Standards for Conducting the Defence in In Absentia Proceedings

Standards for Conducting the Defence in In Absentia Proceedings

International standards and the case law of various justice mechanisms demonstrate that the exercise of the right to a defence in criminal proceedings must be viewed in inseparable balance with the rights of victims to truth and justice. At the same time, in absentia proceedings necessitate compliance with additional guarantees to ensure that the defence of the accused can be fully exercised.

An analysis of the standards encompassed by the right to a fair trial that must be applied in in absentia proceedings, and of the practice of the UN Human Rights Committee and the ECtHR, enables the identification of the criteria whose observance demonstrates that this right is genuinely secured:

1. Equality of arms — the defence may not be placed in a substantially worse procedural position than the prosecution. The accused and their counsel must have a genuine opportunity to examine the case materials, bring forward evidence, make applications, examine prosecution witnesses, and call defence witnesses. The ECtHR consistently emphasises that an imbalance between the parties is incompatible with the requirements of Article 6 of the ECHR — for instance, where the defence does not have access to all case materials or is effectively excluded from key procedural actions[677]. At the same time, in grave international crimes cases heard in absentia, the court must ensure that the proceedings do not become a mere formal endorsement of the prosecution's version;
2. Adequate time and proper conditions for preparation of the defence — the right to a defence is violated not only when defence counsel is absent from the proceedings, but also when counsel is unable to prepare a defence strategy and exercise their rights — for example, where counsel has no access to the case materials, cannot meet confidentially with the client, or receives the case on the eve of the hearing[678]. The formal appointment of a lawyer in in absentia proceedings does not constitute a full realisation of the right to a defence where counsel is working "blindly" and is unable to effectively represent the client's interests;
3. The right to be informed of the charges in detail — the individual must be notified in a timely manner, in a language they understand, not only of the opening of criminal proceedings but also of the specific acts alleged against them and their legal classification[679]. In the context of in absentia proceedings, attention must also be paid to the methods used to effect such notification;
4. Engagement of defence counsel — the right to defend oneself in person or through counsel of one's choosing, as well as the right to free legal aid where the interests of justice so require. In cases involving the gravest crimes, international bodies effectively treat this guarantee as mandatory: the absence of professional defence counsel or their purely formal participation are incompatible with the concept of a fair trial[680];
5. Accessibility and language interpretation — the right of the accused to the free assistance of an interpreter if they do not understand or speak the language of the court[681]. In proceedings against foreign nationals, this also means that all key documents — notices of suspicion, summonses, judgments — must be brought to the attention of the accused in a language they understand or accompanied by an appropriate translation;
6. The right to review of conviction — a person against whom a judgment has been delivered must have the opportunity to appeal the conviction to a higher instance and, where necessary, to obtain a retrial. In cases heard in absentia, where a person has been convicted in their absence without a proven, knowing waiver of the right to be present at trial, they must be afforded the opportunity for a full retrial with examination of the facts and evidence in their presence[682]. A formal right to lodge an application without a genuine prospect of having the evidence reviewed does not comply with Article 6 of the ECHR.

The practical content of these guarantees in core crimes cases is clearly reflected in the work of international criminal courts. Article 55 of the Rome Statute enshrines fundamental guarantees during proceedings: the right not to incriminate oneself, the right to counsel, the right to an interpreter, and the prohibition of torture or any form of coercion. At the trial stage, Article 63 proceeds from the presumption that the accused must be present in the courtroom[683]. This provision gives effect to components of the right to a fair trial enshrined in Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights[684]. The ICC Appeals Chamber in Ruto and Sang[685] emphasised that the rejection of full in absentia proceedings was a deliberate decision by the States Parties, driven by concerns about the ability to fully guarantee the rights of the accused, the questionable practical utility of such decisions, and the high risk of discrediting the Court.

At the same time, the ICC Statute and Rules of Procedure and Evidence provide for certain possibilities for resolving procedural matters in absentia — including confirmation of charges hearings under Article 61, which as a general rule must be held in the presence of the person, having appeared voluntarily or having been surrendered to the ICC. However, where an arrest warrant remains in force, the Court may conduct such a hearing in the absence of the person, examine the prosecution evidence, and determine whether there are sufficient grounds to confirm the charges. This provision represents a compromise between the investigative process — which the ICC Office of the Prosecutor may continue without awaiting the arrest of the person — and the guarantee that trial will take place only when the person is physically present in The Hague. In the Court's practice, this procedure has been applied only in the case against Joseph Kony[686].

The ICC's standards for the protection of suspects/accused are built around the concept of the active role of defence counsel and equality of arms. The Court has an Office of the Public Counsel for the Defence, and the system of legal aid and funding for lawyers representing indigent suspects is designed to ensure that even in complex and politically sensitive cases, the defence has the resources and institutional support it requires. ICC practice demonstrates that the Court is prepared to suspend or adjust proceedings where the health of the accused or the quality of the defence casts doubt on the individual's genuine ability to participate.

An exceptional example in international criminal justice is the Special Tribunal for Lebanon in the case of Ayyash and Others, which was heard in absentia. The Tribunal ensured the appointment of defence counsel with access to all materials, who were able to examine witnesses, challenge evidence, engage experts, and construct a defence as if the client were physically present. The judgment separately underlined that the Court is obliged to assess the evidentiary basis no less rigorously than in ordinary proceedings, and that the standard of proof beyond a reasonable doubt remains unchanged. At the same time, the complete absence of any personal procedural position on the part of the accused and the impossibility of hearing their explanations inevitably altered the character of the proceedings themselves. The Court focused more on the position of the victims and the political context of the crime, while the individual dimension of the accused's guilt was examined indirectly through technical expert evidence, telephone metadata, and reconstructions[687].