PART TWO CRIMINAL PROCEEDINGS
CHAPTER XIX MAIN TRIAL
SUB – CHAPTER IV PRECONDITIONS FOR THE MAIN TRIAL
Article 303
Trial in Absentia
1. The accused is present at:
1.1. the initial hearing; and
1.2. the main trial.
2. The accused waives the right to be present at the main trial in the following circumstances:
2.1. when the accused was present at the initial hearing and was informed of the trial
date by the single trial judge or presiding trial judge pursuant to Articles 280 and 282 of
this Code, or during another court hearing, and the accused was told of the requirement
to be present for the trial and that the trial could proceed if the accused voluntarily fails
to appear for trial; or
2.2. was present at the trial, but then failed to appear at subsequent trial sessions, and
was informed of the new trial date pursuant to sub-paragraph 2.1 of this Article.
3. In the event the accused fails to appear in any circumstance in sub-paragraphs 2.1 or 2.2 of
this Article, the single trial judge or presiding trial judge determines if the accused is voluntarily
absent after the hearing described in paragraph 4 of this Article and the accused is represented
by a defense counsel.
4. In deciding whether to hold a trial in the absence of the accused, the single trial judge or
presiding trial judge holds a hearing to determine why the accused is absent and assess any
explanation or evidence regarding whether the accused has voluntarily decided to be absent
from the trial. In particular, in making this determination, the single trial judge or presiding trial
judge considers if reasonable efforts have been made to locate the accused.
5. If the court, in accordance with paragraph 4 of this Article determines that the accused has
voluntarily decided to be absent from the trial, in deciding whether to hold a trial in the absence
of the accused, the court also considers if one of the following conditions is met:
5.1. the difficulty of rescheduling the trial, particularly in trials involving multiple accused;
5.2. the burden on the state prosecutor in having to undertake two trials involving evidence
common to co-accused; or
5.3. if a delay will place the prosecution witnesses in substantial jeopardy or inconvenience.
6. In the event of a trial held as provided in paragraph 2 of this Article, the court makes
reasonable efforts to inform the defendant regarding the judgement. However, if the court is
not able to inform the defendant due to his absence, the defense counsel has the right to
appeal the judgment on behalf of the defendant pursuant to Article 383 of this Code. In doing
so, the defense counsel has to demonstrate that he has taken the best interest of the accused
into account. The provisions of Article 380 of this Code regarding the deadline apply mutatis
mutandis.
7. In cases of offenses set forth in Article 104 of the Criminal Code, a trial in absentia may be
conducted without meeting the criteria of ensuring the presence of the accused as set forth in
this Article, if the single trial judge or presiding trial judge is satisfied that reasonable efforts have
been made to notify the accused of the trial and ensure the presence of the accused. In this
case, the accused is represented by a defense counsel throughout the criminal proceedings,
until the judgment becomes final. Articles 11 and 56 of this Code regarding mandatory defense
apply mutatis mutandis.
8. The reasonable efforts in the meaning of paragraphs 6 and 7 of this Article include the
procedures under Articles 172 and 173 of this Code and a thorough information campaign
calling the accused to surrender to the jurisdiction of the court. Additionally, the summons with
the indictment are published in the website of the State Prosecutor, the court conducting the
proceedings, and the official gazette, calling on the accused to surrender. Such notifications
invite any person with information as to the whereabouts of the accused to communicate such
information to the police.
9. A person tried under paragraph 7 of this Article is entitled to have an unconditional, automatic
and full retrial upon request.