Trial in absentia

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.

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