Bu Omay Aimen
Trials in absentia, a legal practice in which court procedures take place without the accused present, represents a difficult and divisive topic in the field of criminal justice. Particularly in situations where defendants decline to present, flee the scene of the crime, or are hampered by health issues, such trials involve complex considerations regarding preserving the concepts of justice, due process, and the rights of the accused.
Trials in absentia were first used in the post-World War II International Military Tribunals at Nuremberg. Their fundamental legal document, the Nuremberg Charter, expressly supported holding trials in absentia. It reaffirmed the tribunal’s power to bring charges against people accused of serious crimes even when they are not present.
Due process is upheld in the USA by ensuring that criminal defendants have the right to attend their trial. However, a legal basis was established in a key 1884 decision (Hopt v. Utah). According to this rule, which is based on the Arizona Rules of Criminal Procedure, a defendant may voluntarily renounce the right to appear in court if he does so after carefully considering all of his options. The court may view the defendant’s absence as an intentional and legal waiver as long as they were aware of the trial schedule and received notification that proceedings would continue without them.
The legal system in South Asian nations like Bangladesh and India permits trials to continue even when the accused is not present. As stated in Section 339B of the country’s Criminal Procedure Code, titled “Trial in Absentia,” judicial proceedings in Bangladesh may be conducted while the accused is not present. In India, the judge presiding over the trial has the authority to question witnesses submitted by the prosecution even when the accused is not present under Section 299 of the Code of Criminal Procedure.
In order to ensure that justice is done while preserving the fundamental principles of equal treatment under the law, the concept of a fair trial in absentia necessitates a careful balance of legal, ethical, and procedural issues. It is a developing area of law that is still the focus of research, discussion, and international collaboration
Here are a few specific instances from different nations that demonstrate the legal and procedural components of trials held in absentia:
Dawood Ibrahim (India): A renowned mobster and terrorist from India, Dawood Ibrahim has been tried in absentia for a number of crimes by Indian courts.
Adem Jashari (Kosovo/Yugoslavia): Jashari, the leader of the Kosovo Liberation Army, was found guilty in absentia by a Yugoslav court in 1997, demonstrating the usefulness of such proceedings even in areas rife with violence.
Mullah Omar (Afghanistan): Mullah Omar, the Taliban’s founder and spiritual leader, was tried in absentia by the Afghan government for his role in providing Osama bin Laden with protection.
Salim Moinuddin (Bangladesh): Moinuddin was a main defendant in the 2016 Holey Artisan Bakery attack and was found guilty and given the death penalty by a Bangladeshi court after being prosecuted in absentia.
Ryszard Kukliski (Poland): In 1984, a communist court in the Polish People’s Republic sentenced Kukliski to death in absentia for his role in Cold War espionage and as a communist traitor.
Like many other nations, Pakistan has provisions for trials in absentia in its legal system. The criminal justice system in Pakistan permits absconders to be tried in absentia, and under Section 172 of Pakistan Penal Code specifically provides deterrence for avoiding appearance / notices / summons before a criminal court absconders. Due to its ramifications in cases involving issues of national security, anti-state activities, and propaganda, the practice of trials in absentia in Pakistan has received a lot of attention recently. These instances have highlighted the problem of trials in absentia and prompted debate over how to strike a balance between the rights of the accused and the interests of justice.
By issuing Red Notices, Interpol, the International Criminal Police Organisation, plays a significant role in instances requiring trials in absentia. A Red Notice is a request to track down and temporarily detain a person pending extradition. It serves as a global request to locate and detain wanted individuals even if it is not an arrest warrant. A Red Notice can be helpful in finding and apprehending an accused person who has fled the jurisdiction and is being tried in absentia. This publication informs law enforcement organisations around the world of the fugitive’s whereabouts, potentially facilitating their capture and extradition.
Criminal Procedure Code (CrPC) Sections 512 and 514 essentially control Pakistan’s legal framework for trials conducted in absentia. Instances where the accused is required to appear in court but disobeys the summons are addressed in Section 512 CrPC. If certain requirements and protections are met, such as the issuance of a warrant for the accused’s arrest, the court may proceed with the trial without the accused present. When the accused, who initially appeared before the court during the trial, flees or purposefully stays away, Section 514 CrPC is activated. In these situations, the court has the authority to carry on with the trial and issue a decision without the accused being present.
Conducting trials in absentia enables judicial systems to move forward with the case when the defendant is wilfully avoiding justice or poses a flight risk. This ensures that justice is not hindered and prevents the legal system from being manipulated.
As in many other nations, Pakistan’s legal system permits trials in absentia, especially in situations involving fugitives and problems of national security. In order to track down and capture fugitives who are facing trials in absentia, Interpol Red Notices can be quite helpful.
In order to ensure that justice is done while preserving the fundamental principles of equal treatment under the law, the concept of a fair trial in absentia necessitates a careful balance of legal, ethical, and procedural issues. It is a developing area of law that is still the focus of research, discussion, and international collaboration.
The author frequently contributes on issues concerning national and regional security, focusing on matters having critical impact in these milieus. She can be reached [email protected].