The Grounds and Manifestations of In-Person and Trial in Absentia in International Criminal Courts and the Iranian Criminal Justice System

Abstract

Trial in absentia is one of the important and challenging issues in criminal procedure. On the one hand, it is closely associated with the accused’s right to be present at trial and to benefit from effective defense, while on the other hand, it is connected with the necessity of administering criminal justice and preventing impunity. Although the principle is that proceedings should be conducted in the presence of the accused, various legal systems have, in light of their respective foundations and requirements, accepted trial in absentia in certain circumstances. This study examines the status of trial in absentia in international criminal courts and the Iranian criminal justice system, with the aim of explaining its foundations, conditions, and limits of admissibility. To this end, the approaches of the common law and Romano-Germanic legal systems are first examined, followed by an analysis of the rules and practices of international criminal courts established prior to the International Criminal Court, as well as the provisions of the Rome Statute. The concept of the accused’s effective presence and its distinction from mere physical presence are also considered. Subsequently, the provisions of Iran’s Code of Criminal Procedure concerning the conditions for proceedings and the issuance of judgments in absentia, the presence of the accused and counsel, the circumstances in which trial in absentia is permitted, and its legal consequences are examined. The principal argument of this study is that, contrary to the view that trial in absentia is inherently incompatible with the accused’s right to be present, it may be accepted as an exception to the principle of presence at trial, provided that the necessary conditions and safeguards for protecting the accused’s defense rights are observed. An examination of the relevant rules and practices demonstrates that the presence of the accused is likewise the general principle before international criminal courts; however, under exceptional circumstances, proceedings may be continued in the accused’s absence. Similarly, under Iranian law, while the legislature has recognized the principle of proceedings in the presence of the accused, it has permitted trial in absentia in specified circumstances and established mechanisms, including objection to a judgment rendered in absentia, to safeguard the accused’s rights. Accordingly, trial in absentia should be regarded as a conditional exception to the principle of the accused’s presence at trial, the validity of which depends upon compliance with the requirements of a fair trial and the accused’s defense rights.