JUDGMENTS BY DEFAULT IN PENAL JURISDICTIONS - SOME CONSIDERATIONS OF COMPARATIVE LAW - FRANCE

• NCJ Number: 60321
• Journal: Revue de science criminelle et de droit penal compare Issue: 1 Dated: (JANUARY-MARCH 1979) Pages: 1-22
• Author(s): D PONCET
• Date Published: 1979
• Length: 22 pages
• Sponsoring Agency: Centre Francais de Criminologie
• Corporate Author: Editions Sirey
• Publication Format: Article
• Language: French
• Country: France

Annotation

VARIATIONS OF THE JUDGMENT-BY-DEFAULT PROCEDURES OCCUR IN ENGLAND, THE UNITED STATES, WEST GERMANY, AUSTRIA, ITALY, FRANCE, AND SWITZERLAND.

Abstract

THEORETICALLY, JUDGMENT IN ABSENTIA IN CRIMINAL CASES REQUIRES OBSERVANCE OF THE SAME RIGHTS AND GUARANTEES AS FOR NORMAL PROCEEDINGS. IN ENGLAND, DECISIONS FOR SERIOUS CRIMES ARE NOT POSSIBLE IF THE ACCUSED IS NOT PRESENT AT LEAST DURING ARRAIGNMENT, AS THE JUDGE MUST BE FAMILIAR WITH OFFENDERS' PERSONALITIES, AND ACCUSED PARTIES ARE KEPT IN CUSTODY FOR THE TRIALS' DURATION. IN CERTAIN CASES OR IN SUMMARY PROCEEDINGS EXCEPTIONS MAY BE MADE. THE SAME RULES APPLY IN THE UNITED STATES, EXCEPT THAT ACCUSED PARTIES REMAIN FREE IF THEY WERE AT LIBERTY BEFORE THE TRIAL. THE DEFAULT PROCEDURE IS POSSIBLE IN WEST GERMANY AND AUSTRIA FOR CERTAIN ACCUSED PARTIES WHO DO NOT SHOW UP, IF THE ACCUSED HAS BEEN HEARD ONCE AND DEFENSE IS PROVIDED, BUT NOT FOR ACCUSED PARTIES WHOSE WHEREABOUTS ARE UNKNOWN, ALTHOUGH THEIR PROPERTY MAY BE SEIZED TO FORCE THEIR APPEARANCE. IN ITALY, TRIAL IN ABSENTIA IS ONLY PERMITTED WHEN A REAL OBSTACLE HINDERS THE ACCUSED FROM APPEARING IN COURT; THE TRIAL PROCEEDS AS IF THE DEFENDANT WERE PRESENT. IN FRANCE A DEFENDANT WHO REFUSES TO APPEAR OR TO DEFEND HIMSELF CAN BE TRIED WITHOUT GUARANTEES OR DEFENSE COUNSEL, AND DEFENDANTS WHO SEEK TO EVADE TRIALS ARE LABELED 'REBELS,' THUS LOSING ALL RIGHTS. THE CANTONAL AND FEDERAL LAWS VARY WIDELY IN SWITZERLAND, BUT IN GENERAL, JUDGMENT IN ABSENTIA IS ALLOWED IN SOME CASES A DEFENDER IS NOT REQUIRED. THE INTERNATIONAL CONVENTION ON HUMAN RIGHTS SUPPORTS THE PRINCIPLES OF FAIR HEARING, OF EQUAL PROCESS, AND OF TRIAL BY DEFAULT ONLY WITH GUARANTEED RIGHTS AND USUAL PROCEDURES, INCLUDING A DEFENDER, SO THAT THE ACCUSED IS NOT PENALIZED FOR HIS ABSENCE. FRENCH PRACTICES DO NOT CONFORM TO THIS STANDARD AND SHOULD BE REFORMED. NOTES ARE SUPPLIED. --IN FRENCH. (KMD)