Part I
GENERAL PROVISIONS

Chapter VI
DEFENSE COUNSEL

Obligatory defense in the criminal proceeding
Article 71

(3) The defendant who is tried in absence (Article 328) must have a defense counsel from the moment of rendering a ruling on trial in absentia.

Part II
THE COURSE OF PROCEEDINGS

C. TRIAL AND JUDGMENT

Chapter XXIV
THE TRIAL

3. Prerequisites for holding a trial

Trial in absence of the defendant
Article 328
(1) The defendant may be exceptionally tried in his absence only if he is at large or is otherwise not accessible to government authorities, provided that particularly important reasons exist to try him in absentia.
(2) Upon the motion by prosecutor, the Trial Chamber shall render a ruling on holding the trial in absentia.
(3) The ruling specified in paragraph 2 of the present Article may be subject to appeal which shall be deliberated by the Court Chamber specified in Article 24, paragraph 6 hereof, and if this chamber has rendered the ruling on holding the trial in absentia, then by the chamber of directly higher court. The appeal shall not stay enforcement of the ruling.

Part II
THE COURSE OF PROCEEDINGS

D. JUDICIAL REVIEW

Chapter XXVII
EXTRAORDINARY LEGAL REMEDIES

1. Reopening of criminal proceedings

Reopening of proceedings in which a person was convicted in absentia
Article 432
(1) Criminal proceeding in which a person was convicted in absentia (Article 328) shall be reopened even regardless of the conditions referred to in Article 426 hereof, provided the convicted person and his defense counsel file a motion for reopening of proceedings within six months from the day it becomes possible to conduct a trial in the presence of the convicted person.
(2) Criminal proceeding in which a person was convicted in absentia shall be reopened even regardless of the conditions referred to in Article 426 hereof, if a foreign state allowed his extradition under the condition that the proceeding be reopened.
(3) In the ruling allowing the reopening of criminal proceeding, pursuant to paragraphs 1 and 2 of the present Article, the court shall order that the indictment be served on the convicted person if it was not served before, or may order that the

case be returned to the phase of investigation, or that an investigation be instigated if there was no investigation before.
(4) After the expiry of the time period referred to in paragraph 1 of the present Article, the reopening of proceeding shall only be permitted subject to the conditions set forth in Articles 426 and 427 hereof.
(5) In rendering the judgment in the proceeding conducted pursuant to paragraphs 1 and 2 of the present Article, the court shall be bound by the prohibition referred to in Article 406 of the present Code.

Part One
GENERAL PART

Chapter I
BASIC PROVISIONS

The Defendant’s Presence in Court

Article 13

A defendant accessible to the court may be tried only in his presence, except where in absentia trials are exceptionally allowed under this Code.

A criminal sanction may not be pronounced to a defendant who is accessible to the court if that defendant has not been allowed to be heard and to defend himself.

Part Two
COURSE OF THE PROCEEDINGS

Chapter XVIII
TRIAL AND JUDGMENT

1. Trial

b) Holding the Trial

b. Conducting the Trial

Removal of the Defendant from the Courtroom
Article 371

If the measures referred to in Article 370 paragraph 1 of this Code are unsuccessful, the panel may order the defendant removed from the courtroom for the duration of a certain evidentiary action, and if after returning to the courtroom the defendant continues to disturb the order, the panel may remove him until the conclusion of the evidentiary proceedings and order, if there exists such a possibility, that the defendant follow the course of the proceedings from a separate room by means of an audio and video link.

Before the conclusion of the evidentiary proceedings the president of the panel will, if the technical link for monitoring the course of the proceedings referred to in paragraph 1 of this Article did not exist, inform the defendant about the course of the evidentiary proceedings for the period during which he was removed from the courtroom, inform him about the testimony given by co-defendants previously questioned, or make it possible for him to read the transcripts of that testimony, if the defendant so requests, and ask him to state his position on the charges, unless he had already done so.

If the defendant in the case referred to in paragraph 2 of this Article continues to disturb the order, the panel may remove him from the courtroom again without a right to attend the trial until its conclusion, in which case the president of the panel or a judge member of the panel will inform the defendant about the judgment in the presence of the record-keeper.

In case a defendant who has no defence counsel is removed from the courtroom in accordance with paragraphs 1 and 3 of this Article, the president of the court will assign a court appointed defence counsel for him (Article 74 item 6) and Article 76).

Part Two
COURSE OF THE PROCEEDINGS

Chapter XVIII
TRIAL AND JUDGMENT

1. Trial

b) Holding the Trial

v. Preconditions for Holding a Trial

In Absentia Trial
Article 381

A defendant may be tried in absentia only if there exist particularly justified reasons to try him although he is absent, provided he is at large or not accessible to the public authorities.

A ruling on an in absentia trial is issued by the panel on a motion of the prosecutor.

An appeal does not stay the execution of the ruling referred to in paragraph 2 of this Article.

Part Two
COURSE OF THE PROCEEDINGS

Chapter XVIII
TRIAL AND JUDGMENT

1. Trial

b) Holding the Trial

v. Preconditions for Holding a Trial

Holding the Trial without the Presence of the Defendant or Defence Counsel
Article 383

When under the provisions of this Code the necessary conditions exist for deferring the trial due to the absence of a defendant or defence counsel (Article 380 paragraph 1 and Article 382 paragraph 2), the panel may decide that the trial be held if according to the evidence contained in the files a ruling dismissing the charges (Article 416 paragraph 1) or a judgment rejecting the charges (Article 422) would obviously have to be issued.

If the defendant caused his own inability to participate in the trial, the panel may, after examining an expert witness, issue a ruling deciding that the trial be held, but not concluded, in the absence of the defendant. In the case of the holding of the trial without the presence of the defendant, the president of the court will appoint a court appointed defence counsel for him (Article 74 item 5) and Article 76).

An appeal does not stay execution of the ruling referred to in paragraph 2 of this Article.

As soon as the reasons for the absence of the defendant cease to exist, the trial will resume in the presence of the defendant, after the president of the panel has informed him about the preceding course and contents of the trial.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.