A COMPARATIVE ANALYSIS OF JUDGEMENT IN ABSENTIA IN THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AND IN EUROPEAN UNION LAW

Abstract

In principle, judgments in absentia are permitted in the signatory states of the European Convention on Human Rights and in the member states of the European Union. This paper critically analyses the conditions under which a person convicted in absentia is entitled to a retrial, with reference to the case law of the European Court of Human Rights and the Court of Justice of the European Union. The study aims to identify practical solutions to ensure compliance with the right to a fair trial, highlighting divergences and gaps in European practice, and proposing interpretative criteria that can guide courts in protecting defendants’ rights across different jurisdictions. The analysis reveals some differences (at least according to the literal wording of the law) between the case law of the European Court of Human Rights and the provisions of European Union law on trial in absentia, particularly regarding when a retrial is imperative. Based on these findings, interpretative approaches are proposed to guide courts in assessing (i) the defendant’s awareness of the consequences of absence, (ii) the conduct of the chosen defence counsel, and (iii) the good or bad faith of the defendant in missing stages of proceedings.

Keywords: Trial in Absentia, Right to a Fair Trial, Failure to Appear in Court, Personally Informed