The second issue addressed in the amendment is the applicability of Rule 43 to resumption hearings held pursuant to 18 U.S.C. §3582(c). Under this provision, a rejection may be made as a result of retroactive amendments to the Sentencing Guidelines by the U.S. Sentencing Commission or as a result of a request by the Bureau of Prisons to reduce a sentence for “extraordinary and compelling reasons.” The amendment provides that the presence of a defendant in such proceedings is not required. In the Committee`s view, these procedures are consistent with rule 35 (b) as amended prior to the Sentencing Reform Act 1984, where the presence of the defendant was not required. Moreover, in the context of these proceedings, the court can only reduce the initial penalty. In common law legal systems, the term is more than a spatial description. In these systems, it suggests the recognition of a violation of a defendant`s right to be present in a court case in a criminal case. [Citation needed] Conviction in a trial where an accused is not present to answer the charges is considered a violation of natural justice.  In particular, it violates the second principle of natural justice, audi alteram partem (hearing of the other party).
The amendment to Article 43(c)(4) aims to solve two problems. First, the rule is rewritten to clarify whether a defendant has the right to be present in section 35 proceedings. Following the amendments to article 35 in recent years, the implementation of the Sentencing Reform Act and the interpretation of articles 35 and 43 of the case-law, the question had arisen as to whether the defendant should be present at those proceedings. Under the current version of the rule, it may be possible to require the presence of the defendant during a “reduction of sentence” under rule 35(b), but not during a “correction” of the trial hearing conducted under rule 35(a). This possible outcome seemed to contradict good practice. As amended, Rule 43(c)(4) would allow a court to reduce or correct a penalty under Rule 35(b) or (c) without the presence of the defendant. However, criminal proceedings conducted in pre-trial detention by a court of appeal under article 35 (a) would still require the presence of the accused. See, for example, United States v. Moree, 928 F.2d 654, 655–656 (5th Cir. 1991) (recalling the distinction between the presence of the defendant when the sentencing procedure is changed and hearings where a new sentence is imposed after the original sentence has been quashed). 2. The second sentence of the rule is a reformulation of the existing law according to which, except in capital cases, the defendant cannot defeat the trial by voluntarily rejecting himself after the start of the trial in his presence, Diaz v.
United States, 223 U.S. 442, 455; United States v. Noble, 2,94 F. 689 (D.Mont.) — affirmed, 300 F. 689 (C.C.A. 9.); United States v. Barracota, 45 F.Supp. 38 (S.D.N.Y.); United States v.
Vassalo, 52 F.2d 699 (E.D.Mich.). A voluntary renunciation of the right to be present presupposes a true freedom of choice. A court of first instance may conclude that the absence of a defendant from the trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the trial, the right to be present and had received a warning that the trial would take place in his absence if he did not appear. The courts tolerate any reasonable presumption against the renunciation of fundamental constitutional rights. In a 1985 judgment in Colozza v. Italy, the European Court of Human Rights has stressed that a person accused of a crime has the right to attend hearings. This right is based on the right to a fair trial and the right to a defence, both of which are required by the Convention (Article 6, paragraphs 1 and 3). In addition, the Court pointed out that a person convicted in absentia is entitled to a new trial as soon as he becomes aware of the proceedings: In addition to the above-mentioned cases of absence proceedings in the strict sense, the defendant may also be absent during the trial in the following circumstances: paragraph (b) (1) specifies that voluntary absence may also constitute a waiver if: if the defendant is not informed by the court of his obligation to stay the proceedings. Of course, evidence of a voluntary absence requires proof that the defendant knew that the trial or other proceedings were ongoing. C.
Wright, Federal Practice and Procedure: Criminal §723 n. 35 (1969). But it is not necessary to show that he has been explicitly warned of his duty to be present; A warning is rarely considered necessary in today`s practice.