Contempt proceedings in absentia
|Judgement on Request of Croatia for Review - 29.10.1997||
58. The Appeals Chamber holds the view that, normally, the International Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance by an individual with a subpoena or order issued by a Judge or a Trial Chamber. Legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. This holds true for those cases where, from the outset, the International Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or the defence, on the assumption that the authorities of the State or Entity would either prevent the International Tribunal from fulfilling its mission (see above, paragraph 55) or be unable to compel a State official to comply with an order issued under Article 29 (see above, the case mentioned in paragraph 51). […]
59. The remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power […]) to the specific contempt power provided for in Rule 77. […] [I]n absentia proceedings may be exceptionally warranted in cases involving contempt of the International Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice. These cases fall within the ancillary or incidental jurisdiction of the International Tribunal.
If such in absentia proceedings were to be instituted, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. The Appeals Chamber holds the view that, in addition, other guarantees provided for in the context of the European Convention on Human Rights should also be respected.
 In the Colozza case (judgement of 12 Feb. 1985), the European Court on Human Rights held that trials by default, which are not prohibited by Art. 6, para. 1, of the European Convention of Human Rights (whereby every person charged with a criminal offence is entitled to take part in the hearing) must however fulfil some basic conditions required by the notion of “right to a fair trial”. It follows, among other things, that any waiver of the right to be present “must be established in an unequivocal manner” (Publications of the European Court of Human Rights, Ser. A, vol. 89, p. 14, para. 28); serious attempts must be made to trace the indictee and notify him of the opening of criminal proceedings (ibid); in addition, once the indictee becomes aware of the criminal proceedings against him, he “should ... be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge”(ibid, p. 15, para. 29).