JUDECATA IN ABSENTIA ÎN DREPTUL PENAL INTERNAŢIONAL: ANALIZA REGIMULUI JURIDIC APLICABIL ÎN FAŢA CURŢII PENALE INTERNAŢIONALE
TRIAL IN ABSENTIA IN INTERNATIONAL CRIMINAL LAW: ANALYSIS OF THE LEGAL REGIME APPLICABLE BEFORE THE INTERNATIONAL CRIMINAL COURT

Summary/Abstract: One of the procedural principles that has proven particularly controversial since the earliest prosecutions of genocide, crimes against humanity, war crimes, and the crime of aggression is the principle of trials in absentia. Similar to the procedural framework established by the ad hoc international criminal tribunals, proceedings before the International Criminal Court are distinguished by the controversial regulation permitting certain procedural acts to be conducted in the absence of the person concerned, most notably the confirmation of charges hearing before the Pre Trial Chamber, although the subsequent stages of the proceedings may take place only in the presence of the accused. This procedural solution must be examined in light of the requirements enshrined in the fundamental international human rights instruments, which safeguard the guarantees of a fair trial. In this context, the person concerned is represented by counsel whenever the Pre Trial Chamber considers that legal representation is necessary in the interests of justice. Nevertheless, the International Criminal Court has consistently emphasized that a confirmation of charges hearing conducted in absentia constitutes an exceptional procedural mechanism rather than the standard course of proceedings, as the absence of the person concerned limits the effective exercise of the rights guaranteed under the Rome Statute during this procedural stage. Recent case law provides an important opportunity to reassess the legal framework governing confirmation of charges hearings conducted in absentia, illustrating the Court's continuing effort to reconcile competing imperatives. On the one hand, the Court remains committed to combating impunity for the most serious crimes of concern to the international community; on the other hand, it seeks to safeguard the accused's right to be present and to exercise the right to an effective defense within the framework of a fair trial. In striking this balance, the Court considers not only the need to prevent the erosion of fundamental procedural guarantees but also the interests of justice, including the gravity of the alleged crimes, the alleged role of the accused in their commission, the impact of the confirmation hearing on victims, and the prospects for conducting the trial should the charges be confirmed. Accordingly, the analysis of this procedural mechanism highlights the need to reconsider certain aspects of international criminal procedure in order to address the challenges inherent in contemporary international criminal law. Such an approach should aim to develop procedural solutions capable of reconciling the imperative of combating impunity and protecting the interests of victims with the preservation of the fundamental guarantees of a fair trial and the procedural rights afforded to the accused.

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