While there is nothing in intenrational law prohibiting trila in absentia, Ukraine must guarantee a right to retrial if other states extradict the potential convict.
Currently, Ukraine is facing a dilemma whether it is possible to judge people who have left the country. By the general logic, it is not correct to hold hearings without the accused as it is impossible “to tell the whole story” in this case. However, international law contains no absolute prohibition on in absentia proceedings. “There are exceptions when in absentia proceedings are possible, […] in particular when the accused does not arrive at the hearings. This is the most relevant scenario for Ukraine,” said Wayne Jordash QC, managing partner of GRC (Global Rights Compliance), at a briefing held at Ukraine Crisis Media Center.
According to him, in this case the accused has to unequivocally refuse to participate in the hearing. “There must be evidence that such persons were informed about the proceedings against them, and they really refused to attend. According to the European Court of Human Rights, the state is responsible for proving that the accused was summoned in due time and informed of the case against him. The court must verify that the accused really knew about the case before the start of court proceedings in absentia,” said the managing partner of GRC. This is not enough that the accused “might know”. “The assumption that the accused might know about the charges against him, for example, because the case was widely covered in the media, is not enough,” said Mr. Jordash.
If these conditions are not met, the state must guarantee a retrial. It is also essential for the purpose of extradition. “The country may refuse to extradite that person. If, for example, [former President] Yanukovych will be judged in Ukraine in absentia and there will be doubts about whether he is aware of the hearings and then he is detained in [for example] Germany, Germany will not be obliged to extradite him to Ukraine if Ukraine does not guarantee the right to a retrial in such cases,” noted Wayne Jordash.
It is important that proceedings in absentia in Ukraine will not affect the admissibility of the case at the International Criminal Court. Commenting on the ICC proceedings on Libya, Mr. Jordash noted that the inability to examine the case of Mr Gaddafi in a national court made the case admissible in the ICC. That is why the criminal proceedings in absentia in Ukraine makes the ICC mandate even more real.
For more details about the proceedings in absentia in Ukraine, click here.