Within the past 10 days or so I read a news report from a Portuguese newspaper with an intriguing bit of information. A "source," not identified by name but said to be someone with knowledge of the case, made a remark to the effect that if the McCanns were charged in connection with Madeleine's disappearance and were not returned to Portugal, they could be tried in absentia.
It was the sort of thing that makes one say, "Hmmmm," but I was unsure of this at first. I am, of course, familiar with the concept of trial in absentia but could not recall having actually heard of one taking place except in the Ira Einhorn case in America. I was also aware that a trial in absentia (called "in contumacia" there) was legal in Italy but could not recall actually hearing of a case where it was done.
I have been decidedly under the weather of late (pneumonia, second time this winter
) and did not feel like sitting down to research this until today.
Well, lo and behold, trials in absentia are legal in Portugal (and also Italy, France, Belgium, Spain, and the US, among other places). In addition, the UN Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has said that in some circumstances a trial in absentia may be necessary to further the administration of justice. This is the current state of the law:
Under existing EU law, member states can enforce each other’s fines and judgments, and can agree to arrest and surrender a citizen following legal proceedings at which that citizen was not present. However, a state can refuse to co-operate if, broadly speaking, the citizen did not know about the proceedings and, in cases involving the European Arrest Warrant, if the citizen cannot apply for a retrial.
It appears that such a verdict would probably be accepted in the UK for purposes of extradition if the defendant(s) were afforded certain safeguards. (Links provided at the end of post.) These safeguards include:
(1) The accused and his defence counsel must be served with a summons telling them of the date and location of the trial far enough in advance of the trial date so that the accused could have a reasonable amount of time to prepare his defence and make arrangements to attend if he chose to do so.
(2) If the accused is unable to attend the trial because of personal illness or another factor outside his control, the trial should be postponed, rather than being carried on in absentia.
(3) Even if the accused chooses not to appear, he should still be afforded the right to have counsel present at the trial to cross-examine witnesses and present evidence on his behalf.
(4) If, after being tried in absentia, the accused agrees to return to the country where he was charged and submit himself to a retrial by the country's justice system, he should be afforded that possibility.
(5) There must be a right of appeal, even if the accused has formally waived his right to attend the trial or has deliberately sought to evade justice. Counsel of choice should be allowed to represent the defendant on appeal.
(Note: There is currently a move afoot in the EU to make it possible for judges in EU countries to refuse to extradite someone tried in absentia unless the defendant is afforded the right of re-trial; however, it appears that the Slovenians, who chair the EU committee considering this issue, are not moving it forward expeditiously.)
So, this raises the possibility of yet another interesting wrinkle in this case: What if the Portuguese should bring charges against the McCanns and, as tylersmum and other have posited, the McCanns should be able to delay their extradition pursuant to an EAW for some untoward length of time? Portugal, under its laws, could try them in absentia and then, depending on the outcome of the trial, possibly present the UK with another EAW based not on charges having been laid, but an actual conviction.
This is interesting food for thought, I think, because the statement of the Portuguese official seems to indicate that Portugal may actually be considering this possibility or at the least has not ruled it out, and also because of the issues it raises with regard to how government agencies in the UK (social services, NHS, for example) might react to an actual conviction in another country, even if it had occurred in absentia.
Links to sources:
http://www.prisonersabroad.org.uk/Downl ... sentia.pdfhttp://www.cjsonline.gov.uk/the_cjs/wha ... -3669.htmlAlso, I should like to thank everyone for the PMs and the posts of support on SweetPepperSpray's thread "An Open Challenge to Beachy." Humility is my nature, because I know I am nothing special, but this made me feel especially humbled. I am nothing but an old woman who once, long ago when she was young, had an almost identical case of a little child who disappeared and finally was able to see that charges were laid against those who killed him, but was not able to bring him home so that he could be decently laid to rest. The sadness of that will never, ever leave me. I shall live with it till the day I die, which is why I have so much concern and respect for all those who are trying to bring justice for Madeleine.
bjr wrote:
Thank you beachy for such an enlightening post, yes there is more twists and turns in this case. So correct me if I am wrong, Portugal could try the McCanns in their abscence and then if found guilty would present a warrant for them to be arrested and returned to Portual to serve part of their sentence. Or could they let them serve the whole of their sentence, if they were found guilty in the UK?
Beachy I am sorry to here about your case and I know who hard officers work to bring the culprits to justice and also how determined they are to find a body once they suspect foul play involved. It is such a sad world when we children and adults can not be laid to rest with the dignity they so deserve.
Very good point, bjr. The issue of where the McCanns might serve their sentence if ultimately convicted in this case is a bit complicated, and frankly, I had not thought about the possible implications of a trial in absentia on where a sentence might be served. Let's see if I can talk it through:
Firstly, if the McCanns are charged with a crime in Portugal, I do not see how they can be tried for it in the UK. The theory of prosecuting crimes where they occur is that any crime is committed both against a victim, and also against the peace of the jurisdiction in which it occurs. The Portuguese have said that, if the the McCanns are charged, they intend to try them in Portugal, and I believe they will insist on their right to do it. That leaves us, then, with the European Arrest Warrant, if the McCanns should be charged with a crime in Portugal whilst physically present in the UK.
It is my understanding that an EAW can be issued in either of two circumstances:
(1) charges have been formally laid against a defendant for a crime that carries a maximum sentence of at least a year in prison if convicted;
or
(2) someone has already been convicted of a crime carrying a penalty of at least four months' incarceration.
The rules governing the EAW say that the country in which the person is residing can execute the sentence in its own prisons instead of surrendering him to the requesting nation. But in practice, would that really be likely to take place?
Let us assume that there is a situation where a British citizen currently living in Britain has been charged in Portugal with an offence punishable by at least a year in jail, but the trial has not yet taken place. Under the terms of the EAW, he should be returned to Portugal to face trial, but I do not think that Britain could refuse to surrender him by saying it would execute the sentence in Britain, as no conviction has yet occurred, and therefore there is no sentence pending.
If this individual is returned to Portugal to stand trial and is convicted, I should be very surprised if the Portuguese let him get away. Under normal circumstances I think he would probably be sent to gaol in Portugal to serve his sentence, and any appeals to which he is entitled could be heard whilst he is in gaol. (If I am reading the Portuguese constitution correctly, Article 27 does not mandate bail for anyone who has been convicted of a crime.) Therefore, in the normal course of things, I do not see how the UK could get their hands on him to say that they want him to serve his sentence in the UK. (See below for possible exceptions.)
It would seem to me that if a person had already been convicted and sentenced to 4 months' incarceration or more at the time the EAW was issued, then necessarily one of 3 things would have had to occur:
(1) he would have had to have been convicted in a trial in absentia; OR
(2) he would have had to have been granted bail for some reason following conviction, even the law does not seem to require it (perhaps something such as a compassionate release to see a dying parent or make arrangements for children residing in his home country); OR
(3) he had managed to escape and scarpered back to his home country.
It seems to me that, under the terms of the EAW, the UK could execute the sentence in its own territory in any of these 3 situations, but I should imagine that #3, particularly, would cause bad blood between the two countries if the UK refused to surrender a fugitive who had already been convicted.
So yes, bjr, it appears that the very rules governing the execution of the EAW are set up to take into account the possibility of a trial in absentia which could have resulted in a sentence being handed down before the EAW was ever issued. I had not thought of that. Thank you for bringing it up.
beachy wrote:
Also, I should like to thank everyone for the PMs and the posts of support on SweetPepperSpray's thread "An Open Challenge to Beachy." Humility is my nature, because I know I am nothing special, but this made me feel especially humbled. I am nothing but an old woman who once, long ago when she was young, had an almost identical case of a little child who disappeared and finally was able to see that charges were laid against those who killed him, but was not able to bring him home so that he could be decently laid to rest. The sadness of that will never, ever leave me. I shall live with it till the day I die, which is why I have so much concern and respect for all those who are trying to bring justice for Madeleine.
mexx wrote:
Beachy: I am so sorry to hear your sad story. Like Madeleine, he was just short of his fourth birthday when he disappeared. Due to a complicated and unusual set of circumstances (long story, that), no agency began officially looking for him till he had been missing for several years. His dead body had been taken to the city dump. By the time we got a confession out of his parents, he was buried underneath an estimated 110 feet of garbage and dirt. Despite some frantic digging with heavy equipment and the use of cadaver dogs (this was long before Eddie and Keela's day; I wonder if they might have found him), his body was not located. His stepfather confessed and was convicted of murder, his mother of aiding and abetting, but he is still out there, buried with the trash. In that regard, I consider myself the last in a long line of public servants who failed him.
In law enforcement, there are certain things that you learn to put behind you in order to survive and be able to continue doing what you do, but you never forget a case involving harm to a small child. Never. This is why I say God bless Paulo Rebelo, Goncalo Amaral, Luis Neves, Tavares Almeida, Ricardo Paiva, Guilhermino Incarnacao, Olegario de Sousa, Jose Cunha Magalhaes e Meneses, Pedro Frias, and every other member of the PJ and Portuguese public prosecutor's office and judiciary connected with this case, as well as the British coppers who have helped them. Whilst we were sitting in our houses or offices in air-conditioned comfort last August or lounging at the beach, some of these fellows were at a pet crematorium run by a convicted criminal searching amongst the offal for any trace of the body of a three-year-old girl. When we were trimming our Christmas trees and enjoying our holidays with our families, some of them were hundreds of miles from home living in hotels and working 14-16 hours a day interviewing some of the 2,000 people they have talked to thus far. God bless them, is all I can say.
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