1202, 1210 (2nd Cir. 1972); United States v. Fontanez, 878 F.2d 33, 36 (2nd Cir. 1989); United States v. Nichols, 56 F.3d 403 (2nd Cir. 1995); Smith v. Mann, 173 F.3d 73, 76 et seq. (2nd Cir. 1999). 878 United States v. Tortora, 464 F.2d 1202, 1208 et seq. (2nd Cir. 1972); Clark v. Scott, 70 F.3d 386 (5th Cir. 1995); Smith v. Mann, 173 F.3d 73, 76 et seq. (2nd Cir. 1999).

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Knowledge of the trial proceedings and consequences of the non-appearance, both requirements of a valid waiver, is of course less obvious in cases where the defendant has never appeared. Therefore, Illinois’, New York’s and Arizona’s criminal procedure require that the defendant is informed of the trial proceedings and the consequences of his failure to appear with the consequence that the sole non-appearance at trial will be taken as a knowing waiver of the right to be present.879 However, it is upon the government to prove that the defendant was properly notified and summoned to appear at the trial hearing. If the burden of proof is met, the defendant knowingly and voluntarily waived his right to be present which defeats any claim of trial in absentia violating his constitutional right.880 Nonetheless, in practice, upon the defendant’s failure to appear, the prosecution will often request a postponement for a later date because it is somewhat risky to proceed since there may be good reasons for the defendant’s absence and the case could be retried. Most likely, the prosecution will apply for a bench warrant that will be issued by the judge upon failure to appear to a trial hearing. This is a powerful and authoritative arrest warrant that remains on the defendant’s record. Further, it is to be considered that prior to the initiation of the trial a guilty plea is to be entered by the defendant. Even in the event of a guilty plea in writing, which needs to be confirmed by defendant and his counsel881, it is most unlikely that a fugitive evading justice could be tried in absentia. This may only be the case where the defendant tries to evade justice after his personal guilty plea or, in the rather artificial case, where the defendant, although hiding, engaged a counsel and pleads guilty in writing with his support. (2) Trial partially held in absentia There are three cases in which the trial can be held partially in absentia. (a) Commencement of the trial in absentia after the defendant’s initial appearance The framework on in absentia proceedings varies significantly after the defendant has initially appeared at the trial proceedings. Both according to the FRCrP and the federal case law, the defendant can knowingly and voluntarily waive his right to be 879 See as for New York: People of New York v. Daley, 617 N.Y.S.2d 68 (Appeals Division New York 1994); as for Arizona: Section 9.1 Arizona Criminal Procedure (1973). The warning is included in the documents the defendant has to sign when he is released on bail. Similarly, in Illinois the defendant signs a form referring the consequence of his absence at trial, People v. Garner, 590 N.E.2d 470 (Supreme Court of Illinois 1992). In a recent judgment the Supreme Court requested that the defendant be informed in open court of the consequence of an in absentia trial following the failure to appear, Illinois v. Phillips, 950 N.E.2d 1126 (Supreme Court of Illinois 2011). Endorsing these procedures Starkey, 53 StJohn’sLRev 1979, 721, 736, 744; Igielski, 19 SeattleULRev 1996, 633, 667. 880 Smith v. Mann, 173 F.3d 73, 76 et seq. (2nd Cir. 1999). 881 See above F. II. 3. a) bb).

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present at his trial or portions thereof, including the sentencing proceedings, after he has initially appeared without affecting the completion of the trial.882 The main rationale for the completion of the trial in the defendant’s absence is to prevent obstruction of the trial by departure or flight by the defendant.883 Another rationale for the distinction between flight before and after onset of the trial, is that the interest in concluding a trial that has begun is of greater significance than the interest in starting a trial at the outset in absentia.884 The waiver of the defendant’s right to be present can be made expressly885 or be implied by conduct, e. g. by not returning after recess.886 Knowledge of the proceedings and consequently a knowing relinquishment is easily established when the defendant has initially appeared. In fact, “the initial appearance serves to assure that any waiver is indeed knowing.”887 The court found it incredible that “a defendant that flees from a courtroom in the midst of a trial – where judge, jury, witnesses and lawyers are present and ready to continue – would not know that the trial could continue in his absence.”888

882

Rule 43(b)(2), (3) FRCrP; leading case: Diaz v. United States, 223 US 442 (1912). See also: Falk v. United States, 15 App. DC 446 (Court of Appeals of District Columbia 1899); Taylor v. United States, 414 US 17, 18 (1973); United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); Pinkney v. Maryland, 711 A.2d 205 (Court of Appeals Maryland 1998); Dakota v. Newman, 738 NW.2d 887 (Supreme Court of North Dakota 2007); Cohen/Adelman/Abramson, Criminal Procedure, 647; Whitebread/Slobogin, Criminal Procedure, 686. See generally for the waiver of constitutional rights: Brady v. United States, 397 US 742, 748 (1970); similarly Tacon v. Arizona 410 US 351, 355 (1973), Dissenting Justice Douglas. 883 Cross v. United States, 325 F.2d 629 (District of Columbia Cir. 1963); Gaither v. United States, 413 F.2d 1061 (District of Columbia Cir. 1969); Crosby v. United States, 506 US 255, 262 (1993). 884 Falk v. United States, 15 App. DC 446 (Court of Appeals of District Columbia 1899); Crosby v. United States, 506 US 255, 262 (1993); Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 564. Critical of all the arguments raised in Crosby to justify the differentiation between pre-trial and mid-trial flight: Igielski, 19 SeattleULRev 1996, 633, 652 et seq. In United States v. Sterling, 738 F.3d 228 (11th Cir. 2013) as a further argument is given that the costs of delay will be higher where the trial has begun ibid., 6523 raises doubts in this regard as the fugitive absconding during the pre-trial phase is aware that he is sought and will try to evade the police. The cost of tracking the defendant will, hence, be higher than usual. 885 That was the case in Diaz v. United States, 223 US 442 (1912) where the defendant voluntarily absented himself and sent a letter to court, waiving his right to be present. 886 This happened in Taylor v. United States, 414 US 17 (1973). Some scholars speak of the concept of forfeiture to address the latter case: Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 564; Whitebread/Slobogin, Criminal Procedure, 868. 887 Crosby v. United States, 506 US 255, 261 (1993). The United States Court of Appeals, 2nd Circuit in Smith v. Mann, 173 F.3d 73, 76 (2nd Cir. 1999), however, found “that in some situations the requisite knowledge can be conclusively found even if the defendant is not present when the trial begins.” 888 Taylor v. United States, 414 US 17 (1973); Crosby v. United States, 506 US 255, 262 (1993).

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The waiver of the right to be present as set forth in Rule 43 FRCrP does not presuppose that the defendant be informed of an obligation to appear at trial.889 However, when the defendant indicates that he might be absent for future parts of his trial, the judge is to inform him of the consequences of such conduct, particularly that he thereby waives his right to confrontation.890 The voluntary absence constitutes a waiver of the right to be present.891 In general, courts tend to not be overly demanding when establishing a voluntary and intelligent waiver.892 Some courts even infer a rebuttable presumption of a valid waiver when the defendant purposefully leaves the courtroom.893 Generally, knowledge of the exact date and venue of the trial instituted against the defendant is necessary to establish a knowing waiver.894 Such knowledge can generally be inferred from the circumstances.895 Notification of the defence counsel can be enough if regular contact to his client is established.896 In any event, there might be a sound reason for the defendant’s absence. That is for example the case where he his hospitalised or detained.897 In that case the semel praesens semper praesens maxim does not apply. Where it seems feasible, the judge is to inquire into the reasons of the defendant’s absence and whether it is indeed voluntary.898 Ideally the defendant should have the possibility of giving a statement that explains his absence during the trial, for example when he returns for the sentencing hearing.899 889 Taylor v. United States, 414 US 17 (1973). See also United States v. Nichols, 56 F.3d 403 (2nd Cir. 1995). 890 United States v. McPherson, 421 F.2d 1127 (District of Columbia Cir. 1969). The statutory rules in Arizona, for example, oblige the criminal justice authorities to inform the defendant of the consequences when absconding, Arizona Criminal Procedure (1973) Section 9.1. 891 United States v. Camacho, 955 F.2d 950 (4th Cir. 1992). 892 Cohen, 36 FlaLRev 1984, 273, 279. 893 People v. Snyder, 56 Cal. App.3d 195 (Court of Appeals California, Second District, Division 5, 1976); Arizona v. Camino, 574 P.2d 1308 (Court of Appeals of Arizona, 2nd Division 1978); Missouri v. Bracken, 382 SW3d 206 (Missouri Court of Appeals 2012); cf. also Taylor v. United States, 414 US 17 (1973); Cohen/Adelman/Abramson, Criminal Procedure, 652. 894 Pinkney v. Maryland, 711 A.2d 205 (Court of Appeals Maryland 1998). 895 United States v. Tortora, 464 F.2d 1202, 1208 (2nd Cir.1972); United States v. Olivera, 764 F.Supp. 629 (South District Court Florida 1991). See also United States v. Marotta, 518 F.2d 681 (9th Cir. 1975). 896 United States v. Lacey, 732 F.Supp. 89 (United States District Court Kansas 1990); United States v. Olivera, 764 F.Supp. 629 (South District Court Florida 1991). 897 United States v. Archbani, 507 F.3d 598 (7th Cir. 2007); see also Cross v. United States, 325 F.2d 629 (District of Columbia Cir. 1963); United States v. Crutcher, 405 F.2d 239 (2nd Cir. 1968). 898 New York v. Hicks, 90 Misc.2d 609, 611, (Supreme Court, New York County 1977); Smith v. Mann, 173 F.3d 73, 77 (2nd Cir. 1999); Robinson v. Commonwealth, 837 N.E.2d 241 (Supreme Judicial Court of Massachusetts 2005). 899 Tweedy v. Maryland, 845 A.2d 1215 (Court of Appeals Maryland 2004).

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In addition, the leading case Diaz excludes the waiver concept as regards both trial and sentencing proceedings in capital cases from the completion in absentia.900 This found, however, no expression in Rule 43 FRCrP. Regardless of the waiver, for most states courts it ultimately lies in the court’s discretion to decide whether the trial proceeds in absentia. The public interest in conducting the trial must outweigh the interest of the voluntary absent defendant.901 Dismissing a trial (mistrial)902 or granting a recess until the return of the defendant (continuance) is always an option.903 If a waiver is established and the court used its discretion to proceed in absentia, the trial after the waiver “proceed[s …] in like manner and with like effect as if the defendant was present.”904 That includes completion of the trial verdict and sentencing.905 The right to be represented by counsel remains throughout the in absentia trial.906 (b) Proceedings regarding questions of law During portions of the trial proceedings that solely concern questions of law, there is no right of the defendant to be present.907 That includes in-chamber and bench conferences,908 rulings and conferences on jury instructions,909 exchange between jury and judge regarding questions of law during deliberations910 and any hearing that is purely related to issues of law.911 900 Diaz v. United States, 223 US 442 (1912). Endorsing this: Cohen, 36 FlaLRev 1984, 273 as accurate fact-finding prevails any other interest. 901 United States v. Tortora, 464 F.2d 1202, 1208 et seq. (2nd Cir. 1972); United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); United States v. Beltran-Nunez, 716 F.2d 287 (5th Cir. 1983); Smith v. Mann, 173 F.3d 73, 76 (2nd Cir. 1999); Cohen, 36 FlaLRev 1984, 273, 281. Courts in a few states, however, continue automatically in absentia upon the defendant’s nonappearance. See for the details Shapiro, 96 Marq L Rev 2012, 593, 613 et seq. 902 Declaring a mistrial does not prevent the prosecution to charge the defendant again for the same criminal offence. 903 Cureton v. United States, 396 F.2d 671 (District of Columbia Cir. 1968); Cohen/Adelman/Abramson, Criminal Procedure, 652; Starkey, 53 StJohn’sLRev 1979, 721, 721 footnote 1; cf. also Cohen, 36 FlaLRev 1984, 273, 281. 904 Diaz v. United States, 223 US 442 (1912). 905 Rule 43(c)(2) FRCrP. See also as for the possibility to be voluntary absent at the verdict: Phillips v. United States, 334 F.2d 589, 591 (9th Cir. 1964). 906 People of New York v. Aiken, 45 N.Y.2d 394 (Court of Appeals New York 1978). The court found that where the counsel for tactical reasons refuses to participate during his client’s absence, there is no right to a de novo trial. 907 Rule 43(b)(3) FRCrP; United States v. Gonzales-Flores, 701 F.3d 112, 119 (4th Cir. 2012); Arizona v. Swoopes, 166 P.3d 945 (Court of Appeals of Arizona 2007). Cf. also United States v. Gagnon, 470 US 522 (1985). 908 Rule 43(b)(3) FRCrP. 909 United States v. Gagnon, 470 US 522 (1985). 910 Arizona v. Swoopes, 166 P.3d 945 (Court of Appeals of Arizona 2007).

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(c) Removal of the disruptive defendant The removal of a disruptive defendant is an acknowledged limitation to the right to be present.912 That is, because the defendant is not seen to have a right to behave disorderly and disturb the proper course of the procedure.913 He thereby forfeits his right to be present.914 “It is essential for a proper administration of criminal justice that dignity, order, decorum be the hallmarks of all court proceedings […]. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.”915 The Supreme Court found that the defendant may be cited for contempt or removed from the courtroom until he promises to behave himself properly.916 Considering the ancient common law rule that generally forbids shackling a defendant during court proceedings, which found positive assertion in the 5th and 14th Amendments917 – the removal of the defendant is in most cases more appropriate than binding and gagging him.918 Contempt citation, on the other hand, will not discourage the defendant’s obstreperous conduct when he faces severe punishment, as the additional punishment is mild by comparison.919 Aside from disruptive behaviour, there are further requirements for the defendant’s removal: The Supreme Court emphasised that the defendant needs to be warned as regards the possible consequences of his obstreperous conduct. Moreover, he needs to be informed that he can return upon agreeing to behave himself in an orderly manner.920 911

Rule 43(b)(23) FRCrP. Rule 43(a) FRCrP; Snyder v. Massachusetts, 291 US 97, 116 (1934); Illinois v. Allen, 397 US 337 (1970); Davis v. Grant, 532 F.3d 132 (2nd Cir. 2008). 913 Cf. Chemerinsky/Levenson, Criminal Procedure, 271. 914 Rule 43(c)(1)(c) FRCrP. See inter alia Snyder v. Massachusetts, 291 US 97, 116 (1934); Illinois v. Allen, 397 US 337 (1970); Davis v. Grant, 532 F.3d 132 (2nd Cir. 2008). Of other opinion: Lafave, et al., Criminal Procedure, 1360, who see forfeiture as the underlying concept. 915 Illinois v. Allen, 397 US 337 (1970). 916 Illinois v. Allen, 397 US 337 (1970). 917 Deck v. Missouri, 544 US 622 (2005); Louisiana v. Williams, 87 So.3d 106, 110 (5th Cir. 2011); Cohen/Adelman/Abramson, Criminal Procedure, 657. Surely the presumption of innocence has to be taken into account in this regard. See also in this direction: Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 565. But see Missouri v. Swopes, 343 S.W.3d 705 (Missouri Court of Appeals 2012) that found a harmless error where the jury saw the accused for a very short period shackled when he was escorted to the bathroom. Whether “stun belts” are an option for “electronic shackling” is not clear. Pro: People v. Garcia, 56 Cal.App. 4th 1349 (California Court of Appeals 1997); contra: Wrinkles v. Indiana, 749 N.E.2d 1179 (Supreme Court of Indiana 2001). In any event, there must be a “manifest need” for the use of a stun belt. 918 Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 564. See also Snyder v. Massachusetts, 291 US 97, 116 (1934). 919 Illinois v. Allen, 397 US 337 (1970). 920 Ibid.; see also as for the warning prior to removal: Clark v. Perez, 510 F.3d 382 (2nd Cir. 2008). 912

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Especially in cases of a pro se defendant, safeguards have to be taken to ensure that the defendant is properly defended throughout his absence. These safeguards include the allowance for return to the courtroom for crucial elements of the trial, such as closing arguments921, installing radio or video transmission to the holding cell in order to follow the proceedings remotely922 or appointing a standby counsel to take over during the defendant’s absence.923 Nonetheless, there is case law where the defendant has been removed from the courtroom for disruptive behaviour and the trial proceeded without standby counsel.924 dd) Sentencing stage and its in absentia framework Traditionally a judge holds a separate sentencing hearing after a guilty verdict by the jury or bench has been rendered. The discretion in sentencing is limited by sentencing guidelines. Some states combine trial and sentencing procedure by giving the jury sentencing power.925 In capital cases the jury decides whether the death penalty, if applicable, is imposed upon the defendant.926 In a bench trial the procedure may be held without recess. However, there will be a clear differentiation of the guilt and sentencing phase as the parties are not allowed to call witnesses, nor do the evidentiary rules apply.927 The defendant shall have the opportunity to give a statement as to the appropriate sentence and present mitigating factors.928 Nonetheless, on the federal level Rule 43(c)(1)(b) FRCrP provides that where the defendant has been present at the beginning of his trial, the sentencing procedure may be conducted in absentia following a valid waiver of the right to be present, unless a capital case is concerned.929 The presence at the sentencing procedure is deemed very important so that extraordinary circumstances must be established to proceed in

921

Biglari v. Maryland, 847 A.2d 1239 (Court of Special Appeals Maryland 2004). Torres v. United States, 140 F.3d 392 (2nd Cir.1998); Clark v. Perez, 510 F.3d 382 (2nd Cir. 2008). 923 People of Colorado v. Cohn, 160 P.3d 336 (Colorado Court of Appeals 2007). The assignment of some kind of defence counsel or representative is the usual way of procedure: Whitebread/Slobogin, Criminal Procedure, 822; Faretta v. California, 422 U.S 806, 841 (1975); McKaskle v. Wiggins, 465 US 168, 196 et seq. (1984). 924 Torres v. United States, 140 F.3d 392 (2nd Cir. 1998); Davis v. Grant, 532 F.3d 132 (2nd Cir. 2008). In Clark v. Perez, 510 F.3d 382 (2nd Cir. 2008) the defendant declared not to believe in the court’s legitimacy and was removed due to his constant disruptions. 925 Whitebread/Slobogin, Criminal Procedure, 12. 926 Weaver, et al., Principles of Criminal Procedure, 15. 927 Lafave, et al., Criminal Procedure, 21. 928 See e. g.: Rule 32(i)(4)(A)(ii) FRCrP. 929 Rule 43(c)(1)(b) FRCrP. See also State ex rel. Shetsky v. Utecht, 228 Minn. 44 (Supreme Court of Minnesota 1949). Most of the states have similar regulations. Many of them do not permit trial in absentia in capital cases at all. See for an overview: Cohen, 36 FlaLRev 1984, 273, 276 et seq. 922

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absentia.930 A waiver of the right to be present is, however, possible in most jurisdictions.931 On the state level, a sentencing in absentia can also follow a full trial in absentia where the defendant has not initially appeared. If the defendant is incarcerated after a trial in absentia, he is given the opportunity to explain his absence during the sentencing hearing.932 A retrial would be commenced if the defendant persuasively demonstrates that his absence has not been voluntary.933 ee) Remedies against the in absentia conviction There is no special framework as regards the appeal of an in absentia conviction. Only where abuse of the court’s discretion to proceed in absentia is found the verdict will be reversed.934 Also there is the possibility of appeal to reverse a conviction for legal reasons when the defendant can prove denial of a due process.935 The review is generally limited to the factual finding on whether a voluntarily and knowing relinquishment of the right to be present existed.936 It should also be noted that, even in cases where there was a violation of the defendant’s right to be present, this does not have an impact on the lawfulness of the criminal proceedings in all cases. If a harmless error – i. e. where it did not affect the verdict – occurred, there is no possibility for a remedy and the conviction is valid.937 The impact of an error will be assessed on a case-by-case basis but some guidelines can be extracted from the case law: Often the presence of the defence counsel, despite his client’s absence, speaks in favour of a de minimis error.938 Also the brevity of the

930

United States v. Brown, 456 F.2d 1112, (5th Cir. 1972). Ibid. See also United States v. Leavitt, 478 F.2d 1101 (1st Cir. 1973); United States v. Velazques, 772 F.3d 788 (7th Cir. 2014); United States v. Ornelas, 828 F.3d 1018 (9th Cir. 2016). 932 See e. g.: Washington v. Washington, 34 Wash. App. 410, 413 (Court of Appeals Washington 1983); Tweedy v. Maryland, 845 A.2d 1215 (Court of Appeals Maryland 2004). 933 Washington v. Washington, 34 Wash. App. 410, 414 (Court of Appeals Washington 1983). 934 United States v. Edmonson, 962 F.2d 1535 (10th Cir. 1992). 935 Darden v. Wainwright, 477 US 168 (1986). The doctrine is called plain error and the fairness must seriously be affected: Weaver, et al., Principles of Criminal Procedure, 470. 936 United States v. Houtchens, 926 F.2d 824 (District of Columbia Cir. 1991). 937 Cohen/Adelman/Abramson, Criminal Procedure, 647, 656; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 563; Whitebread/Slobogin, Criminal Procedure, 686; United States v. Walker, 557 F.2d 741 (10th Cir. 1977). It must be established beyond a reasonable doubt that the error is harmless. 938 See e. g.: United States v. Williams, 431 F.3d 1115 (8th Cir. 2005); Cohen/Adelman/ Abramson, Criminal Procedure, 647, 656; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 563; cf. also United States v. Shepherd, 27 F.Cas 1060 (Circuit Court Virginia 1875): “a very large number of offences against he United States may be tried in the absence of the accused, if counsel is present”. 931

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defendant’s absence may be decisive.939 Finally, a harmless error may occur when the defendant’s right to cross-examine witnesses is not limited by virtue of his absence.940 ff) Appeals stage and its in absentia framework At the state level, typically a two tiered appeals regime applies, consisting of an intermediate right to appeal to a higher court and a discretionary review, usually addressed to the State Supreme Court.941 The decision is based on the record and generally no evidence is taken during an appeal.942 A federal defendant appeals to one of the eleven United States Appeals Courts. The constitutional right to be present as well as Rule 43 FRCrP refer to the trial stage. Accordingly, at the appeals stage there is no right to be present.943 Considering that no confrontation takes place during appeals, the rationale is clear. The right to confrontation cannot require the defendant’s presence where there is no cross-examination. Nonetheless, the court has, according to its discretion, the power to compel the defendant to appear where life and liberty is at stake in order to argue his own appeal.944 Additionally, it is to be noted that representation by counsel is mandatory and, in so far, personal presence is not necessary to present the side of the defence. Absconding during a pending appeal has severe consequences. Known as the doctrine of ‘fugitive disenfranchisement’ the defendant forfeits his right to appeal when he is a “fugitive from justice during the pendency of his appeal.”945 However, the appeal is not automatically dismissed. Where the fugitive returns to custody before appeals proceedings start, he prevents the forfeiture.946 The disenfranchise-

939

United States v. Tureseo, 566 F.3d 77 (2nd Cir. 2009). Kentucky v. Stincer, 482 US 730 (1987). The case concerned a competency hearing where it was to be determined whether the two victims, both children, were able to testify. His counsel was present during the hearing that was held in the judge’s chambers. Justice Brenan and Marshall dissented as the absence of the defendant would render the trial unfair. He would be exposed to a unfair decision. “A choice between continuing to exercise his right to assistance of counsel, thereby being excluded from the competency hearing, and appearing pro se so that he may be in attendance at this critical stage of trial.” 941 Weaver, et al., Principles of Criminal Procedure, 467. 942 Ibid., 468. 943 Schwab v. Berggren 143 US 442 (1892); United States v. Visconti, 261 F.2d 215, 218 (2nd Cir. 1958). 944 United States v. Price v. Johnston 334 US 266 (1948) which is based on § 262 of the Judicial Code. See also United States v. Visconti, 261 F.2d 215, 218 (2nd Cir. 1958). 945 Ortega-Rodriguez v. United States, 507 US 234, 239 (1993). See also Molinario v. New Jersey, 396 US 365 (1970). 946 Ortega-Rodriguez v. United States, 507 US 234, 239, 249 (1993); Weaver, et al., Principles of Criminal Procedure, 472. 940

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ment of the fugitive is justified with the need to ensure the enforcement of verdicts, the deterrence of flight and the need to sanction obstruction of justice.947 gg) Video link procedures Video conferencing is a usual means of remote participation and often used where the defendant is incarcerated in order to guarantee a smooth, expeditious and secure trial, as the risky and time consuming transfer of the defendant is omitted.948 In federal cases, the use of video link is provided for as regards the initial appearance and arraignment with consent of the defendant.949 Similarly, the jury voire dire may take place with the technically present defendant.950 The presence through audio or video link equals the physical presence.951 Especially in misdemeanour cases, where the punishment of imprisonment does not exceed one year, in most states and in federal cases the defendant can decide to participate via video conferencing.952 This requires a written waiver by the defendant.953 The requirement of a waiver in writing is, however, not obeyed very strictly954 and other means that ensure a knowing and voluntary decision suffice. It also concerns the arraignment and plea procedure.955 The increasing use of videoconferences has not been spared from severe criticism.956 Prejudice for the defendant is feared due to the complicated communication between the defence counsel and his client.957 Another concern is that the remote perception via technology might lead to a more negative view of the defendant.958 Especially where the testing of evidence is concerned, it seems to limit the defendant’s ability to confront witnesses and engage in a proper defence.959

947

Ortega-Rodriguez v. United States, 507 US 234, 240 et seq. (1993). Cohen/Adelman/Abramson, Criminal Procedure, 649; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 562. 949 Rules 5(f), 10(c), 43 FRCrP. 950 United States v. Washington, 705 F.2d 489 (District of Columbia Cir. 1983). 951 Williams v. State, 578 So.2d 846 (Florida Court of Appeals 1991). 952 Rule 43(b)(2) FRCrP. Similar rules generally apply at the state level: Hollander, et al., § 7.5. 953 Ibid. 954 United States v. Reid, 110 F.Supp. 253, 258 (District Court Maryland 1953). 955 United States v. Mayo 1 Curt CC 433 (Circuit Massachusetts 1853); Orfield, Criminal Procedure under the Federal Rules, VI, 13 et seq. 956 Poulin, 78 Tulane Law Review 2003, 1089; Cohen/Adelman/Abramson, Criminal Procedure, 649; Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 562. 957 Poulin, 78 Tulane Law Review 2003, 1089. 958 Ibid. 959 Lafave, et al., Principles of Criminal Procedure: Post-Investigation, 562. 948

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hh) Special procedure and its in absentia framework In lieu of appearing for the trial of petty offences960 the defendant may pay a fixed sum.961 The payment that is not to exceed the maximum penalty will end the case. Payment of the fixed sum signifies that the person charged with the petty offense does not contest the charge nor request a trial and is tantamount to the entry of a plea of guilty. Upon failure to pay or request for a hearing, the defendant will be notified about a date to appear in court.962 If he fails to appear, an arrest warrant will be issued.963 ii) Summary While the investigations are predominately conducted secretly, US criminal procedural law attaches particular importance to the presence of the defendant during the trial. The Supreme Court has clearly denied proceedings in the complete absence of the defendant, at least on the federal level. However, some states deviate from this practice and a trial may be initiated in absentia. The criminal courts can also conduct proceedings in the temporary absence of the defendant – i. e. after the defendant has initially appeared – only under strict conditions. Also, the defendant himself can only waive his right to be present in court under certain conditions. Thus, the American criminal procedure law not only provides for a right of presence, but also for an obligation of the defendant to be present. However, the defendant can on many occasions also appear via video link. In contrast, during the appeals stage the presence of the defendant is not generally required but can be compelled upon the court’s discretion. However, upon the absconding of the defendant his appeal will be dismissed. b) England and Wales Although England is the motherland of the common law, English criminal procedural law also contains inquisitorial elements, especially during the pre-trial phase.964 The Human Rights Act of 1998 incorporated Art. 6 ECHR and with it a comprehensive right to be present at criminal proceedings. However, there are still possibilities of trying defendants in absentia.965 Whether a procedure can be conducted in absentia significantly depends on the stage of the proceedings. In judicial 960

These are offenses where no imprisonment can be imposed: Rule 58(a)(2) FRCrP. Rule 58(d) FRCrP. 962 Rule 58(d)(2) FRCrP. 963 Rule 58(d)(3) FRCrP. 964 CPIA 1996, Section 23(1)(a); cf. also Roberts/Zuckerman, Criminal Evidence, 42 pointing out that the Anglo American procedure is instead purely adversarial. However, it has just been shown that does not hold true, at least for the investigative phase. 965 See also for an comprehensive overview: Albrecht, Wechselwirkungen, 1459 et seq. 961

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proceedings, it is also of significance in which court the defendant is tried, while the court’s jurisdiction depends on the gravity of the crimes. aa) Investigative stage and its in absentia framework The police are the main authority that conduct investigations.966 They are obliged to conduct a comprehensive investigation and pursue ‘all reasonable lines of inquiry’.967 This comes close to the inquisitorial approach of the investigation of incriminating and exculpatory evidence.968 The prosecutor – Crown Prosecution Service – also has the role of a minister of justice and is “not to struggle to obtain a conviction”.969 It is important to note that the police do not investigate under the prosecutor’s supervision. The prosecution rather depends on the police, as it – and any other authority – lacks power to institute proceedings or to oblige the police to conduct further investigations.970 This phenomenon is also known as constabulary independence.971 The investigations are generally a secret procedure conducted by the police. As a matter of principle, no right to participate at investigative measures, such as pre-trial depositions of witnesses, exists.972 However, all investigative steps are to be recorded and retained.973 The formal shift of the authority of the criminal proceedings from the police to the Crown Prosecution Service974 comes along with a shift of the status from a suspect to a defendant. This shift occurs upon the formal charging of the suspect by the police – since recently with advice by a prosecutor – when he is arrested or summoned by a Magistrates’ Court for a first hearing.975 The prosecution then will assess the evidence 966

Choongh, Police Investigative Powers, 48; Davies, Davies, Croall and Tyrer’s Criminal Justice, 187; Huber, England and Wales, 23. Other authorities are the Serious Fraud Office and possibly ministries and other administrations. 967 CPIA 1996, Section 23(1)(a). 968 Roberts/Zuckerman, Criminal Evidence, 44 with footnote 19. 969 The King v. Banks [1916] 2 KB 621 (622); see also: Regina v. Puddick [1865] 4 F & F 497 (499); Blackstone’s Criminal Practice 2013, Part D: Procedure, D16.3; Davies, Davies, Croall and Tyrer’s Criminal Justice, 354. 970 Davies, Davies, Croall and Tyrer’s Criminal Justice, 252; Huber, England and Wales, 24, 27; Sanders/Young/Burton, Criminal Justice, 373. 971 Sanders/Young/Burton, Criminal Justice, 373; Huber, England and Wales, 25. See also Arrowsmith v. Jenkins [1963] 2 QB 561 (566). 972 Huber, England and Wales, 56 et seq. See as for pre-trial depositions: Maffei, The European Rights to Confrontation in Criminal Proceedings, 148. 973 CPIA Code of Practice para. 4.1. See especially as for interviews CPIA Code of Practice E, para. 3.3, Code C, paras. 11.7 – 11.8. See for details: Blackstone’s Criminal Practice 2013, Part D: Procedure, D9.10 et seq. 974 The main prosecution authority is the CPS. 975 CrimPR 2005, Rules 7.2(2), (3), 7.4; CJA 2003, Sections 23, 29; Blackstone’s Criminal Practice 2013, Part D: Procedure, D5.3, D5.5, D5.32 – 35; Davies, Davies, Croall and Tyrer’s Criminal Justice, 249, 329; Sanders/Young/Burton, Criminal Justice, 381. The Magistrates’

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submitted by the police whether the evidence is sufficient and subsequently whether it lies in the interests of justice to prosecute the case.976 Throughout the investigations, the defence has no obligation to assist the police or prosecution.977 The state authorities, on the other hand, may be required to disclose (unused) material where the fairness of the proceedings and the interests of justice so require.978 Also, the police usually give informal notices regarding status and progress of the investigations upon the defence’s request.979 However, extensive obligations for disclosure for the prosecution only attach upon opening of the judicial pre-trial phase.980 bb) Judicial proceedings and their in absentia framework A comprehensive right to be present applies during judicial proceedings. Alongside the right to be present guaranteed by Art. 6 ECHR981, the common law of England and Wales has recognised the right to be present at one’s criminal trial for many years.982 The defendant’s presence has, in particular, “been treated as a very important feature of an effective jury trial”983 and is considered to be a fundamental principle of natural justice.984 Not least because of the adversarial structure to the

Court issues a summons upon a “laying of information” or the service of “written charge and requisition” by the prosecution upon the defendant. 976 Davies, Davies, Croall and Tyrer’s Criminal Justice, 254 et seq.; Huber, England and Wales, 27. Guidelines for the public prosecutions test are set forth in the Code for Crown Prosecutors, 8th edition, 2018, Section 4.12. 977 Roberts/Zuckerman, Criminal Evidence, 54. 978 Attorney General’s Guidelines on disclosure; Director of Public Prosecution ex parte Lee [1999] WLR 1950. 979 Huber, England and Wales, 57. 980 Roberts/Zuckerman, Criminal Evidence, 54. With regard to disclosure see also: Regina v. Winston Brown [1998] AC 367 (3754); Director of Public Prosecution ex parte Lee [1999] WLR 1950; Löhr, Prozeßgrundrechte in Deutschland, Frankreich und England, 287; Sanders/Young/ Burton, Criminal Justice, 580. 981 As for the recognition of Art. 6 ECtHR by the English and Welsh Law see e. g.: Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, paras. 18, 21. The fundamental rights of the ECHR were implemented as ordinary provisions of British law and the judges constrained to have regard to the ECtHR case law with the HRA 1998. See e. g.: Baum, ZaöRV 2000, 281. 982 Regina v. Abrahams [1895] 21 VLR 343; Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, paras. 6, 18, 21; Court of Appeal (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. 983 Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 6. 984 Regina v. Junior Clarke Lopez [2014] Crim LR 384 (386), comments by N. Taylor; Willey, 78 J Crim L 2014, 486, 507.

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criminal trial, the Anglophone criminal procedure is designed for an active participation of the defendant – possibly through his counsel.985 (1) Proceedings in absentia at the Magistrates’ Court The Magistrates’ Court’s986 – which tries the vast majority of cases987 – jurisdiction comprises minor offences, primarily the so-called summary offences.988 Beyond that, the magistrates can try offences triable on indictment or summarily when they were sent to the Magistrates’ Court following a trial mode procedure because the summary trial appeared to be the suitable procedure and the defendant has agreed on that.989 To both types of offences the same rules apply, also with regard to in absentia proceedings, once the mode of trial has been selected.990 One has to note that defence counsel can generally replace the defendant at the Magistrates’ Court.991 No formal trial in absentia takes place where the defendant’s counsel is present, as he represents the “defence party”.992 However, on some occasions, statutory regulations exceptionally require the personal presence of the defendant.993 (a) Preliminary procedure at the Magistrates’ Court The preliminary procedure’s objective at the Magistrates’ Courts is to secure the defendant’s presence and/or to assure that he has knowledge of the charges. In case of a public prosecution the prosecutor can inform the defendant of the alleged criminal conduct, including a requirement to be present at trial, via written charges.994 Following his arrest, the prosecuting authority or custody officer will inform the de985

Roberts/Zuckerman, Criminal Evidence, 53; Vogler, El sistema acusatorio en los procesos penales en Inglaterra y en Europa Continental, 184. 986 It is either three lay judges (Justices of the Peace or Magistrates) supported by a clerk or one professional judge (District Judge) also supported by a clerk, although it is not as commonly needed. See as for the details: Blackstone’s Criminal Practice 2013, Part D: Procedure, D3.24. 987 Ashworth/Redmayne, The Criminal Process, 323; Davies, Davies, Croall and Tyrer’s Criminal Justice, 316. This is not least because the prosecution tries to downgrade the charges so they are tried in front of the Magistrates’ Court: Ashworth/Redmayne, The Criminal Process, 210 et seq. 988 MCA 1980, Section 2(1). Summary offences are offences punished with not more than 6 month imprisonment or 5000 Pound fine. See as for an overview of summary offences: Davies, Davies, Croall and Tyrer’s Criminal Justice, 322. 989 MCA 1980, Section 2(1). Since 2004 certain more serious offences triable either way go immediately to the Crown Court without a trial mode procedure. 990 The strict time limits within which the trial has to commence – according to MCA 1980, Section 127, six months after the alleged criminal offence – only apply to summary offences. 991 MCA 1980, Section 122(1) and (2). 992 Historically trial in minor offences were always conducted in absentia: Regina v. Abrahams [1895] 21 VLR 343 (349). 993 MCA 1980, Section 122(3). 994 CrimPR 2015, Rules 7.2, 7.3(1).

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fendant of the charges.995 In case of a private prosecution996, it is necessary to lay information before the Magistrates’ Court which upon a judicial decision issues a summons and, if feasible, an arrest warrant.997 Either way, the documents served must contain information regarding the criminal offence and the conduct that allegedly substantiated such offence.998 This information must be served personally or via post to an address where it is reasonably believed that the defendant will receive the charges.999 It lies in the Magistrates’ Court’s discretion to hold pre-trial hearings.1000 Before the first hearing, the prosecution is to disclose initial details on their case.1001 The prosecutor can either present a summary of its case, statements and documents that provide the basis for their case or a combination of either of those documents.1002 In any event, full pre-trial disclosure is to follow and is another main aspect of the pretrial phase.1003 The prosecution is to disclose the main factual and legal arguments that will be presented during trial and unused material that might undermine the prosecutions’ or support the defence’s case, next to the already established notification on alibi witnesses and expert evidence that was applicable to defence and prosecution.1004 At the same time, the defence disclosure duties are not as far 995

CrimPR 2012, Rule 7.2. This procedure is an option for victims where the police or Crown Prosecution Service decline prosecution. 997 CJA 2003, Section 29; CrimPR 2015, Rule 7.4. The prosecutor is to inform the appropriate Magistrates’ Court named in the requisition, CrimPR 2015, Rule 7.2(3). 998 CJA 2003, Section 30(4)(b); MCA 1980 Section 1(1)(b). The Court may also issue an arrest warrant upon request of the prosecution: MCA 1980, Section 1(6), (6a); CrimPR 2012, Rule 7.2(2). It should, however, be taken into account that only 45 % of the arrest warrants issued on defendants on bail could be properly served on them: Davies, Davies, Croall and Tyrer’s Criminal Justice, 333. 999 CrimPR 2015, Rule 4.4(1), (2). 1000 MCA 1980, Section 8 A. See also for early administrative hearings where the defendant has been charged at a police station: CDA 1998, Section 50. 1001 CPIA 1996, Section 4; CrimPR 2012, Rule 15.2. 1002 CrimPR 2012, Rules 21.2, 21.3. A failure to comply may lead to an adjournment of the proceedings according to case law and the now regulated in CrimPR, Rule 3.5(6)(a). According to Blackstone’s Criminal Practice 2013, Part D: Procedure, D5.19, the court may also order the prosecution to disclose the material as part of its case management powers. 1003 As another main aspect decisions on remand and bail are to be taken. It is self-explanatory that a decision for the defendant to remand in custody or to bail him by the Magistrates’ Court cannot be conducted in absentia sensu stricto as the defendant is already under arrest. 1004 CPIA 1996, Sections 1, 5 et seq. read together with CJA 2003, Sections 32 – 37; CPS Disclosure Manual, Chapter 36; CJA 1967, Section 11; CrimPR 2005, Rule 24.1. Attorney Generals Guidelines on Disclosure 2005, para 57. See also Ashworth/Redmayne, The Criminal Process, 260; Blackstone’s Criminal Practice 2013, Part D: Procedure, D9.13 et seq.; Roberts/ Zuckerman, Criminal Evidence, 55 et seq.; Sanders/Young/Burton, Criminal Justice, 265, 389 et seq., the latter with rather critical comments as to the current disclosure scheme. The disclosure duties always existed but have been expanded by the 2003 CJA. See as for the public interests immunity and its problems: Clayton/Tomlinson, Fair Trial Rights, marginal no. 11.341. 996

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reaching, but have recently increased and, generally, fully apply to both summary and Crown Court cases.1005 Disclosure often takes place among the legal representative and not necessarily with the defendant personally. (b) Plea before venue and allocation (mode of trial) procedure For the offences triable either way, a plea before venue hearing is held. The defendant is generally obliged to be present during the plea before venue hearing where he is asked whether he intends to plead guilty or not guilty before the venue of trial is established.1006 As a matter of principle, the defendant makes a guilty plea personally.1007 However, up to the court’s discretion a legal representative can enter the plea where it is not practicable for the guilty plea proceedings to be conducted in the defendant’s presence due to his disorderly conduct before the court.1008 If the representative does not make the defendant’s plea, it is presumed to be not guilty.1009 The court can otherwise decide to adjourn the proceedings and remand the defendant.1010 The guilty plea is seen as waiver of the right to trial1011 and is endorsed by the CJA 2003 as extensive sentence reductions – up to one third – can be granted.1012 In case of a plea of not guilty, the allocation procedure follows, which determines the mode of trial.1013 The suitable trial mode will firstly be determined by the court.1014 1005 CrimPR 2005; CPIA, Section 5(5); CJIA 2008, Section 60(1); CJA 2003, Section 33(2); CrimPR 2005, Rule 24.1; Regina v. Daha Essa [2009] EWCA Crim 43, para. 18; Ashworth/Redmayne, The Criminal Process, 260; Blackstone’s Criminal Practice 2013, Part D: Procedure, D9.29 et seq. As for the co-defendant’s introduction of bad character evidence: CrimPR 2005, Rule 35.5; Ibrahim Musone v. The Crown [2007] EWCA Crim 1237, para. 51. Of other opinion as for the application to cases tried summarily: Blackstone’s Criminal Practice 2013, Part D: Procedure, D9.37. 1006 CPIA 1996, Section 49. 1007 MCA 1980, Section 17 A. Regina v. Roy Williams [1978] QB 373, which according to Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.5 can be seen as a general principle and is therefore also applicable to summary proceedings. Especially for the Magistrates’ Court: Regina v. Wakefield Justices, ex parte Butterworth [1970] 1 All ER 1181. 1008 MCA 1980, Section 17B. 1009 MCA 1980, Section 17B(3). 1010 MCA 1980, Section 17C. 1011 Ashworth/Redmayne, The Criminal Process, 293. 1012 CJA 2003, Section 144, Sentencing Guidelines Counsel, Reduction in sentence for a guilty plea: Revised Guidelines (2017). Indeed, the rate of guilty pleas at Magistrates’ Courts lies over 90 % at the Crown Court over 70 %, although the figures significantly vary as to region and nature of crime: Ashworth/Redmayne, The Criminal Process, 293 et seq. 1013 MCA 1980, Sections 17 A(2), 18(2). See as for the details of said procedure: Criminal Case Management Framework 2004, Part 5, 15. 1014 MCA 1989, Sections 19, 20; CrimPR 2015, Rule 9.10. The Court receives submissions by the parties and is guided by the 2016 Sentencing Council Allocation Guidelines generally given precedence for a summary trial unless severe crimes or complex cases are concerned. See as for the details: Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, marginal no. 1-56 et seq.

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Secondly, the defendant will be asked whether he consents.1015 The presence of the defendant is, generally, required throughout the procedure.1016 An exception to this rule occurs where the defendant’s representative indicates that his client consents to the trial mode procedure in his absence and the court is satisfied that there is good reason – for example: sickness, although it goes beyond this1017 – to try the defendant in his absence.1018 Finally, where the defendant’s disorderly behaviour in court makes it impossible to conduct the determination of the trial mode in the defendant’s presence.1019 This is only an option if the defendant is legally represented.1020 The legal representative indicates whether the defendant consents to the chosen mode of trial.1021 If counsel cannot give such indication or his answer is negative the case is sent to the Crown Court.1022 (c) Trial stage and its in absentia framework Trials at the Magistrates’ Court, following a not-guilty plea of a summary offence or either way offence that has been allocated to be tried summarily, can generally be held in absentia subject to the defendant’s discretion. The Magistrates’ Court, as a matter of principle, needs to proceed in the defendant’s absence where the defendant is over age.1023 The defendant has a right to be present but generally no duty to be present. Nonetheless, the court can order the defendant’s personal appearance where it finds presence suitable. (aa) Proper summons All types of in absentia procedures held at the Magistrates’ Court require a proper summons. Since only then the defendant can make an informed decision not to participate in the trial. It is to be noted that without a proper summons or where it lies in the interests of justice, the proceedings have to be postponed.1024 The summons must include the exact date and place of the hearing and briefly state the matter of the 1015

MCA 1989, Sections 19, 20. For several years there has been a broad discussion about whether the defendant’s right to elect the mode of trial should be abolished. The debate is comprehensively summarised by Lord Justice Aulds Review: Auld, Review of the Criminal Courts of England and Wales, 186 – 192. See also: Lloyd-Bostock/Thomas, Juries and Reform in England and Wales, 62 – 66. Two governmental bills (Criminal Justice (Mode of Trial) Bill 2000) in this regard have failed. 1016 MCA 1980, Section 18(2). See also: Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.14, D6.18. 1017 Ibid., D6.19. 1018 MCA 1980, Section 23. 1019 MCA 1980, Section 18(3). 1020 Ibid. 1021 MCA 1980, Section 23(4)(a). 1022 MCA 1980, Section 23(4)(b), (5); CrimPR 2015, Rule 9.10. 1023 MCA 1980, Section 11(1)(b); CJAIP 2008, Section 54 CrimPR, Rule 37.11(3)(a)(i). 1024 MCA 1980, Sections 5, 10(1), 18(4).

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offences the defendant is charged with, and it must be served in writing.1025 The summons needs to be served personally to the alleged offender or left with a person at his last or usual domicile or where it was sent by post to the defendant’s last known or usual address of domicile, where he is believed to receive notice.1026 It needs to be proven to the court’s satisfaction that the summons was served on the accused and that the defendant had a reasonable amount of time to prepare his defence.1027 The summons is deemed to be proper also if the defendant has appeared to court before, in order to give a statement on the charges and where he was previously detained for the same offences. In these cases, knowledge of the proceedings instituted against him is certain. The court must, similarly, be satisfied that the defendant had knowledge of the resumption hearing where the trial has been adjourned.1028 However, only the personal service has full probative value.1029 For any other method of service the court needs to assess other evidence supporting the proper service of the summons.1030 This can be the record of delivery or a testimony by the clerk that has delivered the summons.1031 (bb) Guilty plea in absence via post Following a proper summons, the defendant – or an authorised counsel – can notify the court in writing by mail that he pleads guilty in absence.1032 This procedure is commonly used for driving offences.1033 The guilty plea in absence via post requires, beyond the proper summons, including facts and matters of the charges also in form of witness statements, a notification of the possibility of pleading guilty in absence, that the defendant is over 16 and that he will not appear at the hearing.1034 It is within the court’s discretion to decide not to accept the guilty plea in absence and to adjourn the hearing.1035 If the court accepts the written guilty plea, it proceeds as if the defendant was present and had pleaded guilty. No further taking of evidence takes place as the defendant waived his right to trial and to rebut the prosecution’s case.1036 1025 MCA 1980, Section 1(1), (2); MCR 1981, Section 98(2); see also MCA 1980, Section 12(3). That likewise applies to a courts and a prosecutions summons or requisition: Blackstone’s Criminal Practice 2013, Part D: Procedure, D5.43. 1026 MCR 1981, Section 99(1); CrimPR 2012, Part 4. 1027 MCA 1980, Section 11(2); CrimPR 2012, Rule 37.11(2)(c)(i). 1028 MCA 1980, Section 10(2); CrimPR 2012, Rule 37.11(3)(c)(ii). The same rules of delivery apply to the notice of adjournment: CrimPR 2012, Rule 4.7(2)(g). 1029 E contrario MCR 1981, Section 99(2). 1030 MCR 1981, Section 99(2). 1031 Ibid. 1032 MCA 1980, Section 12(4); CrimPR 2009, Rule 37.8. 1033 Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.26. 1034 MCA 1980, Section 12(5); CrimPR 2009, Rule 37.8(1)(c). 1035 MCA 1980, Section 12(9); CrimPR 2009, Rule 37.8(4)(c). 1036 Rule 37.8(3). See above H. II. 3. b) bb) (1) (b) as for possible sentence reductions and the general constitution as a waiver.

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As the prosecution had to submit all the relevant evidence with the summons or requisition, the defendant knew exactly what he would have been confronted with at trial.1037 However, before the conviction is pronounced, the court has to read out all the information that has been served on the defendant – especially the indictment and a short outline of the facts and matters of the offences and where applicable witness statements – and any submission the defendant has made with the notification to plead guilty in absence.1038 The defendant’s submissions can especially point out mitigating factors or reasons of justification, which the defendant can submit any time before the conviction.1039 As a safeguard during the hearing in absentia, no further facts on the matter of the offences and no further information about the accused can be placed before the court.1040 Only the material that has been served upon the defendant can be used. In addition, the defendant’s notification to plead guilty by post can be withdrawn any time before the hearing takes place.1041 The court can also decide to give the defendant another opportunity to appear before sentencing and to notify him about the adjournment.1042 If the defendant appears at the hearing following the guilty plea via post or when he asserts that he had the intention to plead guilty via post, he can be tried as if he was absent if he so wishes.1043 Nevertheless, he is given the opportunity to submit a mitigating statement personally.1044 (cc) Trial in absentia If the defendant has not pleaded guilty via post and is not under age,1045 since the CJIA 2008 the court generally tries him in absentia if he was properly summoned.1046 If the court decides to adjourn the hearing, it has to give reasons why it seems unsuitable to proceed in the absence of the defendant.1047 The parties have to be informed about the adjournment – in case there is one – and be given notice of the date of resumption.1048 The court may remand the defendant on bail or in custody for the 1037

Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.24. MCA 1980, Section 12(7); CrimPR 2005, Rule 37.8(2). 1039 CrimPR 2009, Rule 37.8(2)(b); Regina v. Oldham Justices, ex parte Morrissey [1959] 1 WLR 58; Regina v. Norham and Islandshire Justices, ex parte Sunter Bros. Ltd. [1961] 1 WLR 364. 1040 MCA 1980, Section 12(8); CrimPR 2009, Rule 37.8(4). 1041 MCA 1980, Section 12(6); CrimPR 2009, Rule 37.8(3). Then the general rules apply. 1042 MCA 1980, Section 12(10). 1043 MCA 1980, Section 12 A. 1044 Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.25. 1045 The court cannot proceed without further requirements or reasoning when the defendant is absent and under 18: MCA 1980, Section 11(1a), ex Section 11(7); CrimPR 2012, Section 37.11(3)(b). 1046 CJIA 2008, Section 54; CrimPR 2012, Section 37.11(3)(b). 1047 MCA 1980, Sections 10(1), 11(7); CJIA 2008, Section 54; CrimPR 37.11(3)(a). 1048 MCA 1980, Section 10(2); Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.19; Atkinson/Moloney, Blackstone’s Guide to the Criminal Procedure Rules, marginal no. 13.29. 1038

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time of the adjournment.1049 The court can also decide to issue an arrest warrant – if the offence is punishable by imprisonment – instead of proceeding in the defendant’s absence or extending his bail.1050 That can be the case where a procedure in absentia does appear to be contrary to the interests of justice, the proceedings are of great importance or prejudice for the defendant is feared.1051 Further, if the court believes that the defendant has an acceptable reason for his failure to appear.1052 Notably, the court has no duty to enquire into reasons of nonappearance.1053 However, the defendant can request a postponement of the hearing when his absence is unavoidable.1054 That is for example the case if the defendant falls ill, which also concerns an acceptable reason of nonappearance.1055 If the court does not accept the defendant’s excuse, it has to take further evidence and order the parties to inquire whether he has indeed good reasons for his nonappearance.1056 The trial is void when the court proceeds regardless of a good reason for the defendant’s nonappearance. Then again, if the court finds the medical issues of the defendant not persuasive, the – statutorily favoured – procedure in absentia occurs.1057 Reasons for involuntary absence other than illness – for example, a trial in an unrelated matter or ban on entering the court building – generally lead to an adjournment.1058 Some Magistrates’ Courts also tend to apply the guidelines which were developed for the jury trial at the Crown Court and proceed in absentia up to their discretion,1059 although they were

1049 MCA 1980, Section 13(1); The Queen on the Application of Webb Johnson v. Director of Public Prosecutions [2005] EWHC 3132 (Admin), para. 46. See as for the details: Blackstone’s Criminal Practice 2013, Part D: Procedure, D5.30 et seq. The remand decisions can be taken in the defendant’s absence when he is in custody: MCA 1980, Section 128(3a) – (3e). 1050 Bail Act 1976, Section 7; MCA 1980, Section 129(3). 1051 MCA 1980, Sections 5, 10(1), 18(4). See as for the full list of the factors to be taken into consideration: Regina v. Kingston-upon-Thames Justices, ex parte Peter Martin [1994] Imm AR 172; High Court of Justice, Hereford Magistrates’ Court ex parte Tracy Rowland [1998] QB 110, para. 30 et seq. 1052 MCA 1980, Section 11(2)(a); CJIA 2008, Section 54. 1053 MCA 1980, Section 11(6); CJIA 2008, Section 54. 1054 Regina v. Bolton Magistrates’ Court, ex parte Merna, Regina v. Richmond Justices, ex parte Haines [1991] Crim LR 848. 1055 Ibid.; The Queen on the application of Webb Johnson v. Director of Public Prosecutions [2005] EWHC 3132 (Admin), para. 43; Mark James v. Tower Bridge Magistrates’ Court [2009] EWHC 15000 (Admin). 1056 Regina v. Bolton Magistrates’ Court, ex parte Merna, Regina v. Richmond Justices, ex parte Haines [1991] Crim LR 848. 1057 Regina v. Ealing Magistrates’ Court, ex parte Burgess [2001] 165 JP 82. 1058 Regina (on application of R) v. Thames Youth Court [2002] 166 JP 613. 1059 The Queen on the application of Webb Johnson v. Director of Public Prosecutions [2005] EWHC 3132 (Admin), para. 40; Donovan Morsby v. Tower Bridge Magistrates’ Court [2007] EWHC 2766 (Admin), para. 13; Mark James v. Tower Bridge Magistrates’ Court [2009] EWHC 15000 (Admin), para. 26 et seq.

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considered not suitable for summary trials.1060 The recently issued Practice Direction, however, expressly refers to said criteria also for trials at the Magistrates’ Court.1061 Once it has been decided to proceed in absentia, the procedure follows the general rules and the trial takes place as if the defendant was present and had entered a notguilty plea.1062 The number of trials held in absentia at Magistrates’ Courts have increased noticeably over the past years and have become commonplace.1063 (dd) Sentencing procedure in absentia If the trial was conducted in absentia, the defendant can generally also be sentenced in his absence. However, it is not possible to sentence the defendant to imprisonment or impose disqualifications on him in his absence.1064 If the defendant is unexpectedly sentenced to imprisonment following a trial in absentia, the defendant has to be brought to court before the sentence takes effect.1065 According to the statutory regulation, the legal representative could replace the defendant and a custodial sentence in his presence was possible. In practice, however, the courts adjourn the hearing rather than impose harsh sentences in absentia.1066 (d) Special remedies against the in absentia conviction If the defendant was tried and convicted in absentia, he can make a statutory declaration – either personally or by post – explaining that he did not know of the proceedings against him until after they had started, within 21 days1067 after receiving knowledge of the conviction.1068 The court will eventually set the conviction aside as the summons or requisition is deemed void and, with it, all subsequent acts without

1060

The Queen on the application of Webb Johnson v. Director of Public Prosecutions [2005] EWHC 3132 (Admin), para. 40. 1061 Part I Consolidated Criminal Practice Direction of General Application – CrimPR 2013, Part I.13.17-19. Preferring such interpretation already earlier: Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.17. 1062 CrimPR 2012, Rule 37.11(3)(a)(i), (ii). 1063 See Leader, Report on England and Wales, 84. Already in 2006 15 % of the cases were held in absentia though at that time there was no presumption for a trial in absentia. 1064 MCA 1980, Section 11(3), (4); CJIA 2008, Section 54; CrimPR 2012, Rule 37.10(10)(a). As for disqualifications, a prior warning of such approach by the court prevents from the prohibition to impose such. 1065 MCA 1980, Section 11(3a); CJIA 2008, Section 54; Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.14. 1066 Ibid., D23.9. 1067 Upon the court’s discretion this time limit might be prolonged where it seemed not reasonable for the defendant to make such declaration within the time foreseen. 1068 MCA 1980, Section 14; CrimPR 2012, Rule 37.11(3)(e).

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prejudice to the validity of the information.1069 A new trial will be held without the involvement of the same judges.1070 However, many defendants are unaware of the right to lodge a statutory regulation so such right is seldomly used.1071 Considering this, there is no effective remedy and this lack is criticised by scholars, especially when considering that there is a presumption to proceed in absentia upon nonappearance.1072 Irrespective of whether the trial was conducted in absentia, the defendant can appeal a conviction in the Magistrate Court which leads to a re-hearing before the Crown Court.1073 (2) Proceedings in absentia at the Crown Court The Crown Court’s jurisdiction relates to graver crimes. Beyond the indictable offences its jurisdiction includes offences triable either way if the defendant wished or accepted to be tried in a jury trial or cases sent to the Crown Court.1074 The right to a trial by jury is an ancient common law tradition,1075 but does not have the status of a constitutional right.1076 (a) Pre-trial procedure and its in absentia framework In trials on indictment, the preliminary hearing’s main objective is to ensure an efficient and expeditious completion of the preparation for trial by focusing on proper

1069

CrimPR 2005, Rule 36.11(3)(e); Blackstone’s Criminal Practice 2013, Part D: Procedure, D22.21. 1070 MCA 1980, Section 14(4). 1071 Leader, Report on England and Wales, 84. 1072 Ibid., 89. 1073 Ibid., 85. 1074 Senior Courts Act 1981, Section 46(1). In very exceptional circumstances the trial is by judge alone. That is where a risk of interference with the jury exists, in fraud cases: CJA 2003, Sections 43 – 49 and in cases involving children: CJA 1991, Section 53, Schedule 6. See as for the details and some critical remarks: Ashworth/Redmayne, The Criminal Process, 330 et seq. A Crown Court judge can exceptionally also conduct the District Judge’s duties when the case is related to indictable case and send to the Crown Court: Courts Act 2003, Section 66. See as for the guidelines when a procedure is to be send to the Crown Court: Crime and Disorder Act 1998, Section 50 A, 51 – 51E. 1075 Magna Carta 1215, Clause 39, which was solely applicable to the aristocracy; Clayton/ Tomlinson, Fair Trial Rights, 11.121. 1076 See e. g. Auld, Review of the Criminal Courts of England and Wales, 177 et seq. See in this regard also the interpretation of Auld’s review: Jackson, CrimLR 2002, 249, 254. See also for the discussion whether the jury trial is still a desirable mode of trial, for example: LloydBostock/Thomas, 62 Law&ContempProbs 1999, 7 or the overview Davies, Davies, Croall and Tyrer’s Criminal Justice, 359 et seq.

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case management. In all cases, plea and case management procedures are held.1077 There is no need for the defendant to participate at the latter proceedings but he can participate via video link.1078 Further, the evidence, which the parties intend to use during the trial, will be disclosed and, where not yet done, the prosecution will disclose unused material that might support the defence case.1079 Prepatory hearings are only held in fraud cases and other complex criminal cases.1080 (aa) Plea procedure – arraignment Following the reading of the indictment, laying out the precise charges, plea procedures are held.1081 The defendant has to plead personally. Thus, as a general rule, there is no trial in absentia if the defendant has never appeared. Legal representation for a guilty plea at the Crown Court is not possible nor is there a possibility to plead by post.1082 Upon nonappearance, the court adjourns the hearing and tries to provide for the defendants presence by issuing an arrest warrant.1083 The only exception to this rule occurs where the defendant waived his right to arraignment.1084 Such waiver may also be concluded from the defendant’s conduct, for example when he deliberately absents himself before the arraignment.1085 In spite of this, the principle, that a guilty plea must be entered personally, remains.1086 Therefore, a 1077

Part 3. 1078

Consolidated Criminal Practice Direction, para. IV.41; CrimRP 2003, Rule 1.1(2)(e),

See below F. II. 3. b) ee). See above for the extend of disclosure F. II. 3. b) bb) (1) (a). 1080 CPIA 1996, Sections 28 – 38; CJA 1987, Sections 7 – 11; Criminal Procedure Rules 2005, Part 15, Rule 15. 1081 CJA 2003, Schedule 3; Ex parte Guardian Newspaper Ltd [1999] 1 Crim App R 284 (285). See as for the details: Blackstone’s Criminal Practice 2013, Part D: Procedure, D11; Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, marginal no. 4-169 et seq. See as for the exact content and service of the indictment: Consolidated Practice Direction IV.34; CrimRP 2005, Rule 14; CAJA 2009, Section 116. The possible application of dismissal of charges will be omitted here as it does not concern the normal way a procedure goes. See as for the details: Richardson (ed.), Archbold 2010: Criminal Pleading, Evidence and Practice, marginal no. 1.38 et seq. 1082 Regina v. Ellis [1973] 57 Crim App R 571. 1083 Bail Act 1976, Section 7. 1084 Regina v. Roy Williams [1978] QB 373; Court of Appeal, Regina v. John Kepple [2007] EWCA Crim 1339, para. 17 et seq. This is endorsed by Court of Appeal: Regina v. John Ashton, Omar Draz and Darren O’Reilly [2007] 1 WLR 181; Regina v. Clarke [2008] 1 WLR 338, para. 21 asserting that the lack of arraignment – sovereign from the absence of the defendant – does not affect the validity of the proceedings. See also: Blackstone’s Criminal Practice 2013, Part D: Procedure, D12.57, D12.71; Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, marginal no. 3-244. That seemed to be interpreted differently in the obiter dictum in Regina v. Ellis [1973] 57 Crim App R 571, which did not expressly separate the content of the plea but the case concerned a guilty plea by Ellis. 1085 Regina v. Roy Williams [1978] QB 373; Court of Appeal, Regina v. John Kepple [2007] EWCA Crim 1339, para. 17 et seq. 1086 Blackstone’s Criminal Practice 2013, Part D: Procedure, D12.57, D12.71. 1079

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waiver of arraignment can only be assumed when the defendant intended to plead not guilty. He, then, will be treated as if he indeed had pleaded not guilty. (b) Trial in absentia at the Crown Court As a consequence, a trial in absentia is generally only possible if the defendant initially appeared for his not-guilty plea, i. e. the defendant must be present for the opening of the trial but does not appear for the actual trial. In principle, a duty to be present during trial – at least at the commencement of trial – is imposed upon the defendant.1087 On the other hand, there is no absolute rule against trials in absentia.1088 Accordingly, a trial in absentia before the Crown Court is considered to be unlikely, only exceptional circumstances such as the defendant’s voluntary absence can justify the proceedings in absence of the accused.1089 The theoretical concept behind the possibility of conducting a trial without the presence of the defendant is a deliberate and voluntary – although possibly inferred from the defendant’s conduct, e. g. absenting himself or failing to adequately instruct his lawyers1090 – waiver of his right to be present and the right to be legally represented or a waiver of one of the rights separately.1091 Hence, it is considered to be a voluntary absence of the defendant.1092 If the defendant refuses to attend the trial, although in custody, this usually proves the waiver of his right to be present. He may not be forcibly brought to court; the judge, however, may punish the defendant for contempt.1093 A written caution handed out to the defendant, explaining the effect of his absence and the possibility that he will remain unrepresented, usually provides an incontrovertible means of proof as to the waiver of his right when not appearing at trial.1094 Yet, the House of Lords asserted that in the absence of a waiver the procedure in absentia can still be conducted if the proceedings, taken as a whole, satisfied the 1087 Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, paras. 6, 10; Rex v. Lee Kun [1916] 1 KB 337; cf. also Blackstone’s Criminal Practice 2013, Part D: Procedure, D15.85, D19.69. 1088 Duff, et al., The Trial on Trial, 98; Smith, England and Wales, 99. 1089 Rex v. Lee Kun [1916] 1 KB 337; Comments on Court of Appeal, Regina v. Jones, Planter and Pengelly [1991] Crim LR 857; Regina v. Benaissa Amrouchi [2007] EWCA Crim 3019, para 10. Blackstone’s Criminal Practice 2013, Part D: Procedure, D15.85. 1090 These examples are now statutorily expressly mentioned in: Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.17. 1091 Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.17; Regina v. Abrahams [1895] 21 VLR 343; Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, paras. 7, 18, 24, 35, 47; Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. 1092 Regina v. Robert Jones (No. 2) [1972] 1 WLR 887; Blackstone’s Criminal Practice 2013, Part D: Procedure, D15.87. 1093 Regina v. John Joseph O’Boyle [1991] 92 Crim App R 202. 1094 Regina v. O’Hare [2006] Crim LR 950 (951); Regina v Folarin [2014] EWCA Crim 3033.

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requirements of a fair trial.1095 Discretion to proceed might exist, though very sparingly, for example, during a case with several co-defendants where the hearing is not relevant for the absent defendant.1096 On the other hand, sickness – the common example for involuntary absence – should lead to an adjournment of the case.1097 Ultimately, it rests with the court’s discretion whether to commence or proceed with a trial in the defendant’s absence1098 regardless of whether a waiver exists. Such discretion “should be exercised with the utmost care and caution”.1099 As a matter of fact, it is always possible to adjourn the hearing and the regularly court uses its discretion accordingly.1100 (c) Guidelines for the court to use their discretion on whether to proceed in absentia In the case of Jones the Court of Appeals developed guidelines – almost entirely confirmed by the House of Lords and, therefore, the leading authority – to exercise the discretion on whether to try a defendant in absentia, although the following is not meant to be exhaustive or comprehensive.1101 Those guidelines have been fully implemented in the CrimPR 2013.1102 First of all, the exercise of the discretion needs to fully consider all relevant matters, including specifically the fairness of a trial.1103 The court in particular has to assess: “(i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

1095

Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, paras. 18, 20. Regina v. Peter Alan Howson [1981] 74 Crim App R 172. See also: Blackstone’s Criminal Practice 2013, Part D: Procedure, D15.91. 1097 Regina v. Abrahams [1895] 21 VLR 343; Regina v. Peter Alan Howson [1981] 74 Crim App R 172; ibid.; Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, marginal no. 3-223. 1098 Regina v. Abrahams [1895] 21 VLR 343; Court of Appeal, Regina v. Jones, Planter and Pengelly [1991] Crim LR 856; Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para 22. Confirmed by Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 6 et seq., 10, 17, 24, 38, 42, 46. 1099 Part I Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.18; Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para 13. 1100 The Queen on Application of Danielle Drinkwater v. Solihull Magistrates’ Court [2012] EWHC 765 (Admin), para. 32. 1101 Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. 1102 Part I Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.19. Very critically and seeing these as breach of natural justice as the defendant might be unrepresented: Willey, 78 J Cim L 2014, 486, especially 507 et seq. 1103 Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. 1096

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(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.”

Lord Bingham of Cornhill expressed concerns as to the criterion of the seriousness of the offences as the objects of a fair trial and just outcome are equally important to serious and relatively minor crimes.1104 The recently issued Practice Direction, however, lists the seriousness as a factor that is to be considered.1105 The House of Lords further drew attention to the interests of justice that might prevail over the defendant’s right to be present.1106 The discretion has to be exercised especially “with regard to the due administration of justice rather than to any individual’s comfort or convenience”.1107 The objective is to ensure that a fair in absentia trial is conducted and that it leads to a just outcome.1108 (d) Safeguards for trials held in absentia at the Crown Court “[I]t is generally desirable that a defendant be represented even if he has voluntarily absconded.”1109 There have been examples of unrepresented defendants tried 1104

Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 14. Part I Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.19. 1106 Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 35 et seq. See already: Regina v. Henry Louis Bertrand [1867] 1 LR PC 520 (534); Regina v. Abrahams [1895] 21 VLR 343 (especially 353). 1107 Justice Hood in Regina v. Abrahams [1895] 21 VLR 343 (343). 1108 Part I Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.18. 1109 Regina v. Jones (Anthony William), 20 February 2002, [2002] UKHL 5, para. 15. Endorsing this: Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. See already similarly the obiter dictum: Regina v. Abrahams [1895] 21 VLR 343 (347). Critically as the desire for representation goes not far enough: Willey, 78 J Cim L 2014, 486, 491 et seq. He rather 1105

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in absentia. However, cases with unrepresented defendants were “extreme case[s]”1110 with particular circumstances. The defendant has, for example, tried to blackmail the court with regard to the court’s attempt to provide for his legal representation and his behaviour suggested that further adjournments would not resolve the problem that he was neither cooperating nor represented.1111 On another occasion, the defendant has been duly informed in writing about the consequence that he might remain unrepresented when absenting himself.1112 Finally, there was an occasion where counsel withdrew from representing the absent defendant as he did not see sufficient instruction to conduct a defence properly.1113 Instead, recent case law highlights the need for defence counsel and even suggests that the legislator consider extensions to the legal aid scheme to ensure the representation of absent defendants.1114 No matter whether the defendant is represented by counsel, the judge assumes a special role during proceedings in absentia. He is to ensure that “the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up, he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”1115 (e) Sentencing procedure and its in absentia framework The sentence is usually rendered by the judge(s) in open court and in presence of the defendant.1116 However, the aforementioned in absentia rules apply similarly1117,

sees the need for an entitlement to be represented when the defendant is not physically present. Similarly: Dickson, The Right to a Fair Trial in England and Wales, 506. 1110 Regina v. Henry Lee Smith [2007] Crim LR 325 (326). 1111 Ibid. 1112 Regina v. O’Hare [2006] Crim LR 950 (951). 1113 Regina v. Boodhoo [2007] 1 Crim App R 422 (423). 1114 Cf. Re Brownlee’s Application for Judicial Review [2014] UKSC 4, paras. 22, 32 et seq. Supporting this: Willey, 78 J Cim L 2014, 486. 1115 Court of Appeals (Criminal Section), Regina v. John Victor Hayward et al. [2001] 3 WLR 125, para. 22. See similarly as to the warning that the absence is no admission of guilt: Comments on Court of Appeal, Regina v. Jones, Planter and Pengelly [1991] Crim LR 857. See also: Part I Consolidated Criminal Practice Direction of General Application: CrimPR 2013, Part I.13.18. 1116 Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, 3-225. 5 A177. 1117 Richardson (ed.), Archbold 2010: Criminal Pleading, Evidence and Practice, marginal no. 3-210.

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save for treason cases where the defendant’s presence is required for the rendering of the sentencing judgment.1118 cc) Judicial proceedings partially held in absentia It lies within the court’s power – this applies to any court and hearing – to order the accused to be removed from the courtroom and to proceed in his absence if he misbehaves himself, so as to make it impossible for a proper trial to take place.1119 By abusing his right to be present, the defendant forfeits his right to presence.1120 Examples for such conduct are shouting or intimidation of witnesses or jurors.1121 In practice, usually the judge warns the defendant before excluding him from the proceedings; he may also caution the defendant as to a possible judgment finding him to be guilty of contempt in the face of the court.1122 dd) Appeals stage and its in absentia framework The appeals system in England and Wales depends on whether the court of first instance was the Magistrates’ or Crown Court, which party appeals, while the defence right to appeal is traditionally broader,1123 and on which ground the appeal is based. It is generally possible to appeal either on the grounds of fact and law,1124 though usually the facts are not newly established, except for appeals to the Crown Court. Also the in absentia framework during the appeals stage depends on the nature of the remedy and the court seised. As a general rule, the defendant is not required to be present and participate during appeal proceedings. However, he usually has a right to be present.

1118

Ibid. Similarly, counsel can represent the defendant during the procedure assessing ambiguities or clarifying doubts in the sentence: Regina v. Dowling [1989] 88 Crim App R 88 (89). 1119 Rex v. Lee Kun [1916] 1 KB 337. See also the obiter dictum in Regina v. Abrahams [1895] 21 VLR 343 (347). 1120 Regina v. Abrahams [1895] 21 VLR 343 (347 et seq.). 1121 Blackstone’s Criminal Practice 2013, Part D: Procedure, D15.86. 1122 Ibid. 1123 Although this distinction is not as strong since the 2003 CJA, it still exists: Ashworth/ Redmayne, The Criminal Process, 371. However, the prosecution can still only appeal against an acquittal on the basis of errors of law: Davies, Davies, Croall and Tyrer’s Criminal Justice, 380. 1124 Additionally, the Criminal Cases Review Commission is operating since 1997 following a series of miscarriages of justice to review alleged miscarriages of justice after the exhaustion of the appeal possibilities and frequently refers cases back to where appropriate – depending on the court of first instance – to the Appeals or Crown Court. It is no proper appeal procedure but a independent investigatory body with the power to refer the cases back for a new appeal: CAA 1995, Sections 8, 9, 11.

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(1) Appeal procedure at the Crown Court The appeal on grounds of fact from a Magistrates’ Court verdict1125 causes a refreshing of the facts by hearing all the witnesses and other evidence again by a special Crown Court Panel in way of a summary re-trial.1126 Similarly, a fresh sentencing takes place where the Magistrates’ sentence is appealed.1127 Notably, there is no prohibition of reformatio in peius.1128 A legal representative takes the defendant’s place at appeal hearings held at the Crown Court.1129 The appeal is heard on the merits although the appellant failed to appear. The Crown Court has no power to infer from the nonappearance that the defendant abandoned the appeal.1130 That is even the case where the appellant absconded and failed to properly instruct his legal representative.1131 On the other hand, the appeal is to be dismissed where neither a legal representative nor the defendant appears, unless the nonappearance is based on the false presumption that the Crown Court refused to hear the appeal when the defendant was not present.1132 (2) Appeal procedure at the High Court (Divisional Court) by way of case stated The Appeal procedure at the High Court (Divisional Court) by way of case stated only concerns errors of law and may be determined without a hearing.1133 The court decides upon the parties’ submissions and the facts found and stated by the court of first instance.1134 In practice, this remedy is very rarely used.1135 In any event, a procedure in absentia readily takes place. 1125

MCA 1980, Section 108. Ashworth/Redmayne, The Criminal Process, 371; Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.7; Davies, Davies, Croall and Tyrer’s Criminal Justice, 380. The panel consists of two judges and a magistrate, no jury participates. Critically: Auld, Review of the Criminal Courts of England and Wales, 617; Sanders/Young/Burton, Criminal Justice, 617. 1127 Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.7. 1128 Senior Courts Act 1981, Section 48; Davies, Davies, Croall and Tyrer’s Criminal Justice, 381; Sanders/Young/Burton, Criminal Justice, 615. 1129 Regina v. Croydon Crown Court, ex parte Clair [1986] 1 WLR 746; Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.14. 1130 Regina (on the application of Hayes) v. Chelmsford Crown Court [2003] 167 JP 65. See also Regina v. Croydon Crown Court, ex parte Clair [1986] 1 WLR 746 (748 et seq.) 1131 Regina v. Crown Court at Guildford, ex parte Brewer [1987] 87 Crim App R 265 (especially 269); Podmore v. DPP [1997] COD 80. 1132 Regina v. Croydon Crown Court, ex parte Clair [1986] 1 WLR 746 (748 et seq.); Regina v. Crown Court at Guildford, ex parte Brewer [1987] 87 Crim App R 265 (269). 1133 MCA 1980, Section 111(1); Senior Courts Act 1981, Section 28; CrimPR 2005, Part 64; Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.19. 1134 Ibid., D29.24. New facts cannot be established; new points of law can, however, be considered. 1135 Sanders/Young/Burton, Criminal Justice, 618. 1126

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(3) Appeal procedure at the High Court (Queen’s Bench Division) by way of application for judicial review The defendant also has the possibility of a due process appeal where the conviction is unlikely to stand due to an unfair trial.1136 This remedy applies to Magistrates’ Court judgments and concerns errors of law, breach of natural justice, the fairness of the trial or excess of jurisdiction.1137 The High Court may, after having granted permission to appeal, decide on the permission to judicial review without a hearing, where all parties agree, solely based on the claim form and – generally very detailed – submissions.1138 Should the court decide to hold a hearing for the permission proceedings, the parties’ presence is not mandatory, unless otherwise ordered.1139 (4) Appeal procedure at the Court of Appeal (Criminal Division) The appeals to the Court of Appeal mainly follow trials on indictment by a Crown Court jury conviction or sentence.1140 With regard to verdicts and sentences by the Crown Court, the trial judge needs to grant leave to appeal, unless the appeal is solely based on grounds of law.1141 If the fitness of the case for appeal is denied, the defendant can also apply to the Court of Appeal, which will apply the safety-test by assessing whether the conviction is likely to stand and if the trial was materially flawed.1142 The application for leave to appeal remains valid, if the defendant absconded before or during trial and may be refreshed when he surrenders.1143 Without 1136 Regina v. Nicholas Robert Neil Mullen [1999] 2 Crim App R 143; Regina v. Michael George Davis, Raphael George Rowe and Randolph Egbert Johnson [2001] 1 Crim App R 115. On the other hand, in Regina v. Tony Michael Chalkey and Tony Brosbane McEwan Jeffries [1998] 2 Crim App R 79, para. 98 the court did not see the power to quash a conviction where it does not think the conviction is unsafe, but the trial was not conducted correctly in terms of fairness. 1137 Senior Courts Act 1981, Section 28 et seq.; Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, 2 – 92; Dickson, The Right to a Fair Trial in England and Wales, 489. See also as for example of breaches of natural justice which is interpreted broadly: Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.27. 1138 Part 54 Practice Direction, Rules 54.11, 54.12, 54.18. 1139 Blackstone’s Criminal Practice 2013, Part D: Procedure, D29.35. 1140 CAA 1968, Sections 1, 2, 9, 11. See for the other jurisdictions: CAA 1968, Section 10 (Sentences passed on committal), CJA 1982, Section 36 (Giving opinion on a point of law upon the Attorney-General’s request); CJA 1987, Sections 11 – 14 (Ruling made in prepatory hearings in fraud cases); CJA 1988, Sections 35, 36 (Increment of sentence upon AttorneyGenerals’ application); CAA 1995, Section 13 (Reference by Criminal Cases Review Commission). 1141 CAA 1968, Sections 1(2)(b), 11; Consolidated Criminal Practice Direction, para. IV.50.3. 1142 CAA 1968, Section 1(2)(a); CAA 1995, Section 2; Regina v. James Hanratty (Deceased) [2002] EWCA Crim 1141, para 95. 1143 Regina v. Jones [1971] 2 QB 456.

II. Reports on foreign law

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instruction, his legal representative is, however, not authorised to ask for leave to appeal.1144 Generally, the court has a sole reviewing function and delivers its judgment on the basis of the transcript of the trial hearing at first instance.1145 Only in exceptional circumstances the Court of Appeal hear fresh evidence.1146 The prohibition of reformatio in peius applies.1147 A defendant who is not in custody has a right to be present at the appeal hearings.1148 He is, however, not required to be present. The court may decide to proceed in his absence, when it is satisfied that the defendant was properly notified.1149 The Court of Appeal held in Charles that an appeal might also be considered and determined where the defendant absconded.1150 Earlier decisions made clear that the court could adjourn the appeal proceedings or rule against the absconded appellant, where he did not instruct counsel regarding the conduction of the appeal proceedings in his absence.1151 The same applied to the defendant on bail pending appeal when he was properly notified and ordered to present himself for the hearing.1152 In Charles, however, it was held to be an infringement of the right to a fair trial under Art. 6 ECHR if the merits of the appeal were not considered.1153 The right to be present, on the other hand, is restricted when the defendant is in custody. He has no right to be present during hearings for permission of the appeal, the preliminary 1144

Ibid. (457). Ashworth/Redmayne, The Criminal Process, 371, 377, 383; Huber, England and Wales, 82; Sanders/Young/Burton, Criminal Justice, 623. See with regard to the reviewing function: Regina v. Richard McIlkenny et al. [1991] 93 Crim App R 287. In case the first instance was held at the Magistrates’ Court, the magistrates provide the statements of fact and legal conclusions. 1146 CAA 1968, Section 23. 1147 Supreme Court Act 1981, Section 48(4); Davies, Davies, Croall and Tyrer’s Criminal Justice, 381; Sanders/Young/Burton, Criminal Justice, 616. In cases where the Court of Appeals heard fresh evidence and it is satisfied that lies in the interests of justice, it can decide to grant a retrial: CAA 1968, Section 7 as amended in the CJA 1988. See for the factors to be taken into account when deciding whether retrial is granted or the Appeals Court quashes the judgment on his behalf: Regina v. Richard Flower, Siggins and Eric Flower [1966] 1 QB 146 (148 et seq.); Arthur John Saunders [1974] 58 Crim App R 248 (255 et seq.); Regina v. Richard McIlkenny et al. [1991] 93 Crim App R 287. It can also take the decision on its own behalf and quash the trial judgment where it considers it to be unsafe: CAA 1968, Section 2(2), (3). There is a broad discussion on the relationship between retrial and appeal judgment by the Court of Appeal for the undermining of the juries role is feared where the Appeal Court takes its own decision. See for an overview of the leading cases and doctrinal suggestions: Ashworth/Redmayne, The Criminal Process, 377. See as for the applicable safety-test: Blackstone’s Criminal Practice 2013, Part D: Procedure, D26.15 et seq. 1148 CAA 1968, Section 22 I. 1149 Lucraft (ed.), Archbold 2020: Criminal Pleading, Evidence and Practice, 7 – 194; Blackstone’s Criminal Practice 2013, Part D: Procedure, D27.21. See also CAA 1968, Section 22(3). 1150 Regina v. Jerome Charles and Lee Nigel Tucker [2001] 2 Crim App R 233. 1151 Regina v. Eula Carter [1994] 98 Crim App R 106. 1152 Regina v. Paul Anthony Whithing [1987] 85 Crim App R 78 (79). 1153 Regina v. Jerome Charles and Lee Nigel Tucker [2001] 2 Crim App R 233. 1145

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F. Trials in absentia as general principle?

hearings, or when he received a not guilty verdict for reasons of insanity or disability.1154 If the prosecution filed the appeal, the defendant in custody has a right to attend the hearing, which can also be granted via video link.1155 In other cases, the imprisoned defendant may be entitled to participate via video link when the Court of Appeal directs so at its discretion.1156 Following the appeal in absentia concerning the sentence, there is a special remedy to be filed within seven days.1157 The court can vary its decision if it did not take account of a relevant factor due to the appellant’s absence.1158 (5) Appeal procedure at the Supreme Court1159 An appeal to the UK’s highest court following the appeal to the Court of Appeals requires leave to appeal, which is solely granted when a point of law of general public importance is concerned.1160 The defendant has no duty to be present at the proceedings. It is, however, mandatory for his legal representative to appear to the hearing and to remain present.1161 ee) Video link procedures Up to the court’s discretion the defendant can participate at the preliminary and sentencing hearings following a guilty plea via video link.1162 This is possible, if the defendant is in custody and the judge(s) took a decision to allow the video link taking the interest of justice into account.1163 The defendant is then deemed to be present.1164 In jury trials, the jury is to be expressly cautioned not to draw adverse interferences against the defendant from an appearance via screen.1165 With regard to proceedings 1154

CrimPR, Rule 68.11; CAA 1968, Section 22(2)(b), (c), (d). CrimPR 2012, Rule 67.11. 1156 CAA 1968, Section 22(4)-(6). 1157 CrimPR, Rule 68.12(1), (3). The relevant point for the time limit is the delivery of the appeals decision if the defendant was represented during the hearing or the delivery of the decision setting forth the reasons for the application where he was not represented. 1158 CrimPR, Rule 68.12(2). 1159 Following the Constitutional Reform Act 2005 the Supreme Court replaced the House of Lords as of October 2009 as highest Court of the UK. 1160 CAA 1968, Sections 33, 34. 1161 Practice Statement (House of Lords: Appearance of Counsel) [2008] 1 WLR 1143. 1162 CDA 1998, Sections 57 A, 57C, 57E. 1163 Blackstone’s Criminal Practice 2013, Part D: Procedure, D5.39, D5.41; so expressly CDA 1998, Section 57E(6). 1164 Ibid., D15.40; Atkinson/Moloney, Blackstone’s Guide to the Criminal Procedure Rules, marginal no. 5.33. 1165 YJCEA 1999, Section 32; Regina v. Cooper and Schaub [1994] Crim LR 531; Regina v. Foster [1995] Crim LR 333. 1155

III. Comparison

407

at the Magistrates’ Court the defendant can participate via video link if he is detained at a police station or bailed to return to the station for the video link.1166 It has become a commonplace that bail or preliminary hearings are conducted via video link.1167 During the trial, in order to protect vulnerable witnesses, who can be questioned remotely via video link. However, during one trial concerning severe sexual offences, the defendant almost exclusively appeared remotely in the hearings via video link.1168 ff) Special procedures and their in absentia framework For several disorder procedures and for minor driving offences the inaudito reo proceedings of a penalty notice or a fixed penalty order can apply. A penalty notice or order will be sent to the suspect, who can simply accept the fine or dispute the case in court upon objection.1169 gg) Summary In England and Wales, the secret investigations by the police are followed by judicial proceedings during which the defendant has a comprehensive right to be present, also during the pre-trial phase. However, whether the defendant’s attendance is compulsory depends on the court before which the proceedings take place. At the Magistrate’s Court, no duty to be present exists and both pre-trial and trial proceedings are regularly held in absentia. Even the plea of (not) guilty can be conducted via mail. However, the court can always compel the defendant’s presence where it finds it necessary. At the Crown Court, in contrast, the plea must be entered personally and a duty to be present for the initiation of the trial generally exists. A trial in absentia is only possible under very strict conditions. During the appeals proceedings the defendant’s presence, on the other hand, is not of significant importance and the presence of his defence counsel is sufficient.

III. Comparison The above evaluation of mechanisms of criminal proceedings in the defendant’s absence in some domestic jurisdictions shows that it is rational to differentiate, as has been suggested at the outset of the present study, between the physically absent defendant who is untraceable and the defendant who is physically absent but generally reachable, or in simpler terms who can be personally summoned. The German 1166

CDA 1998, Section 57B. Leader, Report on England and Wales, 74, 76, 88. 1168 Ibid., 74 who is critical in this regard. 1169 CJPA 2001, Section 1 et seq. See as for the details: Davies, Davies, Croall and Tyrer’s Criminal Justice, 241; Sanders/Young/Burton, Criminal Justice, 408 et seq. 1167

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F. Trials in absentia as general principle?

approach especially mirrors this differentiation since it distinguishes the defendant who is absent in the technical sense from the defendant who failed to appear. A distinction that can be found under different names also in Austria and Switzerland. It is worthwhile to note that there are significant differences between the trial fully held in absentia, and proceedings that are only partially held in absence. Further, the comparative study shows that it is reasonable to add a third type of absentia proceedings, i. e. inaudito reo procedures applied only for very minor crimes.1170 It is characteristic for these procedures – often known as penal order proceedings – that the defendant is absent and has not participated prior to the decision-making. However, defendants can regularly lodge an opposition and challenge the conviction. Against this background, differences and – due to the ultimate goal of establishing a general principle recognised in legal systems of the world – similarities in the approach to in absentia proceedings of the countries under investigation will be outlined. To start with, the different concepts of presence that the domestic systems apply shall be analysed, i. e. whether presence is conceptualised solely as a right and which jurisdictions impose a respective duty to be present upon the defendant.

1. Right to be present As the reports on foreign law show, all domestic criminal procedures under investigation grant the defendant a comprehensive right to be present during criminal proceedings instituted against him, although the scope of the right depends significantly on the stage of the proceedings. In none of the countries is the right to be present guaranteed as an absolute right. Certain restrictions and waiveabilty of the right to be present are rather common features. In the investigative and pre-trial phase, there is little room for a right to be present. The defendant usually has a right to be present only for certain investigative measures, excluding Switzerland, though also in the Swiss criminal procedure many exceptions apply. The right to be present is mainly guaranteed during judicial hearings, especially the trial phase. This becomes particularly clear in the American and Italian framework which deduce the entitlement to be present inter alia from the right to confrontation, which only applies during the adversarial trial. In appeal proceedings the presence of the defendant is not considered to be of such great importance, the more so where only errors of law are concerned. Solely Dutch law expressly attaches great importance to the defendant’s presence also at this stage. However, also in the other legal orders a right to be present generally exists when the appeal concerns the facts of the case. Going beyond the survey conducted here, Bassiouni surveyed 25 constitutions of different countries and identified a fundamental right to be present at one’s own trial 1170

See for this distinction: Ruggeri, 128 ZStW 2016, 578, 596.

III. Comparison

409

in each of them.1171 He similarly observes that exceptions to this general right to be present are commonly provided for.

2. Duty to be present Usually, it rests with the judges’ discretion to summon the defendant to appear and initialise compulsory mechanisms that bring about the defendant’s presence. Thus, a duty to be present at trial does not exist in all jurisdictions. Germany, Switzerland and Austria are the only jurisdictions that impose a comprehensive duty to be present during the trial hearing of first instance upon the defendant. Also, in the USA, the defendant is, generally, obliged to be present during the crucial phase of the trial. Similarly, in capital cases, a duty is generally imposed upon him. Also in England and Wales the defendant is generally obliged to be present at trial hearings before the Crown Courts. Principles supporting the conception of a duty to be present are inter alia the paternalistic aspect of the state’s duty of care to guarantee the defendant’s rights to be heard and to a fair trial, the procedural economy, the assertion of substantive truth, the principle of orality, immediacy and confrontation as well as special and general preventive effects of the criminal trial. It is, however, to be noted that main hearings in Switzerland are significantly shorter due to the exhaustive pre-trial phase. Hence, infringement of personal freedom that follows the duty to be present at one’s trial, is less severe than in the other countries. Also, in Austria, the pre-trial phase has been significantly broadened, but is not yet comparable with the Swiss approach. During the investigations, a duty to be present only exists for certain investigative measures such as, naturally, the suspect’s questioning and, in some jurisdictions, visual inspections. In criminal procedures that provide for a guilty plea procedure, namely USA and England and Wales, the defendant is generally required to make the plea in persona, particularly where grave crimes are concerned. During the appeal, as a matter of fact, the presence is attached less importance, so that no duty is imposed upon the defendant, who will often be represented – or even replaced – by counsel.

3. In absentia framework The right to be present is subject to restrictions in all of the jurisdictions surveyed above. Even countries that impose a duty to be present upon the defendant allow

1171 Bassiouni, 3 DukeJComp&IntlL 1993, 235, 279 et seq. Similarly Quattrocolo, Personal Participation in Criminal Proceedings finds a right to be present at once trial in 12 European countries.

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F. Trials in absentia as general principle?

certain kinds of procedure in absentia.1172 The following will summarise and compare the different approaches taken with regard to proceedings in the absence of the defendant. a) Proceedings in writing – inaudito reo Except for in US criminal procedure, all jurisdictions under investigation provide for an inaudito reo procedure, namely the penal order procedure. Albeit the details of the penal order procedure’s elaboration differ, some general characteristics can be drawn. First and foremost, the penal order procedure solely applies to very minor offences and not to grave crimes. Moreover, the defendant is vested with a remedy, the objection, that initiates an oral inter partes procedure. Nonetheless, there are critical voices among scholars with regard to the penal order procedure.1173 Yet, its frequent use shows that the penal order is an established model of criminal procedure to prevent judicial overload. The American criminal procedure, on the other hand, addresses this problem with another type of procedure. In order to answer the charges of very minor offences, the defendant can pay a fixed sum in lieu of appearing. However, the defendant can similarly request a hearing or simply not pay in order to obtain a judicial hearing. b) Investigative stage and its in absentia framework Before assessing the possibilities to conduct the investigations, or pre-trial proceedings, in absence of the defendant, it is to be noted that there are conceptual differences with regard to the conduction of investigations in different legal orders. Specifically, not all jurisdictions differentiate between the pre-trial investigations and an intermediate pre-trial procedure in front of a court. Yet, there are many similarities, especially with regard to the possibility of investigating in absentia. In all domestic procedures under investigation, the main authority to conduct the investigations are the police.1174 In the USA the police are in particular responsible for the investigations prior to the defendant’s arrest or the summons. Also, in England and Wales, the constabulary independence is especially highlighted. However, influence of the Crown Prosecution Service rises noticeably. In all other countries, the police act under authority of the public prosecution service.

1172 Quattrocolo, Personal Participation in Criminal Proceedings, 460 et seq., 484 comes to the same conclusion for 12 European countries. 1173 See exemplarily: Ruggeri, 128 ZStW 2016, 578, 604 et seq., who suggests allowing for written procedure only where the defendant expressly waived his right to be present. 1174 Cape, et al., Procedural Rights at the Investigative Stage, 24; Schumann/Bruckmüller/ Soyer, New Journal of European Criminal Law 2012, 31, 32 come to that same conclusion.

III. Comparison

411

As a matter of fact, it can be observed that the investigative phase is highly emphasised in the Continental-European jurisdictions.1175 Nevertheless, as an overall assessment it may be declared, Switzerland being an exception, that the investigations still mirror the inquisitorial roots and are generally conducted secretly. Also, in the USA and in England and Wales, the investigations are of an inquisitorial nature, and are usually conducted secretly. Participation rights for the defendant are guaranteed only sparingly in all jurisdictions. However, all Continental-European jurisdictions provide for certain investigative measures where the defendant has a right to be present. His presence is first of all naturally required for his examination, whereas the power to enforce the defendant’s presence usually only lies with an investigative judge or prosecution but not the police. Additionally, participation rights are granted for investigative acts conducted by judicial authorities. In this regard, the defendant has a right to be present when the investigative judge conducts witness examinations, though in the Netherlands this right is up to the judges’ discretion. The defence counsel, on the other hand, has a broader right and is generally entitled to be present.1176 It seems reasonable to conclude that, as a general rule, the right to be present for counsel and defendant applies where it is to be feared that a repetition of the witness examination during trial will not be possible. However, exclusions can broadly be justified where the defendant’s presence jeopardizes the purpose of the investigations. In Austria and Germany, the right to be present further applies to reconstructions of the crime site and judicial inspections. A different investigative approach is taken in Switzerland, England and Wales and the USA, although in opposite directions. In England and Wales and the USA, the investigative material is disclosed prior to trial, at the moment when fairness of the procedure so requires. Otherwise the police act in secret. In more severe cases in the US system, a grand jury which has compulsory measures at hand, may also engage in investigations. However, these proceedings are conducted secretly and ex-parte. The main focus of criminal procedure still lies with the public trial. Particularly in the US, any evidence adduced during the investigations generally needs to undergo the adversarial testing during trial. Also in Switzerland, the police initiate the investigations secretly. However, in the moment when the prosecution takes over, i. e. when there is a suspicion that the defendant has committed a criminal offence, the principle of party publicity governs the investigations. The investigation is the central part of the criminal procedure.

1175

With an upward trend of focusing on the pre-trial phase, on the downside, some scholars caution that there is a lack of procedural rights in that phase: de Bondt/Vermeulen, Eucrim 2010, 163, 164 et seq. The empirical study Schumann/Bruckmüller/Soyer, New Journal of European Criminal Law 2012, 31, 43 et seq. found that suspects underestimate the importance of the pretrial phase. 1176 That is especially the case in Italy and the Netherlands.

412

F. Trials in absentia as general principle?

Therefore, in principle, a repetition of examinations and other taking of evidence at trial are not generally necessary. c) Procedures in absentia against the untraceable defendant The reports on foreign law show that none of the countries under investigation provides for a full trial in absentia against the defendant who is not within the court’s reach. No trial against the untraceable defendant takes place, because in that case the defendant has no effective possibility to defend himself and make himself heard. The proceedings are rather to be, provisionally, suspended where the whereabouts or the identity of the suspect are unknown. However, the state authority concerned is obliged to take thorough actions in order to trace the defendant. Proceedings may be resumed upon appearance of the defendant. To prevent the loss of evidence, measures and proceedings to secure evidence may be conducted in the defendant’s absence. These findings are corroborated by a resolution recently adopted by the AIDP regarding the possibility to conduct criminal proceedings based on the principle of universality.1177 The resolution highlighted that, for the purposes of in absentia proceedings, it is to be distinguished between the different stages of the criminal process. Whereas the AIDP found investigations in absentia to be admissible, they suggested reserving the possibility of a trial in absentia for cases of universal jurisdiction for defendants who failed to appear but are not untraceable. Hence, the state can initiate criminal proceedings, investigate and issue an indictment without having the suspect in its power or knowing his whereabouts. All types of investigative measures can be taken; a procedure to preserve evidence is especially encouraged. Along these lines, in some countries, Austria and Germany among them, the defendant can also be granted safe conduct to secure his appearance. The latter jurisdiction also provides for the possibility of freezing the defendant’s property and secureing his appearance to the criminal proceedings. Also in countries that do not expressly envisage the suspension, proceedings against defendants whose whereabouts are unknown will usually be suspended, though process-driven and economic rationales guide the prosecutor’s decision. That is especially the case where a plea must be entered personally, as is the case in the USA and England and Wales. As will be seen further below, the exclusion of in absentia proceedings against the untraceable defendant can be explained by the fact that theoretically none of the jurisdictions allow for the trial to be conducted in the defendant’s absence where he has not had knowledge of the proceedings and made himself heard. Hence, the defendant needs to be properly summoned, though the requirements on when a service was instituted properly differ significantly. Some jurisdictions work with a 1177 AIDP, Resolutions adopted at the XVIIIth International Congress of the International Association of Penal Law, Istanbul, Turkey, 20 – 27 September 2009, Section II No. 2 – 4, in: 86 Revue Internationale de Droit Pénal 2015, 435.

III. Comparison

413

fiction and simply assume the defendant’s knowledge of the procedure instituted against him. d) Intermediate or pre-trial stage and its in absentia framework Intermediate or pre-trial proceedings following the investigations are, generally, only conducted in Germany, Italy, England and Wales and the USA. In the Netherlands an objection may lead to an intermediate procedure upon request. In any case, the scope of pre-trial procedures varies significantly. While US, English and Welsh pre-trial proceedings serve the preparation and management of the trial and are mainly concerned with disclosure of the evidentiary material that has been collected during the investigations, in Italy and Germany the intermediate phase focuses on a confirmation of the charges. In both countries the intermediate judicial procedure is conducted as a non-public procedure. Though, in Germany, the defendant is to be heard before the trial is opened. In practice he usually has the ability to make written submissions. Similarly, in Italy the defendant is not required to be present, but his defence counsel is entitled to participate. An udienza preliminare can generally take place in writing. However, if a hearing is held, the general in absentia rules, which are to be discussed later, apply. Also in the USA a screening of charges by a grand jury or magistrate can occur in more serious cases, though the prosecution can often omit these proceedings. In England and Wales the personal presence of the defendant is not compulsory at management meetings and disclosure often take place only with the defence counsel. That is also the case in organisational meetings in the US criminal procedure. However, it should be noted that disclosure and preparatory proceedings follow plea proceedings. The plea is generally to be entered personally, though both jurisdictions provide for a plea in writing under rather strict circumstances. e) Trial stage and its in absentia framework The clearest differences between the criminal procedures of the different legal order can be identified during the trial stage. It is possible to perceive, as a common feature, that the conduction of trial in absentia in the (partial) absence of the defendant is often based on the notion of a deliberate and unequivocal waiver1178 of the right to be present at one’s trial. The waiver may also be inferred from the defendants’ actions or other circumstances. Hence, an implicit waiver is possible, if not, the most common example in practice. As the waiver of a right requires knowledge, a proper summons to the trial hearing is a common, if not the decisive, prerequisite in all jurisdictions. In federal cases in 1178 On some occasions the notion of abuse of rights or forfeiture is also concerned, especially with regard to the defendant’s disorderly conduct.

414

F. Trials in absentia as general principle?

the USA, in absentia proceedings are solely possible where the defendant has initially appeared, so that knowledge of the trial is certain. There is, however, a difference on what is considered to be a proper summons. The strictest regulation with regard to the service of a summons can be found in Austria where a personal service of the summons to the main hearing is required. In states of the US that allow for the initiation of trial in absentia, a prior notification of the proceedings and the consequences of the absence, are provided for. Let alone, that the defendant entered a plea before, so he normally knows of the proceedings instituted against him. The other jurisdictions generally require the service to the defendant’s domicile or habitual place of residence. English and Welsh, German, Italian, and Swiss law also allow for the summons to be given to other people, who live with the defendant, or the defendant’s counsel. In addition, in Switzerland, the public notification is an option if the whereabouts of the defendant are unknown, the personal service failed or seems exceptionally inconvenient. In Italy, the service to an appointed duty counsel is sufficient, if the defendant is untraceable. Finally, in Germany and the Netherlands service to the court that has jurisdiction over the indicted offence, respectively the district court, is seen as proper service on the defendant. In the latter cases, it is not certain that the defendant will in fact gain knowledge of the trial.1179 These cases rather employ a fictio iuris of the proper service of the summons on the defendant. These regulations interfere with the general principle that the proceedings are to be suspended where the defendant is untraceable. That is especially true in Italy and the Netherlands as generally the fugitive is presumed to have waived his right to be present, though knowledge of the procedure is not established with certainty in all cases. On the other hand, German law expressly excludes the conduction of a trial in absentia against the defendant who has solely been publicly notified. In other countries, the court can take account of doubts as to the certainty of knowledge of the summons when using its discretion to decide, whether to try the defendant in his absence. Another common feature is that the trial in the defendant’s absence is in no regard a procedure that occurs by default, it rather always lies within the judges’ discretion to initiate or continue a trial in the defendant’s absence. An obligation to take that step never exists. The court is rather to ponder the different interests at stake, namely the public’s and victims’ interests in litigating the case and the defendant’s interest to be present, the disadvantages the trial in absence might have vis à vis the defendant, and whether an adjournment seems suitable. Following the decision to try a defendant in absentia, the court can, at any time, decide to suspend the hearing where it finds the defendant’s presence to be indispensable. It is to be noted that all jurisdictions – not only those, as one might think, that impose a strict duty to be present upon the defendant – provide for certain compulsory measures the judge may apply to provide for the defendant’s appearance. The de1179 See for this problem in the comparative study of 12 European countries also Quattrocolo, Personal Participation in Criminal Proceedings, 487 et seq.

III. Comparison

415

fendant can be forcibly brought to court where the judges find the presence to be indispensable. In none of the legal systems examined does the defendant have an unrestricted right to be absent.1180 That is even the case in Italy and the Netherlands even though in both jurisdictions the defendant’s autonomy is seen to prevent a strict obligation to attend trial. All Continental European jurisdictions under investigation provide for the possibility of issuing a warrant of appearance1181 or arrest warrant1182 to bring about the defendant’s presence before court. Swiss judges may also fine the defendant in order to bring about his presence. On first sight, the gravity of an offence could be seen as a suitable criterion that indicates whether a trial may be held in the defendant’s absence.1183 The more serious a crime, the more unlikely a procedure in absentia may lawfully be conducted. However, a closer look reveals that the gravity of the offence plays no role in the conception of procedure in absentia in neither the Netherlands nor Italy and Switzerland. Also, the House of Lords rejected this criterion as an indicator of whether to conduct a procedure in absentia. However, in all the other jurisdictions such criterion is of relevance: in Germany, a trial in full absence of the defendant is generally only possible for minor offences, upon request of the defendant or following his arbitrary absence, or in other words an implicit waiver of the right to be present. For historical reasons – namely the RAF proceedings – a rather exceptional regulation allows a trial in absentia – possibly – in the entire absence of the defendant if he brought about his unfitness to stand trial regardless of the gravity of the crime. The Austrian regulations on in absentia require that the offence in question is a misdemeanour.1184 Gravity of the offence also plays a role in US criminal procedure, as in capital cases the defendant’s presence is mandatory in the sentencing phase. In England and Wales, the statutory regulation suggests that it is generally suitable to conduct a trial in absentia upon non-appearance, where the defendant does not appear to the trial hearing at the Magistrates’ Court, which has primarily jurisdiction over minor offences. The Magistrates’ Court’s discretion to use the guidelines that were originally solely applicable to the Crown Court has, however, recently been emphasised. In any event, it is to be noted that English and Welsh law generally requires the defendant’s presence for the guilty plea, mode of trial and arraignment procedures. Hence, the guilty plea is normally to be entered in person. Exceptions to 1180

See also for the comparison of German, French and US criminal procedure Eibach, Abwesenheitsverfahren, 79. 1181 Section 230(2) StPO, Art. 205(4) CH-StPO; Section 427(2) AT-StPO, Art. 278(2) Sv; Art. 132, 490 CCP. 1182 Bail Act 1976, Section 7(1). Also in Germany and the Netherlands an arrest warrant is suitable. In the US the bench warrant exist which has the same rationale. 1183 See Eibach, Abwesenheitsverfahren, 80 for German, French and American criminal procedure. 1184 That is only relevant for the trial at the Landesgericht as the Bezirksgericht has solely jurisdiction for misdemeanours.

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F. Trials in absentia as general principle?

this rule apply very narrowly, especially with regards to grave crimes and are always up to the court’s discretion. A similar pattern can be found in US criminal proceedings. The guilty plea is generally to be entered in person. However, in the following trial in misdemeanour cases where the punishment does not exceed a one year imprisonment, the defendant can deliberately decide not to attend the trial procedure. There is one more similarity to be pointed out: Austrian, American and Italian criminal procedure all require that the defendant has no obvious reasons that makes his appearance impossible. This is comparable to the arbitrariness that is required in Germany, since the absence cannot be seen to be deliberate, where it was impossible to appear. In a similar vein, the English guidelines governing the court’s discretion when to try a defendant in his absence mention the nature and circumstances of the absence, thereby regarding deliberateness and voluntariness. Arguably, the second opportunity given to the defendant by scheduling a second hearing upon his nonappearance after the first summons in Swiss criminal procedure tends in the same direction. A repeated nonappearance speaks in favour of a deliberate decision not to attend the trial. Finally, most jurisdictions give the defendant the possibility of remedying the case when he credibly proves that there were good reasons for his absence, or he did not know of the trial instituted against him. Lastly, Swiss criminal procedure is the only jurisdiction to request a statement of the defendant with regard to the charges before conducting a trial in absentia. In Switzerland, the court must be convinced it has sufficient evidence to be able to reach a verdict. In a similar vein, in Austria a trial in absentia is conducted if the defendant’s presence is indispensable. Those last requirements – dispensability and sufficiency of the evidence to reach a verdict in the absence of the defendant – are points that in the jurisdictions where there is no expressive requirement, certainly influence the judges’ discretion on whether to try a defendant in absentia. f) Trial held partially in absentia Also in regard to the partial absence of the defendant during court hearings, there are some similarities among all jurisdictions under investigation, for other parts only some jurisdictions take similar approaches. aa) Misconduct by the defendant A widely recognised exception to the general right of the defendant to be present throughout the trial procedure is based on the abuse of this right, which is conceptualised as a waiver, abuse of right or forfeiture. Following his misconduct during a court hearing, it lies within the court’s discretion, after prior warning, to exclude the defendant from the procedure for a certain time or even the whole subsequent procedure.

III. Comparison

417

bb) Request to remain absent by the defendant Both German and Swiss criminal procedure law provide for the possibility that the defendant remains absent upon request. In Austria, the defendant can further waive the right to be present for certain procedural parts. In the USA, defendants are similarly free to waive their right to be present after their initial appearance, though the court has discretion whether to accept the waiver and proceed in absentia. cc) Questioning of witnesses or co-defendant To a large extent, the jurisdictions surveyed provide for the possibility to exclude the defendant during the examination of a co-defendant or witness when it is to be feared that the evidence given by the witness or co-defendant is likely to be diminished or where other prejudice is feared. These measures are frequently used to protect health and life of the person examined. In England and Wales and Italy, protective measures in this regard are implemented in the manner that the witness testifies via video link and the defendant remains present in the courtroom instead of trying him partially in absentia. dd) Parts of the trial that concern questions of law During parts of the trial that concern solely questions of law, the defendant has no right to be present in the jurisdictions of the USA, which can be explained against the background that the right to be present mainly stems from the right to confrontation. ee) Semel praesens semper praesens maxim The maxim of semel praesens semper praesens is not in its entirety applicable in all jurisdictions that have been surveyed. In contrast, it can be concluded that in Continental-European jurisdictions that impose a duty to be present upon the defendant, he generally is required to attend the procedure in its entirety. The initial appearance is not sufficient to consider it a procedure in the defendant’s presence. That is particularly the case in Germany – even expressly excluding this principle for the appeals stage – and Austria. Yet, the latter applies the principle in narrow boundaries, namely if the defendant falls sick and consents to the continuation of the trial in his absence. Also in Germany, the court can decide to proceed in absentia if the defendant absents himself or brings about his unfitness to stand trial and had the possibility of giving a statement on the charges before. In the USA, in contrast, the initial appearance is the crucial line that needs to be crossed in order to try defendants in absentia, at least on the federal level. In any case, the semel praesens, semper praesens principle applies not automatically and is up to a pondering of interest by the court. However, courts tend to find a knowing and informed waiver in the absconding

418

F. Trials in absentia as general principle?

after the initial appearance. The same pattern applies in the sentencing phase, save for capital cases where presence is required. Countries that do not strictly impose a duty to be present upon the defendant, England and Wales being an exception, generally apply the semel praesens, semper praesens principle. Accordingly, the defendant is deemed to have implicitly waived his right to further attend the criminal procedure after he initially appeared to the opening or administrative hearing at the beginning of the judicial procedure.1185 In contrast, in England and Wales, the sole initial appearance is not sufficient, it rather depends on the judges’ assessment whether to resume the trial where the defendant initially appeared and later absents himself. ff) Presence and consequences of the defence counsel’s participation In all jurisdictions surveyed, the right to legal assistance is recognised and during a trial in absentia presence of a defence counsel is in all jurisdictions possible, in some even mandatory.1186 There are, however, different approaches to implement legal assistance when a procedure is held in the defendant’s absence. Firstly, a jurisdiction may recognise the defence counsel as replacement of the defendant. In that case the trial is conducted as if the defendant were present and not deemed a trial in absentia in a technical sense, though the defendant is physically absent. This approach is taken by all domestic jurisdictions surveyed above when the defendant is partially absent from to the court proceedings. Another possibility is to have a defence counsel present during the in absentia procedure that represents and defends his client in his absence but does not replace the defendant. In Germany, a counsel may represent the defendant during his (partial) absence at the trial when he is especially empowered to do so. The trial takes place as if the defendant were present. Similarly, in proceedings that are conducted when the defendant is untraceable, security of evidence, freezing of money and seizure, legal assistance can be provided for. Finally, specifically empowered counsel may substitute the defendant during a Berufung, which is alien to the general idea of counsel being an assistant and not a replacement of the defendant. In Switzerland counsel can replace the defendant during all procedural steps that are taken in his absence, whether during the investigations, a private settlement or the trial. With regard to the trial hearing, defence counsel’s presence is mandatory if the defendant is partially excluded due to his misconduct. Also in the actual full in 1185

This is expressly stated by Swiss and German scholars and the US case law. As for Italy, it can be deduced from the fact that an objective obstacle that hinders the appearance, similarly, hinders the resumption. Thus, a deliberate – possibly implicit – decision by the defendant is required. 1186 See also Quattrocolo, Personal Participation in Criminal Proceedings, 458 for 12 different European countries.

III. Comparison

419

absentia procedure, legal representation is possible or, depending on the gravity of the crimes, even mandatory. In Austria the regulation as to the legal assistance depends on the court that has jurisdiction over the offence. First of all, during investigative measures where the defendant is entitled to be present but exceptionally excluded, counsel can represent him. Similar measures apply when he is partially absent at a trial hearing or an in absentia trial at the Landesgericht is conducted. Where the defence is mandatory, defence counsel must be present. At the Bezirksgericht, however, defence counsel replaces the defendant and the procedure is not deemed to be a trial in absentia if counsel appears. Similar regulations apply in England and Wales where the defence counsel is seen as a substitute at the Magistrates’ Court, whereas at the Crown Court counsel cannot replace the defendant. The discretionary guidelines generally favour a trial in absence of the defendant only where defence counsel is present to represent the absentee. However, in practice trials can be, and are, conducted without a person representing the defence party. The same pattern applies in US courts. The right to be represented remains during the defendant’s physical absence, but the presence of counsel is not mandatory. In Italy, defence counsel can represent his client during both the in absentia procedure and his partial absence throughout the criminal procedure. He is, however, not deemed to replace the defendant. In the Netherlands, specifically empowered counsel can replace the defendant, so a regular adversarial hearing takes place as if the defendant were present. That is the same during his partial absence. During the actual in absentia procedure the court can, at its discretion, allow for a legal representation. However, despite broad criticism of the doctrine, the defendant may as well remain unrepresented. In summary, it can be concluded that all countries generally provide for the possibility of legal assistance where the defendant is not present. A legal representation is, however, not in every jurisdiction mandatory to conduct a trial or parts of it in absentia. Therefore, trials in absence of defendant and legal representative may occur in both England and Wales, the USA and the Netherlands, though the courts will include the lack of representation in their assessment of whether the trial in absentia seems feasible. g) Remedies against in absentia judgments All jurisdictions provide for possibilities to attack a judgment that was rendered to conclude a trial in the full or partial absence of the defendant. Austria, Italy and Switzerland provide for a special remedy against in absentia judgments which leads to a fresh determination of the merits of the case. However, in Italy this extraordinary remedy is subsidiary to the regular remedies. Austria and Switzerland, on the other hand, take the opposite approach by prioritising the extraordinary remedy. Char-

420

F. Trials in absentia as general principle?

acteristic for the extraordinary remedies is that the burden of proof that he is not liable for his nonappearance lies with the defendant. Germany, the Netherlands, do not grant a special remedy to oppose in absentia judgments, while Italy, prioritises the ordinary remedies; all provide for slightly different – less strict – requirements to appeal the judgment rendered in (partial) absence of the defendant, in comparison to the general remedy requirements. In Germany the defendant can also apply for a restoration of the status quo ante if his failure to appear was not culpable. In contrast, in the appellate framework of the US the regular rules apply. The defendant can contest the factual finding that an informed and deliberate waiver existed or the court’s decision to proceed in absentia. However, even where the defendant’s right to be present may have been infringed, a lawful trial in absentia is presumed, if the error was harmless. De minimis absences and absences that did not encroach upon the right to confrontation are generally deemed to be harmless. In contrast, the unlawful conduction of a trial in absentia is an absolute reason to set aside the judgment in Germany. h) Appeals stage and its in absentia framework The regulations on in absentia procedures in the appeals stage significantly depend on whether the appeal also concerns the merits of the case. aa) Appeal on points of fact and law and its in absentia framework Similarities can be identified in Germany and Switzerland and the appeals against Magistrates’ Court judgments in England and Wales with regard to the regulations on the in absentia scheme during an appeal on points of fact and law. These jurisdictions generally impose a duty to be present at the appeals hearing upon the defendant. However, the defendant can also specifically empower a legal representative to replace him, if the defendant files the appeal. The appeal will be dismissed upon nonappearance of neither the defendant personally nor empowered counsel.1187 In the US this is known as ‘fugitive disenfranchisement’ doctrine where the defendant absconds during or prior an appeal procedure. In Germany and Switzerland, a procedure in absentia, on the other hand, takes place where empowered counsel appears or the prosecution filed the appeal, whereby, following the general rules, counsel can also represent the defendant. In both countries the application for a referral to the status quo ante is provided for.1188 In Austria the defendant is to be

1187 In Germany the appeals is to be dismissed and in Switzerland it is deemed withdrawn. They slightly differ but impose a certain duty upon the defendant that filed an appeal to be attainable and stay in the condition to stand the criminal procedure. In England there are no further cases where the appeal is to be dismissed. 1188 Section 329(7) read together with Section 44 StPO; Art 94(5) CH-StPO.

III. Comparison

421

summoned to the appeals hearing but he can – through his lawyer – waive the right to be present. Again, his counsel replaces the defendant. In an appeal against a Crown Court judgment, the court can simply decide to proceed in absentia upon nonappearance if the defendant has been properly notified. The situation is somewhat different in the Netherlands. No duty exists to be present at hoeger beroep and the regular in absentia procedure applies. However, the presence in the second instance is regarded to be of greater importance, as it is the last chance for the defendant to influence the outcome of the procedure and participate with regard to a hearing on the merits of the case. This can be taken into account in the judges’ discretion whether to try the defendant in absentia. In Italy the general rules apply, so that an appeal may be conducted in absentia, though the court has to specifically ensure that there are no objective impediments that hinder the defendant’s presence where he asserted his attention to be present at the appeals hearing. bb) Appeal on points of law and its in absentia framework For all kinds of appeals on points of law in the jurisdictions under investigation no duty to be present exists. Defence counsel can represent – or rather – replace the defendant if an oral hearing is conducted. In Germany, Italy, the USA and England and Wales the legal representation is even mandatory before the highest courts, whereas in Switzerland and England and Wales lower courts that are concerned with appeals on points of law proceed in absentia if no counsel appears. It is, however, to be noted that oral hearings during the appeal on points of law are not the rule. In most cases the procedure takes place in writing.

4. Presence via video link No clear pattern with regard to video links can be found. Some countries, namely Italy, England and Wales and the USA, allow the defendant to be virtually present in some cases. With regards to the latter jurisdiction, in misdemeanour cases where punishment does not exceed a one year imprisonment, the defendant can decide to be solely virtually present via video link. Also in graver cases, certain parts, including the arraignment and initial appearance may take place via video link, same as in England and Wales where the plea can be entered via video link. The virtual presence equals the defendant’s physical presence. The same applies in Italy for graver, especially organised crimes and if the defendant is detained abroad. In other countries no such clear pattern as to the quality of virtual and physical presence emerges. Video links are often used to extend the defendant’s rights by giving him the possibility of participating, observing or giving statements when he is not generally entitled to be physically present.

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F. Trials in absentia as general principle?

Notably, the regulations are subject to severe criticism by parts of the academic writers in countries that largely allow video links. In Italy, the practice has answered with clear guidelines as to the use of video conferencing, especially the need for a clear and undisturbed reciprocal audio-visual transmission and the possibility for confidential contact between defence counsel and his client.

IV. Determination of general principles with regards to proceedings in absentia In the following, the study addresses the question of whether the common features found in in the practice of ICT’s and the national legal systems with regard to proceedings in absentia constitute a general principle. First of all, right and duty to be present during criminal proceedings will be examined. Then the different phases of the criminal proceedings, namely investigations, trial and appeals stage, will be dealt with.

1. The right to be present It does not need much exploration to find the right to be present at the criminal trial against oneself to be a general principle.1189 Several legal sources ICTs can draw from establish a presence principle. First of all, it can be found in the relevant governing instruments, the statute, RPE or similar normative regulations as well as human rights instruments. It can, therefore, be found in treaty law. In addition, it can also be seen as a firmly established principle that is embedded in international criminal procedural law, not least due to the ICT’s procedure being underpinned by adherence to the fundamental right to a fair trial.1190 The adherence to the right to a fair trial gives international criminal procedure its coherence, since all ICTs abide to this standard, regardless of the fact that certain procedural features may be applied differently across the ICTs.1191 Also, a transposition of the right to a fair trial from the national sphere poses no problems. The above survey reveals that all domestic jurisdictions give the defendant a comprehensive right to be present at his own trial. Both in national and the international context the right to be present, which is enshrined in the internationally recognised right to a fair trial, is a fundamental principle underpinning the relevant legal order. There are no particularities of the international 1189 In similar vein Cassese, International Criminal Law, 378; Raimondo, General Principles of Law, 169. 1190 Boas, et al., International Criminal Law Practitioner Library, 12 et seq., 464 et seq.; Møse, FS-Asbjørn Eide, 208; arguably of other opinion: Mégret, 14 UCLAJIntlL&ForeignAff 2009, 37, 53, who does not challenge the importance of human rights for international criminal proceedings but rejects the idea of the right to a fair trial as sole basis of the procedural system. 1191 Boas, et al., International Criminal Law Practitioner Library, 464 et seq.

IV. Determination of general principles

423

criminal order that impair the transposition of the right to be present at trial. Thus, the right to be present at trial can be seen as both a general principle of international criminal procedure and a general principle recognised by the major legal systems of the world. That is not to say, that there are no exceptions to that right. Trials in absentia are not per se excluded, but rather commonly accepted under certain circumstances.

2. Duty to be present A duty to be present has been identified in the legal frameworks of most ICTs. Also, both ECtHR and HRC seem to presuppose the possibility of imposing a duty to be present upon the defendant, at least during trial and appeals concerning the merits of the case. On the domestic level no clear picture can be drawn. Though domestic courts have the power to order the defendant’s appearance where it is judged indispensable, a general duty to be present does not exist in all jurisdictions. A common denominator with regards to the defendant’s duty to be present can, hence, not be established and no general principle can be identified. However, the court’s ability to order the defendant to appear in person allows the conclusion that the defendant has not generally a right to be absent. A finding that can be transposed to the international level and, thus, be seen as a general principle recognised by the major legal systems of the world.

3. Investigations in absentia From an international perspective, it can be concluded that the party driven investigations do not, generally, presuppose the defendant’s presence. While often public knowledge exists that ICTs investigate in a particular situation, the conduction of investigations as to a specific suspect are often held back for security reasons until an arrest warrant is issued. Upon apprehension the pre-trial stage follows shortly, so that investigations at ICTs are commonly conducted secretly and it seems reasonable to infer a general principle of international criminal procedure. While this principle says that investigations can be conducted in absentia, that is not to say that they must be conducted in this way. The survey of domestic jurisdictions does not reveal a clear picture on the issue of participation of the defendant during the investigations. Some countries, such as Switzerland, have a participatory investigative phase whereas in other countries, on the other extreme, the investigations are predominately secret and allow participation only for certain investigative measures. Finally, England and Wales and the USA provide for party driven independent investigations. A common rule as to the degree and need of participation by the defendant cannot be identified. Let alone the fact, that investigations in international criminal cases have some particularities, espe-

424

F. Trials in absentia as general principle?

cially in regard to pre-trial detention, investigative measures by the defence and the fact that they do not have their own police force. These aspects are particular to international criminal law and would probably hinder a transposition of any domestic principles of investigations to the international sphere. However, the foreign law reports show that a provisional suspension of proceedings against the untraceable or unreachable defendant is a common feature. But, since ICTs have “no direct means at [their] disposal of enforcing its orders, summonses, and other decisions”,1192 it would appear unreasonable to transpose this principle to the international level. ICTs always depend on state cooperation in order to trace and reach suspects. In light of this, it seems unnecessary to suspend proceedings, if the defendant cannot immediately be located. However, a de facto suspension occurs as the numerous outstanding arrest warrants from ICTs show, as long as no trials are initiated in absentia. Only the Rule 61 Procedure conducted at the ad hoc Tribunals comes close to what in England and Wales1193 is known as committal procedure or the Grand Jury hearings in the US1194 and intermediate proceedings in some civil law countries surveyed above. It is also comparable to the procedure to secure evidence that is conducted in Continental-European jurisdictions against untraceable defendants. However, the ICC has so far not allowed confirming the charges in absentia.

4. Trials in absentia During the study, different types of trials in absentia have been established, namely inaudito reo proceedings, true trial in absentia against the untraceable defendant and trial in absentia against the physically absent defendant who is generally within the court’s reach. Additionally, the conduction of procedures partially in absentia is often appraised differently from to the defendant’s full absence. a) Inaudito reo proceedings The clearest picture can be found for the inaudito reo proceedings, which are conducted in the form of a penal order or similar procedures in all domestic jurisdictions under investigation. However, these types of summary proceedings are reserved for minor offences. ICTs are concerned with the most serious crimes, which cannot be considered minor. Even in the matter of administrative crimes, which the 1192 ICTY, Prosecutor v. Erdemovic´, AC, Judgment, 7 October 1997, Case No. IT-96-22-A, Separate Opinion of Judge Cassese, para. 5. 1193 ICTY, Prosecutor v. Rajic´, TC II, Decision on Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95-12, 13 September 1996, Separate Opinion of Judge Sidhwa, para. 9. See also Friman, Trying Cases in the Absence of the Accused?, 345. 1194 Ibid.

IV. Determination of general principles

425

ICTs have an inherent jurisdiction1195, it is impossible to speak of minor offences that are punishable only with fines or humble deprivations of liberty. In criminal trials held for crimes against the administration of justice, the ICTY gave sentences of up to 18 months’ imprisonment,1196 the ICTR up to ten months deprivation of liberty1197 and the ICC up to two and a half years imprisonment.1198 Inaudito reo proceedings are rather prime examples for the caution that has to be applied when transposing domestic features to the international level. Only the fact that inaudito reo proceedings are held in a representative number of major legal systems of the world, does not allow for a mechanic transposition into the international sphere. Inaudito reo proceedings are held to lighten the workload of the judiciary in simple and straightforward cases. Only upon objection of the defendant, a regular criminal trial takes place. International criminal procedures are the very opposite of simple and straightforward criminal cases. The crimes are of a serious nature and the complexity of the facts and legal issues are immense. Inaudito reo proceedings are, hence, alien to international criminal procedure and do not form a general principle applicable to international criminal procedures. b) Trials entirely held in absentia The conduction of trials entirely in absentia is often limited to instances where offences are not punishable by prolonged deprivation of liberty; often they include petty offences. That is beyond the above survey for example the case in Denmark1199, France,1200 Israel,1201 and Spain1202. Even if there were consensus in this matter, which is, according to the above survey, not the case, a transposition to the international level would not be possible for the same reasons as for the inaudito reo proceedings. 1195 ICTY, Prosecutor v. Tadic´, AC, Judgment on Allegations of Contempt against Prior Counsel Milan Vujin, 31 January 2000, Case No. IT-94-1-A-AR77, para. 13. See also expressly Art. 70 RomeSt, giving the court jurisdiction over the crimes against the administration of justice. 1196 ICTY, Prosecutor v. Sˇ esˇelj, Judgment, Contempt of Court Proceedings, 31 October 2001, Case No. IT.03-67-R77.3. The ICTY held 24 contempt cases and on three occasions imposed an imprisonment of more than one year. In the other instances fines and deprivation of liberty of no more than four month in prison have been imposed. 1197 ICTR, Prosecutor v. Nshogoza, Judgment, Contempt of Court Proceedings, 7 July 2009, Case No. ICTR-07-91-T. 1198 ICC, Situation in CAR: Prosecutor v. Bemba et al., Sentencing Judgment, 22 March 2017, Case No. ICC-01/05-01/13. 1199 Such procedure is allowed where the punishment is a fine or no more than 3 years imprisonment. 1200 Eibach, Abwesenheitsverfahren, 72. 1201 Only a trial for minor offences can be held in the absence of the accused and the sentence cannot be imprisonment. 1202 Trial in absentia against the untraceable defendant are allowed where the maximum penalty is one year imprisonment.

426

F. Trials in absentia as general principle?

ICL by its very nature concerns only severe crimes punishable with prolonged imprisonment, even lifelong deprivation of liberty. Further, trials in absentia against the untraceable defendant are, theoretically, excluded in all domestic jurisdictions as they all require the due and prior information of the defendant as a prerequisite to the conduction of the trial. However, some countries presume that the defendant has knowledge, whereas, in fact, he might not have been personally notified. Often reasonable efforts by the criminal justice authorities are seen to suffice, which is also mirrored in the human rights supervisory bodies case law and the broad leeway EU legislation gives the states in implementing the notification rules. Also, the STL provides for the public notification where knowledge is presumed in order start a trial in absentia. Nevertheless, there is no common principle as to the conduction of trials in absentia against the untraceable defendant, since the regulations in this regard are quite fragmented among ICTs. Further, there is no clear line as to the possibility of conducting trials in absentia in the domestic legal systems.1203 According to a survey conducted in the 1990s, of 139 national constitutions examined, only 25 expressly prohibited trials in absentia, and most of these provided for certain exceptions to that general prohibition.1204 This underlines that there is neither a common principle for the allowance nor prohibition of trials in absentia. A certain harmonisation on the conduction of trials in absentia due to the jurisprudence of human rights supervisory bodies in Europe is noticeable. However, the harmonisation merely concerns the conditions and safeguards under which proceedings are held in the defendant’s absence and does not touch upon the basic decision, of if a state generally allows or prohibits trials in absentia. In light of this, a general principle recognised by the major penal systems of the world cannot be identified. What can be said is that the right to a fair trial does not a priori exclude trials in absentia, if certain safeguards and conditions are fulfilled. On the other hand, it also does not positively establish the necessity of a regulation on trials in absentia. In conclusion, a general principle cannot be extracted. c) Trial partially held in absentia Holding trials partially in the absence of the defendant, for a diversity of reasons, is very common both in domestic criminal proceedings and ICTs. However, partial trials in absentia can only be conducted under strict conditions.

1203 Countries allowing a full trial in absentia, though not necessarily against the untraceable defendant, beyond the above study include Algeria, Bangladesh, Belgium, Cambodia, Croatia, Denmark, Egypt, Ethiopia, France, Iraq, Israel, Jordan, Lebanon, Libya, Malaysia, Morocco, Uganda and Uzbekistan. 1204 Bassiouni, 3 DukeJComp&IntlL 1993, 235.

IV. Determination of general principles

427

aa) Exclusion of the defendant due to his disruptive behaviour Among the features of partial conduction of criminal procedures there is one to be singled out. The possibility to conduct a criminal hearing in the partial absence of the defendant due to his disruptive behaviour is without question broadly recognised and firmly established in both the international and national sphere. As seen above all ICTs foresee the possibility of removing the obstreperous defendant from the courtroom in order to effectively prevent the defendant from further interfering with the process. This exception to the general presence rule was not discussed, rather generally accepted during the Rome conference and part of all prior draft statutes.1205 However, the defendant must be aware of the consequences of his disruptive behaviour. Thus, it is necessary to warn the defendant prior to his removal. ICTs also request legal representation during the time of the defendant’s absence. The possibility for a timely exclusion of the obstreperous defendant after prior warning is, thus, a firmly established principle across all ICTs and can be deemed a general principle of international criminal law. Also, the comparative survey shows that it lies in the judges’ power to bar the defendant from the courtroom if he has repeatedly behaved obstreperously and has been warned that he may be excluded when continuously disrupting the procedure. It is important to highlight that the disruptive defendant must be aware of the consequences of his actions before removing him from the courtroom. If warning is given, the defendant continuously disrupting the orderly conduct of proceedings can reasonably be removed from the courtroom. Beyond the survey conducted above, this possibility similarly exists in Brazil,1206 China,1207 Thailand,1208 Scotland1209 and many other countries. This is likewise recognised by the human rights supervisory 1205

Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 10. Art. 217 Brazilian CCP. A prior warning is not prescribed by law, however, common practice. This notion includes the removal as for the witness’ and victims’ fear or humiliation. In those cases, a conduction of the trial via video conference is preferable but not in all cases necessary. 1207 Art. 194 read together with Art. 106(2), (4) Chinese CCP. The obstreperous defendant may also be fined or detained up to 15 days as a sanction: Art. 194, 106(2), (4) Chinese CCP read together with Art. 250 Supreme People’s Court Interpretation. The defendant, no matter what, needs to have the possibility for the last words at the trial: Art. 193(3) Chinese CCP. The Supreme People’s Court Interpretation on the application of the Chinese CCP gives some examples as to the disruptive conduct that may lead to removal or other sanction of the defendant. These are according to Art. 249 and 250 Supreme People’s Court Interpretation, especially the disregard of courtroom instructions, noise, heckling or the video recording of the proceedings. 1208 Art. 31, 32 Thai Code of Civil Procedure that, according to Art. 15 Thai CCP, finds application in criminal proceedings. It is known as contempt of court and can also be sanctioned with a fine. 1209 Criminal Procedure (Scotland) Act 1995, Section 92. The defendant needs to be represented by counsel during his absence, if need to be counsel will be appointed: Criminal Procedure (Scotland) Act 1995, Section 92(2). Other than that trial in absentia are forbidden. 1206

428

F. Trials in absentia as general principle?

bodies. Along these lines, the European Commission in the process of drafting the Directive on proceedings in absentia took the possibility of removing the obstreperous defendant for granted.1210 In fact, the recent EU legislation regarding trials in absentia allows for the conduction of the trial in the defendant’s partial absence where he behaved disruptively. Thus, a common basic principle can be found in the legal systems under investigations. Both the EU and human rights law endorse this common principle. However, in contrast to ICTs – as Judge Schomburg rightly asserted – “domestic law rarely regards obstructive behaviour as a reason to impose counsel, although this is certainly possible.”1211 In international criminal proceedings there is likewise the need for the expeditious, smooth and orderly conduction of the trial, so that there is no issue in transposing the common denominator that obstreperous defendants can be removed from the courtroom to the international sphere. Hence, a general principle recognised by the major penal systems of the world exists as well as a general principle of international criminal procedure. bb) Semel praesens semper praesens maxim The maxim semel praesens semper praesens, on the other hand, could be identified only at some ICTs. Across domestic jurisdictions the semel praesens semper praesens maxim is likewise fragmented. It is used in common law jurisdictions and some other countries. A common pattern of the application of such rule could not be identified. Therefore, there exists no basis to infer a general principle. cc) De minimis absences Then again, de minimis absence, especially during the testimony of certain victims and witnesses or temporary illness of the defendant are broadly recognised across all jurisdictions that have been surveyed and can be seen to be a general principle of both international criminal procedure, and one recognised by the major legal systems of the world. However, there are strict conditions under which de minimis absences are tolerated. This is regularly only accepted if the health of the accused or a witness or the protection of the credibility of the statement is at stake.

1210

See above E. I. 1. ICTY, Prosecutor v. Krajisˇnik, Decision on Momcilo Krajisˇnik’s Request to Self-represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, Case No. IT-00-39-A, Fundamentally Dissenting Opinion of Judge Schomburg, para. 4. As the survey shows this is different in the US, the Netherlands and Switzerland. 1211

IV. Determination of general principles

429

d) Participation via video link No common denominator can be identified with regards to the defendant’s participation via video link. It seems reasonable to assume that, in light of the technical progress also in audio-visual transmission, the virtual presence will come close to the physical presence, since all jurisdictions that do allow for video link procedures already now, equal face to face contact and audio visual appearance. However, that point in time is not yet reached and for the time being no general principle can be deduced for the possibility to appear virtually.

5. Appeal procedures in absentia As for the appeals stage a common denominator is again lacking. That is not least due to the different understanding of an appeal in the common and civil law traditions. The latter usually allowing for a full retrial, whereas the former only seldom hear evidence since the trial court or jury is the sole trier of fact. Let alone the fact that the ICTs took a mixed approach that neither mirrors the common law nor the civil law tradition and a transposition must be made with caution. However, in light of the ECtHR’s case law and the foreign law reports, it can be concluded that the right to be present and its exceptions in appeals where the merits of the case are concerned runs parallel to the trial stage. In contrast, appeals that only concern errors of law are predominately held in writing. If at all held orally, counsel often represents the defendant. Also ICTs, although the appeal is not necessarily restricted to points of law, conduct broad parts of the appeal procedures in writing and the appeals judgment may be delivered in the defendant’s absence. A conduction of the appeal in absentia is, hence, rather the rule than the exception. However, due to the differences in the appeals scheme there is no solid basis to determine a general principle on these findings.

6. The conceptions of trials in absentia The concept of a waiver of the right to be present is often mentioned with regard to trials in absentia. In fact, the waiver of the right to be present by the defendant is one condition recognised by many of the jurisdictions under investigation – both of the national and international level – to justify a trial held in the (partial) absence of the defendant. However, there are also different rationales for the conduction of trials in absentia. Also the conditions under which a waiver is possible, and a trial can be held in absentia are fragmented among the jurisdictions. Thus, a common denominator cannot be found in the concept of a waiver. Likewise no common recognition of the concept of evasion of justice can be found, so that a general principle that the defendant who intends to evade justice can

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be tried in absentia does not exist. Though it is recognised by human rights law and EU legislation, only one of the ICTs initiated a trial against evaders of justice, if leaving the Rule 61 Procedure aside, which is no proper trial.

V. Conclusions and interim findings The right to be present at criminal proceedings instituted against oneself, especially during the trial phase, is both a general principle of international criminal procedural law and general principle recognised by penal systems of the world. While the investigations are conducted almost in secret, the right to participate becomes more important during the judicial proceedings. A duty to be present is, however, not recognised in all jurisdictions. Nevertheless, even in jurisdictions which do not oblige the defendant to be present, he has no general right to be absent. Then again, a general principle of criminal procedure could be identified for two forms of procedures in absentia. Firstly, the investigations at ICTs can generally be held in the absence of the defendant. Secondly, the defendant can be partially tried in absentia when he engages repeatedly in disruptive conduct and is removed from the courtroom after prior warning. The latter is also a general principle recognised in the major legal systems of the world. Likewise the acceptance of de minimis absences could be identified as common denominator of both international criminal procedure and penal systems of the world. Further, the possibility to conduct inaudito reo proceedings for minor offences has been identified as common principle in the domestic procedures under investigation. However, this principle could not be transposed to the level of international criminal procedure for the severity of the crimes and the complexity of the cases they deal with. Other than that, no general principle of either international (criminal procedural) law or recognised among legal systems of the world could be identified with regard to the possibility of trying defendants in absentia as the practice significantly differs across the jurisdictions. But it could be shown that procedures in absentia are not per se excluded, so that it is worthwhile to further elaborate whether these can be conducted under certain conditions. To that end, the study will focus on trials in absentia as the phase where the procedure held in the absence of the defendant is most controversial. The investigations are notoriously conducted secretly and where appeals concern the merits of the case, it can be presumed that the same rules apply mutatis mutandis, so that no particular references to the appeals phase will be made.

G. Conceptualising trials in absentia It has been shown that there is no general principle that prima facie allows trying defendants in absentia, save for obstreperous defendants and de minimis absences. However, according to the human rights supervisory bodies, and the above assessment, trials in absentia are not incompatible with international human rights under certain conditions and are conducted by ICTs in some forms. The following will address different concepts for the conduction of trials in absentia. After briefly recalling the practice of ICTs and human rights monitoring bodies, the theoretical concepts on which trials in absentia are based shall be assessed. In this respect the concept of waiver has been identified as a common justification at ICTs and domestic jurisdictions. However, it would be hasty to assume that all types of absence that have been found in the present study are based on the concept of waiver, which requires that the defendant has the freedom to waive the right to be present. It has already been shown that the ECtHR’s jurisprudence suggests that beyond the right to be present the defendant is to some extent simultaneously obliged to be present. In order to establish which concept in absentia procedures are based on, it is necessary to consider whether the presence of the defendant is solely a right or, in fact, simultaneously a duty.1 If it is up to the defendant to decide whether the trial proceeds in his absence by waiving his right to be present, the inevitable conclusion would be that there can be no duty to be present. If, on the other hand, a duty to be present exists, a waiver may not be the right justification for procedures held in absentia. Then there must be other concepts apart from the waiver that can explain why trials in absentia are conducted. These considerations will be assessed here.

I. ICTs’ and human rights supervisory bodies’ practice At the outset, the courts’ practice shall be briefly repeated. We have seen that both the ECtHR and most of the ICTs give the defendant a right while simultaneously assuming a duty to be present.2 It is questionable how the right and duty to be present interact. On an initial consideration, ECtHR and ICTs seem to put the right to be present before the duty to be present throughout their consolidated case law that the defendant may waive his right to be present. Allowing for a waiver under certain circumstances presupposes that the defendant – given that these circumstances exist – 1 See also on the necessity of separating right and duty to be present: Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 217 et seq. 2 See above B. III. 1.; B. IV. 1. a); B. IV. 2. a); B. IV. 3. a); B. V. 1.; E. I. 2. c).

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can freely choose to forgo his right to be present. To paraphrase Judge Jan in Prosecutor v. Mucic´ et al., the defendant “can waive his right, but this is his right, therefore no part of the proceedings can be held in his absence, unless he waives his right and authorises [his counsel] to represent him.”3 Except for an exclusion of the defendant, only where a waiver exists can the defendant be tried in his absence.4 Strictly speaking, no in absentia procedure may then lawfully occur. On the other hand, the right to be present is compromised by the corresponding duty of the criminal justice authorities to guarantee that the defendant is present during trial.5 Although the ICTs in practice allow for a waiver of the right to be present, they often make the waiver conditional on the chamber’s acceptance. In this regard, for example the ECCC Trial Chamber regularly accepts Nuon Chea’s waiver to be physically present in the courtroom and allows him to follow the proceedings from the holding cell. In a similar vein, the new framework of the RomeSt is particularly striking in showing that a simple waiver does not suffice. The chamber again needs to accept the request for the defendant’s partial absence.6 The need for the chamber’s acceptance of a waiver could be interpreted in two ways. Firstly, the need for the chamber’s acceptance can simply be regarded as effectuating a free and informed choice of the defendant without touching upon his duty to be present. That is, to accept the deliberate choice the defendant made, the chamber engages in a rigorous paternalistic test on whether there is indeed a voluntary and informed relinquishment of the right to be present. Secondly, the procedure of accepting the waiver could be understood to suggest that beyond the defendant’s waiver, the chamber must release the defendant from his duty to be present.7 Following the clear wording of the courts in practice and generally also in the statutory regulations, such as the ICC’s regulations that speak of ‘requests to be absent’ that must be ‘granted’ by the chamber, the latter is the only sound interpretation. Needless to say, the court also engages in a test of whether the waiver was valid. If no valid waiver exists, the court will not accept it, unless other reasons outweigh the right to be present and justify releasing the defendant from his duty to be present. Then again, there are occasions where it initially seems somewhat artificial to conclude that the absence is based on the chamber’s acceptance of a waiver of the right to be present. That is where the defendant boycotts the proceedings or engages in disruptive conduct. Although the removal of the defendant is commonly said to be a waiver of his right to be present, ultimately the chamber proceeds to ensure a continuous and expeditious trial and to prevent the obstruction of justice. It is at the very least questionable whether the real reason for the removal is the acceptance of the defendant’s autonomous decision not to make use of his right to be present. 3

ICTY, Prosecutor v. Mucic´ et al., TC, Transcript, 4 November 1997, p. 8973. Ibid. See also Wheeler, 28 CrimLF 2017, 99, 113; Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 222. 5 ECtHR, Stoichkov v. Bulgaria, Judgment, 24 June 2005, Appl. No. 9808/02, para. 56. 6 See Art. 63(1) RomeSt and B. V. 4. 7 In a similar vein: Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 222. 4

II. Theoretical considerations

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Duty and right to be present seem to interact on the same level in the ICTs’ practice. Ultimately it rests on the chamber whether to effectuate the defendant’s waiver and to proceed in absentia. But the chamber needs to have regard for the defendant’s right to be present where it wants to proceed in absentia.

II. Theoretical considerations The following explanations are intended to provide a better understanding of the right and duty to be present. The emphasis will be on verifying whether a duty to be present during the trial can be lawfully imposed upon the defendant.

1. Right to be present Although the term ‘right’ is on everybody’s lips, it is not easy to establish a working definition due to the lack of useful definitions. The crucial right for the matter in question is the right to a fair trial and especially the right to be present enshrined therein. This right is, as explored above, firmly embedded, although in differing language, in most human rights treaties and criminal procedural law both on the national and international level. However, a genuine definition of a right is not provided in these instruments. It is necessary to refer to more general sources. Rights can be defined as “claims to which are attached powers of waiver and enforcement over their correlative constraints.”8 Rights are constituted by rules,9 be it a “just claim, legal guarantee or moral principle”.10 It correlates to a duty of another person that needs to act or forbear from doing something.11 A distinct feature can be found in the assertion that “the very idea of an individual right is that it is up to the holder of this right to decide whether to exercise it or not and to bear the consequences of that decision.”12 Rights are, hence, identifiable by virtue of the holder’s ability to exercise it, which includes the negative possibility to not exercise or even completely waive the right. It shall suffice to note that the concept of a right followed here is based on the choice theory of rights13 rather 8

Steiner, An Essay on Rights, 73. Ibid., 56. 10 Garner, (ed.), Black’s Law Dictionary, 1436. 11 Ibid.; Feinberg, 12 OJLS 1992, 149, 155; Gray, The Nature and Sources of the Law, 9 et seq. 12 Böse, 36 NCJIintlL & Com Reg 2011, 489, 503. Similarly Bernsmann, FS-Kriele, 702; Feinberg, 12 OJLS 1992, 149, 155; Schwaighofer, FS-Platzgummer, 265 et seq.; Stein, 97 ZStW 1985, 303, 314 et seq. 13 This is especially clear when Gray, The Nature and Sources of the Law, 25 asserts that “an exercise of the will is necessary to give effect to legal rights”. The choice theory is, therefore, 9

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than exploring in detail in the long fought battle between choice14 and interests theory.15 Nonetheless, one significant criticism maintained against the choice theory shall be briefly addressed. The theory is criticised for its assumption that all rights include the holder’s power to waive the right.16 It is not necessary for the present study’s purposes to assess whether this criticism is in fact justified. According to consolidated case law of human rights supervisory bodies, as appreciated by many scholars, the participation and defence rights, including the right to be present at one’s trial, is waivable.17 For the issue at stake it is, therefore, not relevant whether other rights are inalienable. In light of this, it seems reasonable to purport the choice theory’s conception of a right as basis for the present study.

2. Duty to be present A duty on the other hand is usually seen in connection with a corresponding right held by another person18 that the obliged person ought to fulfil. It is, thus, a binding legal obligation owed to someone else that needs to be satisfied.19 The findings in the foregoing chapters show that a duty to be present seems to be recognised in the ICTs’ and human rights supervisory bodies’ practice. Imposing a duty to be present upon the defendant is clearly a drastic infringement of the defendant’s freedom of action which is aggravated by the length of international criminal proceedings often held far away from the defendant’s place of residence. A duty to be present, hence, needs to be justified.20 It needs to be shown that such a requirement can be validly imposed upon the defendant. also known as will theory of rights. See as for an sound line of argument on the success of the former over the latter: Steiner, An Essay on Rights, 59 et seq. 14 Choice theorists are for example: Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory, who is seen as founder; Graham, 15 Law and Philosophy 1996, 257; Wellman, Real Rights. 15 A number of benefit/interests theorists are: Maccormick, Rights in Legislation; Raz, Practical Reason and Norms. Jeremy Bentham is conceived to be the founder. 16 See for example Graham, 15 Law and Philosophy 1996, 257 trying to rebut this criticisms. 17 Feinberg, 12 OJLS 1992, 149, 155; Gaede, Fairness als Teilhabe, 748; cf. also Kindhäuser, NStZ 1987, 529, 531. See above G. I. 2. 18 Garner, (ed.), Black’s Law Dictionary, 580; Burke, (ed.), Jowitt’s Dictionary of English Law, 1581. Unless an absolute duty is concerned which attaches no corresponding right: Garner, Bryan A. (ed.), Black’s Law Dictionary, 580, Gray, The Nature and Sources of the Law, 9 et seq. 19 Garner, (ed.), Black’s Law Dictionary, 580. 20 Gaede, Fairness als Teilhabe, 781; Kindhäuser, NStZ 1987, 529, 531. Specifically for ICTs: Eibach, Abwesenheitsverfahren, 372 et seq. who also takes into account the burden of having to stand trial in front of the entire world public and being accused of the worst possible crimes. See also Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 218.

II. Theoretical considerations

435

a) Justification of a duty to be present A duty may be imposed upon the defendant only if it is a legitimate and proportional limitation of his rights. Such a duty curtailing the defendant’s rights needs to be clear and foreseeable to give the defendant sufficient opportunity to meet the obligation.21 Preferably, it should be regulated by a statutory rule.22 As we have seen, the ICTs’ statutory regulations often speak of a defendant who ‘shall’ be present or in another way acknowledge an obligation to be present, so that a clear statutory regulation exists. That is especially true for the ICC’s regulation and the respective case law.23 As all binding duties or obligations limit the defendant’s right to freedom of action,24 the duty to be present is also subject to the principle of necessity and proportionality25, which is recognised as a fundamental principle across national and international jurisdictions.26 It requires a careful balance of conflicting interests. To justify a duty to be present it is, therefore, necessary to strike a fair balance between the public interest in having the defendant present and the defendant’s autonomous ability to waive, exercise or not exercise his right to be present. b) Parameters for the justification Imposing a duty to be present upon the defendant is often justified in a general manner with the need for a proper administration of justice.27 The duty to be present is seen to serve the interests of justice.28 Thus, one must identify the interests of justice the ICTs are supposed to aspire to.

21

Gaede, Fairness als Teilhabe, 782 although he rejects the idea of abuse of rights but endorses the limitation through sanctioning to comply with an obligation. Especially since the accused often perceive the proceedings as an imposed victorious justice. 22 Ibid.; e contrario Herdegen, 20 NStZ 2000, 1, 4; Rzepka, Zur Fairness im deutschen Strafverfahren, 222 et seq. 23 See above B. V. 2. 24 See especially for the duty to be present at trial: Duff, Trials and Punishment, 139 et seq. 25 Eibach, Abwesenheitsverfahren, 388; cf. also Gaede, Fairness als Teilhabe, 777 et seq.; Jahn/Schmitz, 20 Wistra 2001, 328, 330; Paul, Abwesenheitsverfahren, 274. 26 See as for international law: Bleckmann, Allgemeine Staats- und Völkerrechtslehre, 680; cf. also Hoven, Rechtsstaatliche Anforderungen; for the ECHR: Gaede, Fairness als Teilhabe, 777 et seq. and for German law: Wolff, Ungeschriebenes Verfassungsrecht unter dem Grundgesetz, 229 et seq. with further references and a detailed derivation of the principle. 27 Gaede, Fairness als Teilhabe, 784; Gaeta, Trial in Absentia, 237; Kamp, FS-Rudolphi, 663 et seq.; Wheeler, 28 CrimLF 2017, 99, 126. 28 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11, para. 49; Summers, Fair Trials, 114; Wheeler, 28 CrimLF 2017, 99, 117, the latter, however, is more reluctant in assuming that it in fact serves the interests of justice.

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G. Conceptualising trials in absentia

For some authors, justice is seen to be owed to the victims and the public.29 In contrast, the mechinations of justice are not exercised in order to benefit the defendant personally. Only he can thwart it.30 In order to be able to establish the restoration of social peace, both with regards to the individual victims and the public as a whole, the defendant is obliged to be present. This idea of justice easily justifies conducting in absentia trials as a consequence of the defendant’s failure to appear. The defendant may not frustrate the conduct of proceedings and make the court ineffective.31 Otherwise he would harm the course of justice.32 Needless to say this view of justice has no difficulty in explaining where the duty to be present imposed upon the defendant stems from. This view of justice, however, expresses a fixation on only two of the actors in the criminal justice process. The international criminal justice process itself is a manifestation of the international community organised through the ICTs, i. e. the public that is represented through the prosecution.33 Justice is sought on behalf of the society to repair the societal wrong that has been done to the international normative order.34 Beyond that, both potential victims, especially in recent times, as well as the defendant are important actors within the justice process and each hold legitimate stakes.35 However, the defendant’s interests fall short when justice is solely conceptualised as stemming from the interests of the public and a specific group of the public, the potential victims. Not only is the defendant an important actor in the criminal process, he can rather be seen as the main actor. The whole criminal process is about finding out whether he is responsible for the atrocities that happened. It derives from a modern view to regard the different interests of the actors of the justice process, including the public, the victims and the defendant as part of the interests of justice.36 In that respect requiring the defendant to be present at one’s trial must be justified by the public interests but also with the defendant’s own interests. Finally, the potential victims’ interests need to be regarded and seen as justifying the imposition of a duty to be present upon him. These three aspects are therefore assessed in the following.

29

Riachy, 8 JICJ 2010, 1295, 1297; Jacobs, The Unique Rules of Procedure at the STL, 115. Jacobs, The Unique Rules of Procedure at the STL, 115. 31 Gaeta, Trial in Absentia, 237; Pons, 8 JICJ 2010, 1307, 1309; Trendafilova, Fairness and Expeditiousness, 449. 32 Gaeta, Trial in Absentia, 250; Riachy, 8 JICJ 2010, 1295, 1297. 33 Heinze, International Criminal Procedure and Disclosure, 224. 34 Riachy, 8 JICJ 2010, 1295, 1297; Zedner, Criminal Justice, 30. 35 Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 17; Zedner, Criminal Justice, 30. 36 Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 17; Zedner, Criminal Justice, 30 in a similar vein: Stahn, ZaöRV 2017, 371, 397 et seq. who asserts this as a particular view of ICL. Interpreting ‘interest of justice’ differently in respect to the ECHR: Spaniol, Das Recht auf Verteidigerbeistand, 73 et seq. arguing that it solely underlines justice (Gerechtigkeit) rather than the administration of justice (Rechtspflege). Stahn, ZaöRV 2017, 371, 397 also acknowledges that fairness towards the defendant is the traditional concept of justice. 30

II. Theoretical considerations

437

aa) Public interest The defendant’s presence is seen to assist the chamber and thereby supports the public interest. In the absence of the defendant, the court will be unable to gain a personal impression of the accused as the evidence is presented, and there is no opportunity to compare the accused’s statement to witnesses’ and victims’ assertions.37 Moreover, the defendant is constantly present to provide evidence and the court is able to hear any statement the defendant is ready to make.38 Further, it is assumed that the presence of the defendant serves the goal of establishing truth.39 As seen above, taking into account the defendant’s right to remain silent, these statements lose a considerable amount of their plausibility.40 Any statement the defendant might potentially be ready to make cannot be built in as a prerequisite for the reliable and correct determination of guilt, since he has a right to remain silent.41 To paraphrase Judge Bonello, “a mute defendant is almost as productive as an absent defendant.”42 Moreover, the duty to be present may put pressure on the accused to give a statement, which is incompatible with the nemo tenetur principle.43 It is troublesome to base the duty to be present on the expectation that the accused may decide to give a self-incriminating statement.44 That said, the flaw in this argument can be found in

37

ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, Case No. ICC-01/09-01/11-1066-Anx, 25 October 2013, Joint Separate Opinion of Judge Kourula and Usˇacka, para. 9; BGHSt 35, 345 (349); 57, 123 (127); OGH JBl 1988, 53; BGHSt 26, 84, 90; Friman, Trying Cases in the Absence of the Accused?, 334; Gardner, 43 GeoWashIntlLRev 2011, 91, 133; Marti, Das Verfahren gegen Abwesende nach der neuen aargauischen Strafprozeßordnung vom Jahre 1958, 84; Pons, 8 JICJ 2010, 1307, 1310 with footnote 16. It finds exemplary expression in Art. 66 RomeSt referring to the due process rights of the defendant but also victims’ interests. 38 Böse, FS-Paeffgen, 575; Pons, 8 JICJ 2010, 1307, 1310 with footnote 16. 39 C. II. 2. a). 40 Ibid. 41 Baxhenrich, Die Verhandlungsfähigkeit des Angeklagten, 14; Bernsmann, FS-Kriele, 699, 704; Krüger, FS-Kielwein, 90; Plaisier, Het verstek in strafzaken, 3 et seq.; Riess, JZ 1975, 265, 267; Volk, FS-Böttcher, 217; Wohlers, FS-Paeffgen, 628 et seq.; cf. also Gaede, 129 ZStW 2017, 911, 953 et seq. 42 ECtHR, Van Geyseghem v. Belgium, Judgment, 21 January 1999, Appl No. 26103/95, Concurring Opinion of Judge Bonello. In the same direction Eibach, Abwesenheitsverfahren, 374 et seq. Similarly Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 218, who refers to the defendant’s interest to remain distant from the proceedings held against him („Distanzinteresse“). 43 Hassemer, JuS 1986, 25, 28; Wohlers, FS-Paeffgen, 629; cf. also Stein, 97 ZStW 1985, 303, 324 et seq. 44 Riess, JZ 1975, 265, 267; Stein, 97 ZStW 1985, 303, 325; following Stein: Ko, Die Anwesenheit des Angeklagten, 355; Neuhaus, Der Grundsatz der ständigen Anwesenheit des

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the expectation that the defendant contributes to the truth only with an incriminating statement. He could also use his chance to be present to give an exonerating statement, so that no issue can be taken with any expectation based on self-incriminating evidence. It is also submitted that justice can only be done with a present defendant who is available for punishment.45 However, the trial must be carefully distinguished from the enforcement of the punishment after the verdict.46 The necessity to be present at the later stage of the criminal proceedings does not generally affect the obligation to be present at the previous stage of the criminal process. The presence of the defendant is also seen to prevent miscarriages of justice that are detrimental to the defendant.47 In fact, it seems reasonable to expect that the defendant will take corrective action for his own benefit when there is risk of a miscarriage of justice occurring.48 However, it is not certain that the defendant intervenes even when he is not responsible for the crimes he is accused of49, but only where he is present is this possibility maintained. Finally, aspects of deterrence are mentioned to justify a duty to be present.50 During the public trial the defendant faces charges under the surveillance of the international community. This alone is said to have a deterring effect to both the individual defendant and the public.51 It has already been shown that any attempt to attribut a deterrent effect to the trial runs counter the presumption of innocence as the accused’s guilt cannot be anticipated.52 But as explored above, the acceptance of the outcome of a trial as fair is better when the defendant participates.53 With regards to the perceptions of the public it is held, though not supported by empirical research, Angeklagten in der strafprozessualen Hauptverhandlung 1. Instanz, 76; cf. also Gaede, 129 ZStW 2017, 911, 953 et seq. Volk, FS-Böttcher, 215. 45 Wheeler, 28 CrimLF 2017, 99, 118. 46 See previously C. II. 1. b) cc). But see generally Schroeder, NJW 1983, 137, 193 and specifically for international criminal law Eibach, Abwesenheitsverfahren, 270 et seq., 381 et seq.; who assert that aims of punsihment influence criminal procedure and (partly) overlap. 47 See Baxhenrich, Die Verhandlungsfähigkeit des Angeklagten, 14 et seq.; SK-Deiters, Section 231a marginal no. 1g; Grünwald, JZ 1976, 767, 771, who leaves open, if miscarriages of justice can indeed be prevented but asserts the possibility; Stein, 97 ZStW 1985, 303, 321 et seq., 329 et seq., however, does not assert that the accused’s presence indeed promotes these objectives and in the end does not see the necessity of a continuous presence at trial. See also: Eisenberg, NStZ 2012, 63, 64. 48 Baxhenrich, Die Verhandlungsfähigkeit des Angeklagten, 15. 49 LR-Gless, Section 136 marginal no. 36. 50 Krack, Rehabilitierung, 281 et seq.; Stein, 97 ZStW 1985, 303, 321 et seq., 327; as for the general prevention: Gollwitzer, FS-Tröndle, 456; Igielski, 19 SeattleULRev 1996, 633, 637. 51 Baxhenrich, Die Verhandlungsfähigkeit des Angeklagten, 15 et seq.; Gollwitzer, FSTröndle, 456; cf. also Krüger, FS-Kielwein, 93; Stahn, ZaöRV 2017, 371, 398. See above E. II. 1. b) cc). 52 See above C. II. 1. b) cc). See also Eibach, Abwesenheitsverfahren, 379 et seq. 53 See above deterrent effect of the criminal trial C. II. 2. c).

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that, the impression that a trial is fair and just is better in cases where the defendant immediately took part in the proceedings.54 So the defendant’s presence may have a positive effect on the criminal justice system of ICTs and may lend their judgments – as well as their existence as such – legitimacy and credibility.55 At the crossroads of the public and the defendant’s interests, paternalistic aspects should be mentioned. According to these, the idea behind a duty to be present is that the defendant shall have the opportunity to be heard in his defence when ready to make a statement or in any other way participate in the proceedings.56 Paternalistic concerns as to ensuring that the defendant has the opportunity to make use of his defence and participation rights seem somewhat cynical considering that the defendant’s autonomy is restricted by imposing a duty upon him, solely to ensure that he autonomously decides about using his right to be heard by deciding whether and how to contribute to the hearing.57 Unreasonableness is an expression of autonomy; it is up to the defendant to decide whether he wants to act against his own interests and relinquishes his active role in the trial.58 However, autonomy also presupposes the ability to use it intelligently. By initiating a trial, the criminal justice authorities put the accused in an unfamiliar and risky situation and should therefore also ensure that he can make effective use of his rights of defence, in particular that he does not waive them in (partial) ignorance. Under these considerations the ability to intelligently waive their rights cannot be expected of all defendants. By an (initial) presence, the court ensures the defendant’s awareness of rights and the consequences of a waiver. Any infringement of the right to a fair trial is prevented where the defendant is present, as he can always decide to fully engage in his defence and exploit his defence and participation rights.59 Moreover, paternalistic considerations cannot be rebutted by the fact that the defendant’s autonomy also includes the possibility of waiving his rights.60 For this argument fails to recognise that a waiver of the right to be present does not indicate the existence of a right to remain absent. Ultimately, waiving presence is of no use for the question of whether a duty to be present exists.

54

327. 55

Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 24; Stein, 97 ZStW 1985, 303,

Ambos, Treatise Vol. III, 165; Friman, Trying Cases in the Absence of the Accused?, 334; Safferling, International Criminal Procedure, 397; Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 24. 56 Böse, FS-Paeffgen, 578; Jäger, Die Anwesenheit des Angeklagten in der Hauptverhandlung, 131; Kamp, FS-Rudolphi, 664; Riess, JZ 1975, 265, 267; Roxin/Schünemann, Strafverfahrensrecht, § 44 marginal no. 42. 57 Stein, 97 ZStW 1985, 303, 312 et seq.; Wohlers, FS-Paeffgen, 628; cf. also Eibach, Abwesenheitsverfahren, 376; Gaede, 129 ZStW 2017, 911, 953 et seq. 58 BGH NStZ 1985, 25 et seq.; Bernsmann, FS-Kriele, 710. 59 Böse, FS-Paeffgen, 575. 60 Of other opinion Eibach, Abwesenheitsverfahren, 377; Stein, 97 ZStW 1985, 303, 315.

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Though considerations of the availability for punishment and the deterrent effect cannot justify a duty to be present, both paternalistic aspects and the strengthening of the legitimacy of ICTs strongly speak in favour of a duty to present. The imposition of a duty to be present lies in the public interest. bb) The defendant’s interests The second perspective, the defendant’s interests, shall now be considered. The accused will certainly find nothing good in having to stand trial. The more so when considering that defendants of ICTs – at least the ad-hoc Tribunals and the ICC – often reside far away from the seat of the court.61 However, if criminal proceedings have been instituted against him, his presence may be beneficial. Only then can he himself influence the outcome of the trial. To begin with, it should be noted that the exercise of the right to a fair hearing cannot be made conditional on the accused giving up his or her physical liberty by obliging him to surrender to custody.62 Where, as is the case in international criminal cases, detention during the judicial proceedings is the rule rather than the exception, being present at trial similarly means surrendering to custody. It is submitted that there are other sufficient means that can be used to enforce arrest warrants.63 However, these measures are not working effectively, at least on the international level, which is one reason why the need for trial in absentia arises in the first place. The practice has shown that it is not possible to compel states to abide by the duties they took over when ratifying the RomeSt.64 Then again, binding the defendant to be present leads to a stigmatisation or, in other words, punishment without having asserted guilt.65 This argument falls short, as it is not the duty to be present imposed upon the defendant but rather the fact that he is 61

See also Eibach, Abwesenheitsverfahren, 373. ECtHR, Khalfaoui v. France, Judgment, 14 December 1999, Appl. No. 34791/97, para. 44; Krombach v. France, Judgment, 13 February 2001, Appl. No. 29731/96, para. 87. 63 Ibid. 64 Notorious non-cooperation – especially of African countries – occurs inter alia with regard to the Situation in Darfur, Libya, Kenya and Côte d’Ivoire. See e. g. : ICC, Situation in Darfur, Sudan: Prosecutor v. Al Bashir, PTC II, Decision under Article 87(7) of the Rome Statute on the Non-compliance of Jordan with the Request by the Court for the Arrest and Surrender of Omar Al Bashir, 11 December 2017, Case No. 02/05-01/09; Situation in the Republic of Kenya: Prosecutor v. Bett and Gicheru, OTP, Statement, 10 September 2015, https: //www.icc-cpi.int/Pages/item.aspx?name=otp-stat-10-09-2015-2 (last accessed: 7 February 2021); Situation in Côte d’Ivoire: Prosecutor v. Simone Gbagbo, PTC I, Decision on Côte d’Ivoire’s Challenge to the Admissibility of the case against Simone Gbagbo, 11 December 2014, Case No. ICC-02/11-01/12. See also Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 218 et seq. who criticises that the defendant’s interest to remain absent and his right to remain absent is not sufficiently regarded. 65 Julius, GA 1992, 295, 304; Volk, FS-Böttcher, 217. See with a thorough analysis of the handling of cases at lower courts: Feeley, The Process is the Punishment. 62

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charged that leads to stigmatisation.66 The fact that a person has to stand trial alone stigmatises the defendant, regardless of whether he is tried in persona or in absentia. However, the defendant benefits from his own physical presence in that he can immediately instruct his counsel as appropriate or exercise self-representation.67 The defendant can personally verify the independence and impartiality of the court and evaluate how the prosecution presents the evidence.68 He can identify any inconsistencies between the testimonial evidence and his personal memories and views.69 Giving the defendant the possibility to make use of his right to participate, underlines the accused’s active and important role in criminal proceedings.70 While incarceration during trial is not in the defendant’s interests, a possible stigmatisation of the defendant is not an argument against the imposition of the duty to be present. Considering that his presence allows the defendant to react to the occurrences during trial, being present is in his presumed interest. cc) The potential victims’ interests Turning to the final perspective, the potential victims’ interests, who are a specifically concerned group within the public, or international community. One could argue that, to the contrary, for a full consideration of the potential victims’ needs, a direct confrontation with the defendant is necessary.71 On the other hand, listening to the potential victims’ suffering has a rehabilitative effect on the defendant.72 The ambiguity of this argument has already been shown.73 Both arguments are troublesome as they presume the guilt of the accused that is still to be determined beyond a reasonable doubt during the trial.74 Then again, it is largely disappointing to observe that a defendant has been found guilty but no sentence will 66

Namakula, 17 ICLR 2017, 935, 942. Pons, 8 JICJ 2010, 1307, 1310 with footnote 16; cf. also Böse, FS-Paeffgen, 575. 68 Pons, 8 JICJ 2010, 1307, 1310 with footnote 16. 69 ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11-1066, para. 49; ECtHR, Demebukov v. Bulgaria, Judgment, 28 February 2008, Appl. No. 68020/01, para. 51; Triffterer/Ambos-Schabas/Caruana, Art. 63 marginal no. 24. 70 Kamp, FS-Rudolphi, 663 et seq.; Wheeler, 28 CrimLF 2017, 99, 126. 71 See above C. II. 2. b). 72 ECtHR, Neziraj v. Germany, Judgment, 8 November 2012, Appl. No. 30804/07, Joint Concurring Opinion of Judges Power-Forde and Nussberger. 73 See above C. II. 2. b). 74 In a similar vein: Triffterer/Ambos RomeSt-Donat-Cattin, Art. 68 marginal no. 16; Volk, FS-Böttcher, 216; Hüls/Reichling, StV 2014, 242, 246; Wheeler, 28 CrimLF 2017, 99, 125. Similarly critical Rösinger, Die Freiheit des Beschuldigten vom Zwang zur Selbstbelastung, 221. 67

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be imposed as he escaped trial.75 It is even submitted that observing a person who has been found responsible but will not be punished according to the sentence that has been imposed has a negative impact on the reconciliation.76 In no way does this suggest that the potential victims’ reconciliation requires the defendant’s presence at trial. There are different measures available to enforce sentences. The sole possibility that the defendant might be convicted and might need to be present for the enforcement of punishment, if found guilty, cannot alone justify a duty during trial from the potential victims’ perspective. In order to see justice done, potential victims only need to see the accused found guilty beyond a reasonable doubt.77 It can, therefore not be conclusively asserted that imposing a duty to be present upon the defendant lies in the potential victims’ interest. Then again, to look the defendant in the eyes and observe his reaction when alleged victims report their suffering may have a positive effect on them.78 dd) Common interests At the interface of the potential victims’, defendant’s, and public interests lies the expeditiousness that can claim relevance in justifying the defendant’s duty to be present.79 Expeditiousness of international criminal proceedings benefits both the defendant and the proper administration of justice. Needless to say, the defendant has a right to be tried without undue delay. Beyond that, the shorter a trial, the smaller its scope and the depth of evidence and, accordingly, the easier it is for the defendant to manage the forensic case and argue against the charges and evidence brought against him.80 Certainly, international criminal trials are more complex and usually take more time than any domestic procedure. In spite of this, overly long proceedings harm the public view on and support of ICTs.81 Finally, it is important to render justice within a reasonable time as only then can the societal wrong be satisfactorily resolved and future crimes deterred.82 There is also a legitimate interest of both the 75

Wheeler, 28 CrimLF 2017, 99, 126. Ivkovic´, 37 StanJIntlL 2001, 255, 263; Wheeler, 28 CrimLF 2017, 99, 126. 77 This leads Eibach, Abwesenheitsverfahren, 350 et seq., 371 to consider the finding of a truth commission as effective as a conviction following an in absentia trial. 78 Cf. ICC, Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, AC, Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber V(A) of 18 June 2013 Entitled “Decision on Mr. Ruto’s Request for Excusal from Continuous Presence at Trial”, 25 October 2013, Case No. ICC-01/09-01/11-1066, para. 49; see also Situation in the Republic of Kenya: Prosecutor v. Ruto and Sang, Common Legal Representative for Victims’ Response on the Joint Defence Submissions on Legal Basis for the Accused’s Presence at Trial via Videolink, 19 March 2013, Case No. ICC-01/09-01/11- 657-Anx. 79 Cf. Böse, FS-Paeffgen, 577, who, however, does not assert the expeditiousness the power to infringe the defendant’s participation rights. 80 Boas, The Milosˇevic´ Trial, 272; cf. also Eser, Procedural Structure and Features, 138. 81 Boas, The Milosˇevic´ Trial, 273; cf. also Eser, Procedural Structure and Features, 138. 82 Trendafilova, Fairness and Expeditiousness, 449 with footnote 11, 457. 76

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victims and society as a whole in seeing the criminal proceedings brought to a timely conclusion.83 Having identified expedition as beneficial for the institution of ICTs, the victims and for the defendant, it is now to be seen how the duty to be present serves the expedition of criminal proceedings. Only if a duty to be present exists can preceding in his absence sanction his nonappearance, which speeds up proceedings as otherwise an adjournment would be necessary. Also, changes to the charges can be immediately discussed during trial.84 Otherwise a new notification to the absentee would be necessary and the procedure would be halted in the meantime. This may lead to substantial delays in the trial proceedings. However, arguments as to the expeditiousness should always be regarded with care where it results in the limitation of a defendant’s rights and the fairness of proceedings for example where an adjournment is not granted, because the defendant is present at the proceedings. In complex international trials it is of utmost importance to strike an appropriate balance between expeditiousness and fairness of trial.85 However, where an adjournment is necessary in order to effectively use the defence rights, a request for an adjournment will be authorised. c) Interim findings Having considered the public, the defendant’s and the potential victims’ interests it has been shown that there are good arguments that speak against the imposition of a duty to be present. With regard to the public interest it has been shown especially that expectations of the defendant’s contribution to fact-finding and the truth are not genuinely convincing in order to justify the imposition of a duty to be present as the defendant’s autonomous right to remain silent is undermined. However, a duty to be present can improve the impression of the criminal trial on the public. Finally, paternalistic considerations are strong reasons to require the defendant to be present. The public interest, therefore, strongly support a duty of the defendant to be present as otherwise justice will be frustrated.86 As regards the victims’ interests, no clear picture could be drawn. Requiring the defendant to be present is neither a necessary prerequisite for potential victims’ satisfaction nor is the imposition of such duty detrimental to the potential victims’ interests. Nevertheless, international criminal trials individualise guilt of mass 83 ECtHR, Hokkeling v. the Netherlands, Judgment, 14 February 2014, Appl. No. 30749/12, para. 62; Eser, Procedural Structure and Features, 131; Trendafilova, Fairness and Expeditiousness, 449 with footnote 11, 457. 84 Krüger, FS-Kielwein, 91 et seq.; Seiler, Die Stellung des Beschuldigten im Anklageprozess, 204. 85 Boas, The Milosˇevic´ Trial, 271. 86 Böse, FS-Paeffgen, 575 et seq.; Paeffgen, Vorüberlegungen zu einer Dogmatik des Untersuchungshaft-Rechts, 85.

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atrocities that occurred on a greater scale, so that the individual confrontation might contribute to the understanding of those horrific events. In contrast, having the possibility to speak up in public before an impartial court seems to help potential victims to move on. On the other hand, the disappointment is vast where the defendant is in fact found guilty and he is not available for punishment. Considering that the defendant either faces detention during his trial or regularly resided far away from the ICT, his interests do not speak strongly in favour of binding him to be present at trial. However, on the assumption that the defendant wants to be present for his benefit it can be argued that this alone suffices to justify a duty to be present.87 Further, the presence of the defendant might, under certain circumstances, speed up proceedings and help their expeditious conduct, which is in the interests of all three actors of justice. In light of the benefits both for the public and defendant’s interests and the finding that victims’ interests do not genuinely run counter to a duty to be present imposed upon the defendant, it should not solely lie in the defendant’s discretion to decide whether he wants to participate at trial. The public interest in the defendant’s presence will be frustrated by an evasion of justice such so that binding the defendant to be present through coercive means seems justifiable.88 A duty to be present seems, thus, appropriate.

III. Concepts for trials in absentia It has been shown that the freedom to waive a right is a distinctive part of the definition of a right.89 If the defendant exercises his right to be present this presumes that this choice may not be interfered with.90 He may generally not be excluded from a trial against his will.91 Where the defendant waives his right no measures to enable his presence need to be taken with regard to his right to be present. However, the defendant can waive his right to be present but simultaneously ought to comply with his coextensive duty to be present during trial, i. e. by appearing at trial or at least making himself available to court so he can be transferred to the hearing.92 The defendant has no right to be absent, in spite of his power to waive his own appearance before the 87 Böse, FS-Paeffgen, 575; Paeffgen, Vorüberlegungen zu einer Dogmatik des Untersuchungshaft-Rechts, 85. 88 Böse, FS-Paeffgen, 575 et seq.; Paeffgen, Vorüberlegungen zu einer Dogmatik des Untersuchungshaft-Rechts, 85; Stricker, ÖJZ 2015, 61, 62. 89 Böse, 36 NCJIintlL & Com Reg 2011, 489, 503; Feinberg, 12 OJLS 1992, 149, 155; cf. also Fletcher, Basic Concepts of Legal Thought, 109. 90 Graham, 15 Law and Philosophy 1996, 257, 268. 91 Wheeler, 28 CrimLF 2017, 99, 122. 92 As for the ICC’s framework: Zakerhossein/de Brouwer, 26 CrimLF 2015, 181, 222. See also Stricker, ÖJZ 2015, 61, 68.

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court.93 A duty by definition excludes arbitrariness.94 Hence, there must be concepts that allow both the defendant’s right and duty to be present to be outweighed in order that proceedings can be conducted in absentia. Accordingly, the following section distinguishes between an outweighing right and duty to be present. Different theoretical justifications to deprive the defendant of his right and a duty to be present and proceed in his absence shall be discussed. For the former waiver and forfeiture will be critically discussed95 in order to reveal whether these are valid concepts for the different scenarios of trials in absentia. Outweighing the duty to be present will be discussed in light of the balancing concept.

1. Limitations on the defendant’s right to be present The scenarios of trials in absentia found in the ICTs’ practice should first be restated. There were absences where the defendant expressly, often in writing, waived his right to be present at parts of his trial. Then there is the opportunity to proceed in absentia when the defendant has initially appeared and fails to attend trial and the default procedure conducted by the STL, entailing two different scenarios of absences.96 Finally, the generally recognised scenario, taken as a general principle, that allows for the removal of the defendant following his repeated disruptive behaviour after prior warning. a) The concept of waiver Waiver is the central concept on which in absentia proceedings are based. This is expressed in both the case law of the human rights supervisory bodies and ICTs as well as in their statutory regulations. Particularly recent amendments to the ICC-RPE and special regulations within the STL’s legal framework allow for the concept of a waiver. Conventionally, a waiver is defined as voluntary and knowing97 foregoing of a right by its holder.98 The non-application of the right is the result of the holder’s will.99 93

Of other opinion Eibach, Abwesenheitsverfahren, 386. See in a similar vein Stricker, ÖJZ 2015, 61, 68; Wheeler, 28 CrimLF 2017, 99, 112. 95 See already: Böse, FS-Paeffgen. 96 Art. 22(1)(b) STLSt has already been found to be redundant and will, therefore, not be assessed. See above B. IV. 2. c) bb). 97 Not all definitions include the informed waiver. The author agrees with a number of scholars that knowledge of the right and consequences if the relinquishment is already requirement of the genuine notion of a waiver as only than volition as to the externalisation of rights is conceivable. 98 See similarly: Schlüchter, GS-Meyer, 448; Westen, 75 MichLRev 1976, 1214, 1214. 99 Schlüchter, GS-Meyer, 448. See also Westen, 75 MichLRev 1976, 1214, 1260 with a striking summary of the prevailing opinions’ conventional view of waiver. 94

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It should be highlighted that the consequence of the manifestation of the intent to relinquish a right is the loss of the right so it cannot be asserted that the right has been violated.100 It is, therefore, imperative to distinguish the waiver from the sole negative freedom not to make use of the right that does not carry the intention of relinquishing the right completely.101 This is crucial especially where it comes to a tacit or inherent waiver. Also, a tacit waiver must express the right holder’s intent to forgo the right.102 The tacit or inherent waiver is inferred from the defendant’s positive conduct or forbearance. In order to establish a waiver in these cases it is necessary to determine if there is an intended purpose between will, the act or forbearance that implicitly or tacitly asserts the waiver and relinquishment of the right.103 Therefore, a tacit waiver requires the defendant’s awareness of the consequence of the defendant’s positive or negative conduct.104 Only then can an informed choice on the part of the right holder be assumed. aa) Absence of the defendant who has expressively waived his right to be present or has initially appeared It follows from the concept of a waiver that the scenarios where the defendant expressly waived his right to be present, whether in writing or orally, fit under this theoretical justification without doubt. This does not only include partial absences following the defendant’s waiver that regularly occur at ICTs and have recently been extended for the flexible approach of the RomeSt, but also the STL’s default procedure as laid down in Art. 22(1)(a) STLSt and the confirmation of charges in absentia according to Art. 61(2)(a) RomeSt require a written waiver of the right to be present. Likewise, a tacit waiver can be assumed where the defendant fails to appear after his initial appearance. It is then clear that he knows of the charges and trial brought against him and his failure to attend can be conceptualised as expressing his will, not to be present at the further trial hearings unless reasons of force majeure hindered his absence.105 This is especially true, as on many occasions the absence after an initial appearance expresses the defendant’s boycott of the respective ICT. The open boycott manifests the defendant’s will not to attend the proceedings in order to make a fool of the international criminal justice institution.

100

Gaede, Fairness als Teilhabe, 748; Sturm, FS-Geiger, 187; Schlüchter, GS-Meyer, 448. Sturm, FS-Geiger, 185 et seq. 102 Cf. Thommen, 128 ZStR 2010, 373, 388. 103 Schlüchter, GS-Meyer, 448. 104 ECtHR, Sejdovic v. Italy, Judgment, 1 March 2006, Appl. No. 56581/00, para. 87; Böse, 36 NCJIintlL & Com Reg 2011, 489, 499. 105 Considering that defendants in international criminal proceedings are generally detained throughout the trial, the absence of force majeure becomes easy to determine. 101

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bb) Absence of the defendant who has absconded or otherwise cannot be found The remaining scenarios need to be carefully assessed when establishing that waiver is the relevant reason behind the justification of trying the defendant in absentia. At the beginning the trial in absentia of Ayyash et al. will be assessed. Although the wording of the STLSt – ‘has absconded or otherwise cannot be found and all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges’ – does not speak of a waiver, the court, when applying the notion, concluded that the defendants have waived their right to be present.106 As indicated above, this conclusion is based on a mere assumption. Indeed, the respective Chambers have made reasonable steps to inform the defendant. In spite of this, actual knowledge of the charges and awareness that proceedings are impending in their absence, has not been and will, as a general rule, not be possible to establish. Instead the awareness of the indictment and of the consequences of their absence are presumed following the public notification.107 Some scholars submit that high-profile accused persons will usually be aware of the charges and prosecution against them, so a waiver can reasonably be assumed.108 In fact, it seems sensible to assume that the high-profile accused generally have knowledge due to the broad coverage in media and politics and a general public’s awareness of the intention to prosecute them. How else could one explain that Al Bashir, who freely travelled to certain countries and attended international conferences, managed to escape in the last minute when he was faced with an arrest attempt in South Africa. However, one has to consider that defendants at ICTs regularly face detention throughout the trial procedure and arrest warrants have been issued for this purpose. Nonappearance can also mean that the defendant does not want to hand himself in.109 The failure to appear may also express the negative freedom not to make use of a right. The distinction between waiver and non-enforcement of the right to be present without explicit guidance by the defendant is difficult. Both the waiver and 106 STL, Prosecutor v. Ayyash et al., AC, Decision on the Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial in Absentia, 1 November 2012, Case No. STL-11-01/PT/AC/AR126.1, paras. 31, 36 et seq., and Headnote; Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 12 January 2012, Case No. STL-11-01/I/PT/TC, para. 31 et seq.; Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/I/TC, para. 122. Supporting this: Gaeta, Trial in Absentia, 237. 107 STL, Prosecutor v. Ayyash et al., TC, Decision to Hold Trial in Absentia, 12 January 2012, Case No. STL-11-01/I/TC, para. 106 quoted by Prosecutor v. Ayyash et al., AC, Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration on the Trial in Absentia Decision, 1 November 2012, Case No. STL-11-01/I/TC, para. 45; Prosecutor v. Ayyash, TC II, Decision to Hold Trial In Absentia, 5 February 2020, Case No. STL-18-10/I/I/ TC, para. 120. Similarly, Wheeler, 28 CrimLF 2017, 99, 124. 108 Orie, Accusatorial v. Inquisitorial Approach, 1479; Schwartz, 4 The Human Rights Brief 1996, 1. See also Hoven, Rechtsstaatliche Anforderungen, 231. 109 AST, 68 JZ 2013, 780, 782; Böse, 36 NCJIintlL & Com Reg 2011, 489, 500; Böse, FSPaeffgen, 577; Hoven, Rechtsstaatliche Anforderungen, 437. This is the decisive difference to the implicit waiver after the initial appearance.

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the non-application of the right to be present presuppose that the accused knows that there is a trial instituted against him in which he has a right to be present. If the defendant does not appear, this inevitably means that he does not wish to attend. However, it is impossible to conclude that the failure to appear implicitly carries the expression of the defendant’s will to forgo the right to be present and participate at the hearings.110 Supposing in these circumstances that such a waiver exists would be a sole fiction of the defendant’s will. This shows that the established concept of an implicit waiver is not a robust concept in these cases. The scenario where a confirmation of charges is held in absentia or Rule 61 Procedure is conducted reflects the assessment of the in absentia procedure at the STL since the person has fled or cannot be found respectively the arrest warrant could not be executed. Again, it is not reliable to assume an implicit waiver of the right to be present by the defendant. cc) Absence of the obstreperous defendant It seems troublesome that the removal of the defendant from the courtroom where he behaves disruptively is subsumed under the notion of a tacit or implicit waiver of the right to be present. Both the ICTs as well as the human rights supervisory bodies see the disruptive behaviour of the defendant as an implicit waiver of the right to be present.111 Following the above definition waiver requires the assertion of the defendant’s will of relinquishing his right. In cases where the defendant behaves disruptively, it cannot safely be assumed that it is the defendant’s will to forgo his right to be present. The defendant rather wants to use the public eye to continuously interrupt the proceedings and diminish the institution of the respective court.112 His will is to remain in the courtroom. It could merely be seen as a choice of the court to remove the defendant in order to properly proceed with the trial.113 Then again it could reasonably be argued that the defendant can foresee his removal as a consequence when engaging in disruptive conduct, since the chamber needs to warn him before taking the ultima ratio removal decision.114 That, however, does not offset the fact that the removal is not desired by the defendant. Surely, the defendant fraudulently abuses his right to be present. One could argue that by engaging in disruptive conduct he tacitly

110 Gaeta, Trial in Absentia, 238; Hoven, Rechtsstaatliche Anforderungen, 436; Wheeler, 28 CrimLF 2017, 99, 123. 111 See above B. III. 3. b); B. IV. 1. c); B. IV. 2. c) dd); B. IV. 3. c); B. V. 4.; E. I. 2. c) cc) (2) and inter alia ICTY, Prosecutor v. Milosˇevic´, AC, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, Case No. IT02-54-AR73.7, para. 13; Schwaighofer, FS-Platzgummer, 272. 112 Wheeler, 28 CrimLF 2017, 99, 116. 113 Ibid., 115 et seq. 114 Ibid., 116; cf. also Gaeta, Trial in Absentia, 237.

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waives to act lawfully which would allow him to remain in the courtroom.115 But this does not overcome the fact that the accused has the will to remain present. The assumption of a waiver would be the mere fiction of a will to relinquish the right to be present that does not exist. b) The alternative concept of waiver It has been shown that the notion of a waiver, as regularly interpreted, is not capable of covering all types of in absentia procedure that have been identified in the ICTs’ practice. It could be assumed that the conventional definition of waiver is not correct. It would then be necessary to explore another concept of waiver in order to explain the various scenarios of the defendant’s absence that are understood to constitute a waiver. Westen116 makes a striking statement in his essay exploring the concept of the waiver of constitutional defences through a guilty plea. Rather than basing the notion of a waiver on the defendant’s will, he attributes a different theoretical concept to the waiver. He submits that the waiver falls under the wider concept of forfeiture.117 He agrees with the choice theory’s definition of a right in that a waiver is an inherent part of the right, but concludes that “[t]he ritual of waiver, by itself, is of no legal consequence”.118 A waiver, instead, is seen to describe the limits of the right by defining the part where the public interest119 overrides those of the individual. It is of great importance for a waiver to take into account the effect the defendant’s choice has on the public interest. The loss of rights is justified when the public interest in excluding the defendant’s rights outweigh the defendant’s interest in asserting his right.120 Applied to the matter in question, the chamber would have to show that the public interest in excluding the right to be present outweigh the defendant’s interest in exercising his right to be present at trial in order to establish that a valid waiver exists. Only then can the trial lawfully proceed in the defendant’s absence. Undoubtedly the STL’s trial in absentia as conducted in Ayyash et al. and to be initiated in the case of Ayyash suits this concept of a waiver. The defendant’s state of mind is of no relevance in that no proof is required that the defendant has actually knowledge of the proceedings against him. Following Westen it could be argued – at this point that the argument is value-free since its merit will be assessed further below – that the public 115 Cf. also Böse, 36 NCJIintlL & Com Reg 2011, 489, 499; Gaeta, Trial in Absentia, 237; Wheeler, 28 CrimLF 2017, 99, 116. See also generally, not specifically for the disruptive defendant: Schlüchter, GS-Meyer, 464. 116 Westen, 75 MichLRev 1976, 1214. 117 Ibid., 1261. 118 Ibid., 1260. 119 It is to be noted that Westen argues with the interest of the state (to litigate a case) as he treats the concept for the US criminal procedure. The interests of the state will in the following be equated with the interests of justice/public interests. 120 Westen, 75 MichLRev 1976, 1214, 1261.

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interest in pursuing justice within a reasonable time and have a smooth and orderly trial outweigh the defendant’s interest in being present at his trial. Also, the obstreperous defendant would be covered by Westen’s waiver definition for the same reasons. Westen formulates a theory of waiver that is capable of combining different scenarios under one concept. In spite of this, it is to be analysed whether the theory is convincing for the matter in question. Indeed, it could be argued that the chamber’s power to prevent the defendant from waiving his right by not effectuating his wish to remain absent underlines this concept. Instead of simply accepting the defendant’s waiver and releasing him from his duty to be present, the chamber assesses whether the defendant’s wish (that in of itself is not decisive but merely the reason why the chamber engages in the test on which interest prevails) not to be present outweighs the public interest in having the defendant present. It could further be argued that this inevitably shows that the waiver cannot only be based on the defendant’s volition. However, the clear wording in statutes underlines that the defendant needs to be actively released from his duty to be present. Moreover, the balancing concept fails to explain why there is need for the term “waiver” in the first place when ultimately the defendant’s state of mind has no impact on whether the defendant forgoes his right to be present. By justifying the loss of rights with the public interest it rests upon the chamber to regard the public interest as overriding the defendant’s right to be present, no matter whether the defendant has asserted a waiver. Hence, there could be instances where the chamber ex officio must deprive the defendant of his right to be present. It is also incoherent that the chamber has no possibility to grant the defendant leave to not appear, unless the public interest is at stake and overrides the defendant’s general interest to be present, no matter whether the defendant in that particular case actually has an interest in being present. Ultimately the right to be present turns into a duty to be present from which the defendant is only released where the public interest so require. The very definition of a right – the freedom to waive it – is not observed. The defendant is no longer the holder of a right to be present as he lacks autonomy with respect to exercising or not exercising his right. However, a right to be present is a consolidated part in all human rights treaties and statutes of ICTs. That does not suggest that there are no instances where the public interest can outweigh the defendant’s right to be present when there is no waiver. However, it must be taken into account in pondering the interest, whether the defendant voluntarily relinquished his right to be present. Hence, at least for the justification of trials in absentia, Westen’s balancing concept is not persuasive. c) The concept of forfeiture A sound theoretical concept to explain trial in absentia may be found in the notion of forfeiture. In contrast to a waiver, the concept refers to an involuntary loss of rights. The doctrine used here understands forfeiture as the “loss of a right […] because of a

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breach of obligation or neglect of duty”.121 Forfeiture operates without regard to the defendant’s state of mind.122 According to this concept, the trial in absentia works as a sanction for the failure to comply with a duty to be present.123 The right to a fair trial and consequently the right to be present enshrined therein, do not constitute absolute rights. However, any limitation of the right to be present needs to be necessary and proportional.124 Hence, the sanction – proceeding in absentia – for failing to appear needs to be justified and, in carrying out the proportionality test, it must be shown that the public interest to proceed in absence of the defendant outweighs the defendant’s interests of being present.125 Likewise, it is well established that where force majeure hinders the defendant’s presence, a sanction for his failure to comply with the duty to be present is not appropriate. However, this is ultimately a question of proportionality. When pondering the defendant’s interests against the public and victims’ interests in litigating the case, his behaviour and certain objective obstacles can sufficiently be taken into account. Of course, a very high threshold needs to be met as regards proportionality. Even when positive voluntary conduct that evidences the defendant’s culpability can be identified the threshold is high. The court cannot rely on defendant’s actions to facilitate the conduct of the trial against his own interests.126 aa) Absence of the defendant who has absconded The STL’s default procedure as enshrined in Art. 22(1)(c) STLSt as well as the confirmation of charges and Rule 61 Procedure, could not be explained with the concept of waiver. It is conceivable that the STL actually applies the concept of 121

Garner, (ed.), Black’s Law Dictionary, 722. See also Westen, 75 MichLRev 1976, 1214, 1214 et seq. and arguably in the same direction: Wheeler, 28 CrimLF 2017, 99, 124. 122 Westen, 75 MichLRev 1976, 1214, 1214 et seq. 123 Böse, 36 NCJIintlL & Com Reg 2011, 489, 501; Böse, FS-Paeffgen, 575; Gaede, Fairness als Teilhabe, 780 et seq.; Riklin, Art. 407 marginal no. 1; Trendafilova, Fairness and Expeditiousness, 449; Wheeler, 28 CrimLF 2017, 99, 123. Some scholars also use the idea of mala fides in order to establish a sanction to the fraudulent nonappearance. See inter alia Gaeta, Trial in Absentia, 237; Jahn/Schmitz, 20 Wistra 2001, 328; Wesslau, FS-Lüderssen; Westen, 75 MichLRev 1976, 1214; Wheeler, 28 CrimLF 2017, 99, 124. However, since this idea equals the idea of forfeiture, a discussion seems superfluous. The more so when considering that any attempt to use the principle of mala fide to establish active cooperation rights of the defendant in criminal proceedings should be disregarded. See similarly in the result Böse, FS-Paeffgen, 574; Herdegen, 20 NStZ 2000, 1; Kindhäuser, NStZ 1987, 529, 532; Schlüchter, GS-Meyer, 459 et seq.; BSK-StPO-Thommen, Art. 3 marginal no. 63 et seq.; Weber, GA 1975, 289, 293 et seq.; Wesslau, FS-Lüderssen, 792. 124 Böse, 36 NCJIintlL & Com Reg 2011, 489, 502; Hoven, Rechtsstaatliche Anforderungen, 438; Pons, 8 JICJ 2010, 1307, 1315; see also Paul, Abwesenheitsverfahren, 274. 125 Böse, FS-Paeffgen, 575; Gaede, Fairness als Teilhabe, 783 et seq.; Hoven, Rechtsstaatliche Anforderungen, 438; see also Paul, Abwesenheitsverfahren, 274. 126 Gaede, Fairness als Teilhabe, 787. See also Hoven, Rechtsstaatliche Anforderungen, 437.

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forfeiture under the guise of a waiver when it decided to try Ayyash et al. in absentia. By assuming a waiver, although the requirements of knowledge have not been established with certainty, and proceeding in absence, the court merely punishes the defendants for not complying with their duty to be present.127 The only valid conclusion is that the court sanctions the defendants for their misconduct (failing to appear) and as a consequence deprives them of their right to be present. The defendant’s nonappearance is discouraged by the procedure in absentia.128 One could argue that the defendant acts fraudulently if he evades justice by deliberately making himself unavailable for notification in order to escape trial. In carrying out the proportionality test such fraudulence could speak in favour of derogating the defendant’s rights.129 The defendant’s relevant conduct already lies in his actions to escape trial before any attempt at notification has been made. In such cases it is reasonable to establish a lawful limitation of the defendant’s rights as his conduct lowers the, still very high, threshold to be met by the proportionality test. Where it has been established that the defendant contributed to a situation that prevents him from being notified and consequently from appearing, he loses his right to be present. That is different from situations in which the defendant cannot otherwise be found and no active evasion can be presumed. Here the failure to appear was not necessarily caused by the defendant himself, so that the threshold to be met to justify the defendant’s derogation of rights must be significantly higher. The defendants in Ayyash et al. and any other future fugitive or defendant that otherwise absconded forfeited their right to be present.130 One could argue that Art. 22(1)(c) STLSt was in fact always applicable, even in cases where the defendant is hindered by force majeure since the unlawful trial and infringement of the defendant’s rights could be healed in the re-trial he is granted upon apprehension. In light of the exemplary function of an international criminal trial this argument does not convince. The conduction of unlawful trials in absentia will harm the respective court and the whole branch of international criminal justice more than it will do justice to the affected society.131 bb) Absence of the obstreperous defendant For the defendant who engages in intolerably disruptive conduct forfeiture is not linked to the unjustified absence. Rather he forfeits his right to be personally present as a sanction for violating the obligation to behave orderly in the courtroom. The removal requires a prior warning, meaning that the defendant is aware of the orderly 127

Wheeler, 28 CrimLF 2017, 99, 122 et seq.; cf. also Pons, 8 JICJ 2010, 1307, 1309. Trendafilova, Fairness and Expeditiousness, 449. 129 Cf. Pons, 8 JICJ 2010, 1307, 1309. 130 Gaeta, Trial in Absentia, 237; Wheeler, 28 CrimLF 2017, 99, 124. 131 Similarly in regard to the STL and its image within Lebanon: Jenks, 33 FordhamIntlLJ 2009, 56, 94 et seq. 128

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conduct expected, which would allow him to remain in the courtroom. The previous warning is also an expression of the ultima ratio character of the exclusion. Only if others measures – such as warnings – fail, is the removal proportionate. d) Necessity of the concept of forfeiture? It has been shown that forfeiture is a concept that can explain the loss of the right to be present in cases where no waiver exists. Aside from the concern that the justification of forfeiture would “open a Pandora’s box containing a variety of sanctions against the right to attend the trial”132, it is questionable whether it is a workable concept. The idea of a sanction seems – at least for the defendant that absconded or evaded justice – unreasonable because the defendant will often be faced with an arrest warrant, so that complying with the obligation to be present means surrendering to a deprivation of liberty.133 This may be different in the case of the disruptive defendant, who engages in intolerably disruptive conduct. However, considering that the violation of certain obligations – such as the requirements to be present at trial or to behave orderly – alone has no legal impact and the balancing of interests in line with the principle of proportionality is to follow, there is little left of the concept of forfeiture. The component of the sanction can be eliminated without causing prejudice. Accordingly, the ECtHR takes account of the defendant’s fraudulent conduct as part of the proportionality test rather than establishing specific criteria as to the concept of losing rights based on forfeiture.134 Hence, the defendant’s conduct is only a factor to be weighed in favour of derogating his right to be present and proceeding in absentia. There is, hence, no need for a specific concept of forfeiture, rather the derogation of the right to be present is subject to the necessity and proportionality principle as is any limitation of fundamental rights. e) Interim findings It has been shown that the concept of waiver can explain the limitation of the right to be present only in few scenarios, namely where the defendant expressly waives his right to be present or initially appeared and does not return to the later hearings. Other scenarios of absence cannot be explained by the defendant’s deliberate and voluntary relinquishment of the right to be present, especially where the defendant is a fugitive from justice or behaves disruptively. Neither the concept of an implicit waiver nor the 132 Böse, 36 NCJIintlL & Com Reg 2011, 489, 502. In a similar vein Böse, FS-Paeffgen, 574; Gaede, Fairness als Teilhabe, 785 et seq. 133 Ast, 68 JZ 2013, 780, 782; Böse, 36 NCJIintlL & Com Reg 2011, 489, 500; Böse, FSPaeffgen, 577; Hoven, Rechtsstaatliche Anforderungen, 437. 134 ECtHR, Medenica v. Switzerland, Judgment, 14 June 2001, Appl. No. 20491/92, para. 59; Hokkeling v. the Netherlands, Judgment, 14 February 2017, Appl. No. 30749/12, Dissenting Opinion of Judge Myjer, para. 62. Böse, FS-Paeffgen, 574; Gaede, Fairness als Teilhabe, 775.

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concept of forfeiture, which are traditionally mentioned in order to justify trials in absentia, are viable in explaining the loss of the right to be present in these cases. The difference of the concept of an implied waiver and the (permanent or temporary) nonexercise of the right to be present is indistinct. It further does not take into account the defendant’s concern of being detained when appearing to trial. The concept of forfeiture contains a sanctioning idea that is neither reasonable nor necessary. The idea behind forfeiture with regard to trials in absentia is that the defendant shall be hindered in sabotaging the smooth and orderly conduct of the proceedings by simply not appearing at trial, preventing his own notification135, or behaving disruptively. This reasoning is very clear in the SCSL’s assertion that the defendant may not “impede the administration of justice or frustrate the ends of justice”136 by simply not appearing during the court hearings. This suggests that the end of a proper administration of justice can only be reached through continuously conducting trials with a powerful judge deciding on a case-by-case basis whether to proceed in absentia. In this analysis the judge weighs the different interests of the actors involved in order to determine whether proceeding in absentia is proportional. Although in this assessment the defendant’s conduct may play a role, proceeding in absentia entails no sanction. The (partial) trial in absentia is rather a means to secure the integrity of the trial and ensure a proper administration of justice. The defendant’s deliberate decision to evade justice or behave disruptively may not impede the course of justice.137

2. Limitations on the defendant’s duty to be present Beyond the limitation of the defendant’s right to be present, it is necessary to limit the defendant’s duty to be present that predominately lies in the public interest in order to proceed in absentia. No matter whether the defendant waives his right to be present or public interest overrides this right, in a second step he must also be released from his duty to be present. It is upon the court to assess whether the interest of conducting the trial even in absence of the defendant outweighs the interests of the defendant’s presence at trial. Only then can the trial proceed in absentia. Where the court finds the defendant’s presence indispensable it will not release the defendant from his duty. That essentially means that, in spite of the defendant’s ability to waive his right to be present, he has no right to be absent from the proceedings.

135

Gaeta, Trial in Absentia, 237; Trendafilova, Fairness and Expeditiousness, 449. SCSL, Prosecutor v. Sesay et al., Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearings of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, 12 July 2004, Case No. SCSL-04-15-T, para. 8. See also Judge Jan’s assertions in: ICTY, Prosecutor v. Mucic´ et al., Transcript, 16 April 2008, Case No. IT-96-21, p. 11262. 137 For the former also: Gaeta, Trial in Absentia, 237, 250; Pons, 8 JICJ 2010, 1307, 1317; Riachy, 8 JICJ 2010, 1295, 1297; cf. also Orie, Accusatorial v. Inquisitorial Approach, 1480. 136

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The assessment of whether the defendant can be released from his duty to be present, depends significantly on whether the defendant lost his right to be present voluntarily, i. e. by waiving it, or involuntarily, i. e. where the conduction of the trial is a means to ensure the proper administration of justice. Where a waiver applies, the conduction of a trial in absentia lies in the defendant’s interests. On the other hand, where public interest overrides the defendant’s right to be present, he generally has no interest in an in absentia trial going ahead. However, the public and the potential victims’ interests may differ from the defendant’s interests. The relevant considerations have been assessed when the existence of the duty to be present has been determined. As for the potential victims’ interests no clear conclusion could be drawn. It could not be clearly determined whether requiring the defendant to be present at trial lies in the potential victims’ interests. However, it is reasonable to assume that it lies in the potential victims’ interest to have a trial in absentia rather than to have no trial at all. The interest of the public depends significantly on whether a full or partial trial in absentia is at stake. Especially if the defendant behaves disruptively and tries to obstruct the proceedings, a general interest in the trial in absentia going ahead and thwarting the defendant’s attempt to take the criminal justice system hostage can be assumed. Smooth and orderly proceedings require partial absence in those cases. Similarly, if the defendant deliberately foregoes his right to be present, there is no concern that the trial may be perceived as a sham procedure. However, where no expression of the defendant’s will to be tried in absentia exists, the proceedings might be seen as unfair. It is, therefore, crucial to create a fair environment during trials in absentia.138 When pondering interests, it is for the judge to determine whether fairness standards can be abided by in the defendant’s absence. Otherwise paternalistic concerns hinder the court from releasing the defendant from his duty to be present. Likewise, where the presence is seen to be indispensable for the establishment of the facts, releasing the defendant from his duty to be present is unreasonable. However, in this case the chamber should consider the use of video technologies as a milder measure, especially in cases where the defendant is not in custody and resides abroad far away from the Tribunal.139 The latest tribunals – ICC and KSC – provide sufficient opportunities for these technologies. Ultimately in every individual case the public interest – the same is true for the interests of the other criminal justice actors, especially the potential victims – is to be taken into account in order to determine whether hampering the defendant’s duty to be present is indeed in his favour.

138 139

Cf. Hoven, Rechtsstaatliche Anforderungen, 434. Eibach, Abwesenheitsverfahren, 390.

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IV. Conclusions It has been shown that the waiver of the right to be present is a concept capable of explaining the suspension of the right to be present only in cases where an express waiver exists or the defendant has initially appeared. It turned out that in other cases, although the courts often refer to a waiver, in fact, the need for a proper administration of justice override the defendant’s interest in being present. By balancing the interests of the three actors of justice – the defendant, the victims and the public, i. e. the international society – it has been shown that also a valid duty to be present exists. The right to be present does not amount to a right to be absent, so that a waiver does not affect the duty to be present. The court is to weigh the different interests of the different justice actors before releasing the defendant from his duty to be present and proceed in absentia. That means that the chamber is not obliged to release the defendant from his duty to be present. It will, however, do so where it lies in the interests of a proper administration of justice. On the downside, the chamber can only proceed in absentia when the defendant’s right to be present is not disregarded, i. e. when the defendant waived his right to be present or another proportional limitation of the right to be present can be established. In the latter case, theoretically, this test of proportionality exists alongside the assessment of whether the defendant can be released from his duty to be present. However, since the same interests are at stake, the pondering of interests can be summarised. It includes considerations as to the derogation of the right to be present and the reasonableness of releasing the defendant from the duty to be present. In this assessment the defendant’s conduct can play a role. Where a waiver exists, it is the defendant’s will to be tried in absentia, which can speak in favour of releasing the defendant from his duty to be present. The same applies for the defendant’s fraudulent evasion of justice or intolerably disruptive behaviour. In these cases, there is no fear that the trial will be regarded as a sham procedure. However, where the court finds the defendant’s presence to be indispensable it will not suspend the duty to be present, regardless of whether it is the defendant’s will to be tried in absentia. Further, the limitation on the defendant’s right to be present and releasing him from his duty to be present can be justified more easily for partial absence than a full trial in absentia. The chamber should also envisage the use of video technology.

H. Final thoughts and conclusions It has been shown that aspects of procedural theory do not speak against the conduction of trials fully or partially in absentia. The criminal trial can pursue its numerous goals also when the defendant is absent. Likewise the internationally recognised right to a fair trial, enshrining both an individual and an institutional component, in neither of these functions speaks per se against the conduction of a trial in absentia. Under certain circumstances – namely where the defendant has been duly informed of the charges in a timely manner; where representation by counsel during his absence is provided for; and where the defendant is vested with a right to a fresh determination of the merits of the case, unless he has unequivocally waived his right to be present – defendants can be tried lawfully in absentia, upon, firstly, either the waiver of the defendant’s right to be present or where the court – after weighing the interest of the different justice actors – comes to the conclusion that the public and potential victims interest override the defendant’s right to be present and secondly, the court’s decision to release the defendant from his duty to be present. Although, these general remarks apply to both full trial in absentia against a fugitive defendant and trial held in absentia for other reasons, it is advisable to differentiate between the two procedural types. Trials in absentia at ICTs are often based on the defendant’s waiver of the right to be present and him being released from the duty to be present. A prime example is the ICC’s new in absentia scheme for defendants who claim that the duties of their highscale office in their own countries makes their presence at every single minute of the trial unreasonable, and defendants that request to be partially absent at trial. Though there have been many critics of the former regulation, on the basis of the presumption of innocence, it appears conceivable that the judges can decide to liberate the defendant from the stigma of the charges and the heavy burden of the trial. A comparable problem occurs in domestic proceedings, often in lengthy economic criminal cases. The requirement for constant presence during tedious trials not only harms the reputation of the defendant and their company but, more importantly, endangers the company’s continued existence and might even seal the business’ end, especially where small family businesses are concerned.1 Although holding a high-ranking office cannot altogether compare to this example, prejudice towards a country whose high official is in custody in the Hague or elsewhere abroad might occur. Following the context in which international criminal justice is exercised, the countries concerned are often afflicted by notorious instability. It can, therefore, cause particular 1 Volk, FS-Böttcher, 217; see also in general for commercial criminal trials: Gaede, 129 ZStW 2017, 911, 953 et seq.

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harm to such countries when high officials are unable to carry out their functions. Given that the judges need to balance the different interest at stake in order to decide when the defendant’s presence is indispensable, the RomeSt’s approach seems to be a reasonable option. Such an approach finally underlines the defendant’s position as a rational agent who can autonomously request to remain absent for certain, relatively unimportant, parts of the trial. A request that the court must grant by releasing him from his duty to be present. Given the diversity of procedures at ICTs the strict formulation of concrete criteria for handling the duty to be present is not possible. But it seems acceptable to suggest that especially hearings solely on legal issues, as well as administrative parts and expert testimonies that often solely summarise what has been tendered as evidence in a detailed expert report of the trial can generally be held in absentia upon request of the defendant. The situation is different, however, for those days of the trial which are either of special interest to the general public or to the potential victims. During these phases such as the opening and closure of trial, i. e. the indictment, the verdict and subsequently the sentencing – as well as potential victims’ testimonies and the questioning of key witnesses – cannot generally be held in absentia.2 The same pattern, highlighting the defendant’s status as rational agent, should apply to other partial absences that are based on the concept of waiver, including Rule 134ter ICC-RPE and the SPSC’s regulations allowing defendants to waive or forfeit their right to be present after having initially appeared. One could argue that the autonomous position of the defendant was sincerely acknowledged where no duty to be present applies in the first place. However, an effective international justice system can only be achieved where generally a duty is imposed upon the defendant. Though the defendant might waive his right to be present, the judges always have to confirm that he is released from his duty to be present and that he need not attend (parts of) his trial. They must ensure that his presence is not indispensable and that the overall fairness is preserved. Due to the right to a fair trial having a hybrid function as both fundamental right and institutional interest of the justice system, the justice system itself can be encroached upon where the fairness is not taken into account. A pattern of trial in absentia can be observed in all ICTs in consideration. Trying a defendant partially in absentia following his misconduct has even been identified as a general principle both of international criminal procedure and the penal systems of the world. Also, human rights law recognises this as justifiable exception to the right to be present that generally outweighs any of the participation rights enshrined in the right to a fair trial. The only valid conclusion to draw with regard to the partial trial in absentia of obstreperous defendants is that there is no objection against ICTs trying disruptive defendants temporarily in absentia. That is not to suggest that the defendant engaging in misconduct is per se to leave the courtroom. It is up to the judges to decide in a specific case whether the obstreperous conduct undermines the ad2 In this respect the Trial Chamber’s decision in Ruto and Sang – listing crucial stages of the trial at which the defendants must be present – can give some guidance. See above B. V. 4. b) aa).

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ministration of justice and the defendant is, as a result, removed from the courtroom. In other words, in cases of obstreperous defendants the interest in an orderly trial may override the defendant’s right to be present and speak in favour of releasing him from his duty to be present. With regard in particular to the length of the removal, the chamber needs to closely observe the principle of proportionality. Trials against fugitive defendants are less common and, as a matter of fact, were solely conducted by the IMT; though the STL has the legal basis to try fugitive defendants, in the case of Ayyash et al. it assumed that the defendants have waived their right to be present. While the RomeSt allows for the conduction of the confirmation of charges in absentia, it has not yet been made use of this possibility. If the ICC or other ICTs were to include trials in absentia against fugitive defendants in their legal frameworks, the confirmation of charges would naturally be conducted without the defendant as he would be at large as has been the case during the ICTY’s Rule 61 Procedure. Following the above study, taking into account both the institutional and individual perspective, it appears probable that trials in absentia against fugitive defendants are legitimate under certain circumstances. In spite of this, there is great opposition to conducting these trials in absentia. Most of the common arguments that are presented against trying a fugitive defendant, outlined at the beginning, have been rebutted in the course of this study. Although the defendant generally has both a right and duty to be present, it has been shown that the absence of the defendant does not hamper truth-finding, that the morale of the victims prima facie is not affected by a trial in absentia, and finally, that the perception of trials in absentia as show trials is in no way justified where internationally recognised human rights standards are abided by. Especially given that international trials are conducted in the spotlight of media attention and under the scrutiny of the international community, an unfair environment during trial would not be tolerated.3 It is therefore questionable whether there are other reasons to reject the idea of holding trials in absentia against fugitive defendants in international criminal proceedings. Arguments supporting this view would be less legal in nature,4 since from the theory of criminal procedure, the individual human rights perspective and the institutional viewpoint of fairness, trials in absentia can in exceptional be conducted under strict conditions. Ironically enough, it is politics that makes it necessary to examine whether trials in absentia against fugitive defendants are a suitable solution to overcoming the ICTs’ problems in apprehending their suspects. This is not to suggest that these political arguments may not be valid. It is rational to question whether it is in the best interests of international 3 STL, RPE – Explanatory Memorandum by the Tribunals President, 25 November 2010, https://www.stl-tsl.org/en/documents/rules-of-procedure-and-evidence/explanatory-memo randa/216-rules-of-procedure-and-evidence-explanatory-memorandum-by-the-tribunal-s-presi dent-25-november-2010, para. 39 (last accessed: 7 February 2021). Critically: Oehmichen, FSKühne, 621. 4 Friman, Trying Cases in the Absence of the Accused?, 334; Zappalà, Human Rights in International Criminal Proceedings, 126 who find it to be a policy choice.

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criminal justice to conduct trials fully in absentia. The following will, therefore, explain the reservations that are held against trials in absentia against fugitive defendants, despite their lawfulness under certain strict circumstances. First of all, one argument that can be reasonably raised is that it is tempting to conduct trials in absentia against fugitives, if there is a legal framework to do so. In view of the public pressure that comes to bear on the prosecution to find those responsible for atrocities, this concern seems not unfounded. Second, it has been alleged that public confidence in the international criminal justice system is undermined where trials in absentia are held as these types of trials have a bad reputation.5 In addition, it can be argued that conducting trials in absentia against fugitive defendants sends the wrong signal to those states that are unwilling to cooperate. Why should these states be bothered with arresting people, often against their own political interests, if these defendants can be tried regardless of the states’ efforts? Allowing for these types of trials in absentia takes responsibility away from the state parties and ultimately glosses over “the incapacity of the international community […] to live up to their promises.”6 Justice is denied by the international community’s failure to form and enforce the member states’ and international community’s political will to end impunity for those responsible for atrocious crimes. Finally, there remains the economic argument, raised at the beginning of the study, that trials in absentia against a fugitive defendant waste resources due to the defendant’s entitlement to a re-trial upon apprehension. All these arguments involve valid concerns but are not entirely convincing. In that regard, the young history of international criminal justice yields a point to the first argument. Both Mladic´ and Karadzˇ ic´ might have been tried in absentia had the procedure been available at the ICTY. When Serbia’s political interests changed, both suspects were suddenly handed over and could be tried regularly in their presence. Similar indications can also be seen in the case of Al Bashir.7 A prior trial would have foreclosed this possibility. However, this argument, firstly, is based on an unverified assumption and, more significantly, forgets to take into account that one of the prerequisites for lawfully conducting a trial in absentia is the possibility of having a re-trial. Upon the request of the two defendants, a regular procedure would have occurred regardless of the prior in absentia trial. Furthermore, the expectation that a tendency to conduct trials in absentia once the genie is out of the bottle can be foreclosed upon by a rigorous framework to control the prosecutor’s effort to personally summon a defendant and bring about his physical presence at trial. Such a 5

See inter alia Knottnerus, 13 LPICT 2014, 261, 285; Oehmichen, FS-Kühne, 620; Skilbeck, 8 JICJ 2010, 451, 461; cf. also in regard to the need of a positive perception within the international community: Sluiter, 37 NewEngLRev 2002, 935, 947. 6 Jacobs, The Unique Rules of Procedure at the STL, 133. 7 See above fn. 10.

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framework requires that the prosecution prove beyond a reasonable doubt before an impartial judicial authority that all efforts have been taken to inform the defendant and to have him handed over to the tribunal. Further, the conduction of a procedure in absentia should in no way be regulated as a default procedure, as the case of the STL unfortunately suggests. There must be a margin of appreciation for the judges to decide whether in a particular case the conduction of the trial in the absence of the defendant is justified. If it seems probable that political developments will alter the possibility that uncooperative states might arrest the suspect pursuant to the outstanding arrest warrant, no trial in absentia should be initiated. Then an adjournment is suitable as it might result in the defendant being handed in. It is also necessary for the judges to decide whether the defendant’s presence in a specific case might be indispensable. Additional points to include in the balancing of the different interests at stake is the disadvantage of the absence for the defendant, the public and victims’ interests to prosecute the case within a reasonable time after the events and the nature and circumstances of the defendant’s absence. As has been shown the defendant must be released from his duty to be present both where the defendant waived his right to be present or said right is overridden by other interests. Consequently, the chamber can ponder these stakes when deciding whether to release the defendant from his duty to be present. The possibility of compeling the defendant’s presence cannot, surely, end when a trial in absentia has been initiated. If appearance in person becomes indispensable for whatever reason, proceedings must be provisionally suspended until the apprehension of the defendant. Moreover, it seems reasonable to request that the prosecution periodically regards on their efforts to have the suspects handed over. New requests to the states concerned and possible windows of political willingness must constantly be observed and pursued for the purpose that defendants appear at their trial. A final concern is that the argument does injustice to the prosecution by suggesting that once the Pandora’s Box of trials in absentia has been opened, the prosecution no longer attempts with such zeal to arrest the defendant and pursues trials in absentia instead. Nonetheless, it must be closely observed that the prosecution, in fact, does its job properly and reasonably aims to try defendants in person at all times. If the court ensures a fair environment in spite of the conduction of trials in absentia, the sole fact that defendants can be tried in absentia cannot be a reasonable argument for the international community to not support international criminal justice. Admittedly, further research is necessary to test whether trials in absentia do indeed have a negative influence on the public’s perceptions of the institution that tries defendants in absentia. At the current stage where the STL has just recently pronounced its first judgment in absentia, it is difficult, if not impossible, to collect data to show how the trial has been perceived. The second argument ultimately asks for blaming and shaming of the international community and certain uncooperative states for their political unwillingness to arrest and surrender those wanted by ICT arrest warrants. Measures other than publicly denouncing the missing political will to cooperate seem not to be available in pur-

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suing this aim. Uncooperative states and the international community can be publicly shamed for their lack of cooperation even when the defendant is tried in absentia. It seems reasonable to assume that NGOs will not stop to request states’ cooperation publicly. Similarly, the prosecution should regularly remind uncooperative states of their legal obligations. As a consequence, the second argument cannot undermine the validity of trying fugitive defendants in absentia. It is challenging to rebut the third economic argument. The defendant decides whether a re-trial will be conducted. The argument, therefore, is based on the doubtful assumption that the defendant will be found guilty in the trial held in absentia. However, where the defendant decides to have a new trial, more resources will have been spent than were the case in the conduction of a single trial. Nevertheless, the positive effects of conducting trials in absentia outweigh the economic concerns. Especially when considering that much of the evidence used in international criminal proceedings is of testimonial nature, it is of utmost importance to secure evidence, ideally in a judicial procedure, before memories fade. Not only can a trial in absentia preserve the testimonial evidence but also evidence of the crime sites, which may decay over time, can be retained. Also, from the transitional justice’s point of view, ending the injustice, which a criminal trial – in absence as in presence – can give, is a necessary prerequisite for the transition of the affected society and potential victims. It shall not be upon the defendant to take the judiciary hostage and thwart the course of justice.8 Furthermore, generally speaking it seems reasonable to assume that a conviction in absentia can compel state compliance. In contrast, where the defendant is acquitted, state cooperation in that specific case is no longer required. Most significantly, bringing justice to the victims should not be subject to economic considerations. Nor should suspects be encouraged to obstruct justice in order to make the system of international criminal justice more economical. Finally, the community affected by the atrocities should not be left alone in their fight for justice. History has shown that where the international community fails to bring notorious suspects of atrocity crimes to justice, the affected community might reach for illegal means, as happened in the case of Eichmann, illegally kidnapped in Argentina in order to bring him to trial in Israel.9 A trial in absentia would forestall any such attempts. In the light of the foregoing, the legal justification of trials in absentia against fugitive defendants and the positive effects these types of trials can have seem to me to take precedence over the political reservations voiced against the conduction of these types of trials in absentia. There is no reason in principle to prohibit trials in absentia of any type. However, trials in absentia must remain and should be considered as an extraordinary procedure that may only be used in exceptional circumstances if the defendant’s knowledge of the proceedings via publication has been established beyond a rea8 Gaeta, Trial in Absentia, 237, 250; Riachy, 8 JICJ 2010, 1295, 1297; cf. also Hoven, Rechtsstaatliche Anforderungen, 443. 9 Gaeta, Trial in Absentia, 250.

H. Final thoughts and conclusions

463

sonable doubt and the defendant’s presence is dispensable, he is represented by counsel during his absence and he is vested with the right to have the merits of the case reviewed, so the judgment in absentia may be reversed. There is one clarification to be made with regard to the possibility of the re-trial. The ECtHR’s jurisprudence suggests that the defendant not only foregoes his right to have the merits of his case newly examined when waiving his right to be present, but also when intending to evade justice. It seems reasonable to grant the right to a re-trial also to the fugitive of justice since he has not been personally notified of the charges and trial held against him and consequently had no chance to waive his right to be present at trial. This is also the view taken by the STL and the EU Directive strengthening the defendant’s participation rights and will consequently be implemented, or to be more precise was to be implemented by 1 April 2018, in all domestic jurisdictions of countries that are part of the EU. Also, it should be made clear at the outset how the right for a re-trial is implemented if the respective ICT is no longer functional due to the conclusion of its mandate. Certainly, trials in the presence of the defendant are preferable, but conduction of trials in absentia in exceptional circumstances is part of the moral cost which must be paid in order to have an effective international criminal justice system.

I. Results and prospects I. Proceedings in absentia can occur in many different forms and can vary according to the stage of the criminal procedure. It has been shown that investigations are regularly conducted in secret and seldomly involve the defendant’s participation and physical presence, both on the domestic and the international level. Although Switzerland takes a different approach with its partially participatory investigative phase, it can generally be concluded that there is no fault in investigations conducted in absentia. That is especially true for ICTs that do not have direct resources at their disposal to enforce summonses for participation during the investigations as they lack both the means to control the suspect and the area where the suspect resides. At the latest with the beginning of judicial proceedings the defendant will be informed about the outcome of the investigations and the evidence corroborating the charges. As a result, the question of whether an in absentia procedure is suitable for ICTs arises only with regard to the judicial phase of the criminal proceedings. ICTs already provide for the possibility of judicially securing evidence and confirming the charges in absentia, so it is crucial to identify whether also the trial phase can be conducted in absentia. Where an appeal concerns the facts of the case, the same rules apply mutatis mutandis. Appeals at ICTs do not generally consider the merits of the case. Following their nature as correcting errors of law, less importance is attached to the defendant’s presence, all the more when considering that appeal hearings are very limited and written submissions are typical for this procedural phase. II. Trials in absentia against a fugitive and hence potentially uninformed defendant must be distinguished from other types of trials in absentia during which the defendant is physically absent but generally within reach of the court. The latter type of trials in absentia may also concern procedures where the defendant is partially absent. The crucial requirement of this type of trial in absentia – whether partial or full – is that the defendant has knowledge of the criminal trial instituted against him, either because he was personally summoned, or he has already appeared before the court seised with the case and partially attended proceedings. Where such personal notification failed, often because the defendant is a fugitive who intends to evade justice and foregoes the possibility to be notified, we are concerned with trials in absentia against fugitive defendants.

I. Results and prospects

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III. The role that truth plays in the international criminal justice system is most significant. Firstly, it upholds all goals of international criminal justice, both those goals that are immanent to any criminal justice system and those that are forward looking and transitional, thus, specifically of international nature. Second, it is the direct aim of the criminal trial to convict those guilty of international crimes and distinguish them from those that are acquitted due to their innocence. Conducting a trial in absentia must not run counter to this and the other goals the international criminal trial aims to pursue. Beyond the truth-finding, the criminal trial has an instrumental function since it implements international criminal law. However, the criminal trial pursues other goals which nourish the intrinsic value of the criminal trial. These are to give the potential victims a meaningful participation; deter the reoccurrence of international crimes in the future, both with regard to the public and the specific defendant; solve the conflict that arose through the commission of the crimes; give an example worthy of being imitated especially to lawless environments of post-conflict countries; and finally, to have a didactic impact by spreading consciousness for human rights values. Theorists identify a further intrinsic value of the criminal trial. In this regard Ohlin’s meta theory of international criminal procedure is the most significant for the field of international criminal procedure and postulates that criminal procedure vindicates the rule of law by adjudicating defendants charged with atrocious crimes which occurred during periods which are characterised by the absence of domestic procedural law. A criminal trial pursues these goals in the absence and in the presence of the defendant. In the absence of the defendant, historic crimes and their circumstances are judicially acknowledged, the potential victims are given a voice and an end can be brought to the conflict that has arisen with the commission of the crimes. Further, a fair trial in absentia – just like a regular trial – can provide an example for other criminal justice systems and the public is made aware of the existence and enforcement of human rights values. While only a minimal deterrent effect can be ascribed to the criminal procedure sensu stricto in light of the presumption of innocence, the true deterrent impact is based on the awareness that trials of atrocious crimes are conducted no matter whether in the presence or in the absence of the defendant. Lastly, subjecting the defendant’s alleged conduct to the rule of law during his trial vindicates the rule of law in lawless environments. For these reasons, procedural theory has no valid concerns against conducting a trial in absentia. IV. While no clear pattern of trials in absentia against fugitive defendants could be determined, neither at the international – the IMT and STL are the only ICTs that can try a fugitive in absentia – or the domestic level, some type of trial in absentia could be identified in all jurisdictions under investigation. Nonetheless, no general principle – not only a general principle recognised by the major legal systems of the world but also a general principle of international criminal procedure – could be identified,

466

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save for the obstreperous defendant who can temporarily be removed from the courtroom and the defendant’s de minimis absences during trial. Although internationally recognised human rights, their supervisory bodies’ case law as well as transnational legislation, such as within the EU’s Area of Freedom, Security and Justice, result in a slow approximation of the procedural setup of different criminal justice systems, in the matter of trials in absentia it has not yet reached such a level that a general principle can be identified. V. The analysis of the case law of the HRC and predominately ECtHR, and the framework of the ACHPR and the EU’s framework decisions on trials in absentia and the directive on the right to be present, have clarified under which circumstances a trial in absentia does not run counter to the internationally recognised right to a fair trial, specifically the right to be present at one’s trial enshrined therein. Firstly, the defendant must unequivocally waive his right to be present at the trial instituted against him. This relinquishment must be informed and voluntary, which presupposes that the defendant has been properly and timely informed of the charges and the trial procedure that is to start against him. Instead of the waiver, the defendant’s intention to evade justice similarly foregoes the right to be present at trial. In that case, special diligence must be taken by the prosecution in order to inform the defendant. The prosecution must show that it honestly, and with adequate effort, tried to inform the defendant personally and if that failed, ensured that he took notice of the trial instituted against him by other means. Secondly, in both cases adequate representation of the defendant must be ensured. As an additional safeguard the defendant is entitled to a new determination of the merits of the case, which includes fresh evidence and the possibility that the in absentia judgment be reversed, upon apprehension or surrender. This safeguard should apply whenever the defendant has been tried fully in absentia and has not unequivocally and deliberately waived his right to be present. Consequently, a re-trial is ensured where a trial in absentia against a fugitive defendant has occurred. These conditions also define the standard for ICTs, which are bound by internationally recognised human rights through their legal framework and case law. In fact, ICTs subject themselves to the ‘highest standards’ of fairness which is likely to promote public confidence in the institution of international criminal justice and their legitimacy. VI. Beyond the right to be present at one’s trial, the right to a fair trial enshrines other guarantees giving the defendant a chance of meaningful participation at the trial instituted against him. However, the right to a fair trial is not only a fundamental right, it also includes an institutional component, as it implicates the interests of the criminal justice system. The absence of the defendant can, thus, encroach on the interests of the judicial system where the fairness of proceedings is not closely observed. It is therefore of the utmost importance that all guarantees enshrined in the

I. Results and prospects

467

right to a fair trial and the overall fairness of the procedure are sufficiently respected during a trial in absentia. Most of the fairness guarantees apply to the defence party, not necessarily the defendant personally. As a result, an environment of fairness can be ensured when the defendant is represented by counsel, who is to act in the perceived best interests of his client. In cases where the defendant has not chosen a defence counsel – that will most likely be the case if the defendant has evaded justice but may also be the case where waiver is the conceptual basis of the trial in absentia – the court needs to ex officio assign a defence counsel to the absentee. Other substitutes, namely amici curiae and standby counsel, cannot fulfil the task of representing the defendant in his absence for both actors cannot substitute the defendant as a full party to the proceedings. The adversarial structure of international criminal trials presupposes that two equal opposing parties will litigate the case. The adversarial nature can only be preserved where defence counsel represents the defence party. Standby counsel takes on a backup function that cannot exceed the entirety of a trial. Amici curiae are by definition not party to proceedings, but rather are to be an impartial organ for the chamber’s benefit. In light of the foregoing, the right to a fair trial does not per se prohibit trials in absentia if a professional defence of the absent accused is ensured. VII. Different concepts stand behind the conduction of trials in absentia. The starting point for the conceptualisation of trials in absentia is that the presence of the defendant is both a right and a duty. Requiring the defendant to be present is surely – as is the imposition of any duty – a burden for him. However, this is the price that must be paid for the sake of the public and potential victims interests and in order to ensure an effective institution of international criminal justice, especially when taking into account that ICTs have no police force, so it can neither take control of the defendant nor the territory where he resides. In order to lawfully try a defendant in his absence, both the right and the duty to be present must be respected. Consequently, two concepts are necessary to conceptualise trials in absentia. Firstly, the loss of the defendant’s right to be present must be justified. The waiver of the right to be present, i. e. the informed and voluntary foregoing of presence at trial, can generally explain partial and full trials in absentia. Given the defendant’s requisite knowledge, either through a personal summons or his prior appearance at trial, the defendant can expressly or tacitly, through his conduct, relinquish his right to be present. However, the waiver of the right to be present is accompanied by the court’s decision to release the defendant from his duty to be present. In light of the defendant’s status as a rational agent, the court, generally speaking, releases the defendant from his duty to be present upon his informed and deliberate decision to remain absent, except where it finds the presence to be indispensable or other interests speak against his absence. This decision is to be made after a careful balancing of the interests at stake of the three justice actors – the

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defendant, the public and the potential victims. The chamber should also envisage the use of video-technology in order to allow for the virtual appearance of the defendant. Where the defendant has no personal knowledge of the trial instituted against him or his wish is to retain the right to be present and to remain in the courtroom – as it is regularly the case for defendant’s that behave disruptively – no waiver exist. However, a full trial in absentia against a fugitive and a partial trial in absentia against a disruptive defendant can occur when the public’s and victims’ litigating interests outweigh the defendant’s interest in being tried in his presence. Needless to say, that reasons of force majeure, which prevented the defendant from appearing, hinder the conduction of a trial in the defendant’s absence. On the other hand, the fugitive of justice has little convincing interests at stake that prevent the court from proceeding in his absence as he has deliberately forgone the possibility of being informed of the proceedings and participating. The same is true for obstreperous defendants who – after a prior warning – deliberately behave disorderly. However, in a second step, the court must release the defendant from his duty to be present. The same interests are at stake here. Hence, in both cases the chamber has to balance the different interests and, thus, has a margin of appreciation with regards to conducting a trial in absentia. VIII. In conclusion, having considered aspects of procedural theory; human rights, more specifically, the right to a fair trial, as individual fundamental right and the institutional component of that right; and having determined a conceptual basis to try defendants in their absence, both types of trials in absentia can generally be justified. The requirements for a trial in absentia are that the defendant (i) waives his right to be present or other interests outweigh his right to be present, (ii) he is released from his duty to be present, (iii) adequate representation through defence counsel – where need to be appointed by the respective ICT – is ensured, and (iv) the defendant has the right to a re-trial after a full trial in absentia upon surrender or apprehension, unless he deliberately waived his right to be present. In light of the positive effects trials in absentia against fugitive defendants can have, in particular allowing justice to take its course, political concerns raised with regard to this type of trial in absentia cannot outweigh their legal justification. IX. However, some qualifications must be added to the framework of trials in absentia against a fugitive. First and foremost, trials in absentia may not work as default procedure. The conduction of a trial in absentia must always be subjected to judicial control in that the judges are to thoroughly determine beyond a reasonable doubt that the prosecution has taken all suitable steps to personally inform and summon the defendant and that the defendant took notice of the proceedings instituted against him through other means. Moreover, the chamber needs to have a margin of appreciation in order to decide whether to initiate the trial in absentia. In making the decision to release the defendant from his duty to be present and the test whether the right to be

I. Results and prospects

469

present is overridden by other interests, the court has already had to consider the nature and circumstances of the defendant’s behaviour, the disadvantage he has when being tried in absentia, the value for the public and the potential victims of having the case tried within a reasonable time after the events and whether else the judges find the defendant’s presence dispensable. It is also necessary to consider on a case-bycase basis inter alia whether an adjournment is suitable, which includes the assessment as to the probability of the arrest of the fugitive, the likely length of such an adjournment and most notably whether the specific trial in absentia will respect the overall fairness. If the decision to try a defendant in absentia has been taken, a shift in the relevant interests can lead to a provisional suspension until the apprehension of the defendant, at any time during the trial initiated in absentia. X. Also other types of trials in absentia should remain the exception. This is clear for the obstreperous defendant as the removal is an ultima ratio measure. Additionally, following the defendant’s waiver of the right to be present, during hearings where only legal and organisational issues are dealt with, the defendant may also be released from his duty to be present. On the other hand, his presence should be the rule at crucial trial stages such as the opening and closing of the trial, i. e. indictment, verdict and sentence as well as the hearing of potential victims and key witnesses. The judges should also consider the use of video technology. Under certain circumstances – especially where the defendant is not in custody and resides far away from the tribunal – it may make sense to allow the accused to participate in the proceedings via video rather than requiring his physical presence in the courtroom. XI. One could assume that the problem which gave rise to the present study, predominately uncooperative African state parties to the RomeSt, might end following the AU’s intention to seek the ICJ’s advisory opinion on the immunity of sitting heads of state, government and other senior officials that are wanted by the ICC.1 It remains to be seen what decision the ICJ takes in this regard. Assuming the ICJ finds that heads of state do not have immunity when wanted by an international criminal court, in line with the findings of some local African courts2, this will not naturally cure cooperation issues. If anything, it takes away an ostensible argument for non-cooperation. If the ICJ, on the other hand, supports the AU’s view that sitting heads of states and 1 http://www.coalitionfortheicc.org/news/20180201/globaljustice-weekly-au-seeks-icj-opin ion-head-state-immunities-witnesses-take-stand (last accessed: 7 February 2021). 2 See inter alia: Kenyan Court of Appeal, http://www.coalitionfortheicc.org/news/201 80221/globaljustice-weekly-kenya-must-arrest-albashir-say-judges-nigeria-convicts-bokoharam (last accessed: 7 February 2021). Of the same view: Akande, Ejil:Talk!, https://www. ejiltalk.org/an-international-court-of-justice-advisory-opinion-on-the-icc-head-of-state-im munity-issue/ (last accessed: 7 February 2021). In a recent judgment, the BGH, Judgment, 28. January 2021, 3 StR 564/19 ruled that the immunity of state officials – though the case did not concern a sitting head of state – not to be an obstacle to the conduction of a criminal procedure.

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government are immune from arrest and prosecution of international courts, the ICC will be required to re-think the state of affairs in cases where suspects hold high political offices. Then again, the cases of Al Warfalli and Al Bashir show that the problem of certain states’ unwillingness to send suspects to the Hague is not necessarily connected to the immunity they ostensibly enjoy as heads of states. There, the senior National Libyan Army commander handed himself in to local justice authorities when video footage of him carrying out ten summary executions became public.3 He has not yet been sent to the Hague pursuant to his ICC arrest warrant issued in August 2017, though the UN appealed to the Libyan government by requesting that he be handed over.4 Instead, he was reportedly set free after protest arose demanding his release.5 Similarly, after the military coup in April 2019, which overthrew Al Bashir as president of Sudan, his ICC arrest warrant, pending since 2010, has not yet been complied with. However, an extradition of Al Bashir has recently been promised, but has not yet been carried out.6 Thus, the immunity argument, commonly used to oppose requests for cooperation, even when rebutted by the ICJ, cannot overcome the cooperation issues the ICC has with regard to the arrests of other suspects.

3 UN SG, Report of the Secretary-General on the United Nations Support Mission in Lybia, 12 February 2018, UN Doc. S/2018/140, paras. 18, 44. 4 Ibid., para. 18. 5 Ibid., para. 44. 6 See above chapter A footnote 10.

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Index Ad hoc Tribunals 46 et seq., 124, 145, 248, 251, 281, 424, 440 Administration of justice 55, 63, 88 et seq., 183, 195, 201, 202, 204, 226, 255, 388, 400, 425, 435, 442, 454 Administrative hearing see status conference Adversarial mode of criminal procedure 40, 118, 133, 244, 256, 266, 275 et seq., 281, 333, 345, 387, 408, 467 – right to an adversarial hearing 211, 215 et seq., 237, 245 et seq., 370, 419 Aims see goals Amicus curiae 51, 257, 261 et seq., 467 Appeals Stage 96 et seq., 296 et seq., 315 et seq., 331 et seq., 348 et seq., 355 et seq., 364 et seq., 383 et seq., 402 et seq., 420 et seq. Arrest warrant 30, 38, 51 et seq., 78, 85, 131, 174 et seq., 182, 287, 322, 376, 385, 389, 397, 423, 447, 461 Confirmation of charges 37, 54, 83 et seq., 288, 337, 355, 448, 459 Cross-examination 126, 235 et seq., 258, 263, 337 De minimis absences 95 et seq., 101, 330, 428 et seq., 466 Defence – Right to defence 209 et seq., 229, et seq., 223 et seq. – Pro se 224 et seq. – Professional see defence counsel – Formal see defence counsel Defence counsel 74 et seq. – mandatory defence counsel 225, 230, 250, 287, 298, 308, 312, 331, 335, 337, 370, 418, 421 – ex officio appointment of defence counsel 247 et seq., 467 – standby counsel 261 et seq., 467

Deliberate decision 45, 57, 69, 137, 197, 200, 229, 291, 313, 325, 340, 398, 416, 452, 466 et seq. Deterrence 33, 105, 108, 122 et seq., 129, et seq., 439, 465 Disruptive behavior 295, 314, 329, 348, 365,380, 416, 427, 448, 452, 458 Duty to be present – Existence 46, 61, 66 et seq., 77, 81, 186, 336, 409 et seq., 423, 435 et seq. – Limitations on the duty to be present 454 et seq. Efficiency 125 et seq. Equality of arms 54, 212 et seq., 246 et seq. Examination – of the defendant 302, 322, 353, 417 et seq. – of witnesses 235 et seq., 277, 306, 322, 362, 365, 417 et seq., 458 Ex-parte hearing 88 et seq., 95 et seq., 349 Expeditiousness 125 et seq., 209, 442 Fair trial – right to a 209 et seq., 466 – standard of 125, 466 Force majeure 137, 182, 193, 342 et seq., 446, 451 Forfeiture 78, 383, 450 et seq. Fresh determination see re-trial Fugitive 447, 459 et seq. General principle 158 et seq. – of international criminal procedure 165 et seq., 422 et seq., 466 – of the penal systems of the world 270 et seq., 422 et seq., 466 Goals of international criminal procedure 103 et seq. Guilty plea 390 et seq., 397 et seq., 385, 392 et seq., 398, 407

Index Hybrid Tribunals

60 et seq., 148, 154

ICC 80 et seq. Inability to stand trial 58 et seq. Inaudito reo 300, 318, 332, 351, 385, 407, 410 et seq., 424 et seq. Information see notification 246 et seq. Initial appearance 46, 62, 67, 85, 376 et seq., 446 Inquisitorial model of criminal procedure 117, 243, 275 et seq., 333, 352, 385, 411 Interests of justice 250 et seq., 435 et seq. Intermediate procedure see pre-trial procedure Investigative stage 37 et seq., 283 et seq., 302 et seq., 320 et seq., 334 et seq., 353 et seq., 368 et seq., 386 et seq., 410 et seq., 423 Legal aid 232 et seq., 248 et seq. Legitimacy of ICTs 33, 130, 133, 208, 255, 440, 466 Misconduct see disruptive behavior Notification of the charges 72 et seq., 190 et seq., 218 et seq., 310, 330, 340 et seq., 358 et seq. Obligation to be present see duty to be present Obstreperous defendant see disruptive behavior Participation, effective 217 et seq. Paternalism 193, 243 et seq., 409, 439 Penal order see inaudito reo Pondering of interests 193 et seq., 414, 450 et seq., 455 Potential victims interests 441 et seq. Pre-trial stage 50 et seq., 82 et seq., 287, 337 et seq., 353 et seq., 369 et seq., 388, 396 et seq., 413 Presence, right to be present 46, 60, 66,77, 80, 181, 182, 183, 202, 288,309, 323, 336, 355, 371, 387, 396, 408, 422 Presumption of innocence 104, 458 Proportionality test 197, 302, 307, 317, 435, 451, 453

Public interests

511 437 et seq.

Questioning see examination Re-trial 74 et seq., 199 et seq., 460, 466 Relinquishment see waiver Remedies against in absentia judgments 199 et seq., 293, 312, 328, 345 et seq., 362 et seq., 419 Right to be absent 231 et seq., 337, 415, 454 Rule of law 124 et seq., 265, 288, 465 Semel praesens semper praesens 35, 62, 68, 294, 313, 347, 364, 378, 417, 428 Sentencing procedure 96, 348, 374, 381 et seq., 395 et seq., 401 et seq. Sources of international criminal procedure 145 et seq. State cooperation 30, 40, 99, 264, 424, 462 Status conference 56, 94 STL 65 et seq. Summons see notification Truth 115 et seq. Trial in absentia – full 34 et seq., 43, 62 et seq., 68 et seq., 78 et seq., 189 et seq., 290 et seq., 309 et seq., 323 et seq., 338 et seq., 357 et seq., 374, 387 et seq., 413 et seq., 425 – partial 34 et seq., 43, 56, 62 et seq., 76 et seq., 78 et seq., 88 et seq., 200, 294 et seq., 313 et seq., 329 et seq., 347 et seq., 364 et seq., 376 et seq., 402 et seq., 416 et seq., 426 et seq. Video link procedure 59 et seq., 79, 89 et seq., 201 et seq., 299, 317, 349 et seq., 366, 384, 406, 421, 429, 455 Waiver of the right to be present 56 et seq., 70, 82, 95, 189 et seq., 317, 326, 332, 339 et seq., 357, 376, 378, 381, 415, 429 et seq., 449 et seq. – implied 58, 70, 194 et seq., 445, 448, 454 – inherent see implied – fiction of waiver 71, 120, 319, 448 et seq., 449