Criminal Proceedings in the Absence of the Suspect or Accused (in absentia): Legislative Transformations and Current Regulation
Abstract
The article examines the transformation and current standardisation of criminal proceedings in the absence of a suspect or defendant (in absentia) in the context of the development of Ukrainian criminal procedural law. It is emphasised that the introduction of special pre-trial investigations and special court proceedings in 2014 was the legislator's response to public and security demands to ensure the inevitability of criminal liability in cases where a person evades justice or is outside the jurisdiction of Ukraine. It has been established that further changes during 2014–2025 were fragmentary in nature and only partially eliminated the existing gaps. Along with the study of national legislation, the restrictions on the absence of the accused during court proceedings in the practice of the International Criminal Court and the possibility of conducting certain procedural actions without his participation were analysed separately.
It has been found that since 2022, there has been an expansion in the scope of application of in absentia proceedings, as the mass nature of war crimes and collaborationism has created a practical need for the widespread use of the mechanisms under study. Criminal proceedings in the absence of a suspect or defendant have become not only an instrument of legal response, but also a political message about the inevitability of responsibility.
The article highlights the conceptual inconsistency and structural imbalance of legal regulation: individual elements of proceedings in absentia are contained in different chapters of the Criminal Procedure Code of Ukraine, which complicates its holistic perception as a single procedural institution. A proposal is made to provide for the procedure for criminal proceedings in the absence of the suspect or accused (in absentia) in Section VI of the Criminal Procedure Code of Ukraine, which is devoted to the regulation of special procedures for criminal proceedings, combining in it the peculiarities of both special pre-trial investigation and special court proceedings.
Problems with the implementation of such proceedings at the present stage have been identified, in particular: the formality of the participation of the defence counsel, the lack of a clear procedure for reviewing a judgment rendered in absentia, formalism in confirming the fact of a person’s evasion, as well as the imperfection of the mechanisms for informing them. Specific ways to improve the legislation have been proposed. It has been established that, despite the existing shortcomings, the institution of in absentia is a necessary tool capable of ensuring effective justice in exceptional circumstances.
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