14 Nov. 45
Since the first condition, impossibility of finding the defendant, is immediately eliminated, it must be examined whether the second condition can be applied, that is, whether it is necessary, in the interests of justice, to try Krupp.
The Defense is of the opinion that justice does not demand a trial against Krupp in absentia, that this would even be contrary to justice. I want to quote the following reasons: The decision on this question must come from the concept of justice in the sense of Article 12 of the Charter. We must take into account here that the 12th Article is purely a regulation concerning procedure. The question arises, however, whether the Trial against Krupp in his absence would be a just procedure. In my opinion, a just procedure is only then given if it is, as a whole or in its particular regulations, fashioned in such a way that an equitable judgment is guaranteed. That is a judgment whereby the convicted defendant will be punished accordingly and the innocent exonerated from guilt and punishment.
Is it possible that a just judgment can be guaranteed if a defendant is tried in absentia, who through no fault of his own, cannot appear and defend himself, who cannot inform his defense counsel, and who does not even know that he is accused and for what reason? To ask this question is to deny it. Even the regulations of the Charter concerning the rights of the defendant in the preliminary procedure and in the main Trial, oblige us to answer this question with "no".
The following regulations are applicable here:
According to Article 16 (a), the accused shall receive a copy of the Indictment before the Trial.
According to Article 16 (b), the defendant in the preliminary procedure and in the main Trial, has the right to declare his own position in the face of each accusation.
According to Article 16 (c), a preliminary interrogation of the defendant should take place.
According to Article 16 (d), the defendant shall decide whether he wishes to defend himself or to have somebody else defend him.
According to Article 16 (c), the defendant has the right to submit evidence himself and to cross-examine each witness. The Defendant Krupp could not make use of any of these rights.
According to Article 24 the same also applies to the special rights, which have been accorded the defendants for the main Trial: The defendant should declare his position in the main Trial, that is, whether he pleads guilty or not.
In my opinion, this is a declaration which is extremely significant for the course of the Trial and of the decision, and the defendant can only do this in persona. I do not know whether it is admissible
Last modified: October 10, 1998