Personal Participation and Trials in Absentia. A Comparative Constitutional Law Perspective

S. Ruggeri, S. Quattrocolo (eds), Personal participation in criminal proceedings. A comparative study of participatory safeguards and in absentia trials in Europe, 2019, Forthcoming

22 Pages Posted: 13 Jun 2019

See all articles by Oreste Pollicino

Oreste Pollicino

Bocconi University - Department of Law

Marco Bassini

Bocconi University - Department of Law

Date Written: May 31, 2019

Abstract

There is an inherent tension between the understanding of personal participation of the accused in criminal proceedings as a part of the right to defense which defendants can avail themselves of or waive and the alternative view that sees personal participation as a duty of the defendant that is required for the fairness of judicial procedures. This tension, as noted, has grown up as a consequence of the larger and larger movement of persons across European and non-European countries whose constitutional legal orders may encapsulate different views of the nature of personal participation. This tension has come to the attention, among others, of the European courts, which released some important judgments on this matter. From a comparative perspective, it is difficult to draw a clear line between the jurisdictions that consider personal participation as a duty of the defendant and those which instead allow in absentia trials. It is commonly accepted the idea that civil law systems fall within the latter category, while common law systems generally prevent trials from taking place without the defendant’s personal participation. Some scholars, however, have called into question this ‘conventional’ distinction that seems to be rather weak and even opaque in light of the existence of significant exceptions in both the categories. Thus, from a methodological standpoint, the most appropriate option is to separately examine the approach of European constitutionalism and US constitutionalism, against the background of international law. Exploring these multi-layer systems will permit to put the different understandings of personal participation in criminal proceedings in connection with the relevant constitutional background.

Suggested Citation

Pollicino, Oreste and Bassini, Marco, Personal Participation and Trials in Absentia. A Comparative Constitutional Law Perspective (May 31, 2019). S. Ruggeri, S. Quattrocolo (eds), Personal participation in criminal proceedings. A comparative study of participatory safeguards and in absentia trials in Europe, 2019, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3397349

Oreste Pollicino (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Marco Bassini

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
133
Abstract Views
589
Rank
387,988
PlumX Metrics