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7 Right to be Present

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 September 2021

Right to fair trial — Human rights remedies — In absentia proceedings — Reservations and exceptions — Waiver — Remedies — Remedies and costs

This chapter explores the right to be present, which is a precondition for the realisation of a fair trial. Despite its importance, there is considerable variation in practice regarding the right to be present at the national level. Many civil law systems permit trials to be held in the defendant’s absence, but require a retrial upon the appearance of the defendant. In contrast, trials in absentia are an anathema in common law systems, with temporary absences only permitted in exceptional circumstances, such as defendant misconduct. International human rights law requires that states abide by strict conditions when proceeding with a trial in the absence of the defendant, including providing the right to a retrial if and when the defendant appears. Narrow limits on the right to be present have been developed in the jurisprudence of international bodies, including express waiver by the defendant, implied waiver through absconding or disruptive behaviour, when the defendant cannot be present due to illness, or when the court is considering matters of national security or issues relating to vulnerable witnesses. The right to be present applies during the entire trial process, but it may have a more limited application to pre-trial, appeal and sentencing proceedings. Ultimately, the key issues that arise in defining the right at the international level include the question of whether presence is a right or a duty; whether presence can be achieved through video-link or other technology; how to ensure the rights of the defence during a trial in absentia; the conditions for valid express and implied waivers of the right; the treatment of defendants who are unwell; and the right to retrial following a trial in absentia.

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