Late last month, the Draft Law on amending and supplementing the Criminal Procedure Code of the Republic of Kosovo passed in principle at the Committee on Legislation, Mandates and Immunities. Once final, this law will change the Criminal Procedural Code so as to enable war crimes trials to be held even without the physical presence of the person being tried — a type of hearing known as ‘trial in absentia.’

While the draft law would open the door to these types of hearings, it also strictly regulates the circumstances in which they can occur. It clearly states that the imposition of criminal jurisdiction over a case without the defendant being present may be made only after several options have been exhausted, stating that:

a. The person under investigation shall be sought in the State / States where is supposed to be, based on the principle of international legal cooperation, at least five times, and only after such a request has been completely refused or neglected by the authorities of the receiving State;

b. Be put into use any channel of international police cooperation, and such a channel has failed to detain the person under investigation;

c. After failure to reach their purpose under point a and b, the person under investigation shall be declared as wanted for investigation in criminal proceeding for at least six months, in the media of the Republic of Kosovo, including the Official Gazette of the Republic of Kosovo.

It should be noted that if this draft law becomes law and these criteria are fulfilled, it won’t be the first time that trials in absentia would be conducted in Kosovo. Right after the war, when the provisions from the Federal Yugoslav Criminal Code were still being applied, there were ongoing cases where the accused were being tried in absentia, specifically on charges of genocide.

The debate around the ethics of trial in absentia differ around the world, with different legal systems adopting different approaches. While in common law systems the concept can be seen as a violation of the principle ‘audi alteram partem’ (to hear the other party), in some civil law systems trial in absentia comprises a well-accepted defensive strategy, though depending on the country, the presence of the defendant’s lawyer might be required.

Within the European Union and member states of the Council of Europe that are signatories to the European Convention on Human Rights, there is one particular article in the Convention that foresees, and furthermore even protects, the right to a fair trial. It is Article 6, par. 1, which explicitly states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

It is the breach of this article that the European Court of Human Rights (ECHR) mostly refers to when dealing with trials in absentia cases sent to them. However, there is also a Framework Decision that argues that trials in absentia can in fact be considered congruent with Article 6.

Needless to say, this is not a view embraced by the ECHR, and trials in absentia still pose major problems within the region when it comes to the fluidity of mutual recognition of judicial judgments, which is then directly linked with the (non) obligation of executing a European Arrest Warrant.

There is also a set of conditions issued by the Council of Europe’s Ministers of Justice under which trials in absentia will be recognized, such as: if the person can be said to have been aware of the trial, if a counsellor took their place at the trial, if they do not request an appeal in due time, or if they are to be offered an appeal.

There is also a commentary on judgments that have been reached as a result of trials in absentia, made by The Council of Europe. Resolution (75) 11 specifies the importance of the individual being informed about the trial in due time, rather than the importance of their presence during the trial, an approach echoed in this new draft law in Kosovo.

International criminal justice and war crimes trials

The general consensus might be shaky when it comes to the concept of trials in absentia for domestic criminal trials, but what about international criminal justice? What about war crimes? What if countries are faced with a situation in which it is impossible to address certain cases due to the refusal of the accused to be present? Can trials in absentia be justified in those cases?

Here we turn to the well-known establishment pertaining to international criminal justice, specifically the International Criminal Court (ICC). It should be noted that before the finalization of the Rome Statute, there were lengthy discussions with regards to whether trials in absentia should or should not be allowed under the auspices of the ICC.

After the final draft of the Rome Statute was adopted in 1998, Article 63 made it clear that the accused shall be present during the trial, with only small provisions allowing trial in absentia in the case that the accused continually disrupts the trial, or during the hearing in which charges are confirmed.

Other countries in the region have a mixed approach to trial in absentia. Article 29 of the Constitution of the Republic of Croatia stipulates that the accused has the right “to be present at the trial if he is available to the court.” As is easily noted, the article only mentions the right to be present, conditioning it with the accused’s availability, which opens the option of trials in absentia.

Sanader v. Croatia is one of the landmark cases for Croatia when it comes to trials in absentia, due to the fact that it went all the way to the ECHR.

Mile Sanader was charged with war crimes against prisoners of war in 1992, and was tried in his absence. Based on different statements of witnesses he was sentenced to 20 years imprisonment, while the courts issued an arrest warrant in that respect.

Sanader complained and asked for a retrial, taking his case all the way to the ECHR. In 2015, the ECHR took a verdict in connection to the case, and held that Croatian courts had violated Sanader’s right to a fair trial, referencing the aforementioned Article 6, par. 1 of the Convention.

Despite this verdict – Croatia still continues to apply trials in absentia. Just last month, the trial in absentia of 29 Serb paramilitary commanders accused of the massacre of Croatians in Voćin in 1991 started in Zagreb.

Serbian courts also allow for the option of trials in absentia, the matter regulated within the Criminal Procedure Code of the country. Article 381 of the Criminal Procedure Code of Serbia explicitly states: “A defendant may be tried in absentia only if there exists particularly justified reasons to try him although he is absent, provided he is at large or not accessible to the public authorities.”

Although Serbia’s War Crimes Prosecutor’s Office (WCPO) has been praised by the Organisation for Security and Co-operation in Europe for avoiding issuing indictments for people at large and trying people in absentia, there is a notable exception. In what is known as ‘the Gjilan case’ the WCPO issued an indictment against 17 former members of the Kosovo Liberation Army, trying 8 of them in absentia. Once again, this just goes to show, that Serbia practices the option of trial in absentia as well.

The Criminal Procedure Code of Bosnia and Herzegovina meanwhile, is very clear when it comes to trials in absentia. Article 247 explicitly states: “An accused may never be tried in absentia.” The same principle appears to apply to the War Crimes Chamber of the Court, established in March 2005. The court’s sole purpose is to investigate and prosecute people embroiled in violations of international law during the 1992-1995 war, but despite this, it has never held trials in absentia.

A step forward?

But regardless of the legal debates, will this amendment to the legislation aid transitional justice in Kosovo and the victims of crimes committed during the war?

Given the failure of the domestic legal system, as well as UNMIK and EULEX to properly address war crimes cases in Kosovo, and also considering the resistance of Serbia to cooperate in connection with war crimes trials, it is important to have the possibility to address what happened in Kosovo — even if that means that it has to be done without the physical presence of the person being tried. When it comes to transitional justice and dealing with the past, we have to accept and agree that there is no win-win situation, and that a set of people will be dissatisfied in any scenario.

My major concern when it comes to this amendment has to do with victims who might not have the opportunity to face the perpetrators themselves. One of most important pillars of dealing with the past are the victims, and as such they should be included in the debate; notified and prepared properly about the upcoming changes. It is very important to have them on board when these trials start happening. Otherwise we have failed to properly address, let alone redress war crimes.

We have no more time to lose.

We’ve lost enough.

Feature image: Besnik Bajrami / K2.0.