Judgment of the Court Fourth Chamber of 19 May 2022, Spetsializirana prokuratura and Others Trial of an absconded accused person, C-569/20

• Date: 19 May 2022
• Year: 2022

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IV. JUDICIAL COOPERATION IN CRIMINAL MATTERS: RIGHT TO BE PRESENT AT

THE TRIAL

Judgment of the Court (Fourth Chamber) of 19 May 2022, Spetsializi rana prokuratura and

Others (Trial of an absconded accused person), C-569/20

Link to the complete text of the judgment

Reference for a preliminary ruling – Judicial coope ration in criminal matters – Directive (EU) 2016/343 –

Article 8 – Right to be present at the trial – Information regarding the holding of the trial – Inability to

locate the accused pers on notwithstanding the reasonable efforts of the competent authorities –

Possibility of a trial and a conviction in absentia – Article 9 – Right to a new trial, or to another legal remedy,

which allows a fresh determination of the merits of the case

Criminal proceedings were brought in Bulgaria against IR, who was accused of having participated in a

criminal organisation with a view to committing tax offences punishable by custodial sentences. A first

indictment was served on IR in person and he indicated an address at which he could be contacted.

When the judicial stage of the proceedings commenced, he could not, however, be found there, with

the result that the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria; ‘the referring

court’) could not summon him to the hearing. Nor did the lawyer appointed by that court of its own

motion enter into contact with him. Furthermore, as the indictment that had been served on IR was

vitiated by an irregularity, it was declared void and the proceedings were closed. After a new

indictment had been drawn up and the proceedings had been reopened, IR, once again, was sought

but could not be located. The referring court finally inferred from this that IR had absconded and that,

in those circumstances, the case could be heard in his absence.

However, in order that the person concerned be correctly informed of the procedural safeguards

available to him, the referring court enquires as to which case provided for by Directive 2016/343

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covers the situation of IR who absconded after having been notified of the first indictment and before

the commencement of the judicial stage of the criminal proceedings.

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The Court of Justice states in reply that Articles 8 and 9 of Directive 2016/343 must be interpreted as

meaning that an accused person whom the competent national authorities, despite their reasonable

efforts, do not succeed in locating and to whom they ac cordingly have not managed to give the

information regarding his or her trial may be tried and, as the case may be, convicted in absentia. In

that case, that person must nevertheless, in principle, be able, after notification of the conviction, to

rely directly on the right, conferred by that directive, to secure the reopening of the proceedings or

access to an equivalent legal remedy resulting in a fresh examination, in his or her presence, of the

merits of the case. The Court makes clear, however, that that person may be denied that right if it is

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Directive (E U) 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 crimin al proceedings (OJ 2016 L 65, p. 1).

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More specifically, Article 8 of Directive 2016/343 deals with the right to be present at one’s own trial. Under Art icle 8(2), Member States may

provide that a trial which can result in a decision on the guilt or innocence of the person concerned can be held in his or her absence,

provided that he or she has been in formed, in due time, of the trial and of the consequences of non -appearance or, having been informed

of the trial, is represented by a lawyer mandated by him or her or appointed by the State. Under Article 8(4) of the directive, where Member

States provide for the possibility of holding trials in the absence of the person concerned but it is not possible to comply with the conditions

laid down in A rticle 8(2) because he or she cannot be located despite reasonable efforts having been made, Member States may

nevertheless provide that a decision can be taken and en forced. In such cases, Member States are to ensure that when the persons

concerned 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 of the directive. In particular, under Article 9,

suspects or accused persons must have the right to a new trial where th ey were not present at their trial and the conditions laid down in

Article 8(2) of the directive were not met.