Trial in Absentia: Bases and Justifications

One of the controversial issues in the criminal procedure is absence of the accused in the trial (trial in absentia) by criminal courts. There are many different viewpoints on this issue in the contemporary legal systems, on one hand, and in the national and international criminal procedures, on the other. Each of the legal systems provides reasons or justifications for the prohibition or permission of trial in absentia. In the adversarial system, trial in absentia is, in principle, prohibited. In contrast, in the inquisitional system, trial in absentia is basically permitted. The main basis for such prohibition or permission relates to the nature of these trial systems. Accordingly, the present paper attempts to examine and clarify the viewpoints of the contemporary legal systems, particularly the adversarial, the inquisitional, and the Islamic systems, concerning trial in absentia in criminal cases. Then, the paper examines this matter in the context of the practical practice of the international criminal courts. The proviisions of the Iranian Criminal Code with regard to trial in absentia will also be considered. The conclusions from this discussion can be a guidance for the Iranian lawmakers in order to accept provisions concerning the procedures of trial in absentia and these conclusions can also assist to bring the Iranian laws more in line with the standards adopted in the international treaties concerning trial in absentia.