Peculiarities of Court Proceedings in Absentia as a Manifestation of the Differentiation of Criminal Proceedings

Abstract

The doctrinal views on court proceedings «in absentia» are analyzed in the article. The author emphasizes that the current Criminal Procedure Code of Ukraine provides for several cases in which it is allowed to consider criminal proceedings in the court of the first instance in the absence of the accused, namely: 1) removal of the accused from the courtroom temporarily or for the entire duration of the trial in case of repeated violation by the order of the court session; 2) consideration of an indictment regarding a criminal misdemeanor in a simplified procedure; 3) special court proceedings (court proceedings in the absence of the accused (in absentia). The opinion expressed is that consideration of criminal proceedings in the court of first instance in the absence of the accused cannot be equated with special court proceedings. These concepts are related to each other as generic and species (are in a relationship of subordination). Special court proceedings are considered as an independent differentiated type of court proceedings in the court of the first instance, which are carried out by a court order regarding crimes provided for by the Criminal Procedure Law, in the actual absence of the accused in the court session, who is hiding from the court in the temporarily occupied territory of Ukraine or outside its borders with for the purpose of evading criminal liability or transferred for exchange as a prisoner of war, which necessitates the observance of enhanced procedural guarantees of the rights of the accused. According to the author, special court proceedings are characterized by the following features: 1) the physical absence of the accused during the entire court proceedings; 2) the need to ensure procedural guarantees of the rights of the accused. Such guarantees are largely compensatory in nature. The article examines the experience of certain foreign states in regulating proceedings in the absence of the accused. Attention is focused on the system of guarantees provided for by international acts and decisions of the ECtHR, which must be ensured in court proceedings conducted in the absence of the accused.