Opinion of the Advocate General — ECLI:EU:C:2022:26
Date: 2022-01-13
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 of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
30 October 2020  
Referring court:  
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer:  
27 October 2020  
Defendant:  
IR 
  
Subject matter of the main proceedings 
Criminal proceedings in the absence of the accused person. Determination of the 
type of proceedings in absentia (Article 8(2) and (4) of Directive 2016/343). 
Legal remedies against conviction in absentia pursuant to Article 9 of Directive 
2016/343. 
Subject matter and legal basis of the request 
Interpretation of provisions of Directive 2016/343 and Framework Decision 
2009/299. 
The basis for the request is Article 267 TFEU. 
Questions referred 
Are Article 8(2)(b) in conjunction with recitals 36 to 39 of Directive 2016/343 and 
Article 4а(1)(b) in conjunction with recitals 7 to 10 of Framework Decision 
2009/299 to be interpreted as covering a case in which the accused person was 
informed of the list of charges against him, in its original version, and then, due to 
the fact that he has fled, objectively cannot be informed of the trial and is 
defended by a lawyer appointed ex officio with whom he has no contact? 
EN 
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If this is answered in the negative: Is a national provision (Article 423(1) and (5) 
of the NPK), pursuant to which no provision is made for any legal protection 
against investigative measures carried out in absentia and against a conviction 
handed down in absentia where the accused person, after having been informed of 
the original list of charges, is in hiding and therefore could not be informed of the 
date and place of the trial or of the consequences of non-appearance, consistent 
with Article 9 in conjunction with the second sentence of Article 8(4) of Directive 
2016/343 and Article 4а(3) in conjunction with Article 4a(1)(d) of Framework 
Decision 2009/299? 
If this is answered in the negative: Does Article 9 of Directive 2016/343 in 
conjunction with Article 47 of the Charter have direct effect? 
Provisions of EU law and the case-law cited 
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; ‘Directive 2016/343’), in particular recitals 36 to 39 and 
Articles 8 to 10. 
Council Framework Decision 2009/299/JHA of 26 February 2009 amending 
Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 
2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of 
persons and fostering the application of the principle of mutual recognition to 
decisions rendered in the absence of the person concerned at the trial (OJ 2009 
L 81, p. 24; ‘Framework Decision 2009/299’), in particular Article 4а(1)(d) and 
(3), and point 3.4 of box (d) of the form. 
Charter of Fundamental Rights of the European Union (OJ 2016 C 202, p. 389; 
the ‘Charter’), in particular Article 47. 
Provisions of national law cited 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; the ‘NPK’), in 
particular Article 423(1) and (5), Article 425(1). 
Brief summary of the facts and procedure 
1 IR was charged with an offence under Article 321(3) of the Nakazatelen kodeks 
(Criminal Code; the ‘NK’) because he allegedly participated, in the territory of the 
Republic of Bulgaria and the Hellenic Republic during the period from August 
2010 to 24 February 2011, in a criminal organisation together with 11 other 
persons, which [was alleged to have] brought, with criminal intent, large 
quantities of excise goods (cigarettes) across the national borders without strip 
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stamps and circulated them within the country. He was also charged with a 
secondary offence – an offence under Article 234(2)(3) of the NK – for aiding and 
abetting in the import of 373 490 cigarette packets without strip stamps and 
having a value of 2 801 175 leva (BGN) in the period from 15 to 24 February 
2011, whereby the object of the crime was of particularly high value and the 
seriousness of the offence was not insignificant. The first offence is punishable by 
a ‘custodial sentence’ of not less than three years and the second by a minimum 
penalty of a two-year ‘custodial sentence’. 
2 IR could not be located during the preliminary investigation and was therefore put 
on the wanted list; a European arrest warrant had already been issued in another 
case. He was subsequently located. The indictment was served on him personally, 
whereby he used the services of a lawyer mandated by him. IR decided not to 
disclose any information. He simply gave an address at which he could be found. 
3 The charges were brought before the court. The court made further attempts to 
summon IR to the trial. He could not be located, even at the address that he had 
provided. His mandated lawyer ceased to defend him, owing to the lack of 
contact. The court first appointed a public defender and then, after he resigned, 
another public defender. IR and his new lawyers have never met. His last-
appointed lawyer submits that she made no attempt to contact his relatives. In 
principle, it is unclear whether IR is aware that the charges against him are being 
heard in court and that he has been appointed a lawyer ex officio. 
4 The court ordered that IR be remanded in custody pending trial and issued a 
European arrest warrant. IR was not located. That [arrest warrant] was 
subsequently withdrawn by the issuing court, as there were certain doubts 
surrounding its compatibility with Framework Decision 2002/584 and Directive 
2012/13 as regards the right to information. A request for a preliminary ruling was 
made (С-649/19). 
5 For procedural reasons (irregular bill of indictment), the trial phase was 
terminated. After a new bill of indictment was filed, it was resumed. Once again, 
IR could not be located despite intensive searches, including via his relatives, 
former employers and mobile phone providers. In the first trial, the question was 
raised as to the circumstance of whether the case should be heard in the absence of 
IR, in particular as to his rights in such proceedings in absentia, and the extent to 
which a possible conviction would be binding on him. 
6 According to the parties’ submissions, which are supported by the court, the case 
should be heard and decided in the absence of IR. 
7 The question to be assessed is whether the adjudicating court is obliged to 
determine clearly the effect of such proceedings in absentia on the rights of IR, 
and, more specifically, whether IR would be able to challenge a possible 
conviction on the ground that it was handed down as a result of criminal 
proceedings conducted in absentia, in breach of his right to be present in person. 
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Principal arguments of the parties in the main proceedings 
8 The defence considers that such a challenge is possible, while the public 
prosecutor’s office has not expressed an opinion. 
Brief summary of the grounds for the request 
Admissibility of the questions referred 
9 First, the referring court has commenced proceedings in absentia against IR. It has 
therefore applied the provisions of Article 8 of Directive 2016/343. Consequently, 
the court has a legal interest in knowing what type of proceedings in absentia it is 
conducting, whether it is the variant under Article 8(2) or that under the first 
sentence of Article 8(4) of Directive 2016/343. 
10 Second, the request for a preliminary ruling is also made in the light of the 
referring court’s responsibility under the second sentence of Article 8(4) of 
Directive 2016/343, namely to enable IR, in the event of his arrest for the purpose 
of enforcing a possible conviction, to be informed of whether he has available to 
him a legal remedy against that conviction. 
11 The information referred to in the second sentence of Article 8(4) of Directive 
2016/343 must be provided by the referring court itself, as it is the court that took 
the decision to conduct the criminal proceedings in the absence of IR. 
Accordingly, the referring court is best placed to assess the conditions under 
which those proceedings in absentia are to be conducted – whether under the 
conditions laid down in Article 8(2)(b) and (3) of Directive 2016/343, pursuant to 
which no legal remedy would be available to IR if convicted in absentia, or under 
the conditions laid down in Article 8(4) of Directive 2016/343, pursuant to which 
he would have a legal remedy. In order to answer those questions, the referring 
court needs guidance from the Court of Justice. 
12 In the event of a conviction, there would be a very high probability that a 
European arrest warrant would be issued in order to execute the ‘custodial 
sentence’, which would probably be more than four months given the seriousness 
of the alleged crimes. It must clearly state which variant of proceedings in 
absentia were conducted, in point 2 of box (d) of the form. In accordance with 
that indication, the guarantee of a legal remedy may have to be provided in 
accordance with point 3.4 of box (d) of the form. 
13 Under national law, a European arrest warrant for the purpose of executing a 
sentence is issued by the public prosecutor’s office without any judicial 
involvement, either at the time of its issuance or its subsequent review. Thus, the 
public prosecutor’s office decides what is to be indicated in the arrest warrant. 
14 According to paragraphs 35 and 36 of the judgment of the Court of Justice of 
12 December 2019, [ZB (Office of the King’s Prosecutor, Brussels)] С-
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627/19 PPU, EU:C:2019:1079, it is lawful for a court not to participate in the 
issuing of a European arrest warrant for the purpose of executing a sentence, since 
that arrest warrant is a continuation of the judgment within the framework of 
which the court ensured that the rights of the sentenced person were respected. 
From that point of view, the adjudicating court is under an obligation in the course 
of the proceedings in absentia, in particular when deciding to conduct them, to 
identify clearly which variant of proceedings in absentia it is conducting: those 
which provide for a subsequent legal remedy or those which do not. Thus, when 
issuing the European arrest warrant, the public prosecutor’s office would be able 
to refer to the judicial finding. Otherwise, the public prosecutor’s office alone 
would decide on that important question, which would be contrary to the principle 
that, under Framework Decision 2002/584, all decisions are subject to review by 
the courts, which must be involved in at least one of the two levels of legal 
protection: either when the national arrest warrant is issued or [when] the 
European arrest warrant is issued. 
15 If it were considered that the referring court could put its questions to the Court of 
Justice of the European Union only after a conviction, that would mean that it 
could not put them at all. In accordance with the national legislation, following 
that conviction, a final decision would be taken on all procedural issues 
concerning the manner in which the parties concerned are to participate, including 
on the proceedings in absentia. The court that gave the decision on the merits 
would not be able to deal with those issues again. They could be discussed only by 
the second instance, if it is seised of an appeal brought by the defence or public 
prosecutor’s office. 
16 In practice, that would mean that the court of first instance that took the decision 
to conduct proceedings in absentia would be deprived of the possibility of seeking 
clarification from the Court of Justice of the European Union as to the precise 
provision of Article 8 of Directive 2016/343, which is applicable to the case in the 
main proceedings. 
17 If[, on the other hand,] it were considered that the information pursuant to the 
second sentence of Article 8(4) of Directive 2016/343 is to be provided only when 
the person convicted in absentia is apprehended, that would mean that only the 
public prosecutor’s office could provide that information, without any 
involvement of the court. At the same time, the public prosecutor’s office is not, 
in principle, obliged to inform the person convicted in absentia of his rights and, 
moreover, since it is not a court, it does not have the possibility of referring 
questions on this matter to the Court of Justice. 
18 All of the foregoing justifies the referring court’s legal interest in referring the 
questions set out above to the Court of Justice of the European Union for a 
preliminary ruling. 
Reference to Directive 2016/343 and Framework Decision 2009/299 
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19 If IR were convicted in absentia, the applicable law would depend on the place of 
his arrest. 
20 If he were arrested on national territory, Article 9 in conjunction with Article 8 of 
Directive 2016/343 would be applicable. 
21 If he were arrested in another Member State on the basis of a European arrest 
warrant, Article 4a of Framework Decision 2009/299, regarding the guarantee to 
be given subsequently, would be applicable. 
Explanations regarding the first question 
22 There is a lack of clarity as to the precise content of the requirement that the 
accused person be ‘informed of the trial’ pursuant to Article 8(2)(b) of Directive 
2016/343. On the one hand, the second sentence of recital 36 states that this 
requirement of informing an accused person should be understood to mean 
‘providing that person with official information about the date and place of the 
trial in a manner that enables him or her to become aware of the trial’. In the main 
proceedings, IR permanently left the address given to the investigating authorities 
and the intensive search for him remained unsuccessful. He has therefore not 
received this information. On the other hand, recital 38 states that when 
considering whether the way in which the information is provided is appropriate, 
account should be taken of the diligence exercised by the judicial authorities and 
by the person concerned, whereas recital 39 refers specifically to fleeing, which is 
the subject matter of the main proceedings. 
23 That ambiguity also applies to Article 4а(1)(b) of Framework Decision 2009/299, 
the content of which is identical to that of Article 8(2)(b) of the directive; 
recitals 7 to 9 of the Framework Decision are also identical to recitals 36 to 39 of 
the directive [in terms of content]. 
24 In the main proceedings, the judicial authorities exercised the necessary diligence 
to locate the accused person, whereas he himself wanted to abscond. After the 
original search, he was found and informed of the charge, at which time he 
provided a fixed address, but then he disappeared again. In those circumstances, 
the question arises as to whether he was duly informed of the trial within the 
meaning of Article 8(2)(b) of Directive 2016/343 and Article 4а(1)(b) of 
Framework Decision 2009/299, since the actual failure to inform him is due solely 
to the accused person’s conscious decision to flee. On the other hand, the flight of 
the accused person is expressly mentioned in recital 39 and in Article 8(4), which 
precludes the possibility of duly informing the accused person in accordance with 
Article 8(2) of Directive 2016/343, although such flight is not mentioned as a 
criterion in Framework Decision 2009/299. 
25 In short, in cases where an accused person has been informed of the original 
charge, if the judiciary is subsequently unable to inform him of the trial solely 
because he has fled, are the conditions laid down in Article 8(2)(b) of Directive 
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2016/343 and Article 4а(1)(b) of Framework Decision 2009/299 satisfied, such 
that it should be assumed that he has been ‘informed of the trial’? 
26 There is a lack of clarity as to the content of the requirement under Article 8(2)(b) 
of Directive 2016/343, pursuant to which the absent accused person ‘is 
represented by a mandated lawyer, who was appointed either by the suspect or 
accused person or by the State’. The wording of Article 4a(1)(b) of Framework 
Decision 2009/299 is similar. 
27 In the main proceedings, IR chose a lawyer, but the lawyer abandoned the defence 
after IR fled. First, he was appointed another lawyer ex officio (‘appointed … by 
the State’, as worded in Article 8(2)(b) of Directive 2016/343) and, after he 
resigned, another lawyer was appointed, who is currently actually defending him 
in the proceedings on the merits. IR knows nothing about this lawyer and has 
never had contact with him. The lawyer has made no attempt to contact him, for 
example through his relatives. In such circumstances, can it be assumed that IR is 
being defended by a ‘mandated lawyer’? 
Explanations regarding the second question 
28 The second question is asked in the alternative, should the Court answer the first 
question in the negative, since that would mean that Article 8(2)(b) and (3) of 
Directive 2016/343 were not applicable in the main proceedings, with the result 
that the accused person would benefit from the guarantees provided for in the 
second sentence of Article 8(4) and Article 9 of Directive 2016/343. In this case, it 
would be doubtful whether national law provides for the necessary remedies as 
required by EU law. 
29 More specifically, if national proceedings are instituted pursuant to Article 423(1) 
of the NPK, according to the criteria laid down in that provision, the proceedings 
in absentia will not be resumed and the person convicted in absentia will not be 
given a remedy (and a fortiori an effective remedy). There are therefore doubts as 
to whether Article 423(1) of the NPK is compatible with Article 8(4) and Article 9 
of the directive. 
30 If a European arrest warrant is issued, a special retrial will be initiated as a result 
of the guarantee to be provided pursuant to point 3.4 of box (d) of the European 
arrest warrant form. In the present case, it is doubtful whether Article 423(5) of 
the NPK is compatible with Article 4a(1)(d) of Framework Decision 2009/299, 
since it releases the Varhoven [kasatsionen] sad (Supreme Court of Cassation, 
Bulgaria) from its obligation to respect the guarantee provided by the public 
prosecutor’s office when the European arrest warrant was issued. Consequently, 
the Supreme Court would apply the national law, namely Article 423(1) of the 
NPK, and, once again, the convicted IR would not be granted a new trial on the 
merits. 
Explanations regarding the third question 
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31 All of these questions have a practical objective: the referring court should be able 
to identify clearly what type of proceedings in absentia are being conducted, in 
order to determine whether, if convicted in absentia, IR will have effective 
remedies against the conviction in absentia. 
32 That practical objective derives from the obligation under the second sentence of 
Article 8(4) of Directive 2016/343: the referring court, which has decided to 
conduct the proceedings in the absence of IR, must establish unequivocally 
whether or not he has a recognised right to protection against a possible 
conviction handed down in his absence; however, this also requires a clear 
definition of what that protection consists of. 
33 At the same time, there is a link between the nature of the procedure in which the 
national arrest warrant was issued (namely a conviction in absentia) and the 
elements of the European arrest warrant. Depending on the type of proceedings in 
absentia, it will be determined which of the four types of guarantees under 
Article 4a of Framework Decision 2009/299 (box (d) of the form) is to be granted. 
This follows from the case-law of the Court of Justice of the European Union 
concerning the participation of a court in the procedure for issuing a European 
arrest warrant, which, under national law, is issued only by the public prosecutor’s 
office. 
34 To that end, if the referring court were to consider the proceedings in absentia in 
the main proceedings to be covered by the variant pursuant to the first sentence of 
Article 8(4) of Directive 2016/343, it would be necessary for it to indicate the 
existence and applicability of the effective remedies under the second sentence. 
However, it is not sufficient in that regard for the Court of Justice merely to find 
that Article 423(1) and (5) of the NPK are incompatible with EU law. In that case, 
the person convicted in absentia could again be deprived of any legal protection: 
the national legislation does not provide him with such protection, and declaring 
the national legislation to be incompatible with EU law would not result in the 
provision of legal remedies. 
35 To that end, it is necessary to determine whether Article 9 of Directive 2016/343 
has direct effect. 
36 In the present case, an interpretation in conformity with EU law is possible only if 
IR is surrendered by means of a European arrest warrant for the purpose of 
executing the sentence imposed on him. In that case, on the basis of the answer to 
the second question, point 6 of Article 422(1) and Article 423(5) of the NPK 
could be interpreted as applying not only to persons surrendered under an 
extradition procedure but also to persons surrendered on the basis of a European 
arrest warrant, since the procedure under Framework Decision 2002/584 is by its 
nature a type of simplified extradition. This would mean that the Bulgarian court 
would be bound by the guarantee provided under Article 4a(1)(d) of Framework 
Decision 2009/299, a guarantee with content as determined by the Court of Justice 
of the European Union – and not by the Bulgarian Supreme Court. 
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37 If, on the other hand, IR were to be apprehended on national territory after his 
conviction, he would be subject to the provision in Article 423(1) of the NPK. 
That provision cannot be interpreted in conformity with EU law, since it defines 
the national standard for [proceedings in the] absence [of the accused person] and 
not that under Article 8 of Directive 2016/343. It cannot be interpreted contra 
legem. It can be disapplied only if the provision contrary to it (Article 9 in 
conjunction with Article 8(4) in conjunction with Article 8(2) of Directive 
2016/343) has direct effect. 
38 The Court of Justice has already held that Article 47 of the Charter has direct 
effect (judgment of 14 May 2020, [Staatsanwaltschaft Offenburg,] С-615/18, 
EU:C:2020:376, paragraph 72). Nevertheless, the principle of the right to an 
effective remedy before a court is established in a secondary provision of EU law, 
namely Article 9 of Directive 2016/343. This leads to the question of whether that 
provision has direct legal effect, in itself or in conjunction with Article 47 of the 
Charter. 
39 There is no doubt that Article 9 of Directive 2016/343 confers on individuals a 
right against the criminal prosecution authorities of the State; it prescribes, in a 
mandatory and unequivocal manner, the conditions under which that right arises 
(the defendant was not present at the trial and the conditions provided for in 
Article 8(2) of Directive 2016/343 were not met), and ‘imposes … in unequivocal 
terms, a precise obligation as to the result to be achieved’ (judgment of 
6 November 2018, [Bauer and Willmeroth,] С-569/16 and C-570/16, 
EU:C:2018:871, paragraph 72). This result is such a legal remedy ‘which allows a 
fresh determination of the merits of the case’ (Article 9 of Directive 2016/343). 
However, this provision provides for an alternative: ‘… that … suspects or 
accused persons … have the right to a new trial, or to another legal remedy …’. 
40 The provisions of Article 9 of the directive and Article 423(1) of the NPK define 
the right of a person convicted in absentia to a new trial in the same way, in that 
they recognise that right without specifying precisely how it will manifest itself, 
that is to say whether there must be a new trial from the outset or merely an 
appeal. In so far as the national provision of Article 423(1) of the NPK has direct 
effect – in that it is applied together with Article 425 of that directive, a provision 
that governs the specific type of retrial – the question arises as to whether it can be 
assumed that Article 9 of Directive 2016/343 has direct effect, by virtue of which 
it can be applied instead of Article 423(1) of the NPK and together with 
Article 425 of the NPK. 
41 More specifically, [the question arises as to] whether it is possible to recognise the 
right to a retrial under Article 9 of Directive 2016/343 and then to determine the 
type of retrial under Article 425(1) of the NPK: new proceedings from the first 
instance or an appeal against the decision at first or second instance. 
42 In other words, and with reference to the main proceedings, if: 1. the referring 
court determines the type of proceedings in absentia against IR by stating that 
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they are to be conducted under the conditions laid down in the first sentence of 
Article 8(4) of the directive, since the conditions laid down in paragraph 2 are not 
satisfied; 2. the referring court specifies the legal remedy provided for in Article 9 
in conjunction with the second sentence of Article 8(4) of the directive, namely 
that IR, convicted in absentia, has the right to apply for and obtain a retrial, only 
on application within a period of six months of being served a copy of the 
judgment rendered in absentia; 3. the specific type of retrial (new examination in 
full or an appeal against the conviction handed down in absentia at first or second 
instance) will be assessed by the Supreme Court, whereby that type of retrial 
would certainly consist of an examination of the indictment on the merits, with the 
effective personal involvement of IR and defence counsel chosen by him, will that 
guarantee have legal value in so far as it is based solely on the direct effect of 
Article 9 of Directive 2016/343?