By Md. Nafis Iqbal: After the July 2024 Mass Uprising, Bangladesh has reached one of the crucial period in its judicial history. When the people seek justice for the victims of the harsh massacre on peaceful protester seven of the children, a major obstacle has arisen that not only many accused individuals, suspects, and allies of the fascists have fled the country but also these fugitives are actively trying to avoid the courts. At the same time, they attempt to insult and undermine ongoing trials before the International Crimes Tribunal (ICT)[1].

They argued that any judgment given when the accused is not physically present (trial in absentia) is automatically void, illegal, and unfair. However, this claim misinterprets both Bangladeshi law and international legal standards.

While an accused person has a right to be present at their trial but that right cannot be abused to escape justice forever. Trial in absentia is not only valid under our laws, but it is also necessary to protect the rights of victims and their families.

Under the Code of Criminal Procedure 1898, section 339B gives courts clear authority to conduct a trial without the accused presence if the court has reason to believe that the person has absconded or concealing him/herself so that he or she cannot be arrested and produced for trial.[2]

Before doing so, the court must follow strict procedures, such as court may publish a written proclamation requiring him to appear at a specified place and time, not less than 30 days from date of publication of the proclamation under section 87.[3] Again, the court may order of an attachment of the property of that person under section 88,[4] and also order for publishing formal notices in national newspapers.[5]Similar rules exist in special laws, including section 10A of the International Crimes (Tribunals) Act, 1973[6] and section 33 of the Anti-Corruption Commission Act 2004.[7]

In the case of Begum Khaleda Zia v Anti-Corruption Commission (ACC) (2019)[8], the Appellate Division observes that the provision of s 540A CrPC is laid down for the benefit of accused person who is unable to remaining before the court.

Again, trying an accused person in their absence is not an unusual practice in worldwide judicial practice. For instance, article 12 of the Nuremberg Charter allowed trials in the absence of the accused[9], leading to the 1946 conviction of Martin Bormann, Adolf Hitler’s private secretary, in absentia.[10]

Recently, the United Nations-backed Special Tribunal for Lebanon (STL) conducted trials in absentia for those accused of assassinating former Prime Minister Rafik Hariri under rule 106 of its procedural rules.[11]

Similarly, international tribunals like the International Criminal Tribunal for Rwanda (ICTR) in cases like Prosecutor v Protais Zigiranyirazo[12] confirmed that when an accused deliberately boycotts or avoids court, the tribunal has a duty to move forward.

Moreover, the European Court of Human Rights (ECtHR) has also ruled in landmark cases like Colozza v Italy[13] and Sejdovic v Italy[14] that an accused person can lose or waive their right to be present at trial if they intentionally avoid justice, provided they were properly informed of the charges and given legal representation.

So, when an accused intentionally runs away and refuses to show up, the law cannot simply freeze and do nothing. Opponents often try to blame the trials as biased. But under Bangladeshi law, a trial in absentia must still follow strict due process rules such as the tribunal may direct that a counsel shall be engaged at the expense of the government to defend the accused person and may also determine the fees to be paid to such Counsel.[15]

Furthermore, the prosecution must still prove guilt beyond a reasonable doubt under section 101 of the Evidence Act 1872.[16] Even after a verdict, provisions like section 89 of the Code of Criminal Procedure 1898 allow a convicted person who later surrenders or gets extradited to file an appeal, seek a review, or explain why they could not appear earlier.[17]

Last but not the least, it must also be remembered article 31 of the Constitution of Bangladesh guarantees that every citizen has the right to the protection of the law including the victims as well as the accused.[18]Ultimately, trial in absentia is not a shortcut, nor is it an act of revenge. It is a necessary legal response to ensure that justice will not stop simply because the accused has fled.