Trials in absentia : erosion of the rights of the accused? : a comparative study

Abstract

Trials are most commonly regarded as being held in the presence of the accused. The idea of having the accused present in order to be submitted to trial has always been essential to the fabric of the judicial system. It is seen as important in order to preserve and enforce the proper administration of justice. However, minor exceptions do exist where trials in absentia are accepted. Some have suggested that these exceptions ought to be widened in order to spread the use of trials in the absence of the accused. This thesis analyzes whether said concept would impinge on the right to a fair hearing granted to the accused both by the Maltese constitution and the European Convention of Human Rights. The concept of presence of the accused during trial has been an essential element in criminal proceedings since time immemorial, thus, making trials in absentia a relatively recent construct. Numerous authors have argued in favour and against the adoption of said form of trial, with some believing that the accused ought to have the option to choose whether or not to be present for his trial. These diverging opinions have subsequently lead to high number of cases in the European Court of Human Rights. A vast number of these cases have ruled that trials in absentia do not impinge on the right to a fair hearing, if certain safeguards are respected. The diverging opinions across the European Union on trials in absentia have caused friction when asking for the enforcement of European Arrest Warrants. In order to promote mutual recognition of said judgements a number of Framework Decisions have been adopted. Trials in absentia can be seen as diametrically opposed to the right to a fair hearing. However, under the right circumstances this is surely not the case.