Opinion of the Advocate General — ECLI:EU:C:2024:328
Date: 2024-04-18
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-760/22 – 1 
Case C-760/22 
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:  
15 December 2022  
Referring court:  
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer:  
28 November 2022 
Defendants:  
FP 
QV 
IN 
YL 
VD 
JF 
OL 
  
Subject matter of the main proceedings 
Criminal proceedings which have raised the question of whether a defendant may 
participate in his or her trial remotely. 
Subject matter and legal basis of the request 
Interpretation of a provision of EU law in the area of police and judicial 
cooperation in criminal matters. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-760/22 
 
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Question referred for a preliminary ruling 
Is the right of a defendant to be present at his or her trial, as provided for in 
Article 8(1) of Directive 2016/343, read in conjunction with recitals 33 and 44 
thereof, infringed if, at his or her express request, he or she takes part in the court 
hearings being conducted in the criminal case in question via an online link, in a 
situation where he or she is defended by a lawyer mandated by him or her and 
present in the courtroom, and where that link enables him or her to follow the 
course of the proceedings and to adduce and be given access to evidence, where 
he or she can be heard without technical hindrances and he or she is guaranteed an 
effective and confidential means of conferring with his or her lawyer? 
Provisions of European Union law and case-law relied on 
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 
Provisions of national law relied on 
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 thereof: ‘the ZMDIPPP’) 
Article 6а(2): ‘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’. 
Decision No 325 of 14 May 2020 of the Ministerski savet na Republika Bulgaria 
(Council of Ministers of the Republic of Bulgaria, ‘the Council of Ministers’) 
declared a nationwide state of epidemic emergency in connection with the spread 
of the COVID-19 epidemic and the imminent threat to the life and health of 
citizens arising from it, with effect from 14 May 2020 to 14 June 2020. 
By further decisions of the Council of Ministers, the period of the epidemic 
emergency was extended on a number of occasions and without interruption. 
By Decision No 826 of 25 November 2021 of the Council of Ministers, the 
period of epidemic emergency declared by Decision No 325 of 14 May 2020 of 
FP AND OTHERS 
 
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the Council of Ministers was extended for the last time from 1 December 2021 to 
31 March 2022. 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’) 
The rights and obligations of the accused party that have a bearing on the question 
referred for a preliminary ruling 
Article 15(2) and (3) of the NPK (Right of defence) 
Article 55 of the NPK: ‘The accused person shall have the following rights: … to 
participate in the criminal proceedings’. 
Article 269 of the NPK 
(1) In cases where the defendant 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 defendant 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 defendant, 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. (as last amended by DV No 110 of 2020, in force from 30 June 2021) 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 was duly summoned and gave no valid reason for not appearing. 
The options provided for in the NPK for online participation by the accused 
person or the defendant in the proceedings brought against him or her: 
In the case of evidence given by an accused person: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-760/22 
 
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Article 115(2) of the NPK: ‘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’. 
In the event of an order for detention on remand in pre-trial proceedings: 
Article 64(2) of the NPK: ‘The public prosecutor’s office shall arrange for the 
accused person to appear in court; if necessary, it can issue an order for the 
accused person to be placed under arrest for up to 72 hours in order to ensure that 
that person is brought to court. In the event of the declaration of a state of 
emergency, martial law, national disaster, epidemic, force majeure or with the 
express written consent of the accused person and his or her defence counsel, the 
accused person may also participate in the proceedings by video conference. In 
such cases, his or her identity shall be confirmed by the head of the penal 
establishment or remand detention centre or by an official designated by that 
person. (By judgment of the Konstitutsionen sad (Constitutional Court) No 13 of 
2021, DV No 85 of 2021, the second sentence of that provision was declared 
unconstitutional) 
Article 64(7) of the NPK: ‘The appeal court shall hear the case via a panel of three 
judges in a public hearing in which the public prosecutor, the accused person and 
his or her defence counsel shall participate. Failure by the accused person to enter 
an appearance without a valid reason shall not preclude the case from being heard. 
In the event of the declaration of a state of emergency, martial law, national 
disaster, epidemic, force majeure or with the express written consent of the 
accused person and his or her defence counsel, the accused person may also 
participate in the proceedings by video conference, in which circumstances his or 
her identity shall be confirmed by the head of the penal establishment or remand 
detention centre or by an official designated by the person’. 
In the event of judicial review of detention on remand in pre-trial proceedings 
Art. 65 Abs. 3 NPK: ‘… Provided that this does not impede the effective exercise 
of the rights of defence, the accused person, if he or she consents to doing so, may 
also take part in the proceedings by videoconference, in which case his or her 
identity shall be confirmed by the head of the penal establishment or remand 
detention centre or by an official designated by that person’. 
In the case of proceedings concerning international mutual assistance in criminal 
matters: 
Article 474(1) of the NPK: ‘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 video conference 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 
FP AND OTHERS 
 
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authorities of the other State have agreed on the manner in which the video 
conference is to be conducted. 
(2) The request [to question an individual located in Bulgaria] filed by the judicial 
authority in the other State shall contain the following mandatory information: 
[points 1 to 5 list the characteristics of the request]. 
(3) The Bulgarian criminal prosecution authorities shall authorise the questioning 
by video or telephone conference. [Authorities involved in the pre-trial 
proceedings] [Composition of the court]. The competent Bulgarian authority may 
require the requesting State to make available the technical facilities required for 
such questioning.  
(4) The questioning shall be conducted by the judicial authority of the requesting 
State itself or under its direction, in accordance with the law of that State. 
(5) Prior to the questioning, the Bulgarian judicial authority shall establish the 
identity of the individual to be questioned. After the questioning, a record 
containing the following information shall be drawn up: [points 1 to 4 set out the 
content of the record of questioning]. 
(6) An individual who is located abroad may be questioned by video or telephone 
conference by the Bulgarian authority or under its direction if the law of the other 
State permits this. The questioning shall be conducted in accordance with 
Bulgarian law and with the provisions of international agreements on the 
abovementioned methods of questioning to which the Republic of Bulgaria is a 
party. 
(7) Questioning by video or telephone conference under paragraph 6 shall be 
conducted by […] [in pre-trial proceedings] and by the court at trial. 
(8) The provisions of paragraphs 1 to 5 shall apply mutatis mutandis to the 
questioning of individuals under paragraph 6’. 
Definition of an online link in [the NPK]: 
Paragraph 1(5) of the Supplementary Provisions to the NPK: ‘Video conference’ 
within the meaning of these rules of procedure refers to the communication link, 
established by means of a technical device for synchronous video and audio 
transmission between parties to proceedings who are in different locations, that 
allows information to be recorded and stored on a digital medium. 
Conduct of criminal proceedings in the absence of the defendant: 
Article 269(3), point 3, of the NPK 
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The procedure under Article 247c(1) of the NPK requires the court to inform the 
accused person that, subject to the conditions laid down in Article 269 of the 
NPK, the case can be heard and decided in his or her absence.  
Succinct presentation of the facts and procedure in the main proceedings 
1 Criminal proceedings were brought, on the basis of an indictment received by the 
Spetsializiran nakazatelen sad (Specialised Criminal Court) (case file of the 
Spetsializirana prokuratura, Specialised Public Prosecutor’s Office), against seven 
individuals accused of membership of a criminal organisation for the purposes of 
the commission of criminal offences under Article 255 of the Nakazatelen kodeks 
(Criminal Code, ‘the NK’) (tax offences), one of those individuals having also 
been charged with a specific criminal offence under Article 255 of the NK. 
2 One of the defendants is Mr FP, who was accused of having been, in the period 
from September 2013 to 14 October 2014, both in Sofia and nationwide, a 
member of a criminal organisation, that is to say a structured long-standing group 
of more than three individuals with the defendant QV as its leader and the 
defendants IN, YL, JF, VD and OL as further members, which was founded for 
the purposes of enrichment and the concerted commission of offences under 
Article 255 of the NK (tax offences) – a criminal offence under Article 321(3), 
point 2, in conjunction with Article 321(3) of the NK. The charge against FP 
provided for a custodial sentence of more than five years. FP’s mandated defence 
counsel has since the start of the proceedings, and is currently, Mr Hristo 
Georgiev, lawyer and member of the Sofia Bar Association. 
3 On 11 October 2017, ex officio criminal proceedings were brought before the 
(Specialised Criminal Court). By judgment of 11 April 2019, the adjudicating 
chamber found the defendants guilty and imposed sentences of different lengths 
on them. FP was found guilty of having committed an offence under 
Article 321(3), point 2, in conjunction with Article 321(2) of the NK and 
sentenced to six months’ imprisonment suspended for three years. 
4 The criminal judgment was challenged by the defendants and their defence 
counsels before the Apelativen spetsializiran nakazatelen sad (Specialised 
Criminal Court of Appeal), which, on 23 June 2021, set aside the judgment of the 
Spetsializiran nakazatelen sad (Specialised Criminal Court) and remitted the case 
to another chamber of the court of first instance for retrial. The rehearing of the 
case before the referring chamber of the Spetsializiran nakazatelen sad 
(Specialised Criminal Court) began on 30 June 2021. 
5 At the public preliminary hearing of 12 October 2021, the defendant FP 
participated online, via a Skype-supported communication link providing video 
and sound. Before the preliminary hearing, FP explained that, if none of the 
parties objected, he would like to take part in the proceedings via an electronic 
link, as he lived and worked in the United Kingdom. He stated that he was 
familiar with all of the procedural documents and was of the view that his rights 
FP AND OTHERS 
 
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would not be infringed by electronic participation. The identity of the defendant 
FP was verified by online display of his identity card, the court having harboured 
no doubts in this regard in the light of his answers, his overall appearance and the 
statements of the parties to the proceedings.  
6 His defence counsel, Hristo Georgiev, who was physically present in the 
courtroom, also stated that it was his wish that his client should participate in the 
proceedings online, that he was familiar with all of the procedural documents, 
including the indictment (which had remained unchanged since the start of the 
proceedings in October 2017); he stated that any new documents could be e-
mailed to the defendant for his timely inspection and that consultations between 
himself and the defendant could be arranged by allowing him as defence counsel 
to leave the courtroom and by interrupting the video transmission of the defendant 
so that the two of them could establish an electronic communication link of their 
choice exclusively between themselves. 
7 None of the participating parties raised any objections to the prospect of the 
defendant FP participating in the court hearing online. 
8 The adjudicating chamber too, after hearing the parties, found that FP could 
participate remotely. First, it found that the special law applicable at that time – 
Article 6a(2) of the ZMDIPPP – allowed such participation. 
9 Second, the chamber adopted the following measures to ensure that Mr FP could 
exercise his rights as a defendant: 
- ensuring an electronic link affording synchronous and mutual visual and 
auditory capacity to the individuals in both locations, the one present in the 
courtroom and the defendant at a location in the United Kingdom; 
- ensuring that documents would be promptly scanned and sent to an e-mail 
address provided by the defendant FP, to enable him to view and comment on 
them immediately; 
- enabling the defendant to confer face-to-face with his defence counsel whenever 
the two wished this or needed to make an intervention in the proceedings, in 
which event the hearing would be interrupted, the defence counsel would be 
allowed to leave the courtroom and the defendant FP would disconnect the online 
link so that he and his counsel could establish an electronic communication link 
exclusively between the two of them via an electronic means of their choice; 
- notifying the defendant FP that, if he no longer wished to participate online, he 
would have to inform the court without delay so that the hearing could be 
interrupted and adjourned with a view to ensuring his physical presence in the 
courtroom; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-760/22 
 
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- notifying the defendant FP that, if the court considered his personal, physical 
presence in the courtroom necessary for the purposes of clarifying the facts of the 
proceedings, it would make an order to this effect in good time. 
10 Following the clarifications and abovementioned measures, a preliminary hearing 
in which the defendant FP took part online was held on 12 October 2021. 
11 At the hearing on 21 February 2022, the defendant FP again took part via a Skype-
supported online communication link providing video and audio transmission over 
the internet, as permitted by Article 6а(2) of the ZMDIPPP, in the course of which 
the measures already taken with respect to his participation were observed. At the 
hearing on 28 February 2022, the defendant FP took part in person by being 
physically present in the courtroom. At the hearings on 30 March 2022 and 
23 May 2022, he again took part online, observing the measures already put in 
place in respect of his participation. 
The essential arguments of the parties in the main proceedings 
12 At the hearing scheduled and held on 13 June 2022, the defendant expressed the 
wish that he should continue to participate online and that the court hearing should 
proceed in this form. He was connected to the hearing by a Skype-supported 
electronic link providing video and audio transmission over the internet. By this 
time, however, the court had doubts about whether the proceedings could be 
conducted in this way. 
13 The Bulgarian NPK does not provide for the option for a defendant to participate 
in court proceedings brought against him via an online link (other than at the pre-
trial stage of the proceedings and in certain expressly listed circumstances 
involving review of the precautionary measure consisting in ‘detention on 
remand’. This form of participation is not prohibited either. 
14 At the court hearing on 13 June 2022, the defendant FP and his defence counsel 
expressed the wish that FP should continue to participate via the existing 
electronic link, but, in the light of his client’s physical absence from the 
courtroom, the defence counsel proposed that his client be treated as an absent 
defendant and that the proceedings be conducted as proceedings in absentia. The 
defendant FP was informed that, subject to the conditions laid down in Article 269 
of the NPK, the case could be heard and decided in his absence. 
15 The court did not grant the wish expressed by the defendant and his counsel, since 
it found that treating the defendant as absent was not consistent with his actual 
participation in the proceedings, which, although he was not physically present in 
the court room, did in fact allow him to see and hear what was happening in the 
courtroom, make statements and provide explanations, adduce evidence and raise 
pleas. 
FP AND OTHERS 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The request for a preliminary ruling seeks to ascertain whether the national legal 
framework for the participation of defendants in court hearings in criminal cases, 
given the online form of participation elected, the approach taken by the court and 
the measures adopted, is to be interpreted as being compatible with the right of a 
defendant to participate in his or her trial, as provided for in Article 8(1) in 
conjunction with recitals 33, 35 and 44 of Directive 2016/343. The court has 
doubts as to whether an interpretation of the national provision contained in 
Article 269 of the NPK as recognising the right of the accused person to choose 
how to participate in the trial, be that through his or her physical presence at the 
hearing or through an online link and in accordance with the measures specifically 
adopted by the court to ensure his or her full participation, is consistent with the 
directive. 
17 That legal option of online participation by parties and, in particular, defendants in 
criminal proceedings was available under Article 6a(2) of the ZMDIPPP […] until 
31 May 2022, whereupon that provision ceased to be effective.  
18 The Bulgarian NPK does not expressly contain a procedural rule enabling 
defendants to participate online in criminal proceedings brought against them. 
That is why, at the hearing of 13 June 2022, the court had doubts as to whether the 
defendant’s continued online participation in the criminal proceedings carried 
with it a risk of infringement of his right to be present at the hearing. Those doubts 
are based on the fact that the participation of a defendant in the criminal 
proceedings brought against him via an online link is not expressly provided for as 
a rule of procedure in the Bulgarian criminal justice system, other than in the 
specific case of evidence being taken from him or her and in the procedure for the 
consideration and review of detention on remand, in order to circumscribe the 
conditions under which participation via video link is permissible and – by 
extension – the legitimate purpose of such participation. 
19 On the one hand, the chamber ensured that the defendant took full part in the 
proceedings (see paragraph 9). The defendant was able to raise pleas, make 
comments and raise objections or provide clarifications in respect of the charge 
against him, and participate in the taking of evidence, without restriction. On the 
other hand, however, the Bulgarian NPK links the principles informing the 
conduct of criminal proceedings at the trial stage to the physical presence of the 
parties in the courtroom and provides for the option of online participation by an 
accused person only exceptionally (namely at the pre-trial stage) and in a specific 
procedure. In all other cases in which the defendant is not physically present in the 
courtroom, his or her absence is absolute. 
20 The abovementioned question is governed by Directive 2016/343, which the 
Court of Justice has not previously interpreted from this point of view, that is to 
say whether the defendant’s online participation in the trial and the approach taken 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-760/22 
 
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by the court create a risk of infringement of his or her right to be present, and, if 
so, what measures would be capable of preventing such infringement. 
21 The European Court of Human Rights has held that, although an accused person’s 
participation in proceedings by video conference is not as such contrary to the 
Convention for the Protection of Human Rights and Fundamental Freedoms, it is 
incumbent on the court to ensure that recourse to that measure in any given case 
serves a legitimate aim and that the arrangements for the giving of evidence meet 
the requirements of a fair trial laid down in Article 6 of the Convention. It must be 
ensured that the person concerned is able to follow the course of the proceedings 
and be heard without technical hindrances, and that an effective and confidential 
means of conferring with his or her counsel is available (judgment of 5 October 
2006, Marcello Viola v. Italy (Application no. 45106/04). See also the judgment 
of 2 November 2010, Sakhnovskiy v. Russia (Application no. 21272/03) and the 
judgment of 27 November 2007, Asciutto v. Italy (Application no. 35795/02). 
22 In the absence of an express legal provision permitting a defendant to participate 
[in his or her trial] via an online link, can it be assumed from the statement by a 
competent authority able to order and arrange such participation that it has put in 
place specific technical conditions for the installation of the audiovisual link and 
specific conditions for the operation of that link that the court has taken all the 
measures necessary to ensure that there is no essential difference between the 
defendant’s physical presence in the courtroom and his or her participation via an 
online link, and has the court put in place the conditions enabling the defendant to 
follow his or her trial[?] 
23 By allowing the defendant to participate online, the court left it up to him to 
determine how to discharge the duty to take part in criminal proceedings imposed 
on him by Article 269(1) of het NPK, which is to say that the court created an 
unquestionable expectation on his part that he would be treated as if he were 
present in the courtroom. However, is such an interpretation of the national law 
compatible with the directive[?] According to recital 33 of the directive, the right 
to a fair trial is one of the basic principles in a democratic society and 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. What is in doubt is whether the measures 
adopted by the court were such as to ensure that the choice which the accused 
person made, with the court’s consent, in relation to the form of his participation 
was equivalent to physical presence in the courtroom.