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Fair Trials has launched Absent Rights, a new European project examining how the right to be present at trial is protected across Europe and what happens when people are tried and convicted without being there.
Being present at your own trial is a fundamental part of the right to a fair trial. It allows people accused of crimes to understand the case against them, participate in proceedings and defend themselves effectively.
European law allows a trial to take place without the accused person in certain circumstances. But this raises an important legal question: when can someone genuinely be considered to have given up their right to be present, and what rights should they have if they were convicted without doing so?
Under EU law, a person can be tried in their absence where certain safeguards are met, including where they were properly informed about the trial and the consequences of not attending. Where these conditions have not been met, they must have the right to a new trial or another legal remedy that allows the merits of the case to be reconsidered.
Yet the European Commission has identified shortcomings in how these rules are implemented in a number of EU Member States.
From notification to a new trial
Whether someone has genuinely chosen not to attend can depend on very practical questions. Did they actually know about the proceedings? How were they summoned? Were they clearly told that the trial could continue without them? What if they had moved or were living in another country?
These details matter because courts may later use them to decide whether a person knowingly and voluntarily waived their right to attend. Fair Trials and members of our Legal Experts Advisory Panel (LEAP) have raised concerns about how notification and summoning work in practice and how courts make these decisions.
The project will also examine what happens after someone has been convicted in their absence. In some countries, obtaining a new trial can involve significant hurdles, including having to prove that the person did not previously know about the proceedings.
And as criminal proceedings increasingly take place remotely, Absent Rights will consider another emerging question: when does appearing by videoconference amount to genuinely being “present” at trial? Effective participation may depend on whether a person can follow proceedings, communicate confidentially with their lawyer and access interpretation and other safeguards.
Examining how the right works in practice across Europe
Over 24 months, Absent Rights will examine the law and practice surrounding trials in absence, combining analysis of legislation and case law with the experiences of criminal justice practitioners.
In-depth research will take place in Belgium, Bulgaria, Greece, Poland and Romania, alongside analysis of other European jurisdictions. The project will look at the whole process: from notification and summoning, through the decision to proceed with a trial in someone’s absence, to access to a new trial afterwards.
Fair Trials is coordinating the project in partnership with the National Institute of Criminalistics and Criminology (Belgium), Bulgarian Helsinki Committee, Centre for European Constitutional Law (Greece), Helsinki Foundation for Human Rights (Poland), and APADOR-CH (Romania).
The research will inform practical legal resources for lawyers, national recommendations and a comparative European report, alongside workshops, practitioner exchanges, training and advocacy. The aim is to help ensure that the right to be present at trial, and the right to a new trial where that right has not been respected, are effective in practice across Europe.
Get involved
If you are a lawyer working on a case involving a trial in absentia that you would like to bring to our attention as part of this project, we would like to hear from you. Please contact Chryssa Mela at chryssa.mela@fairtrials.net.
