Trial in absentia

Trial in absentia is a criminal proceeding in a court of law in which the person who is subject to it is not physically present at those proceedings. In absentia is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.

In common law legal systems, the phrase is more than a spatial description. In these systems, it suggests a recognition of a violation of a defendant's right to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice.^[1] Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).

In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country.

Where a defendant has died (involving the continuation or reopening of proceedings in order to clear a deceased defendant's name).

Where a defendant is unknown:

[10]

Where a defendant is known:

[12]

at the arraignment,

at the time of the plea,

at every stage of the trial including the impaneling of the jury and the return of the verdict and

at the imposition of sentence.

For more than 100 years, courts in the United States have held that the United States Constitution protects a criminal defendant's right to appear in person at their trial, as a matter of due process, under the Fifth, Sixth, and Fourteenth Amendments.

In 1884, the Supreme Court of the United States held that

A similar holding was announced by the Arizona Court of Appeals in 2004 (based on Arizona Rules of Criminal Procedure):

Although United States Congress codified this right by approving Rule 43 of the Federal Rules of Criminal Procedure in 1946 and amended the Rule in 1973, the right is not absolute.

Rule 43 provides that a defendant shall be present

However, the following exceptions are included in the Rule:

Indeed, several U.S. Supreme Court decisions have recognized that a defendant may forfeit the right to be present at trial through disruptive behavior,^[26] or through his or her voluntary absence after trial has begun.^[27]

In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States.^[28] The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

However, in Crosby, the Rehnquist Court reiterated an 80-year-old precedent that

was removed from his trial due to his disruptive behavior, and sentenced to death by beheading without being in the room.

Charles I of England

thriller author and former member of the Italian terrorist group Armed Proletarians for Communism, sentenced to life. (Arrested on March 18, 2007, in Brazil, and then released on 9 June 2011.)^[30]

Cesare Battisti

a British man convicted in absentia by a French court of the murder of a French woman in Ireland.^[31]

Ian Bailey

leader of the Kosovo Liberation Army, was convicted in July 1997 in absentia by a Yugoslav court after several unsuccessful attempts to capture or kill him.^[32]

Adem Jashari

Algerian Berber resistance fighter and politician. (Assassinated on October 18, 1970, in West Germany.)^[33]

Krim Belkacem

a Dutch or German convicted by a Dutch court in 1949 of murders on the part of the World War II German occupation authorities in the Netherlands. German courts refused to extradite Boere to the Netherlands due to his possibly having German citizenship.^[34]

Heinrich Boere

Nazi official and Hitler's private secretary, convicted of war crimes and crimes against humanity and sentenced to death by hanging at the Nuremberg war crimes trials. (Disappeared on May 2, 1945, his remains were uncovered in late 1972 in West Berlin, and conclusively identified as those of Bormann in 1998.)^[35]

Martin Bormann

Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking.^[36]

Dési Bouterse

former Iraqi oil minister, convicted in Jordan for bank fraud.^[37]

Ahmed Chalabi

Italian former prime minister, sentenced in absentia to 27 years in jail in Italy, who previously fled to Hammamet in Tunisia in 1994, and remained a fugitive there, protected by Ben Ali's regime.^[38]

Bettino Craxi

Belgian Nazi collaborator sentenced to death by firing squad while he lived in Spain.^[39]

Léon Degrelle

a Polish colonel, Cold War spy and communist whistleblower, sentenced in absentia to death as a traitor in 1984 by a communist court in the Polish People's Republic. He was finally acquitted in 1997. It was said his activity was in a State of Necessity.^[40]

Ryszard Kukliński

murderer and anti-war activist, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)^[41]

Ira Einhorn

a British-born American gangster and con man, charged with securities fraud in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States.

John Factor

sentenced first to four years in prison and later to death in 1940 for treason against the Vichy regime.^[42]

Charles de Gaulle

sentenced to death by the Soviet Union for treason after fleeing to the United Kingdom in 1985.

Oleg Gordievsky

Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).^[43]

Boļeslavs Maikovskis

former communist dictator sentenced to death in Ethiopia for genocide in May 2008.

Mengistu Haile Mariam

Jamal Jafaar Mohammed aka , sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings. He served in Iraq's parliament (2006–2007) as a member of Prime Minister Nouri al-Maliki's Islamic Dawa Party^[44] and was killed in the 2020 Baghdad International Airport airstrike by a United States drone.

Abu Mahdi al-Muhandis

sentenced to death in Jordan. (Killed on June 7, 2006, in Iraq.)^[45]

Abu Musab al-Zarqawi

convicted of rape after fleeing mid-trial.

Andrew Luster

convicted in the US after fleeing.

Filiberto Ojeda Ríos

former president of Tunisia, sentenced to life in prison along with his wife, Leïla Ben Ali.

Zine El Abidine Ben Ali

Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.

Bernardo Provenzano

Chilean DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo Leighton.^[46] (Currently living under the United States Federal Witness Protection Program.)

Michael Townley

sentenced to the longest federal prison term in United States history (835 years) for fraud, money laundering and other crimes, jumped bail mid-trial. (Extradited by Austria on June 20, 2002.)^[47]^[48]

Sholam Weiss

high ranking SVR official of the USSR, sentenced to death in Moscow in absentia after defecting to the United States.

Arkady Shevchenko

Defense Minister of Georgia from 2004 to 2006 and a personal friend of Georgian president Mikheil Saakashvili. Okruashvili returned to prominence when he formed an opposition party to the Georgian government and accused it of corruption and plotting assassinations. He was arrested days later on charges of extortion, bribe taking, and abuse of power, and released on $6 million bail pending trial. He flew to Europe, supposedly to seek medical treatment, but tried to find political asylum. He was denied asylum in Germany, but received it in France, which refused an extradition request from Georgia. He was tried in absentia, found guilty, and sentenced to 11 years imprisonment.^[49]

Irakli Okruashvili

In 2011, was sentenced to five years in jail in absentia stemming from an embezzlement scandal while he was Prime Minister of Togo.^[50]

Eugene Koffi Adoboli

radical Islamic cleric assassinated by drone by the United States in Yemen in 2011, was tried in abseentia by the Yemeni government.^[51]

Anwar al-Awlaki

ex-colonel of the Russian intelligence agency SVR, was sentenced in absentia to 25 years of imprisonment on the charge of high treason by Moscow court in 2011. His whereabouts are unknown; presumably he lives in the United States under protection of the US government.

Alexander Poteyev

Kent Kristensen, Danish businessman was sentenced in Romania in absentia to seven years for not paying an official in a building project. He was arrested in Spain in 2011 when he tried to save his child who was abducted by her mother. He is serving his time at the Giurgiu maximum security prison. In March 2012 it was reported that the Romania denied him his medication.

[52]

tried in absentia and convicted in 2013 (later cleared), for the 2007 murder of Meredith Kercher.^[24]

Amanda Knox

Soviet Marshal convicted in absentia by Lithuania for deadly military crackdown in 1991 and sentenced to 10 years in jail.^[53]

Dmitry Yazov

17th-century French duelist charged with kidnapping, arson and body snatching in absentia.

Julie d'Aubigny

(aka. Abu Abbas), leader of the Palestine Liberation Front, was charged in Italy in absentia to five terms of life imprisonment for his role as mastermind in the 1985 hijacking of the Italian cruise ship MS Achille Lauro, which resulted in the murder of 69-year-old American Jewish passenger Leon Klinghoffer. He was captured by American forces on April 14, 2003, during the Iraq War and died on March 8, 2004, of natural causes, while in American custody.^[54]

Muhammad Zaidan

a former president of El Salvador (2009–2014), was convicted and sentenced in absentia to 14 years imprisonment in May 2023 for his role in organizing a gang truce between 2012 and 2014. At the time of his sentencing, Funes was living in exile in Nicaragua.^[55]

Mauricio Funes

a former Pakistani cricketer, was convicted in absentia to 12 years imprisonment by a Dutch court in September 2023 for attempting to provoke the murder of Dutch politician Geert Wilders, for incitement, and for making threats.^[56]