It was said by Alexandra Yanovskaya , the ad hoc judge at the European Court of Human Rights (ECHR), reports the journalist of Human Rights Information Center .
“In accordance with the ECHR practice, personal presence of the person in carrying out pre-trial investigation and at the trial – is the right but not the obligation. It is the right, from which one may refuse. However, the ECHR indicates that such a waiver should be clearly expressed. A person should wish to show the desire and express the rejection of this right”, she says.
At the same time, she said, the UN Human Rights Committee considered that in cases where the accused was previously duly notified and he was able to be represented by defender, then there may be a trial without personal involvement of the accused.
“There is a collision, even in the European standards. In spite of current national legislation that does not take into account the UN Committee decision and determines the need to consider the ECHR practice, it is impossible to avoid the ECHR standards re trial in absentia, namely, the explicit refusal of the person from the right to personal presence”, she said, adding that otherwise, the ECHR finds a violation of European Convention on Human Rights by Ukraine.
In her opinion, the state should either recognize the practice of the European institutions in order to use the position of the UN Human Rights Committee, or determine such mechanisms, which will not allow the ECHR to indicate human rights violations.
“The person who is hiding or is in the territory of another state is unlikely to give such a consent but we cannot overstep the norms of legislation and international standards of human rights referring to the revolutionary expediency”, she summarized.