Judgment;Summary — ECLI:EU:C:2020:94
Date: 2020-02-13
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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Translation C-688/18 — 1 
Case C-688/18 
Request for a preliminary ruling 
Date lodged:  
6 November 2018 
Referring court:  
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer:  
22 October 2018 
Public Prosecutor’s Office in criminal proceedings:  
Spetsializirana prokuratura (Specialised Public Prosecutor’s Office) 
Defendants in criminal proceedings:  
TX 
UW 
  
ORDER 
Date: 22 October 2018      City: Sofia 
Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) … […] … 
[…] 
The proceedings are governed by Article 485 et seq. of the Nakazatelno 
protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’) and Article 267(2) 
TFEU. 
In the present proceedings, the public prosecutor and some of the defence lawyers 
expressed concerns that the rights of defence of the defendants, in particular their 
right personally to participate in the trial in the criminal proceedings, may have 
been infringed, as some hearings took place in the absence of various defendants. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2018 — CASE C-688/18 
 
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The court assumes that these concerns are not unfounded, as it is not actually 
certain whether the right of the defendants to be present at the trial in criminal 
proceedings was respected. 
This question is governed in Directive (EU) 2016/343, which has not yet been 
interpreted by the Court of Justice of the European Union. 
The request for a preliminary ruling in relation to this problem is therefore 
required to clarify whether the right of the defendants to be present has been 
infringed and, if that is the case, what suitable measures the referring court can 
take to remedy this infringement of rights. 
For the reasons set out above, the court 
ORDERED: 
That the following question be referred to the Court of Justice of the European 
Union for a preliminary ruling [Or. 2] 
 
Background to the dispute: 
1.  Thirteen people were charged as ringleaders and members of a criminal 
organisation (the purpose of which was to commit murder, robbery and theft) and 
on account of further criminal offences that they allegedly committed in the 
framework of this criminal organisation. 
Among the defendants are Mr TX and Mr UW. They were charged as members of 
this criminal organisation (the prescribed criminal penalty is three to ten years’ 
imprisonment). 
2.  Both defendants were informed of the conditions under which the trial can 
be carried out in their absence, namely that if they do not appear without a valid 
reason, the trial may also be carried out in their absence, whereby, in that case, the 
final decision on the merits of the case is binding on them and cannot be 
challenged on the ground that they had not personally participated in the trial. 
Both defendants are represented by criminal defence lawyers, who appeared in all 
the hearings. 
3.  Seven hearings were held in the following year. The proceedings were 
repeatedly adjourned. Owing to the absence of various defendants on the grounds 
of sudden illnesses, no judicial investigations were initiated and no evidence was 
taken. The court checked whether these illnesses did in fact exist, but was unable 
unambiguously to establish that the illnesses were feigned, in spite of many 
doubts. 
SPECIALISED PUBLIC PROSECUTOR’S OFFICE 
 
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4.  The court expressly discussed the possibility of holding the trial in the 
absence of one defendant (decisions of 19 and 26 April 2017). 
It firstly found that the personal presence of the defendant is not necessary to 
determine the objective truth in the present case. 
Secondly, it laid down the following conditions for the trial in the matter in the 
absence of a defendant: (1) mandatory presence of the defendant’s lawyer, who 
must actually defend him; (2) a copy of the transcript is to be sent to the absent 
defendant so that he can become aware of the acts of investigation carried out and 
evidence taken [Or. 3] in his absence; (3) the defendant is to be given the 
opportunity to declare whether he wants the taking of that evidence to be repeated 
in his presence; 4(a) if the defendant does not appear for a reason beyond his 
control, his request for the aforementioned acts to be repeated in his presence is to 
be granted automatically; 4(b) if the defendant does not appear for a reason within 
his control, his request for the aforementioned acts to be repeated in his presence 
is to be granted only if the court takes the view that the personal participation of 
the defendant in the specific act of taking evidence is required to safeguard his 
interests. 
5. In the subsequent twelve hearings, various defendants were absent for 
various reasons. 
The reference for a preliminary ruling relates to only two of these cases: 
5.1.  Mr TX did not appear in the hearing on 16 May 2018 for a reason that was 
beyond his control, namely an illness. At his own request, Mr UW did not appear 
either. Both were defended by the lawyers authorised by them. 
Certain articles of evidence were taken in their absence. 
They were sent copies of the court transcript of this hearing so that they could 
become aware of the articles of evidence taken in their absence. 
5.2.  Mr TX and Mr UW appeared in the subsequent hearing on 30 May 2018. 
After consulting with their lawyers, they declared that they were aware of the 
transcript of the previous hearing and the evidence collected in their absence and 
did not wish for that evidence to be taken again with their participation. 
The acts carried out in their absence were not repeated. 
5.3.  Mr TX once again did not appear in the hearing on 1 October 2018 on 
account of an illness. He was defended by his lawyer. 
Certain articles of evidence were taken in his absence and, amongst other things, 
the prosecution’s main witness was examined. 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2018 — CASE C-688/18 
 
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Mr TX was sent a copy of the transcript of this hearing so that he could become 
aware of the articles of evidence taken in his absence. 
5.4.  Mr TX appeared in the next hearing on 17 October 2018. After consulting 
with his lawyer, he declared that he was aware of the transcript of the hearing and 
the evidence collected in his absence [Or. 4], and wished to participate in the 
examination of the aforementioned witness personally. 
The court complied with this wish and conducted an additional examination of the 
witness specified by Mr TX. Mr TX was given the opportunity to participate in 
this examination to an appropriate extent and ask all the questions he wished to 
ask. 
6.  A decision on the merits in the main proceedings has yet to be given by a 
court. 
National legal framework 
Regarding the right of the defendant to participate in criminal proceedings 
7.  Pursuant to Article 55 of the Nakazatelno-protsesualen kodeks (Code of 
Criminal Procedure, ‘the NPK’), ‘[t]he defendant shall have the following rights: 
… to participate in criminal proceedings’. 
Regarding the obligation of the defendant to participate in criminal proceedings 
8.  Pursuant to Article 269 NPK, the defendant is obliged to be present during 
the trial phase in criminal proceedings in the case of a charge for a serious 
criminal offence, i.e. if imprisonment of over five years is prescribed for the 
offence (Article 269(1) NPK in conjunction with point 7 of Article 93 of the 
Nakazatelen kodeks [Criminal Code]). Such a charge is involved in the main 
proceedings. 
9  Regarding in absentia proceedings 
The requirements for in absentia proceedings are set out in point 3 of 
Article 269(3) NPK. 
This provision reads: ‘Provided that it does not obstruct the determination of the 
objective truth, the case may be tried in the absence of the defendant if … (he) has 
been duly summoned, has not provided a valid reason for his non-appearance, and 
the procedure set out in Article 247b(1) NPK has been followed’. 
The procedure under Article 247b(1) NPK (which was Article 254(4) NPK at the 
time when the defendants were informed) requires that the court informs the 
defendant that the case may be tried and decided in his absence under the 
conditions of Article 269 NPK. 
SPECIALISED PUBLIC PROSECUTOR’S OFFICE 
 
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The legal consequences of in absentia proceedings follow from Article 423 
NPK. According to this provision, the defendant cannot challenge the final 
judicial decision with the argument that he did not participate in the trial in 
criminal proceedings if he was duly informed pursuant to Article 247b(1) NPK 
(which was Article 254(4) NPK at the time when the defendants were informed) 
and failed to appear without a valid reason [Or. 5]. 
Conversely, the request of a defendant to reopen the trial in criminal proceedings 
is automatically allowed if he was not informed pursuant to Article 247b(1) NPK. 
10. Regarding the mandatory defence of the absent defendant by a lawyer 
Point 8 of Article 94(1) NPK reads: ‘The participation of a defence counsel 
(lawyer) in criminal proceedings is mandatory if … the case is tried in the absence 
of the defendant’. 
11. Regarding the right of the defendant to be absent in the trial in criminal 
proceedings 
This right has been acknowledged in the case-law on Article 423 NPK in relation 
to the defendant who has already been convicted. If in absentia proceedings have 
already been conducted and were concluded with a conviction, and the defendant 
challenges the judgment and asserts that his right to participate personally in the 
trial had been infringed, the court may, after having found that the defendant had 
been informed of the requirements and consequences of the in absentia 
proceedings, assume that the defendant himself waived his right to be present at 
the trial in criminal proceedings. 
12.  Regarding the legal remedies in the event of infringement of the right of the 
defendant to be present at the trial in criminal proceedings 
If investigative acts have been unjustifiably carried out in the absence of the 
defendant, they must be repeated in their entirety in his presence. This takes place 
irrespective of the wishes of the defendant; his observations and those of his 
defence counsel are not obtained nor taken into consideration. 
EU law: 
13. 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 (OJ 
2016 L 65, p. 1).[Or. 6] 
14. Case-law of the European Court of Human Rights 
Sejdovic v Italy case (No 56581/00, judgment of 1 March 2006, paragraph 86).  
15. Question referred  
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2018 — CASE C-688/18 
 
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Is the right of a defendant to be present at the trial pursuant to Article 8(1) and (2) 
in conjunction with recitals 35 and 44 of Directive (EU) 2016/343 infringed if one 
of the hearings in criminal proceedings took place in the absence of the defendant, 
who was duly summoned, informed of the consequences of non-appearance and 
defended by a lawyer chosen by him, if: 
(а) he did not appear for a reason within his control (namely he decided not to 
participate in that specific hearing);  
(b) he did not appear for a reason beyond his control (namely illness), if he was 
subsequently informed of the acts carried out in his absence and, with full 
knowledge of the situation, decided and declared that: 
– he does not call the legality of those acts into question by relying on his non-
appearance and does not request that they be repeated in his presence; 
– he wishes to participate in these acts, whereupon the court conducted an 
additional examination of the person specified by the defendant and gave the 
defendant the opportunity to participate in it to an appropriate extent? 
Grounds for the questions referred: 
16.  [The first part] of the question referred relates to the case of Mr UW, who, in 
the hearing of 16 May 2018, expressly declared, through his lawyer, that he did 
not wish to participate in that hearing, and who also personally confirmed this in 
the next hearing. [Or. 7] 
[This part] of the question referred relates to the question of whether an 
interpretation of the national provision in point 1 of Article 269(3) NPK to the 
effect that the defendant can waive his right to be present at the trial in criminal 
proceedings is compatible with the directive. 
In order to conduct in absentia proceedings after the defendant has declared his 
informed consent, national law provides that he is to be informed of the criminal 
trial and the consequences of non-appearance and must be represented by a 
lawyer, which is what happened in the main proceedings. These are also the three 
guarantees under Article 8(2)(a) and (b) of the directive. 
Nevertheless, the referring court still has doubts as to whether this interpretation 
and application of national law are compatible with EU law, particularly with 
recital 35 in the preamble to the directive, which expressly provides that the 
defendant is able to waive the right to be present at the trial in criminal 
proceedings. The question referred relates to the conditions under which the 
waiver is effective. 
SPECIALISED PUBLIC PROSECUTOR’S OFFICE 
 
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16.  [The second part] of the question referred relates to the case of Mr TX, who 
was absent from the hearings of 16 May 2018 and 1 October 2018 for a reason 
beyond his control, namely his illness. 
At first glance, the right of Mr TX to be present at the trial in criminal proceedings 
could therefore be infringed, as his absence was justified (see recital 34 in the 
preamble to the directive). However, it is questionable whether there is such an 
infringement, if account is taken of the subsequent acts, namely the declarations of 
Mr TX and the court’s response to it. 
Mr TX received transcripts after both hearings and consulted with his lawyer. 
In relation to the hearing of 16 May 2018, Mr TX declared that he did not wish for 
the acts carried out in his absence to be repeated. Accordingly, they were not 
repeated and were carried out only in his absence. 
It is questionable whether his declaration constitutes an effective waiver of the 
right to be present and whether the right, referred to in recital 35 in the preamble 
to the directive, to waive participation also applies to procedural acts that have 
already been carried out. Accordingly, the question also arises as to whether an 
infringement of the right of Mr TX to be present at the trial continues to exist even 
after his declaration. [Or. 8]. 
In relation to the trial of 1 October 2018, Mr TX declared that he wished for the 
acts carried out in his absence to be repeated in part, and requested that he be 
allowed to participate personally in the examination of a witness (whose 
testimony is of particular importance). The court granted his request and gave him 
the opportunity to question that witness without restriction. 
It is questionable whether this act of the court is sufficient pursuant to the second 
sentence of recital 44 in the preamble to the directive and put the defendant in the 
position he would have been in without the infringement, or whether the 
infringement committed continues to exist even after the additional witness 
examination had been conducted. 
17.  The interpretation of the aforementioned provisions by the Court of Justice 
is required by the referring court so that it can assume, with certainty, that it has 
duly remedied the adverse effects of the infringement of the right of Mr TX to be 
present at the trial or so that it can take new, suitable remedial measures.  
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