Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in the absence". Its meaning varies by jurisdiction and legal system.
In common law legal systems, the phrase is more than a spatial description. In these systems it suggests a recognition of a violation to a defendant's right to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).
In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country.
Member states of the Council of Europe that are party to the European Convention on Human Rights are bound to adhere to Article 6 of The Convention, which protects the right to a fair trial.
Trials in absentia are banned in some member states of the EU and permitted in others, posing significant problems for the fluidity of mutual recognition of these judicial judgments. The executing member states possesses some degree of discretion and is not obliged to execute a European Arrest Warrant if the country that is making the request has already tried that person in absentia.
Conditions under which trials in absentia must be recognised include: if the person can be said to have been aware of the trial; if a counsellor took their place at the trial; if they do not request an appeal in due time; and if they are to be offered an appeal.
The Framework Decision on the European Arrest Warrant provides for the legal guarantees relevant to trials in absentia. While the Framework Decision explicitly refers to Article 6 of the European Convention on Human Rights, its purpose is not to harmonise national laws on trials in absentia but to provide terms for the non-recognition of an EAW (European Arrest Warrant) and other cooperative tools. The Framework Decision provides detailed conditions and requirements on which a trial in absentia can be considered compatible with Article 6, the right to a fair trial.
According to Pieter Cleppe of the think-tank Open Europe, in parts of Europe, in absentia trials essentially give defendants the ability to appeal twice — asking for a retrial at which they would be present and then potentially appealing the second verdict.
There are some guarantees in the legal system that make sure that it's fair, that the rights of the defense are not being violated, while still making sure that justice is being done. In absentia judgments are common[...] you can criticize that, but it's quite common.
The Council of Europe has made commentary on judgments that are made in absentia. The Committee of Ministers, in Resolution (75) 11, of 21 May 1975, stated that an individual must first be effectively served with a summons prior to being tried. In this sense, the ministers are emphasizing that it is not the presence of the accused at the hearing that is of importance, rather the focus should be on whether or not the individual was informed of the trial in time.
In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings. This entitlement is based on the right to a fair trial and the right to a defence, both of which are required by The Convention (Articles 6(1) and 6(3)). Furthermore, the court stressed that a person convicted in absentia shall be entitled to a fresh trial once he becomes aware of the proceedings:
When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge.
The Human Rights Committee (HRC) examined Monguya Mbenge v. Zaire (1990) in which the applicant was sentenced to death while exiled in Belgium and was only able to learn of the case against him through the media. Due to these circumstances, the Committee found that a number of the applicant’s procedural rights had been violated, especially in consideration of the fact that the Crown had hardly attempted to contact the applicant despite possible knowledge of the applicant’s address. This highly impeded the applicant’s capacity to prepare any form of defense. Failed evidence to support the case that a court had tried to inform the accused of proceedings against him/her provides the Committee with the opinion that the right to be tried in one’s presence was violated.
Under Article 8(2) of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, no one may be prosecuted or deprived of their liberty except on grounds and in a manner specified by law.
In general, the Czech Criminal Procedural Code requires the presence of the defendant in any criminal proceedings. The Code recognizes the following exemptions from this rule, when criminal proceedings may be conducted without the presence of the person charged:
Apart from the aforementioned cases of in absentia proceedings in the narrow sense, the defendant may also be absent during the trial under following circumstances:
Italy is one of several countries in Europe that allow trials in absentia.
Trials in absentia are ‘not infrequently held in Italy’.
In Maleki v Italy (1997), The United Nations Human Rights Committee held that the Italian policy on trials in absentia was a breach of the right to fair trial under Article 14 of the International Covenant on Civil and Political Rights. Italy argued that where a defendant in absentia is represented by court-appointed counsel and where he or she has an opportunity to be re-tried, the right to a fair trial will not be violated. However the Committee disagreed, describing Italy’s position as
clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia. It was incumbent on the court that tried the case to verify that [Maleki] had been informed of the pending case before proceeding to hold the trial in absentia. Failing evidence that the court did so, the [HRC] is of the opinion that [Maleki's] right to be tried in his presence was violated.
In 2009, a former CIA station chief and two other Americans were tried and convicted in absentia by a Milan appeals court for the abduction of Egyptian terror suspect Osama Hassan Mustafa Nasr. The decision meant that 26 Americans tried in absentia for the abduction were found guilty.
The highly publicised trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher has highlighted the issue of Italy’s willingness to try defendants in absentia. In 2013 the Italy’s highest court, the Court of Cassation decided to annul Knox’s appeal (alongside the co-accused, Italian Raffaele Sollecito) thus overturning their previous acquittals, declaring the acquittal as "full of deficiencies, contradictions and illogical conclusions".
As Amanda Knox remained at her home in the United States, her appeal was heard in absentia, in Florence, Italy. On 30 January 2014 her guilty verdict was re-instated for the murder of Kercher and her sentence set at 28 years and six months imprisonment.
In the case of Goddi v. Italy, the Strasbourg Court held that the failure of Italy’s judiciary to inform the officially appointed lawyer of the applicant in regards to the correct date of the trial hearing deprived the applicant of an effective defence, and therefore Article 6 (3) (c) had been violated.
Certain case law supports the notion that in some circumstances representation by counsel at the trial will not be enough to make an in absentia conviction conclusive enough for the establishment of probable cause. In Gallina v Fraser, the appellant Vincenzo Gallina was convicted in absentia according to established Italian procedure for two robberies. The verdict in Gallina has been since interpreted to suggest that the presence of legal counsel alone is in certain cases, insufficient to give an in absentia conviction that establishes probable cause.
United States of America
For more than 100 years, courts in the United States have held that, according to the United States Constitution, a criminal defendant's right to appear in person at their trial, as a matter of due process, is protected under the Fifth, Sixth, and Fourteenth Amendments.
In 1884, the Supreme Court of the United States held that
A similar holding was announced by the Arizona Court of Appeals in 2004 (based on Arizona Rules of Criminal Procedure):
Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.
Rule 43 provides that a defendant shall be present
However, the following exceptions are included in the Rule:
Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior, or through his or her voluntary absence after trial has begun.
In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States. The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."
However, the Crosby Court reiterated an 80-year-old precedent thatWhere the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455  (emphasis added).
Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.
Examples of people convicted in absentia are: