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In absentia is Latin for "in the absence". In legal use it usually pertains to a defendant's right to be present in court proceedings in a criminal trial.

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In absentia in common law legal systems

In common law legal systems, conviction of a person in absentia, that is in a trial in which they are not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem. By contrast in some civil law legal systems, such as Italy, trial in absentia is permitted.

In absentia under United States law

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

In 1884, the United States Supreme Court held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

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

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

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

  • 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.

However, the following exceptions are included in the Rule:

  • the defendant waives his right to be present if he voluntarily leaves the trial after it has commenced,
  • if he persists in disruptive conduct after being warned that such conduct will cause him to be removed from the courtroom,
  • a corporation need not be present, but may be represented by counsel,
  • in prosecutions for misdemeanors, the court may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence with his written consent, and
  • the defendant need not be present at a conference or argument upon a question of law or at a reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure.

In 1993, the United States Supreme Court revisited Rule 43 in the case of Crosby v. United States, 506 U.S. 255. In an opinion by Justice Harry Blackmun, expressing the unanimous view of the court, it was held that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.

This case requires us to decide whether Federal Rule of Criminal Procedure 43 permits the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning. We hold that it does not. ...The Rule declares explicitly: "The defendant shall be present . . . at every stage of the trial . . . except as otherwise provided by this rule" (emphasis added). The list of situations in which the trial may proceed without the defendant is marked as exclusive not by the "expression of one" circumstance, but rather by the express use of a limiting phrase. In that respect the language and structure of the Rule could not be more clear."

The Crosby court, however, reiterated an 80-year-old precedent that

Where the offense is not capital and the accused is not in custody, . . . if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. Diaz v. United States, 223 U.S. at 455 (emphasis added).

Some state laws provide for automatic retrial of fugitives who are arrested after being convicted in absentia.[1]

Examples

Examples of people convicted in absentia are:

  • Fouzia Yousaf Gillani, wife of Current Prime Minster of Pakistan Syed Yousuf Raza Gillani. (Found guilty on 10 March 2001 for Fraud of over 171.163 Million Rupees Pakistan) has been cleard of all charges due to her husbands current political seat.
  • Cesare Battisti, thriller author and former member of the Italian militant group Armed Proletarians for Communism, sentenced to life. (Arrested on March 18, 2007 in Brazil.)
  • Krim Belkacem, Algerian Berber resistance fighter and politician. (Assassinated on October 18, 1970 in West Germany.)
  • Heinrich Boere, 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 extridite Boere to the Netherlands due to his possibly having German citizenship.
  • Martin Bormann, Nazi official and Hitler's private secretary, sentenced to death at the Nuremberg war crimes trials. (Disappeared on May 2, 1945. Remains were uncovered in late 1972 in West Berlin.)
  • Dési Bouterse, Suriname's former military leader, sentenced to 16 years in prison and fined $2.18 million in the Netherlands for cocaine trafficking.
  • Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
  • Ira Einhorn, anti-war activist and murderer, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)
  • John Factor, 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.
  • Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy Regime.
  • Boleslavs Maikovskis, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).[2]
  • Mengistu Haile Mariam, former dictator sentenced to death in Ethiopia for genocide.
  • Jamal Jafaar Mohammed, sentenced to death by a Kuwaiti court for the 1983 Kuwait bombings. He is currently serving in Iraq's parliament as a member of Prime Minister Nouri al-Maliki's Islamic Dawa Party.
  • Abu Musab al-Zarqawi, sentenced to death in Jordan. (Killed on June 7, 2006 in Iraq.)
  • Andrew Luster, convicted of date rape after fleeing mid-trial.
  • Filiberto Ojeda Ríos, convicted in the US after fleeing
  • Bernardo Provenzano, Sicilian Mafia boss convicted of numerous murders during his 42 years as a fugitive.
  • Michael Townley, Chilean DINA agent, has been convicted in 1993 by an Italian court in carrying out the 1975 Rome murder attempt on Bernardo Leighton.[3] (Currently living under the United States Federal Witness Protection Program.)
  • Shalom Weiss, sentenced to the longest federal prison term in United States history for fraud, money laundering and other crimes. (Extradited by Austria on June 20, 2002.)[1] [2]
  • Irakli Okruashvili, 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.[4]

See also

References

  1. ^ http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/pakistan/09-cases-against-pms-wife-withdrawn-by-nab--szh-11
  2. ^ Thomas, Robert McG. "Boleslavs Maikovskis, 92; Fled War-Crimes Investigation". The New York Times. 8 May 1996. Retrieved 4 December 2009.
  3. ^ "Agent of Chilean Secret Service Convicted of Murder Attempt". UPI. 1993-03-11. 
  4. ^ Russia Today - Georgian ex-minister gets 11 year sentence (28 March 2008)







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