Research On Trials In Absentia Of The European Union's Criminal Proceedings

Trials in absentia,as an exception to the trial system,needs to be strictly restricted,which not only guarantees the rights of the accused and the litigant participants,but also weighs the issues of fairness and efficiency.A new chapter in China's new Criminal Procedure Law,for the first time,established the system of trials in absentia of criminal proceedings.Meanwhile,the only seven articles(articles 291 to 297)do not give more elaborate provisions for the specific application of the system.The system of trials in absentia of criminal proceedings has been applied in Europe for many years,with abundant sources of law at the level of the European Union,not only with legislative provisions,but also with the extensive case law of the European Court of Human Rights(“ECtHR”)and the Court of Justice of the European Union(“CJEU”).This paper will analyze the EU's current trials in absentia of criminal proceedings,together with the legislation and judicial practice in Germany,France,Italy and the UK.Afterwards,the author will dig out merits and shortcomings of China's current system of trials in absentia of criminal proceedings,then draw lessons from extraterritorial experience for more elaborate ideas on the system in our country.An introduction,four chapters and a conclusion are included in this paper.The introduction tells the basis,research methods,references,significance and innovation of the paper.The original intention of our country's trials in absentia of criminal proceedings is mainly to meet two needs: under the specific background of an improving status of anti-corruption work;safeguard national security and combat terrorism crimes.It is to be pointed out that tremendous amount of legislative documents in the EU almost cover the ins and outs of problems in practice,while China's system of trials in absentia of criminal proceedings is still in its infancy,and strategies of its perfection and development ought to be drawn from the EU,which has a relatively mature legal system.The first chapter is an overview of the system of trials in absentia of criminal proceedings,which mainly introduces the concept,characteristics,function and value of the system.Chapter two depicts more detailed contents of the legal sources and documents of the EU's current system of trials in absentia of criminal proceedings,including the European Convention on Human Rights(“ECHR”),Charter of Fundamental Rights of The European Union(“CFREU”),Framework Decisions on the European Arrest Warrant(“EAW”),the Directive 2016/343,as well as case law of trials in absentia of criminal proceedings,such as Colozza v.Italy,Sejdovic v.Italy and Somogyi v.Italy from the “ECtHR”,Melloni case,Tupikas case,Zdziaszek case and Dworzecki case from the “CJEU”.The third chapter introduces the current system of trials in absentia of criminal proceedings in the four main EU member states: Germany,France,Italy and the UK.Chapter four discusses the reference and enlightenment from the EU's system of trials in absentia of criminal proceedings.Starting from the current system of trials in absentia of criminal proceedings in our country,this chapter firstly represents the scope of application of the system in our country and its due process,including the defendant's right to know and the service of litigation documents,the right to defense and the relief procedure of the system.Next,three suggestions are raised by the author on the improvement of the current system of trials in absentia of criminal proceedings in our country,namely,some improvements in practice,for instance,guaranteeing the defendant's right to know in the procedure and the problem that the provisions of the opposition system are too concise;the application scope of the system is too narrow;the last one is the interpretation of the ultimate purpose of the system.The last part is conclusion drawn from the above research results,the author considers,firstly,that the system of trials in absentia of criminal proceedings in our country should be established on the principle of guaranteeing the defendant's right to be tried,hence the trials in absentia shall be strictly restricted as an exception.Secondly,in order to demonstrate a non-expansive attitude towards trials in absentia of criminal proceedings,the legislation of the system shall not be classified as one of the separate special procedures,but exists as an exception in the general trial procedures.Thirdly,the crimes fall into trials in absentia of criminal proceedings should not be limited,the boundaries shall be determined based on the seriousness of the suspected crime.Last but not the least,the court may commence criminal proceedings in the absence of the accused,provided that the ultimate purpose is to preserve the evidence,hence the accused is forced to appear.The author deem it advisable to draw on the experience of the EU's plentiful legislative documents and practice,in order to perfect China's system of trials in absentia of criminal proceedings.