Opinion of the Advocate General — ECLI:EU:C:2022:157
Date: 2022-03-03
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: 
9 September 2020 
Referring court: 
Sofiyski rayonen sad (Bulgaria) 
Date of the decision to refer: 
7 August 2020 
Defendant in criminal proceedings: 
HN 
  
Subject matter of the main proceedings 
Criminal proceedings against a third-country national who, however, is unable to 
be present in person at the trial concerning him because the Bulgarian authorities 
have returned him to his country of origin and imposed on him a ‘ban on entering 
and residing in the Republic of Bulgaria’. 
Subject matter and legal basis of the reference for a preliminary ruling 
Interpretation of EU law, second paragraph of Article 267 TFEU 
Questions referred 
1. Is it permissible for the right of the accused person to be present in person at 
the trial concerning him, as provided for in Article 8(1) of 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, pp 1–11), to be 
restricted by national legislation under which a ban under administrative law on 
entering and residing in the country in which the criminal proceedings are being 
conducted may be imposed on foreign nationals who have been formally charged? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING IN CASE C-420/20 
 
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2. If the first question were to be answered in the affirmative, would the 
conditions laid down in Article 8(2)(a) and/or (b) of 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, pp 1–11), with respect to the 
holding of a trial in the absence of a foreign accused person, be fulfilled in the 
case where the foreign national was duly informed of the criminal case and of the 
consequences of non-appearance and is represented by a mandated lawyer 
appointed either by the accused person or by the State, but the appearance in 
person of the accused person is precluded by a ban, adopted in the administrative 
proceedings, on entering and residing in the country in which the criminal 
proceedings are being conducted? 
3. Is it permissible for the right of the accused person to be present at the trial 
concerning him, as provided for in Article 8(1) of 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, pp 1–11), to be converted by 
national legislation into an obligation incumbent on that person under procedural 
law? In particular, do the Member States thereby ensure a higher level of 
protection within the meaning of recital 48 [of the Directive] or is such a course of 
action, on the contrary, incompatible with recital 35 of the Directive, which states 
that the aforementioned right of the accused person is not absolute and can be 
waived? 
4. Is an advance waiver by the accused person of the right to be present in 
person at the trial concerning him, as provided for in Article 8(1) of 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, pp 1–11), 
which was clearly expressed during the pre-trial investigation, permissible, 
provided that the accused person was informed of the consequences of non-
appearance? 
EU legislation 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 (OJ 
2016 L 65, pp 1–11): recitals 35 and 48, Article 8(1) and (2)  
National legislation relied on  
Nakazatelen kodeks (Criminal Code, Bulgaria, ‘the NK’) 
Article 93, point 7: 
HN 
 
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‘A “serious crime” is any crime punishable under law by a term of imprisonment 
of more than five years, life imprisonment or life imprisonment without the 
possibility of conversion [into imprisonment subject to a limited tariff]’. 
Article 308(1) and (2): 
‘(1) A person who draws up a false official document or alters the content of an 
official document for the purposes of using it, shall be liable to punishment for 
forgery of a document in the form of a term of imprisonment of up to three years. 
(2) Where the object of the act under paragraph 1 are […] Bulgarian or foreign 
identity papers […], the punishment shall take the form of a term of imprisonment 
up to eight years’.  
Article 316: 
‘The punishment provided for in the preceding articles of this Chapter shall also 
be imposed on a person who consciously makes use of a false or forged document, 
[…], where that person cannot be held criminally responsible for the actual 
drawing up of that document’. 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, Bulgaria, ‘the 
NPK’) 
Article 247b(1): 
‘By order of the judge rapporteur, a copy of the indictment shall be served on the 
defendant. Upon service of the indictment, the defendant shall be informed of the 
date of the pre-trial hearing and of the questions referred to in Article 248(1), of 
his right to appear with his defence counsel and of the option available to him of 
having a defence counsel appointed in the cases provided for in Article 94(1), and 
of the fact that the case may be tried and adjudicated upon in his absence, 
provided that the conditions laid down in Article 269 are fulfilled’. 
Article 248(1): 
‘The pre-trial hearing shall consider the following questions: 
1. whether the case falls within the jurisdiction of the court; 
2. whether there are grounds for discontinuing or suspending the criminal 
proceedings; 
3. whether it is necessary to remedy any material breach of the rules of 
procedure committed during the pre-trial investigation which has led to a 
restriction of the procedural rights of the defendant, the injured party or his heirs; 
[…]’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING IN CASE C-420/20 
 
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Article 269(1) and (3): 
‘(1) In cases in which the defendant is accused of a serious offence, his presence 
at the trial shall be mandatory. 
[…] 
(3) Where this does not preclude the determination of the objective truth, the 
case can be tried in the absence of the defendant, where: 
[…] 
4. he is located outside the Republic of Bulgaria and: 
a) his place of residence is unknown; 
b) he cannot be summoned for other reasons; 
c) he has been duly summoned and there is no good reason for his non-
appearance’. 
Zakon za chuzhdentsite v Republika Balgaria (Law on Foreign Nationals in the 
Republic of Bulgaria, ‘the ZChRB’) 
Article 10: 
‘(1) A foreign national shall be refused a visa or leave to enter the country where: 
[…] 
7. he has attempted to enter or transit the country using false or forged documents 
or a false or forged visa or residence permit; 
[…] 
22. there is information to the effect that the purpose of his entry is to use the 
country as a country of transit with a view to migration to a third State. 
[…] 
(2) In the cases referred to in paragraph 1, a visa may be issued or leave to enter 
the territory of the Republic of Bulgaria may be granted where there are 
humanitarian grounds for doing so or where it is necessary to do so in the interests 
of the State or in order to comply with international obligations’. 
Article 41: 
‘Removal shall be ordered where: 
[…] 
HN 
 
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5. it is established that the foreign national entered the country lawfully across the 
border but is attempting to leave it at a crossing point not authorised for that 
purpose or using a false or forged passport or passport replacement’. 
Article 42h: 
‘(1) A ban on entering and residing in the territory of the Member States of the 
European Union shall be imposed if: 
1. the conditions laid down in Article 10(1) are met; 
[…] 
(4) The ban on entry may be imposed in parallel with the coercive measure 
provided for in Article 40(1), point 2, or Article 41 if the conditions laid down in 
Article 10(1) are met’. 
Brief presentation of the facts and the procedure 
1 HN is an Albanian citizen. As he does not speak Bulgarian, communication with 
him takes place in Albanian through an interpreter engaged by the judicial 
authorities. 
2 On 11 March 2020, HN was arrested, by order of the police authorities, for a 
period of up to 24 hours on the basis of findings concerning a forgery committed 
on the same day, that is to say an attempt to leave Bulgarian territory at the border 
crossing point of Sofia airport using false official foreign identity documents. 
3 On the very same day, 11 March 2020, a pre-trial investigation into the criminal 
offence found to have been committed was opened. 
4 On 12 March 2020, the Head of the Granichno politseysko upravlenie Sofia ärz 
(Sofia Border Police Authority, ‘the GPU Sofia’), by order made under Article 41, 
point 5, and Article 44(1) of the ZChRB, adopted as against HN the coercive 
measure entitled ‘removal to the country of origin, to the country of transit or to a 
third State’. Also on 12 March 2020, the Head of the GPU Sofia, by a further 
order made under Article 42h(3) and (4) in conjunction with Article 10(1), point 7 
and point 22, and Article 44(1) of the ZChRB, also adopted as against HN a 
coercive measure imposing on him a ‘ban on entering and residing in the Republic 
of Bulgaria’ for a period of five years from 12 March 2020 to 11 March 2025. In 
the main proceedings, there is nothing to indicate that those orders were 
challenged in administrative or judicial proceedings. 
5 On 23 April 2020, HN, by order of the pre-trial investigation authority made in the 
course of the pre-trial investigation opened against him, was formally charged 
with an offence under Article 316 in conjunction with Article 308(1) and (2) of 
the NK. In particular, he was charged with having, on 11 March 2020, deliberately 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING IN CASE C-420/20 
 
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used false official foreign identity documents, namely a false Greek passport and a 
false Greek identity card, there having been no grounds for holding him criminally 
responsible for the actual production of those documents. 
6 On 27 April 2020, HN and his State-appointed defence counsel were notified of 
the order formally preferring the charge against him, HN having been informed, in 
the presence of his interpreter, of his rights under the NPK, including the 
provision in Article 269 of the NPK concerning the holding of a trial in absentia 
and the consequences thereof. During the examination that took place on the same 
day, HN stated that he understood the rights explained to him, that he did not wish 
to appear at the trial because this ‘would impose unnecessary costs’ on him, and 
that he had full confidence in the ability of his State-appointed defence counsel to 
represent him ‘at a trial in absentia’.  
7 Following the receipt of the indictment charging HN with having committed an 
offence under Article 316 in conjunction with Article 308(1) and (2) of the NK at 
the Sofiyski rayonen sad (District Court, Sofia), the referring court, on 27 May 
2020, the criminal proceedings in the course of which the request for a 
preliminary ruling has been made were commenced.  
8 By order of 24 June 2020, the Sofiyski rayonen sad (District Court, Sofia) set the 
date for the pre-trial hearing in the case at issue at 23 July 2020. The judge 
rapporteur, in the light of the requirements laid down in Article 247b(3) of the 
NPK, ordered that copies of the order [preferring the charge] and the indictment, 
each translated into Albanian, be served on HN via the Direktsia Migratsia 
(‘Migration’ Directorate) at the Ministerstvo na vatreshnite raboti (Ministry of the 
Interior, ‘the MVR’). These also pointed out that the defendant’s presence at the 
trial was mandatory, in accordance with Article 269(1) of the NPK, and that the 
trial could be held in his absence only under the conditions set out in 
Article 269(3) of the NPK. 
9 On 16 July 2020, a letter from staff at the ‘Migration’ Directorate of the MVR 
informed the court that, on 16 June 2020, HN had been removed from the 
temporary accommodation facility for foreign nationals and taken to the State 
border of the Republic of Bulgaria for the purposes of enforcing the coercive 
measure imposed on him under the headings of ‘removal to the country of origin, 
country of transit or a third State’ and a five-year ‘ban on entering and residing in 
the Republic of Bulgaria’. This fact had prevented the defendant from being duly 
informed of the judicial proceedings instituted against him.  
Essential arguments of the parties to the main proceedings 
10 The defendant, HN, has not submitted any observations, as he was forcibly 
removed from [Bulgaria] and his whereabouts are currently unknown to the 
judicial authorities. 
HN 
 
7 
11 The defendant’s State-appointed defence counsel has not submitted any 
observations in this regard and did not take advantage of the time allowed for her 
to raise any additional questions that might fall to be included in the request for a 
preliminary ruling. 
12 At the hearing on 23 July 2020, she stated that HN had not been informed of the 
judicial proceedings instituted [against him] and that, in accordance with the 
general rules, those proceedings must therefore be conducted in his absence. 
13 The Public Prosecutor has not submitted any express observations in this regard 
and did not take advantage of the time allowed for him to raise any additional 
questions that might fall to be included in the request for a preliminary ruling. 
14 At the hearing on 23 July 2020, the Public Prosecutor stated that the conditions for 
conducting a trial in absentia were met in this case, as the defendant was not in 
the country and his place of residence was unknown. 
Brief presentation of the grounds for the reference 
15 The matter under examination in the present proceedings is HN’s alleged 
involvement in the offence for which he is to be held criminally responsible, it 
being for the court hearing and determining the substance of the matter to decide 
conclusively on his guilt or innocence. 
16 First of all, however, it is necessary to answer the question of principle as to 
whether it is permissible to restrict the defendant’s participation in person in the 
trial concerning him by means of a coercive measure adopted by the executive 
authorities and imposing on him a long-term ban on entering or residing in the 
territory of the Republic of Bulgaria. 
17 In the light of all of the foregoing, it falls to the Court of Justice of the European 
Union to decide whether it is permissible for the right of the accused person to be 
present at the trial concerning him, as provided for in Article 8(1) of 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, pp 1–11), to 
be restricted by national legislation under which a ban under administrative law on 
entering and residing in the country in which the criminal proceedings are being 
conducted may be imposed on foreign nationals who have been formally charged. 
18 The defendant’s forcible removal from the country and the entry and residence 
ban imposed on him stand in the way of his participation in person in the 
proceedings [concerning him], in particular the pre-trial hearing, following the 
conclusion of which any breaches of his rights of defence committed in the course 
of the pre-trial investigation can no longer be invoked. In the main proceedings, 
the court conducted the pre-trial hearing notwithstanding the defendant’s absence 
in order to take the case forward to the judicial examination stage, since it is not 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING IN CASE C-420/20 
 
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until the judicial examination stage that Bulgarian law allows for the possibility of 
making a reference to the Court of Justice of the European Union. There is, 
however, no procedural obstacle preventing the pre-trial hearing from being re-
held should the defendant present himself in person. 
19 In accordance with Article 10(1), point 7, of the ZChRB, a foreign national is to 
be refused entry if he has attempted to enter or transit through [Bulgarian 
territory] using false or forged documents. Article 10(2) of the ZChRB provides 
for an exception applicable on humanitarian grounds or where this is necessary in 
the interests of the State or in order to fulfil international obligations. 
20 An examination of the provisions cited shows that, once a foreign accused person 
has attempted to enter or transit through [Bulgarian territory] using false or forged 
documents, his participation in person in the trial concerning him is dependent on 
the express prior leave to enter that country that is issued by the executive 
authorities and is not subject to judicial review, a process effectively involving the 
imposition of a series of obstacles that impact on the right to a fair trial. 
21 In the event that the answer to the first question is answered in the affirmative, it 
falls to the Court of Justice of the European Union to clarify whether the 
conditions laid down in Article 8(2)(a) and/or (b) of 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, pp 1–11) with respect to the 
holding of a trial in the absence of a foreign accused person are fulfilled in the 
case where that person was duly informed of the trial and of the consequences of 
non-appearance and is represented by a mandated lawyer appointed either by the 
accused person or by the State, but his appearance in person is precluded by a ban 
on entering and residing in the country in which the criminal proceedings are 
being conducted.  
22 The answer to the second question is relevant to the further conduct of the 
proceedings by the [national] court, inasmuch as this will determine whether that 
court should take measures to ascertain the defendant’s place of residence abroad 
in accordance with the applicable international procedures, inform the defendant 
of the proceedings [brought against him] and conclude those proceedings in his 
absence but in the presence of his State-appointed lawyer, or [whether it should] 
suspend the criminal proceedings for the duration of the ban imposed in the 
administrative proceedings in order to guarantee his right to participate in the trial 
in person. 
23 In accordance with the provision contained in Article 269(1) of the NPK, the 
defendant’s presence at trial in criminal proceedings for serious offences is 
mandatory, conduct of the trial in absentia being permissible, in accordance with 
paragraph 3 thereof, only in the case where this does not operate as a bar to the 
determination of the objective truth. That rule makes it necessary for the Court of 
Justice of the European Union to give a ruling on the further question as to 
HN 
 
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whether it is permissible for the right of the accused person to be present at the 
trial concerning him, as provided for in Article 8(1) of 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, pp 1–11), to be converted into an 
obligation under procedural law, and, in particular, whether the Member States 
thereby ensure a higher level of protection within the meaning of recital 48 [of the 
Directive] or whether such a course of action is incompatible with recital 35 of the 
Directive, which states that the aforementioned right of the accused person is not 
absolute and can be waived. 
24 The answer to the third question is a condition of the lawful conduct of a trial in 
the absence of the defendant, provided that this does not operate as a bar to the 
determination of the objective truth, in the case where the defendant was duly 
informed of the proceedings [against him] and, without regard to the ban on 
entering and residing in the Republic of Bulgaria imposed in the administrative 
proceedings, nonetheless unequivocally waives his right to be present at the trial 
concerning him.  
25 If the Court of Justice of the European Union answers the third question to the 
effect that it is not permissible to convert the right enjoyed by the accused person 
under Article 8(1) of Directive 2016/343 into an obligation under procedural law, 
it must clarify whether an advance waiver of that right which was clearly 
expressed in the pre-trial investigation is possible provided that the accused 
person was informed of the consequences of non-appearance. 
26 It is apparent from the record of the examination of HN in the course of the pre-
trial investigation that he was informed of his rights under the NPK, including the 
provision of Article 269 of the NPK on the conduct of the trial in absentia and of 
the consequences thereof, in the presence of an interpreter and his State-appointed 
defence counsel. HN expressly stated that he understood the rights explained to 
him, that he did not wish to be present at the trial because this ‘would impose 
unnecessary costs’ on him, and that he had full confidence in the ability of his 
State-appointed defence counsel to represent him ‘at a trial in absentia’. That 
waiver, however, was expressed before the court received the indictment and, 
therefore, before the point at which the right to be present at the trial came into 
being, which raises legitimate doubts as to whether the legal consequences 
intended by that waiver were brought to bear.