Absent Rights
Absent Rights: Making Sure Trials in Absence Are Fair Across Europe
When someone is tried and convicted without being present in court, this is known as a trial in absence. These cases raise serious questions about fairness — especially when the person did not know about the trial or did not clearly give up their right to attend.
Across the European Union, countries rely on each other to recognise and enforce court decisions. This system is based on mutual trust and legal tools such as:
- Framework Decision 2002/584/JHA (European Arrest Warrant)
- Directive (EU) 2016/343 (Right to be Present at Trial)
- Framework Decision 2009/909/JHA
- Framework Decision 2008/947/JHA
- Regulation (EU) 2018/1805
These instruments allow countries to cooperate quickly — for example, by surrendering a person under a European Arrest Warrant (EAW) so a sentence can be enforced.
But cooperation can break down when there are doubts about whether the original trial was fair.
Why This Project Matters
The right to be present at trial is protected under:
- European Convention on Human Rights (Article 6 – right to a fair trial)
- Court of Justice of the European Union case-law
- Directive (EU) 2016/343 (Articles 8 and 9)
Articles 8 and 9 of the Directive were designed to:
- Strengthen protection of the right to be present at trial
- Ensure that a person clearly waived that right if absent
- Guarantee a genuine opportunity for a new trial if they did not
- Reduce refusals and delays in European judicial cooperation
However, legal experts across Europe — particularly within the Legal Experts Advisory Panel (LEAP), coordinated by Fair Trials — have identified ongoing problems in how trials in absence are conducted in practice.
These issues are especially important for EU citizens living abroad. People who move to another Member State may miss court proceedings in their home country. If they are later arrested under a European Arrest Warrant, the fairness of the original trial becomes crucial.
When trials in absence are not handled properly, this can:
- Undermine mutual trust between countries
- Cause delays or refusals in surrender
- Harm individuals and their families
- Damage confidence in the EU as an area of justice and rule of law
What Makes This Project Different
Most previous EU-funded projects have focused on what happens at the enforcement stage — when a country is asked to execute a European Arrest Warrant.
Absent Rights goes further.
It looks at what happens:
- Before an EAW is issued (how the trial in absence was conducted), and
- After surrender (whether a real opportunity for a retrial exists).
The project examines:
- Whether defendants were properly informed
- The role of court-appointed (ex officio) lawyers
- Whether retrial procedures are effective in practice
- New developments such as remote participation via videoconference
By studying laws, court decisions, and real-life practice across several Member States, the project aims to understand the root causes of friction and failure in judicial cooperation.
What the Project Will Deliver
Absent Rights will produce:
- A comprehensive European research report
- Practical recommendations for Member States
- Legal briefing notes for defence lawyers and practitioners
- Tools to support advocacy and strategic litigation
These outputs will help ensure proper implementation of:
- Article 6 of the European Convention on Human Rights
- Articles 8 and 9 of Directive 2016/343
Over time, this should lead to:
- Fewer unfair convictions in absence
- Fewer refusals of European Arrest Warrants
- Faster and smoother judicial cooperation
- Stronger rule of law across the EU
Who Will Benefit
The project supports:
- EU policy-makers, especially the European Commission, in monitoring implementation
- National legislators and justice ministries, who shape criminal procedure laws
- Defence lawyers, who protect fair trial rights in court
- Judicial authorities handling cross-border cooperation cases
By improving understanding and practical implementation, Absent Rights aims to strengthen trust between justice systems — and ensure that cooperation in criminal matters is both effective and fair.
The Bigger Picture
The European Union is built on freedom of movement and mutual trust between Member States. That trust depends on fair and reliable justice systems.
Absent Rights works to ensure that when someone is convicted without being present, their fundamental rights are respected — and that judicial cooperation across Europe remains strong, credible, and just.
Project Partners
Absent Rights brings together leading organisations from across Europe with deep expertise in criminal justice, human rights, research, and judicial training. Together, they combine practical experience, academic knowledge, and strong advocacy capacity at both national and EU level.
Fair Trials Europe (FTE) is the Project Coordinator. The other partners are: APADOR-CH (Romania), Bulgarian Helsinki Committee (Bulgaria), Centre for European Constitutional Law (CECL – Greece), National Institute of Criminalistics and Criminology (INCC/NICC – Belgium) and Helsinki Foundation for Human Rights (HFHR – Poland).
Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union. Neither the European Union nor the granting authority can be held responsible for them.
Absent Rights. Reinforcing the right to presence at trial as a foundation for mutual trust is funded by the European Commission-EU under the Justice Programme (JUST)2025
Project duration: 24 months