Opinion of Advocate General Richard de la Tour delivered on 13 January 2022.

• Jurisdiction: European Union
• Celex Number: 62020CC0569
• ECLI: ECLI:EU:C:2022:26
• Date: 13 January 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 13 January 2022 (1)

Case C‑569/20

Criminal proceedings against

IR

interested party:

Spetsializirana prokuratura

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Right to be present at the trial – Articles 8 and 9 – Requirements in the event of a conviction in absentia – Right to a new trial – Absconding of the accused person – National legislation excluding the reopening of criminal proceedings when the person convicted in absentia has absconded after learning of the charges brought against him during the investigation phase of the proceedings)

I. Introduction

1. Can an individual who has been convicted following a trial at which he did not appear in person because he absconded be entitled to a new trial, in accordance with the second sentence of Article 8(4) and Article 9 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings? (2)

2. That, in essence, is the subject matter of the questions referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria).

3. This request was made in criminal proceedings in which the decision was taken to bring IR to trial in absentia. Although that individual was informed of the charges against him during the preliminary investigation stage, he absconded, with the result that he was not informed of either the definitive indictment, or the date and place of his trial, or the consequences of any failure to appear.

4. The referring court is therefore uncertain as to the scope of the requirements laid down by the EU legislature in Directive 2016/343 in order to safeguard the latter’s rights of defence. In particular, it seeks to determine whether it will be possible to enforce the decision handed down at the end of the trial held in his absence pursuant to Article 8(2) and (3) of that directive or, on the contrary, whether it will be necessary to arrange a new trial, pursuant to the second sentence of Article 8(4) and Article 9 of that directive.

5. In this Opinion, I shall explain that, while informing the accused person of his trial is an essential requirement laid down in Directive 2016/343 for ensuring that the rights of defence are complied with, the EU legislature nevertheless allows the Member States to examine the extent to which that requirement has been satisfied in concreto. It invites the Member States to pay particular attention to the conduct of both the competent national authorities in communicating that information and of that person in receiving it.

6. In that context, I shall set out the reasons why Article 8(2) and (3) of Directive 2016/343, which allows Member States to enforce a decision delivered following a trial at which the accused person did not appear, covers a situation in which the national court finds, having regard to all the specific circumstances of the situation at issue, that, despite the diligence and efforts of the competent national authorities to inform the accused person of his trial and the consequences of non-appearance, that person has deliberately and intentionally failed to fulfil the obligations incumbent on him to receive that information with a view to evading the course of justice. I shall clarify that, in a situation in which the national court makes such findings, the second sentence of Article 8(4) and Article 9 of Directive 2016/343 do not preclude national legislation under which a new trial is not to be granted where the accused person has absconded after having been informed of the charges against him during the preliminary investigation stage, but before he is informed of the definitive indictment.

II. Legal context

A. Directive 2016/343

7. Directive 2016/343 lays down, in accordance with Article 1 thereof, common minimum rules concerning, first, certain aspects of the presumption of innocence and, secondly, the right to be present at the trial.

8. Recitals 37 and 38 state:

‘(37) It should … be possible to hold a trial which may result in a decision on guilt or innocence in the absence of a suspect or accused person where that person has been informed of the trial and has given a mandate to a lawyer who was appointed by that person or by the State to represent him or her at the trial and who represented the suspect or accused person.

(38) When considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention should, where appropriate, also be paid to the diligence exercised by public authorities in order to inform the person concerned and to the diligence exercised by the person concerned in order to receive information addressed to him or her.’

9. Article 8 of that directive, entitled ‘Right to be present at the trial’, provides in paragraphs 1 to 4 thereof:

‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial.

2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that:

(a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or

(b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.

3. A decision which has been taken in accordance with paragraph 2 may be enforced against the person concerned.

4. Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9.’

10. Article 9 of that directive, entitled ‘Right to a new trial’, provides:

‘Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence.’

B. Bulgarian law

11. Article 55(1) of the Nakazatelno-protsesualen kodeks (Criminal Procedure Code, ‘the NPK’) states:

‘The accused person shall have the following rights: … to participate in criminal proceedings …’

12. Article 94(1) and (3) of the NPK provides:

‘(1) The participation of a defence counsel in criminal proceedings is mandatory if:

…

8. the case is tried in the absence of the accused person;

…

(3) Where the participation of a defence counsel is mandatory, the competent authority shall appoint a lawyer as a defence counsel.’

13. Article 247b(1) of the NPK is worded as follows:

‘By order of the Judge-Rapporteur, a copy of the indictment shall be served on the accused person. Through service of the indictment, the accused person shall be informed of the date fixed for the preliminary hearing, the matters referred to in Article 248(1), his right to appear in court with a defence counsel of his choice, the possibility of having a defence counsel officially appointed in the cases provided for in Article 94(1) and the fact that the case may be tried and decided in his absence, in accordance with Article 269.’

14. Article 269 of the NPK provides:

‘(1) In cases where the accused person has been indicted for a serious criminal offence, his presence at the hearing shall be mandatory.

…

(3) Provided that this does not prevent the truth from being ascertained objectively, the case may be tried in the absence of the accused person, if:

1. he is not to be found at the address indicated by him or he has changed address without notifying the competent authority;

2. his place of residence in Bulgaria is not known and has not been identified following an extensive search;

…

4. [that residence] is outside the territory of the Republic of Bulgaria, and

(a) his place of residence is not known;

…’

15. Article 423(1) to (3) of the NPK provides:

‘(1) Within 6 months of becoming aware of a final judgment in criminal proceedings or of the actual communication of such a judgment to the Republic of Bulgaria by another country, the person convicted in absentia may request the reopening of the criminal case, relying on the fact that he was not present during the criminal proceedings. The request shall be granted, except, first, in the event that the convicted person has absconded after notification of the charges in the preliminary procedure, with the result that the procedure under Article 247b(1) cannot be carried out or, secondly, after that procedure was carried out, the convicted person failed to appear at the hearing without a valid reason.

(2) The request shall not suspend enforcement of the criminal conviction, unless the court...