In some EU Member States, proceedings in absentia are prohibited and allowed in others, posing significant problems for the harmonious mutual recognition of these judicial decisions. The executing Member State has a certain margin of discretion and is not obliged to execute a European arrest warrant if the requesting country has already convicted that person in absentia. The Council of Europe commented on judgments delivered in absentia. The Committee of Ministers, in its Resolution (75) 11 of 21 May 1975, stated that a summons must first be served on a person before he or she is brought to justice. In this sense, the Ministers stress that it is not the presence of the accused at the hearing that matters, but whether or not the person was informed of the trial in time. The conditions under which proceedings in absentia must be recognised are as follows: whether it can be assumed that the person was aware of the trial; whether a consultant has taken their place in the trial; if they do not seek redress in a timely manner; and when they need to be offered a call. [2] When you do something in absentia, you are not physically present. For example, if you graduate in absentia, it means that even if you do receive a diploma, you are not actually attending the ceremony. As Amanda Knox stayed at home in the United States, her appeal was heard in absentia in Florence, Italy.
On 30 January 2014, his conviction for Kercher`s murder was reinstated and his sentence was set at 28 years and six months in prison. [24] In addition to the above-mentioned cases of absentia proceedings in the strict sense, the accused may also be absent during the trial in the following circumstances: In some civilian legal systems, such as Italy`s, absence is a recognized and accepted defence strategy. [ref. needed] Such proceedings may require the presence of the defendant`s lawyer, depending on the country. Italy is one of many countries in Europe that allow attempts in absentia,[19] and they occur regularly. [20] According to Pieter Cleppe of the Open Europe think tank, in some parts of Europe, in trials in absentia, defendants essentially have the option of appealing twice requesting a new trial, in which they would be present, and then possibly appealing the second verdict. Some case law supports the hypothesis that, in certain circumstances, legal representation at trial is not sufficient to render a default conviction sufficiently conclusive to establish probable cause. In Gallina v.
Fraser, the applicant Vincenzo Gallina was convicted in absentia of two robberies committed in accordance with the normal Italian procedure. Gallina has since been interpreted as meaning that, in some cases, the mere presence of counsel is not sufficient to justify a conviction in absentia establishing probable grounds. A hearing in absentia is a criminal proceeding before a court in which the person who is the subject of the proceedings is not physically present at those proceedings. In absentia means in Latin “in (the) absence”. Its importance varies by jurisdiction and legal system. Absenteeism is usually a legal way to portray someone as absent, especially at a hearing where the defendant is not present. A judge or lawyer might say, “He will be tried in absentia.” Most often, it is used as a critique of a trial, as most legal systems give people the right to be present at their own trials. It`s quite simple, in absentia means “in his absence” in Latin.
In 1993, the Supreme Court considered Rule 43 in Crosby v. United States. [28] The Court held unanimously in an opinion by Justice Harry Blackmun that rule 43 does not allow an accused who is absent at the beginning of the trial to be heard in absentia. The Framework Decision on the European arrest warrant provides legal safeguards for proceedings in absentia. Although the Framework Decision makes explicit reference to Article 6 of the European Convention on Human Rights, it does not aim to harmonise national legislation on absentee proceedings, but to lay down the conditions for non-recognition of a European arrest warrant and other cooperation instruments. The Framework Decision lays down the detailed conditions and requirements under which proceedings in absentia may be considered compatible with Article 6 on the right to a fair trial. [3] There are certain safeguards in the legal system that ensure that it is right that the rights of the defence are not violated, while ensuring that justice is done. By default, judgments are customary. You can criticize that, but it`s pretty common.
In Maleki v. Italy (1997), the United Nations Human Rights Committee concluded that Italy`s policy on proceedings in absentia violated the right to a fair trial guaranteed by article 14 of the International Covenant on Civil and Political Rights. Italy argued that the right to a fair trial is not violated if an accused is represented in absentia by a court-appointed lawyer and has the opportunity to be tried again. The committee disagreed, describing Italy`s position as follows: The trial of American Amanda Knox for the murder of British student Meredith Kercher in 2007 highlighted the issue of Italy`s willingness to try the accused in absentia.