Condensed: Everyone standing trial is entitled to be present during the proceedings unless they have waived their right to be present by not being present at the start of the trial despite having been notified. The accused person must be able to hear and follow the proceedings. It is not a violation of the right to be present during trial to remove the accused person when he or she makes the conduct of the trial impossible. The state bears the burden of proof in showing that sufficient notice was given to justify trial in absentia. A violation would not be found if absence of applicant can be remedied through a total retrial later in the person’s presence. The right to be present during appeal proceedings applies only where there is an oral hearing.
Comprehensive: According to article 14(3)(d) of the ICCPR provides: ‘In the determination of any criminal charge against him, everyone shall be entitled … to be tried in his presence’. The right to be present during trial is not set out explicitly in the main regional human rights treaties but is deemed to be inherent in the right to defend oneself.[1] Where the state party has failed to substantiate its denial of the alleged violation of the right to be present during trial, by submitting a copy of the trial transcript, the HRC has concluded that this right has been violated.[2] (See *defence counsel of choice/right to defend oneself*) State authorities are required to notify the accused person of the date, time and venue of the trial well beforehand, and to request for their attendance.[3] It is only when such notice has not been heeded by the accused person in circumstances constituting unequivocal waiver of the right to be present that a trial would commence and possibly be concluded in absentia.[4] In Mbenge v Zaire, the trial started despite failure by state authorities to take steps to notify the person.[5] If a person has been convicted in absentia without unequivocal waiver of the right to be present during trial, he or she has the right to a retrial.[6] In Stanford v UK, Mr Stanford argued that he had been unable to hear the proceedings because of bad acoustics and the fact that he had sat in a glass-fronted dock. The ECtHR noted that ‘the right of an accused to participate effectively in a criminal trial’ includes ‘not only his right to be present, but also to hear and follow the proceedings.’[7] However, as Mr Stanford had not brought the problem to the attention of a court official the ECtHR held that there had been no violation of the fair trial provisions of the ECHR.[8] It is not a violation of the right to be present during trial to remove the accused person from the courtroom if the accused has disrupted the proceedings and continues such disruption despite a warning that this may lead to his or her removal from the courtroom.[9] The right to be present during appeal proceedings applies only where there is an oral hearing.[10] (See *public hearing*; *fair hearing*). The right to an oral hearing on appeal is limited under the ICCPR. See (*right to appeal*). In contrast the ECtHR held in Hermi v Italy:[11] [W]here an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence. In Henry v Jamaica, the HRC held that once the author opted for representation by counsel of his choice, any decision by this counsel relating to the conduct of the appeal, including a decision to send a substitute to the hearing and not to arrange for the author to be present, cannot be attributed to the State party but instead lies within the author's responsibility; in the circumstances, the latter cannot claim that the fact that he was absent during the hearing of the appeal constituted a violation of the Covenant.[12]
[1] ICC Statute arts 20(4)(d); Yugoslavia Statute art 21(4)d);See eg Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 58 ‘the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6’. [2]Wolf v Panama communication 289/1988 (HRC 1992) para. 6.5. [3] Mbenge v Zaire communication 16/1977 (HRC 1980) para 14.1. In that case state authorities failed to send summons to attend trial to the accused person despite the fact that they knew his address of service. The resultant trial in absentia was rendered incompatible with article 14(3)(d) of the ICCPR. [4] HRC General Comment 32 para 36; Osiyuk v Belarus communication 1311/2004 (HRC 2009) para 8.2; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 86. [5] Mbenge v Zaire communication 16/1977 (HRC 1980) para 14.2; Maleki v Italy communication 699/1996 (HRC 1999) para 9.3. [6] Maleki v Italy communication 699/1996 (HRC 1999) para 9.5; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 126. [7] Stanford v UK application 16757/90 (ECtHR 1994) para 26. [8] Stanford v UK para 27. [9] Cf ICTY Rules of Procedure and Evidence rule 80(b). [10] Dudko v Australia, communication 1347/05 (HRC 2007) para. 7.2-7.3. [11] Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 64. [12] Henry v Jamaica communication 230/1987 (HRC 1991) para 8.3
Everyone standing trial is entitled to be present during the proceedings unless they have waived their right to be present by not being present at the start of the trial despite having been notified. The accused person must be able to hear and follow the proceedings. It is not a violation of the right to be present during trial to remove the accused person when he or she makes the conduct of the trial impossible. The state bears the burden of proof in showing that sufficient notice was given to justify trial in absentia. A violation would not be found if absence of applicant can be remedied through a total retrial later in the person’s presence. The right to be present during appeal proceedings applies only where there is an oral hearing.
Comprehensive:
According to article 14(3)(d) of the ICCPR provides: ‘In the determination of any criminal charge against him, everyone shall be entitled … to be tried in his presence’. The right to be present during trial is not set out explicitly in the main regional human rights treaties but is deemed to be inherent in the right to defend oneself.[1] Where the state party has failed to substantiate its denial of the alleged violation of the right to be present during trial, by submitting a copy of the trial transcript, the HRC has concluded that this right has been violated.[2] (See *defence counsel of choice/right to defend oneself*)
State authorities are required to notify the accused person of the date, time and venue of the trial well beforehand, and to request for their attendance.[3] It is only when such notice has not been heeded by the accused person in circumstances constituting unequivocal waiver of the right to be present that a trial would commence and possibly be concluded in absentia.[4] In Mbenge v Zaire, the trial started despite failure by state authorities to take steps to notify the person.[5] If a person has been convicted in absentia without unequivocal waiver of the right to be present during trial, he or she has the right to a retrial.[6]
In Stanford v UK, Mr Stanford argued that he had been unable to hear the proceedings because of bad acoustics and the fact that he had sat in a glass-fronted dock. The ECtHR noted that ‘the right of an accused to participate effectively in a criminal trial’ includes ‘not only his right to be present, but also to hear and follow the proceedings.’[7] However, as Mr Stanford had not brought the problem to the attention of a court official the ECtHR held that there had been no violation of the fair trial provisions of the ECHR.[8]
It is not a violation of the right to be present during trial to remove the accused person from the courtroom if the accused has disrupted the proceedings and continues such disruption despite a warning that this may lead to his or her removal from the courtroom.[9]
The right to be present during appeal proceedings applies only where there is an oral hearing.[10] (See *public hearing*; *fair hearing*). The right to an oral hearing on appeal is limited under the ICCPR. See (*right to appeal*). In contrast the ECtHR held in Hermi v Italy:[11]
[W]here an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence.
In Henry v Jamaica, the HRC held that
once the author opted for representation by counsel of his choice, any decision by this counsel relating to the conduct of the appeal, including a decision to send a substitute to the hearing and not to arrange for the author to be present, cannot be attributed to the State party but instead lies within the author's responsibility; in the circumstances, the latter cannot claim that the fact that he was absent during the hearing of the appeal constituted a violation of the Covenant.[12]
[1] ICC Statute arts 20(4)(d); Yugoslavia Statute art 21(4)d);See eg Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 58 ‘the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6’.
[2]Wolf v Panama communication 289/1988 (HRC 1992) para. 6.5.
[3] Mbenge v Zaire communication 16/1977 (HRC 1980) para 14.1. In that case state authorities failed to send summons to attend trial to the accused person despite the fact that they knew his address of service. The resultant trial in absentia was rendered incompatible with article 14(3)(d) of the ICCPR.
[4] HRC General Comment 32 para 36; Osiyuk v Belarus communication 1311/2004 (HRC 2009) para 8.2; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 86.
[5] Mbenge v Zaire communication 16/1977 (HRC 1980) para 14.2; Maleki v Italy communication 699/1996 (HRC 1999) para 9.3.
[6] Maleki v Italy communication 699/1996 (HRC 1999) para 9.5; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 126.
[7] Stanford v UK application 16757/90 (ECtHR 1994) para 26.
[8] Stanford v UK para 27.
[9] Cf ICTY Rules of Procedure and Evidence rule 80(b).
[10] Dudko v Australia, communication 1347/05 (HRC 2007) para. 7.2-7.3.
[11] Hermi v Italy application 18114/02 (ECtHR (GC) 2006) para 64.
[12] Henry v Jamaica communication 230/1987 (HRC 1991) para 8.3