Is Presence at Trial a Right, a Duty or Both?

Caleb H. Wheeler

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Chapter 2 Is Presence at Trial a Right, a Duty or Both?

In: The Right to Be Present at Trial in International Criminal Law

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Caleb H. Wheeler

Caleb H. Wheeler
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Type:: Chapter

Pages:: 8–31

DOI:: https://doi.org/10.1163/9789004376861_003

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Abstract

This chapter discusses whether the accused’s presence at trial is a right, a duty or both under international criminal law. It starts by contextualising presence at trial in the larger framework of the right to a fair trial and defining the terms right and duty. It then separately examines the evidence supporting a finding that the accused has a right to be present at trial and concludes that the right to be present exists and is guaranteed through a number of international and regional conventions and all of the statutes of international or internationalised criminal courts and tribunals. This chapter also finds that there is growing support in primary and secondary sources for the idea that there is a duty to be present at trial obligating the accused to attend trial and permitting the court or tribunal to proceed in the accused’s absence if he or she does not appear. Having established that there is a right to be present and a duty to be present, this chapter also considers whether the right to be present and the duty to be present are co-extensive or if they actually pertain to different aspects of presence. The chapter concludes that the right to be present and the duty to be present can co-exist so long as the precautions are taken to prevent the former from being invalidated by the latter.

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The Right to Be Present at Trial in International Criminal Law

Series: International Criminal Law Series, Volume: 13

E-Book ISBN:: 9789004376861

Publisher:: Brill | Nijhoff

Print Publication Date:: 29 Sep 2018

Subjects
- Human Rights and Humanitarian Law
- International Law
  - International Law: General Interest
  - Public International Law

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Chapter 2 Is Presence at Trial a Right, a Duty or Both?

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The Right to Be Present at Trial in International Criminal Law

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