Order — ECLI:EU:C:2026:286
Date: 2026-03-27
Language of the case: Bulgarian
Court formation: Fifth Chamber
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 February 2026 
Referring court: 
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer: 
9 February 2026 
Defendant: 
DK 
  
Subject matter of the main proceedings 
Whether action taken against a defendant, in the form of that defendant’s 
detention for the purpose of guaranteeing his right to participate in person in the 
trial, are compatible with European Union law. Interpretation of Article 8(1) and 
(2) and recital 48 of Directive 2016/343 and of Article 6 and the second paragraph 
of Article 47 of the Charter.  
Subject matter and legal basis of the request 
The request for a preliminary ruling is made under subparagraph (b) of the first 
paragraph of Article 267 TFEU. 
Question referred for a preliminary ruling 
Do Article 8(1) and (2) and recital 48 of Directive 2016/343, Article 6 and the 
second paragraph of Article 47 of the Charter, and the principle of proportionality 
permit the interpretation and application of national legislation to the effect that a 
 
* Language of the case: Bulgarian. 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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defendant, after having made use of the possibility provided for by the national 
legislation not to appear at the court hearings, on the basis of an informed decision 
in that regard (that is to say, that defendant made the decision after being informed 
of the charges against him or her, of the date and place of the court hearing and of 
the fact that the court’s decision on the substance cannot be appealed on the 
grounds of his or her absence, and is defended by a lawyer to whom he or she has 
entrusted his or her defence), may be detained and imprisoned for an indefinite 
period, where the sole purpose of the detention is to ensure a higher level of 
protection of that defendant’s right to participate in person, that is to say, for that 
defendant to be brought from prison for the purpose of participating in the court 
hearings? 
Provisions of law relied on 
Provisions of national law relied on 
Nakazatelen kodeks (Criminal Code; ‘the NK’): Article 321 (Organised crime 
group), Article 354а (Narcotics or analogues thereof) 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’): 
Article 13 (Establishing the objective truth), Article 15 (Right of defence), 
Article 55 (Rights of the accused person), Article 57 (Purpose of coercive 
measures), Article 58 (Types of coercive measures), Article 66 (Consequences of 
failure to comply with obligations associated with coercive measures), Article 94 
(Mandatory participation of defence counsel), Article 247c (Notification of the 
date for the preliminary hearing), Article 269 (Presence of the defendant at the 
trial), Article 271 (Decision whether to proceed with a trial), Article 291 (Order of 
closing arguments), Article 297 (Guaranteeing the right of the defendant to have 
the last word), Article 348 (Grounds of appeal on a point of law), Article 423 (Re-
opening a criminal case upon request by a person sentenced in absentia due to that 
person’s failure to participate in the criminal proceedings) 
Article 269. Presence of the defendant at the trial 
(1) In cases where the defendant has been charged with a serious criminal 
offence, his or her presence at the trial shall be mandatory. 
… 
(3) Provided that that does not prevent the objective truth from being 
established, the case may be heard in the absence of the defendant, if: 
… 
3. having been duly summoned, he or she has not given valid reasons for 
failing to appear and the procedure laid down in Article 247c(1) has been 
complied with; 
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Article 271. Decision whether to proceed with a trial 
… 
(2) The trial shall be adjourned if the following persons do not appear: 
… 
2. the defendant, if his or her presence is mandatory, except in the cases 
referred to in Article 269(3); 
3. the defence counsel, if he or she cannot be replaced by another person, 
without the right of defence of the defendant being undermined; 
Provisions of European Union law relied on 
Directive 2013/48/EU of the European Parliament and of the Council of 
22 October 2013 on the right of access to a lawyer in criminal proceedings and in 
European arrest warrant proceedings, and on the right to have a third party 
informed upon deprivation of liberty and to communicate with third persons and 
with consular authorities while deprived of liberty 
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 
Charter of Fundamental Rights of the European Union (‘the Charter’) 
Case-law relied on 
EU case-law relied on 
Judgment of 13 February 2020, С-688/18, EU:C:2020:94 
Judgment of 2 February 2021, С-481/19, EU:C:2021:84 
Judgment of 15 September 2022, С-420/20, EU:C:2022:679 
Judgment of 19 May 2021, С-569/20, EU:C:2022:401 
Judgment of 8 December 2022, С-348/21, EU:C:2022:965 
Judgment of 23 March 2023, С-412/21, EU:C:2023:234 
Judgment of 23 March 2023, С-514/21 and С-515/21, EU:C:2023:235 
Judgment of 4 July 2024, С-760/22, EU:C:2024:574 
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Judgment of 3 July 2025, С-610/23, EU:C:2025:514 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 28 August 2020, an indictment was filed with the referring court against 43 
individuals, including DK. The defendant DK was charged with being a member 
of an organised crime group, together with a further 42 individuals, between June 
2017 and 7 August 2019, the group having been formed, with the intention of 
unjust enrichment, in order to commit the criminal offences of distribution of 
narcotics, cultivation of narcotic plants and possession of firearms (criminal 
offence pursuant to Article 321(3)(2) of the NK in conjunction with Article 321(2) 
thereof). DK was also charged with distribution, on 15 January 2019, in 
implementation of a decision made by that organised crime group, of a significant 
quantity of narcotics, namely 26 packets of marijuana with a total weight of 
approximately 5 kg and one packet of cocaine weighing 199.60 gr (criminal 
offence pursuant to Article 354(2) of the NK in conjunction with the fifth sentence 
of Article 354(1) thereof). The first offence is punishable by a custodial sentence 
of between 3 and 10 years, and the second offence by a custodial sentence of 
between 3 and 12 years and a fine of between BGN 10 000 and BGN 50 000 
(between EUR 5 112 and EUR 25 564). 
2 The entirety of the pre-trial stage of the proceedings was conducted in the absence 
of the defendant DK, for whom a defence counsel (the lawyer OC) was appointed 
by the court; that lawyer had no contact with DK. 
3 The proceedings before the referring court began in DK’s absence, who was 
defended by the lawyer OC. Numerous court hearings took place and many 
witnesses were questioned.  
4 On 19 May 2021, DK was located and detained. DK contacted his court-appointed 
defence counsel, the lawyer OC, and decided to use his services. A degree of trust 
developed between them and the defendant DK relied on the lawyer OC to defend 
him. 
5 Also on 19 May 2021, a court hearing was held in order to rule on the request 
made by the Public Prosecutor’s Office permanently to remand the defendant DK 
in custody. The court refused DK’s permanent remand in custody, and the 
defendant was released. The court expressly informed the defendant DK of the 
charges against him and of the fact that, if he failed to appear before the court in 
the future, the case could be heard and tried in his absence and that his failure to 
participate would not confer any right to a new trial. The defendant DK provided 
his address and telephone number for the purpose of being summoned and 
requested that he be informed of the court hearings through his defence counsel, 
the lawyer OC, with whom he stated that he would be in permanent contact. 
6 A court hearing was held on 1 June 2021, at which the court ordered an expert 
psychological/psychiatric report on DK. Since the defendant failed to appear, the 
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expert’s report ordered was not prepared. Further court hearings took place in his 
absence. 
7 On 3 November 2021, at the request of the Public Prosecutor’s Office, the court 
ordered that the defendant be remanded in custody permanently for the sole 
purpose of preparing the expert’s report. The defendant DK was detained on 
9 February 2022. An expert’s report was prepared on 23 March 2022, in which it 
was found that the defendant DK was of sound mind and pretended to act as 
someone who was mentally ill. The criminal proceedings against him were 
resumed. 
8 On 24 March 2022, the defendant DK stated his position on whether he wanted 
the witnesses who had been questioned in his absence to be questioned again. 
After consulting his defence counsel, the lawyer OC, the defendant expressly 
stated that he did not wish the witnesses to be questioned again with his 
participation. His detention was terminated and he was released from prison. 
9 Initially, the defendant DK attended the court hearings, but then failed to do so. 
Similarly, he remained in contact with the lawyer OC to start with, but then failed 
to do so. 
10 On 25 January 2024, the court ordered that the defendant DK be remanded in 
custody permanently for the sole purpose of guaranteeing his right to participate in 
person at the trial. Further court hearings took place in the absence of the 
defendant DK. 
11 The defendant DK was detained on 21 July 2025 and imprisoned. A new expert 
psychological/psychiatric report was prepared on 30 January 2026, in which it was 
found that the defendant DK was not suffering from any mental illness and was of 
sound mind; he could be held criminally liable. 
12 The case was resumed. At the court hearing of 5 February 2026, after consulting 
his defence counsel, the defendant DK stated that he had acquainted himself with 
the minutes of the court hearings that had been held in his absence and that he had 
no questions to put to the witnesses and experts that had already been questioned. 
13 In the same court hearing, the question of maintaining the defendant DK’s 
permanent detention on remand was again raised. The referring court stated that, 
in view of his previous conduct, it was possible that the defendant DK would 
abscond. If he did so, the referring court would not be able to inform him of any 
new evidence gathered or give him the opportunity to submit requests for 
evidence to be taken, to make arguments in the case or to have the last word, those 
being the main expressions of his right to participate in person. Consequently, his 
right to participate in person under Article 55 of the NPK would be infringed. 
14 The referring court emphasised that it would tolerate only the defendant’s 
occasional absence from trial, and not his permanent absence, since that court 
aimed fully to protect his right to participate in person. To that end, the physical 
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presence of the defendant DK would be necessary at least towards the end of the 
trial. However, given that the defendant had already indisputably shown that he 
had absconded until then and pretended to have a mental illness, there was no 
doubt that he would abscond in the future. Accordingly, in the light of his 
absence, the referring court would not be able to guarantee his right to participate 
in person at the trial. To that end – in order to guarantee that his right to 
participate in person may be exercised– it was necessary to extend his detention 
for an indefinite period.  
15 The referring court ordered the detention of the defendant DK in prison for an 
indefinite period for the sole purpose of ensuring a higher level of protection of 
his right to participate in person in the criminal proceedings. 
Grounds for the question referred 
Right to participate under Article 8(1) and (2) of Directive 2016/343 
16 Article 8(1) of Directive 2016/343 requires Member States to organise their 
legislation governing criminal procedure in such a way as to ensure that the right 
of the defendant to participate in person at the trial is exercised in practice. 
Although the directive words the right as the ‘right to be present’, it is to be 
understood as meaning the right actively to participate, in other words, the 
defendant having the actual and genuine opportunity to ask witnesses and experts 
questions, to make requests to the court and to carry out other acts in order to 
defend the position he or she has adopted in the trial (judgment in Case C-348/21, 
paragraph 44). 
17 Article 8(1) of Directive 2016/343 in the first place lays down the defendant’s 
right to participate in person at the trial and in the second place requires the 
Member States to provide appropriate procedural arrangements in order for that 
right to be exercised. 
18 One of the possibilities for the exercise of that right is the one under Article 8(2) 
of Directive 2016/343, namely the complete absence of the defendant from the 
trial. Where the conditions laid down in points (a) and/or (b) are met, the right to 
participate in person is deemed to have been fully respected, even though the 
defendant has not actually exercised his or her right to participate due to being 
absent. The requirement of guaranteeing the right of the defendant to participate in 
the trial is deemed to be met if the defendant had the possibility of participating 
but that possibility was waived in a clear, voluntary and fully informed manner 
(judgment in Case C-514/21, paragraph 50). 
19 Nevertheless, Article 8(2) of Directive 2016/343 does not require Member States 
to provide for the possibility of holding the trial after the defendant has waived 
participation therein (judgment in Case С-420/20, paragraph 37). It is quite 
possible for national criminal procedural law not to allow from the outset a 
criminal trial to be held in the absence of the defendant. The refusal of the 
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defendant to appear at the trial and to participate therein, even where that refusal 
is made in a clear, voluntary and informed manner, may render it impossible to 
hold the trial and to deliver a judgment in the case. 
20 The referring court considers that Article 8(1) of Directive 2016/343 permits 
national legislation (statute as well as practice applying that statute) under which 
coercive procedural measures may be used to ensure that the conditions are met 
for guaranteeing the right of the defendant to participate in person. That is 
because, in the light of the limited scope of the legal rules under that directive, 
that issue is governed by national law (judgment in Case С-760/22, paragraph 28, 
judgment in Case С-688/18, paragraph 30). The question referred for a 
preliminary ruling seeks to clarify any possible restrictions on the application of 
those coercive procedural measures, that is to say, whether the most severe 
coercive measure provided for by national law, namely remand in custody, may be 
applied. 
Right to participate in person under Article 8(1) and (2) of Directive 2016/343 and 
detention for the purpose of guaranteeing that right 
21 It is against that background that the question is referred for a preliminary ruling: 
Does Article 8(1) and (2) of Directive 2016/343 permit the interpretation and 
application of national legislation to the effect that a national court may order the 
permanent detention in prison of a defendant who, making use of the possibility 
provided for by the national legislation, has made a fully informed decision not to 
appear at a court hearing? May the sole purpose of the detention be to guarantee 
that defendant’s right to participate in person? Is it compatible with the right to 
participate in person under Article 8(1) of the directive for the court to apply 
coercive procedural measures vis-à-vis the absent defendant in order to guarantee 
that right? Is it possible for a subjective right that the defendant derives from EU 
law to be guaranteed by exercising procedural coercion against that defendant, 
including detention in prison? 
22 The referring court tends towards an answer in the affirmative. That is 
indisputable as regards, for example, coercion requiring the defendant to provide a 
correspondence address for communications from the court, including those 
relating to the date and place of the court hearing. In that way, a defendant will 
obtain, even against his or her will, the information necessary for the exercise of 
his or her right to participate. That approach must also be taken in respect of other 
coercive procedural measures. Consequently, detention, in so far as it ensures the 
maximum level of protection of the defendant’s right to participate, even against 
his will, is also compatible with Article 8(1) of Directive 2016/343. That is 
because – and that point bears repeating – Article 8(2) of the directive does not 
consider the possibility for the defendant not to appear at the trial where the 
conditions set out therein are satisfied as a subjective right of the defendant that 
warrants independent protection. 
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23 It is conceivable that the right to participate conferred on the defendant by 
Article 8(1) of Directive 2016/343 is independent of and different from the 
procedural means by which it is exercised. Therefore, any procedural means 
resulting in that right being guaranteed are appropriate – provided that they are 
laid down in the national legislation. Therefore, EU law does not govern, a priori, 
the measures by which the right to participate is ensured; they may be of any kind, 
provided that they are effective. Consequently, it is possible for the defendant to 
be detained in prison during the trial so that he can be brought by force to the 
court hearing, thus guaranteeing his right to participate in person. 
24 One might conclude that the detention of a defendant who has made use of the 
possibility provided for in Article 8(2) of Directive 2016/343 and 
Article 269(3)(3) of the NPK not to appear is contrary to those provisions 
inasmuch as it renders them meaningless. That conclusion is unfounded, however, 
in so far as, first, those provisions do not confer on the defendant any subjective 
right not to appear, and second, Article 269(3)(3) of the NPK stipulates that, in 
order for a case to be heard in the absence of the defendant, his or her decision to 
be absent must be fully informed, and also the court must not regard the 
defendant’s absence as preventing the objective truth from being established. The 
unrestricted exercise of the right to participate always serves the purpose of 
establishing the objective truth, which is why the court has a legal basis for 
disregarding the defendant’s fully informed decision not to appear and for 
exercising procedural coercion, including detention, in order to ensure the 
defendant’s appearance and thus the exercise of his or her right to participate. 
25 In the last place, the argument that coercion, in particular as serious as detention in 
prison for an indefinite period, imposed on the defendant solely for the purpose of 
bringing him by force to the trial and giving him the opportunity to exercise his 
right to participate, would convert his right to participate into an obligation to 
participate, which would be contrary to the very nature of the right under 
Article 8(1) of Directive 2016/343, is unfounded. 
26 The referring court proposes that the Court find that Article 8(1) and (2) of 
Directive 2016/343 does not preclude national legislation and case-law under 
which the court may order the defendant to be detained in prison in order to 
guarantee that defendant’s right to participate in person. 
Recital 48 of Directive 2016/343 and detention ensuring a higher level of legal 
protection at national level 
27 According to recital 48 of Directive 2016/343, that directive establishes minimum 
rules, and a higher level of protection may be granted at national level. That 
means that national legislation and case-law may grant a higher level of protection 
in respect of the right to be present in person under Article 8(1) of the directive. 
The question that arises is whether detaining the defendant in prison, so that that 
defendant may be brought by force to participate in the trial, leads to such a higher 
level of protection of the right to participate. 
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28 Under Article 8(2) of Directive 2016/343, refusal to exercise the right to 
participate in person in the trial is possible where such refusal is based on a fully 
informed decision. In that case, although the defendant has not actually exercised 
his or her right to participate in person, that right is nevertheless adequately 
guaranteed and has therefore not been infringed. Any sentence handed down in 
the absence of the defendant is delivered with that right being respected. That 
sentence is enforceable in exactly the same way as a sentence handed down with 
the full participation of the defendant. 
29 There is no doubt that the right to participate in person is exercised in practice 
only if the defendant him or herself appears; refusal to appear means that the right 
is not exercised as the defendant does not appear. The fact that the refusal is based 
on a fully informed decision and the legal consequences of such refusal are the 
same as those of participation does not change the fact that, in reality, the right to 
participate in person has not been exercised in practice. The higher level of 
protection at national level, which is permitted under recital 48 of the directive, 
leads to the conclusion that not only is the non-transposition of Article 8(2) of the 
directive permitted, but also that the court, despite that provision being transposed 
in the legislation, may adopt a decision applying it more narrowly. That is because 
participation in person always complies with Article 8(1) of the directive to a 
greater extent than a refusal to do so, regardless of the circumstances in which that 
refusal is made. 
30 In transposing Article 8(2) of Directive 2016/343 by way of Article 269(3)(3) of 
the NPK, the national legislature departed from the provision of the directive in 
two respects. First, in addition to the decision having to be fully informed, the 
legislature provided for another condition, that is to say, that the court examining 
the case must state whether the absence of the defendant prevents the objective 
truth from being established; in doing so, the possibilities of waiving the right to 
participate are reduced. Second, the legislature has empowered the court to order 
the detention of the defendant under Article 66 of the NPK if he or she fails to 
appear, including where that defendant’s failure to appear is under the conditions 
laid down in Article 269(3)(3) of the NPK (that is to say, fully informed refusal to 
appear); in doing so, a procedural means is also available of ensuring the 
defendant’s presence in person by coercion and thus, necessarily and by force, of 
guaranteeing that the defendant’s right to participate in person is exercised. 
31 Thus, the right to participate in person under Article 8(1) of Directive 2016/343 is 
guaranteed at national level with a higher level of protection than that provided for 
in that directive. 
Right to liberty of the person enshrined in Article 6 of the Charter and detention 
guaranteeing the right to participate in person under Article 8(1) of Directive 
2016/343 
32 There is no doubt that the detention of the defendant DK in prison constitutes an 
infringement of the right to liberty of the person. There is also no doubt that the 
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means used by the referring court to guarantee the right of the defendant DK to 
participate in person under Article 8(1) of Directive 2016/343 is in clear 
contradiction with his right to liberty under Article 6 of the Charter. 
33 Consequently, it is necessary to ascertain whether the conditions for limiting the 
right to liberty, as laid down in Article 52 of the Charter, are satisfied, that is to 
say, whether those limitations are provided for by law, respect the essence of the 
right to liberty and, subject to the principle of proportionality, are necessary and 
genuinely meet objectives of general interest recognised by the European Union 
(judgment in Case C-348/21, paragraph 50). 
34 There is no doubt that the national legislation provides for the possibility of 
remanding the defendant DK in custody if he absconds; in fact, that possibility 
already exists from the first time that he fails to appear at a court hearing, 
regardless of whether that failure to appear satisfies the conditions laid down in 
Article 269(3)(3) of the NPK. 
35 The limitation of the right to liberty under Article 6 of the Charter is intended to 
attain an objective of general interest, that is to say, to ensure that the objective 
truth is established by enabling the defendant genuinely and actually to participate 
in the trial. However, the referring court has doubts as to whether the objective 
pursued may actually be regarded as one of general interest, since, although 
establishing the objective truth is an objective of general interest, in the present 
case, the coercive measure is aimed at guaranteeing the right of the defendant to 
participate and that right to participate is a means of protecting the defendant’s 
own interests and he can therefore exercise it only of his own free will. 
36 That question – whether coercive measures, including detention, for the purpose 
of guaranteeing the right to participate in reality result in the objective truth being 
established – is linked to the effectiveness of the legal protection granted in 
relation to the right to participate, and that is a question linked to the principle of 
proportionality. 
Principle of proportionality 
37 Any limitation of the rights conferred by EU law must observe, among other 
conditions, the principle of proportionality. According to that principle, the 
measure containing that limitation must be sufficiently effective, that is to say, it 
must ensure the attainment of a useful outcome, and must not go beyond what is 
necessary to achieve that objective (judgment in Case C-610/23, paragraph 60); 
furthermore, in the opinion of the referring court, the limited right must be of 
lesser importance than the protected right. 
38 In the present case, the detention of the defendant DK is intended to ensure that he 
is brought by force to court hearings and, therefore, the exercise of his right to 
participate in person and, accordingly, the establishment of the objective truth. It 
is necessary to ascertain whether such detention in fact leads to those results. 
Moreover, the right that is protected is the right to participate in the trial under 
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Article 8(1) of Directive 2016/343 and the right that is limited is the right to 
liberty of the person enshrined in Article 6 of the Charter. It is necessary to 
ascertain whether the protection of the former may justify a limitation of the latter. 
It has already been stated that the effectiveness sought cannot be achieved by less 
intrusive measures. 
39 The right to participate in person under Article 8(1) of Directive 2016/343 is a 
subjective right and it may be exercised in practice only with the will of the right 
holder. Coercion (detention in prison and the bringing from prison of the 
defendant DK to the court hearings) renders it possible for the defendant actually 
to exercise his right to participate, but does not always result in such exercise. 
Although the defendant DK could be brought by force to a court hearing, he might 
remain silent and in fact not participate in any way. Given that he has made it 
clear, by absconding, that he does not wish to participate in the trial, it is highly 
unlikely that he would participate after being brought by force. It is more likely 
that he would not participate. 
40 The referring court therefore comes to the possible conclusion that – it would 
appear – detention in prison, from where the defendant DK can be brought to 
participate in the trial, is not an effective means of guaranteeing his right to 
participate in person under Article 55(1) of the NPK. Detention merely ensures 
that the defendant’s obligation to be present under Article 269(1) of the NPK is 
complied with, but does not contribute to a higher level of establishing the 
objective truth through the effective and meaningful exercise of the right to 
participate. 
41 However, another view is also possible. That is again based on the premiss that 
the right to participate in person is a subjective right and can only be exercised by 
the right holder. That leads to two conclusions: in the first place, that right may 
also be exercised in the form of silent presence and, second, how the right will be 
expressed in the future cannot be presumed. The silence of the defendant DK 
when physically present cannot be equated with the absence of a statement when 
physically absent. 
42 In the next place, the fact that the defendant DK has not actually participated to 
date on the occasions when he was present (he said nothing during the 
investigative stages at which he was present and stated with regard to the 
investigative stages at which he was not present that he had no questions 
regarding those) does not provide sufficient certainty to conclude that the 
defendant will also not say anything in the future. It is entirely possible – but only 
if he is present – that he will deem it necessary to make a statement (for instance, 
to ask a witness a question, to make a request or to raise an objection) that is of 
significant importance for the outcome of the trial; he may decide, on the basis of 
what he has observed during the trial, to make statements in the case, and such 
statements are always and in all circumstances decisive for establishing the 
objective truth, regardless of whether the court believes them or not. Moreover, 
particularly important statements – in the context of closing arguments (the 
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arguments of the parties on the substance) and of the last word by the defendant – 
yet to be made are also of significant importance for establishing the objective 
truth. Lastly, presence in person also provides the opportunity to appeal the 
court’s decision on the substance in good time (the time limit for appeal runs from 
the date of delivery, including for absent defendants), which is also an essential 
guarantee for establishing the objective truth. 
43 Consequently, when assessing whether the detention of the defendant DK in 
prison leads to the effective exercise of his right of defence being ensured, two 
approaches are possible. 
44 That dualism also exists when it comes to weighing up the right that is protected 
and the right that is limited. The former is the right to participate in the trial and 
the latter is the right to liberty of the person. In the opinion of the referring court, 
the latter right is more important than the former right and should not be sacrificed 
for the sake of protecting the former right. In reality, exactly the opposite is true; 
the right to participate at the court hearing is intended to protect the right to 
liberty, which is threatened by the accusation of commission of an offence that is 
punishable by a custodial sentence. 
45 If the right to participate in person protects the right to liberty, it is obviously 
illogical to claim that the right to participate in person is guaranteed by 
deprivation of liberty. In the main proceedings, however, given that the defendant 
DK has absconded twice, no coercive measure that is less intrusive than detention 
in prison is sufficient to guarantee the defendant’s right to participate in person in 
the final, concluding stage of the trial. 
46 However, another way of looking at things is also possible. The imprisonment of 
the defendant DK is only temporary and for a relatively short period of time; 
either until the conclusion of the trial (which is about to end), or earlier if the 
defendant DK (with the help of his defence counsel, the lawyer OC) succeeds in 
convincing the court that he will not abscond in the future and will appear 
regularly; that even if he is absent from a court hearing, he will maintain contact 
with his lawyer and will indicate whether he has acquainted himself with the 
minutes of the court hearings and whether or not he wishes witnesses and experts 
to be additionally questioned or not; that he will appear in person at the conclusion 
of the trial and will indicate whether he will make statements or not, as well as on 
the substance of the case; that he will have the last word. 
47 From that perspective, the right that is protected is more significant than the right 
that is limited. The protected right is the right to liberty, which the defendant DK 
could be deprived of for many years in view of the penalties associated with the 
two acts he is charged with, and the limited right is his liberty for a few months. 
That limitation is permissible if it necessarily leads to the proper and meaningful 
exercise of the right to participate in person. 
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Right to a fair trial enshrined in the second paragraph of Article 47 of the Charter 
and detention guaranteeing the right to participate 
48 The defendant DK is entitled to a fair trial (recital 33 of Directive 2016/343 and 
the second paragraph of Article 47 of the Charter). Therefore, the result of any 
measure guaranteeing the right to participate is to ensure the fairness of the trial. 
The absence of the defendant DK from the trial directly undermines the fairness of 
the trial, unless the waiver of the right to participate is legitimate. 
49 In order to assess whether the right to a fair trial is protected or undermined by the 
detention of the defendant DK, the sole purpose of which is to guarantee his right 
to participate in person under Article 8(1) of Directive 2016/343, it is necessary to 
determine how the European Court of Human Rights answers that question. That 
is because the concept of a fair trial under EU law is the same as that referred to in 
Article 6(1) of the Convention for the Protection of Human Rights and 
Fundamental Freedoms (‘the ECHR’) (judgment in Case С-481/19, paragraph 36 
and 37, judgment in Case С-514/21, paragraph 51). 
50 In its decisions, the European Court of Human Rights has stated that the presence 
of the defendant at the court hearing is not only an expression of the right of 
defence, but also an important prerequisite for establishing the objective truth, that 
is to say, to clarify the credibility of his or her statements by assessing them in the 
light of the statements of the victims and other witnesses. That is why the 
legislature and the competent national authorities must prevent unjustified 
absences of the defendant. Therefore, it could be considered appropriate to use 
coercive procedural measures to ensure the defendant’s physical presence, as 
unjustified absences should be avoided. That is the case not only where the 
defendant’s presence is necessary for the taking of evidence (for example, a 
comparison of the statements of the defendant and those of the witnesses), but also 
in order to guarantee his or her participation in person. 
51 As far as the referring court is aware, the European Court of Human Rights has 
not yet considered the question of whether the use of a coercive procedural 
measure such as the imprisonment of the defendant, and the defendant being 
brought from prison to participate in the trial, with the sole aim of guaranteeing 
his right to participate in person, is justified. 
52 However, it can be assumed that such a coercive procedural measure is consistent 
both with Article 6(1) of the ECHR, in so far as it ensures to the fullest extent the 
exercise of the right to participate in person, and with Article 5(1)(c) of the 
ECHR, in so far as it is provided for in national law and pursues a legitimate 
objective, that is to say, to ensure a higher level of protection. 
53 At the same time, the European Court of Human Rights recognises the legal 
importance of the defendant’s waiver of the right to appear at the trial, if that is 
the result of free will, is clear, fully informed, and accompanied by minimum 
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guarantees corresponding to its importance; moreover, and importantly, that 
waiver of the right must not run counter to any important public interest. 
54 The referring court emphasises that Article 6(1) of the ECHR does not confer on a 
defendant the right to be absent from the trial. Rather, the European Court of 
Human Rights has held that that provision confers a right to participate in person 
as a guarantee of the fairness of the trial. Only under certain conditions may 
participation be refused, and it is only under those conditions that that refusal does 
not undermine that fairness. 
55 The referring court points out that the European Court of Human Rights considers 
the absence of the defendant from the trial to be a manifest breach of the 
requirement of fairness, which is why the legislature and the competent national 
authorities are required to prevent unjustified absences on the part of the 
defendant. In the main proceedings, the referring court has shown tolerance 
towards the occasional absences of defendants, but in order effectively to 
guarantee their right to participate in person, it insists that they do not abscond and 
that they maintain contact with the court. Therefore, the absence of the defendant 
DK, who absconded – twice, in fact, without taking account of the initial absence 
from the trial – is indeed unjustified. 
Right to remain silent 
56 Under Article 7(1) of Directive 2016/343, the defendant DK has the right to 
remain silent ‘in relation to the criminal offence that [he is] … accused of having 
committed’. The question arises as to whether the expression ‘in relation to’ also 
refers to the right not to appear at trial. Given that the trial takes place precisely 
‘in relation to the criminal offence that [he is] … accused of having committed’, 
he has the right to remain silent while the trial is being held and his failure to 
appear is the surest form of remaining silent. In that regard, it could be argued that 
Article 7(1) of the directive does not allow the referring court to take coercive 
measures in order to ensure the presence of the defendant DK at the trial, since 
that would infringe his expressly recognised right to remain silent. 
57 The case-law of the Court of Justice leads to a different conclusion: ‘the right to 
silence cannot justify every failure to cooperate with the competent authorities, 
such as a refusal to appear at a hearing planned by those authorities or delaying 
tactics designed to postpone it’ (judgment in Case С-481/19, paragraph 41). 
According to paragraph 51, sanctions may be applied for failure to cooperate – 
and therefore also sanctions for refusal to appear. EU law precludes the imposition 
of such sanctions for failure to answer questions the answering of which may lead 
to self-incrimination (that is also prohibited by Article 7(2) of Directive 
2016/343), but not for mere refusal to appear where there is a valid reason for the 
obligation to appear (in the main proceedings, that is the need to establish the 
objective truth by guaranteeing the right to participate – which in turn will be 
guaranteed if the defendant DK is present at the court hearings). A fortiori, instead 
of sanctions, a coercive measure to ensure appearance might be possible. 
KILYANOV 
 
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The possibility that the defendant may participate in the trial, as guaranteed by 
Article 8(1) of Directive 2016/343, not only in person and physically, but also via 
his defence counsel (lawyer) to whom he has entrusted his defence 
58 The referring court bases its request on the premiss that Article 8(1) of Directive 
2016/343 is aimed at the physical presence of the defendant at the trial and that 
that participation of the defendant cannot take place via his defence counsel 
(lawyer) after consulting with the defendant. That is so in so far as the right to 
participate in person under Article 8(1) of the directive is distinct from the right to 
a defence counsel (lawyer) under the Article 3(1) and Article 3(2)(d) of Directive 
2013/48. 
59 Accordingly, the referring court considers that the conditions laid down in 
Article 8(2) of the directive concern the defendant’s failure to participate, 
notwithstanding the fact that that defendant’s lawyer participates as his or her 
defence counsel and that that lawyer, who uses his or her legal training and 
experience, makes those statements on the defendant’s behalf that the latter would 
like to make him or herself. 
60 Under Article 3(1) of Directive 2013/48, the defendant has the right of access to a 
lawyer in order to enable him or her actually and effectively to exercise his or her 
rights of defence. If the defendant has no legal training and does not have the 
necessary practical experience, his or her right to participate in person under 
Article 8(1) of Directive 2016/343 does not lead to an effective defence against 
the charges, in so far as the defendant will not know what questions to ask the 
witnesses or what requests, objections and other statements to make to the court. 
In reality, it is precisely through his or her defence counsel (lawyer) that the 
defendant exercises his or her rights of defence in a full and effective manner. 
61 From that point of view, it would be conceivable that, specifically in the case of 
Article 8(2)(b) of Directive 2016/343, there would be no refusal to exercise the 
right to participate under Article 8(1), but there would be an exercise of that right 
by the defence counsel (lawyer). There is case-law of the Court from which it 
might be inferred that a defendant may exercise his or her right to participate 
through his or her defence counsel (lawyer) (judgment in Case С-660/21, 
paragraph 47, judgment in Case С-400/23, paragraph 66, judgment in Case С-
348/21, paragraph 44). 
62 However, the referring court points out once again that the right to participate in 
person under Article 8(1) of Directive 2016/343 is distinct from the right to be 
defended by a lawyer under Article 3 of Directive 2013/48, which is why it is 
difficult to imagine that presence in person for the purposes of Article 8(1) of 
Directive 2016/343 can be deemed to exist where the defendant is absent but his 
defence counsel (lawyer) is present and participates, pursuing a joint, coordinated 
line of defence. At the same time, however, it is also hard to imagine that in that 
case –Article 8(2)(b) of Directive 2016/343 – there is a refusal on the part of the 
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defendant to exercise his right under Article 8(1) since, in practice, he is making 
use, through his lawyer, of all the favourable effects of his participation in person. 
63 For the above reasons, the referring court considers it necessary to make a request 
to the Court for a preliminary ruling regarding the manner in which the right to 
participate in person under Article 8(1) of Directive 2016/343 and its relationship 
to a refusal to participate made under the conditions set out in Article 8(2) should 
be interpreted. That interpretation should be carried out in the light of the efforts 
made by the referring court to ensure a higher level of protection and exercise in 
practice of the right to participate in person, but also taking into account the 
detrimental effects of those efforts on the holder of the right to participate, namely 
his detention in prison.