Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement If lacking sufficient means to pay for a lawyer, and if the interests of justice so require, a person accused of a criminal offence has the right to free legal aid. The interests of justice relate to such aspects as the severity of the crimes and potential sentence that might be imposed and the complexity of the case. The accused must have adequate time and facilities to communicate with his or her legal counsel. Their communications are privileged and must be confidential. 3.6 The right to be present at one’s trial Article 14(3)(d) of the Covenant on Civil and Political Rights, and articles 20(4)(d) and 21(4)(d) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia provide that everyone has the right to “be tried in his [or her] presence”. Where the State party has failed to substantiate its denial of the alleged violation of this right by, for instance, submitting a copy of the trial transcript, the Committee has concluded that this right has been violated.132 ***** While article 6(1) of the European Convention on Human Rights does not expressly mention a person’s right to participate in his or her trial, the European Court of Human Rights has held that the existence of this right is “shown by the ‘object and purpose of the article taken as a whole’”.133 Where there was no evidence that the applicant had intended to waive his right to participate in his trial and where, inter alia, the President of the Savona Regional Court had not sought to notify him in person of the summons to appear before his court so that he was tried in absentia, it found that the trial had not been fair within the meaning of article 6(1) of the Convention.134 3.6.1 Trials in absentia Although the international monitoring organs have not yet developed any theory around trials in absentia, it appears that they might accept that such trials may be held in special circumstances. This is at least clear with regard to the International Covenant on Civil and Political Rights, from the Committee’s General Comment No. 13 on article 14, which states that “when exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary”.135 Consequently, while such trials do not ipso facto constitute a violation of article 14 of the Covenant, the basic requirements of a fair trial must be maintained; a trial in absentia is thus only compatible with article 14 when the accused has been 132 Communication No. 289/1988, D. Wolf v. Panama (Views adopted on 26 March 1992), in UN doc. GAOR, A/47/40, p. 289, para. 6.5. 133 Eur. Court HR, Brozicek Case v. Italy, judgment of 19 December 1989, Series A, No. 167, p. 19, para. 45. 134 Ibid., p. 19, paras. 45-46. 135 United Nations Compilation of General Comments, p. 125, para. 11. 280 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers