Trial in absentia

[citation needed] Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice.

Trials in absentia are banned in some member states of the EU and permitted in others, posing significant problems for the fluidity of mutual recognition of these judicial judgments.

In this sense, the ministers are emphasizing that it is not the presence of the accused at the hearing that is of importance, rather the focus should be on whether or not the individual was informed of the trial in time.

In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights stressed that a person charged with a criminal offence is entitled to take part in the hearings.

Furthermore, the court stressed that a person convicted in absentia shall be entitled to a fresh trial once he becomes aware of the proceedings:[5] When domestic law permits a trial to be held notwithstanding the absence of a person "charged with a criminal offence" who is in Mr. Colozza’s position, that person should, once he becomes aware of the proceedings, be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge.The Human Rights Committee (HRC) examined Monguya Mbenge v. Zaire (1990) in which the applicant was sentenced to death while exiled in Belgium and was only able to learn of the case against him through the media.

Failed evidence to support the case that a court had tried to inform the accused of proceedings against him/her provides the committee with the opinion that the right to be tried in one's presence was violated.

Italy argued that where a defendant in absentia is represented by court-appointed counsel and where he or she has an opportunity to be re-tried, the right to a fair trial will not be violated.

The committee disagreed, describing Italy's position as: clearly insufficient to lift the burden placed on the State party if it is to justify trying an accused in absentia.

[21]In 2009, a former CIA station chief and two other Americans were tried and convicted in absentia by a Milan appeals court for the abduction of Egyptian terror suspect Osama Hassan Mustafa Nasr.

[22] The trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher highlighted the issue of Italy's willingness to try defendants in absentia.

[25] Certain case law supports the notion that in some circumstances representation by counsel at the trial will not be enough to make an in absentia conviction conclusive enough for the establishment of probable cause.

The verdict in Gallina has been since interpreted to suggest that the presence of legal counsel alone is, in certain cases, insufficient to give an in absentia conviction that establishes probable cause.