Conducting Trials ‘In Absentia’

By Sanjana Hooda

INTRODUCTION TO THE CONCEPT

The core objective of a criminal trial is to strive towards the attainment of justice and to ensure that the rule of law is maintained. The presence of the accused, in order to be submitted to trial, is indispensable to the foundation of any judicial system and is viewed to be in consonance with the principles of natural justice. A trial provides an accused the opportunity to challenge the evidence against him and to present his account of the concerned incident. However, certain exceptional situations may demand that the court order the trial to proceed without the presence of the accused. Such a situation envisages what is referred to, in common parlance, as a trial in absentia. The term “in absentia” is Latin for “in the absence”, and trial in absentia is a form of a criminal proceeding in a court of law wherein the accused is not physically present at the proceedings.

PROVISION OF TRIALS IN ABSENTIA UNDER THE LAW

Approaches adopted towards in absentia proceedings vary; a majority of common law states outlaw them almost entirely, as the concept is perceived to be a violation of a defendant’s right to be present in court proceedings in a criminal trial. Accordingly, it is not as widely used when compared to civil law legal systems, wherein such trials constitute a recognized and accepted strategy of defense.

Importance of the presence of the accused as a fundamental safeguard ensuring the fairness of the trial is reflected in various international treaties. Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), provides that a person facing a criminal charge has the right to be informed of the charges and tried in his own presence. Likewise, Article 6(3) of the European Convention on Human Rights (ECHR) provides for the right of a person to be notified promptly, in a language he understands and in detail, of the nature and cause of the accusation against him and to defend himself in person or through legal assistance. Despite the presence of such safeguards, no international or regional treaty mandatorily or explicitly prohibits conducting a trial in the absence of the accused. The general consensus seems to prevail in the international sphere that the right of an accused to be present at his or her trial is not absolute, and may be subject to certain exceptions.[1]

The International Military Tribunals of Nuremberg, constituted after World War II, conducted the first trial in absentia in an international court. It was held in pursuance of the Nuremberg Charter, which permitted trials in absentia whenever the Tribunal found them necessary in the interests of justice. The Special Tribunal for Lebanon (STL), established in 2007, is the only international tribunal whose statute permits trials in absentia. Article 22 of the Statute of the Special Tribunal for Lebanon titled “Trials in absentia” lays down three circumstances under which in absentia proceedings can be conducted, these being, where the accused has expressly or in writing waived his right to be present; where he has not been handed over to the Tribunal by the concerned State authorities; and where he has absconded or can otherwise not be found and all reasonable steps have been taken to secure his appearance before the Tribunal.[2] The STL ruled in favour of initiating a trial in absentia in 2012 in the case of The Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra.[3] Moreover, the Bangladeshi government in the case of Chief Prosecutor v. Maulana Abul Kalam Azad[4] held in favour of in absentia trial of the defendant Abul Azad.

TRIAL IN ABSENTIA IN BANGLADESH

It becomes relevant to consider the law in Bangladesh as certain legislations of the country explicitly provide for in absentia proceedings. Section 339B. of Chapter XXIV of The Code of Criminal Procedure, 1898 (Act No. V of 1898) of Bangladesh, titled “Trial in absentia” provides for the concept. Sub-section (1) of the same states that, “where the Court has reason to believe that the accused is absconding or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall direct such person to appear before the Court in the manner prescribed, and if such person fails to comply with such direction, he shall be tried in his absence.” Sub-section (2) of the same provides for in absentia trial of the accused in situations where he is absconding or has failed to appear before the Court, where he was earlier produced or has obtained bail from the court.

In a similar fashion, section 21 of the Nari-O-Shishu Nirjatan Damon Ain or The Prevention of Oppression Against Women and Children of 2000 (Act No. VIII of 2000) also provides for conducting the trial in the absence of the accused in certain situations. Another legislation that provides for in absentia proceedings is The Special Powers Act, 1974 (Act No. XIV OF 1974). Section 27(6) and (6A) lays down that “where a Special Tribunal has reason to believe that the accused has absconded or is concealing himself so that he cannot be arrested and produced before it for trial and there is no immediate prospect of his arrest”, he shall be tried in his absence after he fails to appear before the Tribunal, consequent to the Tribunal’s orders. Section 27(6A) similarly states that whereafter the accused’s appearance or production before the Tribunal or after his release on bail, the accused absconds or fails to appear before the Tribunal, he may be tried in his absence.

THE INDIAN SCENARIO

The Indian legal system does not unequivocally provide for trial in absentia of the accused. However, certain provisions under The Code of Criminal Procedure, 1973 (hereafter referred to as the Code) represent this principle. Section 299 of the Code reads as “record of evidence in the absence of the accused”. Clause (1) of this section states that the Court competent to try the accused or conduct his trial may examine any witnesses produced by the prosecution, in the absence of the accused, in a situation where the accused has absconded and where there exists no immediate prospect of his arrest. Similarly, the proviso to section 353(6) of the Code states that, “where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.” Moreover, section 482 of the Code confers certain inherent powers on the High Court “to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” These provisions not only envision the possibility of conducting the trial in absentia but also help indicate the considerations underlying such trials conducted in the absence of the accused.

The scope of section 299 of the Code was discussed by the Supreme Court in the case of Jayendra Vishnu Thakur vs State Of Maharashtra. The court in this case provided that while the right of an accused to watch the prosecution witnesses deposing before the court is invaluable, it has not been recognized as a fundamental right within the ambit of Article 21 in India. The rule that even fundamental rights are not absolute in nature, and can be made subject to certain restrictions was upheld by the court, as it stated that “an accused is always entitled to a fair and speedy trial but then he cannot interfere with the governmental priority to proceed with the trial which would be defeated by conduct of the accused that prevents it from going forward”.[5] Further, the Supreme Court, in the case of Hussain and Anr. v. Union of India, suggested that “an amendment be made at par with Section 339-B of the Code of Criminal Procedure, as applicable in Bangladesh, providing for trial in absentia of an accused who absents himself from the trial”.[6]  This case is noteworthy as it dealt with the judicial backlog and the pendency of cases in criminal courts. The importance of speedy trials was restated, and the right to a fair and speedy trial was held to be in consonance with the fair, reasonable and just procedure under Article 21 of the Indian Constitution.

Moreover, in 2016, the Gujarat High Court directed all lower courts to proceed with the trial and pronouncement of the final verdict of absconding under-trial prisoners absenting themselves from court proceedings. “A circular was issued, with the instructions of the Chief Justice RS Reddy, by the Registrar General of the High Court, for judicial officers to follow and act in accordance with sections 299 and 353(6) of the Code, empowering the courts to conduct trial, record evidence, and deliver final verdict in the absence of the accused.”

CONCEPTUAL SIGNIFICANCE OF TRIALS IN ABSENTIA

A trial in absentia can be argued to be an important principle of law, and must not be absolutely dismissed, as it has been proved to be beneficial under specific circumstances. The defendant often has to wait for excessive amounts of time for his fate to be decided in court. The same requirement under the law also applies to the victim, who awaits justice and requires retribution and closure through the legal machinery. Such delays defeat the purpose of an efficient court proceeding as time is of the essence in every fair trial, and may thus prove to be detrimental to both the parties involved, as well as to the administration of the very proceedings.

Deterioration of evidence due to the passage of time is another consideration that merits a trial in absentia of an accused. Moreover, trial in absentia holds the potential for preventing the accused from absconding and evading the criminal justice system; the justification for such trials is largely elucidated through policy considerations. Many a time, political pressure is exerted on the judiciary to mete out justice to the parties involved, as well as of conducting speedy trials to prevent judicial backlog and pendency of cases. In such situations, trial in absentia may seem to be a viable solution, in order to ensure that the proceedings are not delayed by the accused’s absence. However, resort to it should only be had under exceptional circumstances in order to warrant a fair trial to the accused while also safeguarding apposite administration of justice.

The introduction of trials in absentia in the Indian system would considerably alleviate these inescapable outcomes. The judicial process would continue unfettered in the absence of the accused and speed up significantly, thereby bringing about efficiency in the functioning of the criminal courts of the country. Consequently, the Indian judicial system would benefit from inculcating the principle of trial in absentia, provided it is used with the utmost care and caution, and only in situations where access to justice is being obstructed due to the accused’s absence, and there exists no reasonable way of presenting him in court. Such a principle of conducting trial in the absence of the accused would not lead to a violation of either the principles of natural justice or the accused’s right to a fair trial.

[Ms. Sanjana Hooda is a fourth year student of law, pursuing the course of B.A. LLB (Hons.) from O.P. Jindal Global University, and takes a keen interest in subjects of Legal Philosophy, Constitutional Law, Jurisprudence and Criminal Law.]

[1] Maurice Meli, ‘Trials in absentia: Erosion of the rights of the accused? A comparative study’, (2016) Faculty of Laws, University of Malta.

[2] S. C. Res 1757, U.N. Doc S/RES/1757 (May 30, 2007).

[3] Prosecutor v. Jamil Ayyash, Case No. STL-11-01/I/TC, Decision to Hold Trial in Absentia (Special Trib. for Lebanon Feb. 1, 2012).

[4] Chief Prosecutor v. Maulana Abul Kalam Azad, alias Bachu (trial in absentia), ICT-BD Case No. 05 of 2012 (International Crimes Tribunal in Bangladesh Jan. 21, 2013).

[5] Jayendra Vishnu Thakur vs State Of Maharashtra, Criminal Appeal No. 981 OF 2009 (Arising out of SLP (Crl.) No. 6374 of 2007.

[6] Hussain and Anr. v. Union of India, (2017) 5 SCC 702.