When is Present Not Present: The Right to Be Present and the Ability to Understand and Participate in Proceedings

Caleb H. Wheeler

Jump to Content

Chapter 8 When is Present Not Present: The Right to Be Present and the Ability to Understand and Participate in Proceedings

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

Author:

Caleb H. Wheeler

Caleb H. Wheeler
Search for other papers by Caleb H. Wheeler in
Current site
Google Scholar
PubMed

Type:: Chapter

Pages:: 200–236

DOI:: https://doi.org/10.1163/9789004376861_009

Purchase instant access (PDF download and unlimited online access):

€42.00€35.00 excl. VAT

Add to Cart

Redeem Access Token

Abstract

This chapter examines the last of the four categories of absence; situations in which the accused is physically present in the courtroom during trial but unable to understand and participate in the proceedings. It explores the idea that the right to be present requires more than just the physical presence of the accused in the courtroom and instead emphasizes the importance of the accused’s participation in the trial. It specifically considers two instances in which the accused is present in the courtroom but unable to understand and participate in the proceedings. First, it discusses the requirements imposed by different courts and tribunals when trying an accused that does not understand the language in which the trial is being conducted. It finds that the right to be present at trial imposes an obligation on courts and tribunals to guarantee that an accused can understand the proceedings against him or her, although the degree to which he or she must be able to understand remains open to some debate. Next, it considers situations in which the accused is mentally unfit to stand trial and cannot understand or participate in the proceedings. Although a mentally unfit accused may be present in the courtroom, his or her condition will often prevent the accused from being able to participate in the proceedings. This shows that although the accused may be physically present in the courtroom, that sort of presence does not comply with the right to be present. Finally, the chapter looks at the changing use of videoconferencing technology during international criminal trials and the evolution in the law of a variety of different courts and tribunals towards allowing the accused to attend trial remotely. This supports the idea that presence at trial is more closely linked to the accused’s ability to participate in trial than to his or her physical presence. All of these topics, taken together, demonstrate that the accused is present for trial if he or she can understand and participate in the proceedings and that his or her physical presence is of diminishing importance when deciding if the accused is present.

Citation Info

Save
Cite
Email this content

Share link with colleague or librarian

You can email a link to this page to a colleague or librarian:
Email this content
or copy the link directly:

https://brill.edhh.ma/abstract/book/9789004376861/BP000008.xml
The link was not copied. Your current browser may not support copying via this button.

Link copied successfully

Collapse
Expand

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

Metrics

	All Time	Past 365 days	Past 30 Days
Abstract Views	527	80	24
Full Text Views	86	2	0
PDF Views & Downloads	51	2	0

African Studies	Education	Media Studies
American Studies	History	Middle East and Islamic Studies
Ancient Near East and Egypt	Human Rights and Humanitarian Law	Musicology
Art History	International Law	Philosophy
Asian Studies	International Relations	Religious Studies
Biblical Studies	Jewish Studies	Slavic and Eurasian Studies
Biology	Languages and Linguistics	Social Sciences
Book History and Cartography	Life Sciences	Theology and World Christianity
Classical Studies	Literature and Cultural Studies

Subjects

Authors

Open Access

Product Information

Company

Contact

Chapter 8 When is Present Not Present: The Right to Be Present and the Ability to Understand and Participate in Proceedings

Abstract

Citation Info

Share link with colleague or librarian

The Right to Be Present at Trial in International Criminal Law

Table of Contents

Metrics

Metrics