Opinion of Advocate General Medina delivered on 18 April 2024.

• Jurisdiction: European Union
• Celex Number: 62022CC0760
• ECLI: ECLI:EU:C:2024:328
• Date: 18 April 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 18 April 2024 (1)

Case C‑760/22

FP,

QV,

IN,

YL,

VD,

JF,

OL

joined party:

Sofiyska gradska prokuratura

(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))

(Preliminary ruling – Judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union – Articles 47 and 48 – Directive (EU) 2016/343 – Right to be present at the trial in criminal proceedings – Taking part in the trial remotely by videoconference during the COVID-19 pandemic – Obligation to be present at the trial)

I. Introduction

1. The digitalisation of justice has important implications for the fundamental procedural rights in criminal proceedings, particularly the right to be present at one’s trial and respect for the rights of the defence. The need to ensure the continuity of justice during the COVID-19 pandemic and the public interest of the protection of public health led Member States and countries around the world either to introduce in their systems the use of videoconferencing in criminal proceedings or to increase and generalise its use. (2) The resurgence of the challenges surrounding the ‘remote defendant’ (3) raises delicate questions on the appropriate balance to be struck between the exercise of fundamental procedural rights in criminal proceedings and the use of digital means to administer justice effectively.

2. In EU law, Article 8(1) of Directive (EU) 2016/343 (4) lays down the procedural right of suspects and accused persons to be present at the trial, which is an essential element of the fundamental right to a fair trial enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The case in the main proceedings raises the question whether that provision precludes a decision taken by a criminal court to allow an accused person to participate by videoconference in the trial despite the absence of a specific legal basis in national law providing for such means of participation. It thus gives the Court the opportunity to interpret for the first time the right to be present at the trial in the context of use of videoconferencing or other distance communication technologies.

II. Legal framework

European Union law

Directive 2016/343

3. Recitals 9, 33, 35 and 48 of Directive 2016/343 provide:

‘(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial.

…

(33) The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the Union.

…

(35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right.

…

(48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the [European Convention on Human Rights (“the ECHR”)], as interpreted by the Court of Justice and by the European Court of Human Rights.’

4. Article 1 of Directive 2016/343, entitled ‘Subject matter’, states:

‘This Directive lays down common minimum rules concerning:

…

(b) the right to be present at the trial in criminal proceedings.’

5. Article 8 of that directive, entitled ‘Right to be present at the trial’, provides in paragraphs 1 and 2 thereof as follows:

‘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.’

Bulgarian law

6. Article 6a(2) of Zakon za merkite i deystviyata po vreme na izvanrednoto polozhenie, obyaveno s reshenie na Narodnoto sabranie ot 13.03.2020 i za preodolyavane na posleditsite (Law on the measures and actions taken during the state of emergency declared by decision of the National Assembly of 13 March 2020 and on the management of the effects; ‘the Law on the measures during the state of emergency’), applicable until 31 May 2022, provided:

‘During the state of emergency or the period of the epidemic and for two months after the lifting of that state of emergency, public court hearings … may be conducted remotely if direct virtual participation by the parties in the trial or in the proceedings is ensured. A transcript of the court hearings held shall be produced and published without delay, and the record of the court hearing shall be kept until the time limit for correcting and supplementing the transcript has expired, unless the rules of procedure provide otherwise. The court … shall notify the parties if the court hearing is to be conducted remotely.’

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

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

8. Article 269 of the NPK states:

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

(2) The court may order that the accused person also appear in cases in which his or her presence is not compulsory, where this is necessary to ascertain the objective truth.

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

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

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

3. having been duly summoned, he or she has not given a valid reason for not appearing, and the procedure laid down in Article 247c(1) of the NPK has been complied with;

4. the accused person is outside the territory of the Republic of Bulgaria and:

(a) his or her place of residence is unknown;

(b) he or she cannot be summoned to appear for other reasons;

(c) he or she was duly summoned and gave no valid reason for not appearing.’

9. Article 115(2) of the NPK states:

‘The accused person shall not be questioned by a delegated judge or by videoconference unless he or she is located outside Bulgaria and this does not prevent the truth from being objectively ascertained.’

10. Article 474(1) of the NPK states:

‘The judicial authority of another State may question an individual who is a witness or expert in criminal proceedings and is located in the Republic of Bulgaria by video- or telephone conference, or conduct questioning with the participation of an accused person, only if this does not run counter to the fundamental principles of Bulgarian law. Questioning by videoconference with the participation of an accused person may take place only with the latter’s consent and after the participating Bulgarian judicial authority and the judicial authorities of the other State have agreed on the manner in which the videoconference is to be conducted.’

III. Succinct presentation of the facts and procedure in the main proceedings

11. FP is being prosecuted for membership of a criminal organisation for the purposes of enrichment and the concerted commission of tax offences under Article 255 of the Nakazatelen kodeks (Penal Code; ‘the NK’). That is a serious offence under the NK.

12. FP has mandated a defence counsel since the start of the proceedings.

13. By judgment of 11 April 2019, FP was found guilty by the former Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) and was sentenced to six months’ imprisonment suspended for three years. That judgment was set aside on appeal. The case was remitted for retrial to another chamber of the former Spetsializiran nakazatelen sad (Specialised Criminal Court), the Sofiyski gradski sad (Sofia City Court, Bulgaria), which is the referring court. The retrial of the case began on 30 June 2021.

14. At the preliminary public hearing of 12 October 2021, FP asked to take part in the proceedings remotely via an online communication link providing video and sound, as he lived and worked in the United Kingdom. He stated that he was familiar with all of the procedural documents and that his rights would not be infringed by remote participation.

15. FP’s lawyer was physically present in the courtroom and stated that any new materials could be transmitted to FP electronically so that the latter could review them in a timely manner. FP’s lawyer also stated that the consultations with his client could be arranged by means of a separate connection, which could take place with interruption of the video transmission and outside the courtroom.

16. The referring court allowed FP to participate remotely in the public hearing of 12 October 2021 on the basis of Article 6a(2) of the Law on the measures during the state of emergency, in compliance with the guarantees and conditions set by the court. During the following hearings, with the exception of that of 28 February 2022, at which he was physically present, FP participated by videoconference.

17. At...