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Mertins, L. (2022). Proceedings in absentia in comparative and international criminal law. Duncker & Humblot. https://doi.org/10.3790/978-3-428-58540-3
Mertins, Lena. Proceedings in absentia in comparative and international criminal law. Duncker & Humblot, 2022. Book. https://doi.org/10.3790/978-3-428-58540-3
Mertins, L (2022): Proceedings in absentia in comparative and international criminal law, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-58540-3
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Proceedings in absentia in comparative and international criminal law
(2022)
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Lena Mertins studierte Rechtswissenschaften an den Universitäten Bonn und Buenos Aires mit dem Schwerpunkt Kriminalwissenschaften. Danach absolvierte sie Praktika beim International Criminal Tribunal for the Former Yugoslavia und den Extraordinary Chambers in the Courts of Cambodia. Im Rahmen ihrer Promotion forschte sie am Lauterpacht Centre for International Law, University of Cambridge. Sie absolvierte das Referendariat am Oberlandesgericht Köln mit Stationen bei der Deutschen Botschaft in Quito, Ecuador und dem Bundesministerium der Justiz in den Referaten für Staatsschutz- und Völkerstrafrecht sowie Internationales Strafrecht. Seit November 2020 ist sie Richterin im Landgerichtsbezirk Aachen.Abstract
The thesis finds a normative approach to the question whether trial in absentia is suitable for International Criminal Tribunals by applying classical sources of international criminal law and combining institutional aspects of the procedural theory, specifically the goals of the international criminal trial, with the individual frameworks of fundamental rights, namely the right to be present. Through a critical analysis of concepts presented as models for trial in absentia it introduces a new concept for trials ›in absentia‹ which considers both the defendant’s right and duty to be present. The book thereby establishes a connection between legal theory, international criminal procedural law, international human rights law and comparative law on the one hand and - considering the high number of accused of International Criminal Tribunals at large - a highly relevant procedural question on the other hand.The thesis finds a normative approach to the question whether trial ›in absentia‹ is suitable for International Criminal Tribunals by applying classical sources of international criminal law and combining institutional aspects of the procedural theory, specifically the goals of the international criminal trial, with the individual frameworks of fundamental rights, namely the right to be present. Through a critical analysis of concepts presented as models for trial ›in absentia‹ it introduces a new concept for trials ›in absentia‹ which considers both the defendant’s right and duty to be present. The book thereby establishes a connection between legal theory, international criminal procedural law, international human rights law and comparative law on the one hand and - considering the high number of accused of International Criminal Tribunals at large - a highly relevant procedural question on the other hand.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Preface | 7 | ||
| Inhaltsverzeichnis | 9 | ||
| Abbreviations | 21 | ||
| 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 | ||
| 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 | ||
| 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 | ||
| 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 | ||
| 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 | 253 | ||
| cc) Other aspects for the obligation to appoint counsel ex officio to the defendant tried in absentia | 255 | ||
| 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 ˋabsent 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 | ||
| (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 | ||
| 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 | ||
| 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 | 358 | ||
| (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 | ||
| 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 | ||
| 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 | ||
| 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 |