Judgment;Summary — ECLI:EU:C:2024:462
Date: 2024-06-06
Language of the case: Latvian
Court formation: Sixth Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling - decision unnecessary
Origin: Latvia

Translation C-255/23 – 1 
Case C-255/23 
Request for a preliminary ruling 
Date lodged: 
19 April 2023 
Referring court: 
Ekonomisko lietu tiesa (Latvia) 
Date of the decision to refer: 
28 March 2023 
Criminal proceedings against: 
A 
B 
C 
D 
F 
E 
G 
SIA AVVA 
SIA Liftu alianse 
  
[…] 
DECISION 
Riga, 28 March 2023 
The Ekonomisko lietu tiesa (Economic Court, Latvia), 
in the person of Judge […], 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28.3.2023 – CASE C-255/23 
 
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in the presence of […], […] prosecutor, of […], lawyers for the defence, and of 
accused persons A, B, C and D, 
at a public hearing has examined the application of the lawyer for the defence […] 
for a referral to the Court of Justice of the European Union for a preliminary 
ruling. 
The facts 
1 Criminal proceedings are pending before the Ekonomisko lietu tiesa (Economic 
Court, Latvia) against A, accused of large-scale fraud […] and large-scale money 
laundering; B, accused of abuse of office causing serious consequences […] and 
of abetting an offence of large-scale fraud […]; C, accused of abuse of office 
causing serious consequences […] and of abetting an offence of large-scale fraud 
[…]; D, accused of abetting an offence of large-scale fraud […]; E and F, accused 
of large-scale money laundering […]; and G, accused of abetting an offence of 
large-scale money laundering […]. In those criminal proceedings, a procedure has 
been commenced to impose coercive measures on both the limited liability 
company AVVA and the limited liability company Liftu alianse. 
None of the accused persons is subject to a detention order. 
2 At a hearing on 22 September 2022, the prosecutor objected to accused person E, 
who is a Lithuanian national residing in Lithuania, participating in the hearings 
remotely by videoconference. The prosecutor based her objection on the 
legislative clarification issued on 4 November 2021 by the general assembly of 
judges of the department of criminal cases of the Senāts (Supreme Court, Latvia). 
On 16 October 2022, during the trial in these criminal proceedings, an application 
was received from a defence lawyer to refer questions to the Court of Justice of 
the European Union on the interpretation of Directive 2014/41/EU of the 
European Parliament and of the Council of 3 April 2014 regarding the European 
Investigation Order in criminal matters (‘Directive 2014/41’), in respect of E’s 
right to participate remotely in the hearing of the case, using technical means. 
Initially the prosecutor asserted that the application was unfounded and should be 
dismissed. At the hearing on 26 January 2023, however, she raised no objections 
to the application provided it did not interfere with prosecution of the criminal 
case. 
Grounds 
3 Having regard to the factual background of this case, this court finds that there are 
grounds to request a preliminary ruling from the Court of Justice of the European 
Union on interpretation of the provisions of Directive 2014/41. 
4 Section 140 of the Kriminālprocesa likums (Law on Criminal Procedure) 
establishes the rules governing the use of technical means in the performance of 
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procedural acts. An amendment of 11 June 2020 to Section 140 of the Law on 
Criminal Procedure (entitled ‘Performance of procedural acts using technical 
means’) inserted Section 7.1, which extended the opportunities for the person 
directing the proceedings to perform procedural acts remotely using technical 
means in situations where it is possible to verify the identity of individuals. Before 
that amendment, using technical means in criminal proceedings was a 
cumbersome process since an authorised person also had to be appointed at the 
place where the procedural act was taking place, to ensure the conduct of that act. 
Section 140 of the Law on Criminal Procedure: 
‘Performance of procedural acts using technical means 
(1) The person directing the proceedings may perform procedural acts using 
technical means (teleconference, videoconference) if the interests of the criminal 
proceedings so require. 
(2) During the course of a procedural act using technical means, it shall be 
ensured that the person directing the proceedings and the persons participating in 
the procedural act, where they are in different places or buildings, can hear each 
other during a teleconference and see and hear each other during a 
videoconference. 
(21) In the situation referred to in Paragraph 2 of this Section, the person 
directing the proceedings shall authorise a person at the second place where the 
procedural act is taking place to ensure the conduct of the procedural act at that 
location (“the authorised person”), or shall assign the task of authorising such a 
person to the head of the institution located in that place. 
… 
(5) The authorised person shall verify and certify the identity of any persons 
who participate in a procedural act but are not located in the same place as the 
person directing the proceedings. 
… 
(7) The authorised person shall draw up a certificate indicating the place, date 
and time of the procedural act, the position, given name and surname of the 
authorised person and the identifying particulars and address of each person 
present at that venue of the procedural act and the warning given to those persons, 
where the law provides that they are liable for failure to comply with their 
obligations. Any such warning shall be signed by the persons receiving it. The 
certificate shall also indicate any interruptions during the procedural act and the 
time at which the procedural act concluded. The certificate shall be signed by all 
persons present at that venue of the procedural act and shall be sent to the person 
directing the proceedings to be incorporated in the record of the procedural act. 
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(71) The provisions of Paragraphs 2.1, 5 and 7 of this section may be disapplied if 
the person directing the proceedings is able, using technical means, to verify the 
identity of the persons located in other places or buildings. In pre-trial proceedings 
procedural acts shall be recorded in accordance with the procedures laid down in 
Section 143 of this Law. 
…’. 
The legislature’s objective in inserting Paragraph 7.1 into Section 140 of the Law 
on Criminal Procedure was to encourage the use of technical means in criminal 
proceedings, thereby streamlining and simplifying the conduct of those 
proceedings, in particular where the parties to the criminal proceedings are in 
different cities or different countries (the rationale underlying the corresponding 
draft legislation can be found at: 
https://titania.saeima.lv/LIVS13/SaeimaLIVS13.nsf/0/629D424279F5BF0DC225
856D004A9975?OpenDocument). 
5 Section 49.1 of the Likums ‘Par tiesu varu’ (Law on Judicial Power) provides that 
the general assembly of judges of any department of the Senāts (Supreme Court), 
as a collegiate authority, is to discuss the current issues relating to the 
interpretation of legal provisions in order to ensure that they are applied 
uniformly. Opinions of the general assembly of judges of a department of the 
Senāts (Supreme Court) on the interpretation and application of legal provisions 
are to be issued in the form of decisions. 
On 4 November 2021, at the time of discussions on the interpretation of Section 
140, Paragraph 7.1, of the Law on Criminal Procedure, the general assembly of 
judges of the department of criminal cases of the Senāts (Supreme Court) issued 
the following interpretation. First, in accordance with the general principle, having 
regard to the territorial scope of application of the Law on Criminal Procedure 
enshrined in Section 3 of that law, the jurisdiction of the Republic of Latvia is 
limited to national territory. Any evidence in the territory of a different State can 
be obtained in accordance with the procedure laid down in Part C of the Law on 
Criminal Procedure, entitled ‘International cooperation in criminal matters’. 
Secondly, the procedure laid down in Section 140, Paragraph 7.1, of the Law on 
Criminal Procedure can only apply if the procedural act takes place within the 
jurisdiction of the Republic of Latvia. 
In the grounds of its decision, the general assembly of judges of the department of 
criminal cases of the Senāts (Supreme Court) referred to the provisions of 
Directive 2014/41, which have been transposed in the Law on Criminal 
Procedure, and to paragraph 1 of Article 9 (entitled ‘Hearing by video 
conference’) of the Second Additional Protocol to the European Convention on 
Mutual Assistance in Criminal Matters. 
The general assembly of judges of the department of criminal cases of the Senāts 
(Supreme Court) stated that Directive 2014/41 aims to ensure simplified and 
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flexible cooperation between Member States for the obtaining of evidence in 
criminal cases with a cross-border dimension, securing mutual recognition of 
decisions made by their courts. 
It is clear from recitals 2, 6 and 19 of Directive 2014/41 that the European 
investigation order is an instrument linked to the judicial cooperation in criminal 
matters referred to in Article 82(1) of the Treaty on the Functioning of the 
European Union, which is based on the principle of mutual recognition of 
judgments and judicial decisions. The principal prerequisite for using the 
instrument of cooperation established in Directive 2014/41 is the existence of 
evidence in a different Member State. 
Article 1(1) of Directive 2014/41 provides that a European investigation order is a 
judicial decision which has been issued or validated by a judicial authority of a 
Member State (the issuing State) to have one or several specific investigative 
measure(s) carried out in another Member State (the executing State) to obtain 
evidence in accordance with that directive. According to Article 1(3), the issuing 
of a European investigation order, for its part, may be requested by a suspected or 
accused person, or by a lawyer on his behalf, within the framework of applicable 
defence rights in conformity with national criminal procedure. 
Article 9(5) of Directive 2014/41 provides that the authorities of the issuing State 
present in the executing State are to be bound by the law of the executing State 
during the execution of the European investigation order. They are to not have any 
law enforcement powers in the territory of the executing State, unless the 
execution of such powers in the territory of the executing State is in accordance 
with the law of the executing State and to the extent agreed between the issuing 
authority and the executing authority. 
Pursuant to Directive 2014/41, save in specific situations, the authorities of the 
issuing State have no law enforcement powers, that is to say, jurisdiction, in the 
territory of the executing State. The European investigation order is one of the 
procedural means by which the issuing authority and the executing authority can 
agree on the obtaining of evidence in the territory of the executing State. The 
application of the Law on Criminal Procedure in a different Member State must 
therefore be agreed between Latvia and that Member State in a European 
investigation order. 
Under Article 24(1) of Directive 2014/41, where a person is in the territory of the 
executing State and has to be heard as a witness or expert by the competent 
authorities of the issuing State, the issuing authority may issue a European 
investigation order in order to hear the witness or expert by videoconference or 
other audiovisual transmission in accordance with paragraphs 5 to 7. In addition, 
Article 24(1) emphasises that the issuing authority may also issue a European 
investigation order for the purpose of hearing a suspected or accused person by 
videoconference or other audiovisual transmission. 
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Directive 2014/41 was transposed, in the Law on Criminal Procedure, by means of 
amendments which came into force on 26 April 2017. On transposition of 
Directive 2014/41, Chapter 83.1, entitled ‘Issuing of a European investigation 
order and its transmission for execution’, which contains Section 887.3, was added 
to the Law on Criminal Procedure. 
‘Section 887.3 Issuing of a European investigation order during the trial 
(1) If, during a trial, it is necessary to perform a procedural act in the territory of 
another Member State of the European Union, the court, after assessing the 
necessity and proportionality of the order in relation to the criminal offence being 
investigated, shall prepare a European investigation order by completing a special 
form. Before completing a European investigation order, the court shall perform 
all the acts which would be necessary if the procedural act was taking place in 
Latvia in accordance with this law. When approving a European investigation 
order, the court shall certify that the investigatory step or procedural act being 
requested of the Member State of the European Union complies with the 
requirements of this law. 
…’. 
The general assembly of judges of the department of criminal cases of the Senāts 
(Supreme Court) concluded that the provisions of the Law on Criminal Procedure 
transposing Directive 2014/41 as regards the procedure for performing procedural 
acts in a foreign country must be regarded as lex specialis as opposed to the 
provisions laid down as general law in Section 140 of the Law on Criminal 
Procedure. 
6 This court notes that the interpretation by the general assembly of judges of the 
department of criminal cases of the Senāts (Supreme Court) of Section 140, in the 
version that includes Paragraph 7.1, of the Law on Criminal Procedure, makes it 
clear that, where a participant in the proceedings is not within Latvian jurisdiction, 
technical means may only be used to perform a procedural act through recourse to 
a European investigation order or other instrument of judicial cooperation. That 
interpretation means in essence that accused persons cannot participate remotely 
from a different country using technical means even where, as accused persons, 
they participate passively in the conduct of the criminal proceedings, listening to 
the hearings, expressing opinions on procedural matters that must be decided 
during the trial or making procedural applications. 
This court agrees with the argument put forward in the defence lawyer’s 
application that, according to Article 1 of Directive 2014/41, a European 
investigation order is issued for the purpose of obtaining evidence, not of securing 
the participation of a person who is in a different jurisdiction in a proceeding in 
which that person, who lives in a different country, is not being heard as an 
accused person. The need to issue a European investigation order would only be 
relevant where an accused person, who is in a different country, gives evidence at 
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a hearing, provided that the procedure in question had to be regarded as the 
gathering of evidence within the meaning of Directive 2014/41. 
The prosecutor has relied on the statements of a total of 98 people as grounds for 
the charges against all the accused persons. The written evidence in this case 
currently stands at 42 volumes (averaging 200-300 pages per volume). It will 
therefore take a long time to hear this case. 
Since accused person E lives in Lithuania, according to the interpretation offered 
by the general assembly of the judges of the department of criminal cases of the 
Senāts (Supreme Court), in order to enable the accused person to participate 
remotely by technical means in the hearing of the case in Latvia, this court would 
have to request the Lithuanian court, in the context of a European investigation 
order, to ensure that the accused person could participate remotely for a lengthy 
period of time. Although the authority executing the European investigation order 
may request that the issuing State bear the costs involved in providing that 
extended judicial assistance (Article 21 of Directive 2014/41), this court is of the 
view that to issue a European investigation order with a view to ensuring the 
passive participation of the accused person in the hearings would not be 
proportionate within the meaning of Article 6 of Directive 2014/41. 
E is accused of large-scale money laundering (an ‘especially serious crime’). Even 
though under Section 464, Paragraph 1, of the Law on Criminal Procedure a court 
may try a case in absentia if the accused repeatedly fails to attend hearings 
without showing good cause or has submitted a request to the court for the case to 
be tried in absentia, that provision does not apply to criminal proceedings 
involving especially serious crimes. This means that E’s participation at 
examination of the evidence relating to E’s prosecution is mandatory, even where 
the accused person himself does not wish to participate in the hearings. The broad 
scope of the case involving E’s prosecution and the interpretation provided by the 
general assembly of the judges of the department of criminal cases of the Senāts 
(Supreme Court) have the effect, in essence, that either the accused person would 
have to appear in the normal manner for a lengthy period of time at the court 
hearings in Latvia or the Lithuanian court would have to be requested, by means 
of a European investigation order, to ensure that E could participate remotely for a 
lengthy period of time. 
Since it is unclear whether Directive 2014/41 applies to an accused person’s 
participation in hearings at which that person is not giving evidence, it is 
necessary to request a preliminary ruling from the Court of Justice of the 
European Union under Article 267 of the Treaty on the Functioning of the 
European Union on whether Directive 2014/41 applies to an accused person’s 
participation in hearings at which that person does not give evidence. 
7 Of the depositions by 98 people on which the prosecutor has founded her case, 12 
depositions relate to the prosecution of E for money laundering. To date, 11 
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witnesses and 2 judicial experts have been heard, whose depositions have not 
related to the prosecution against E. 
Section 464, Paragraph 3, of the Law on Criminal Procedure provides that a 
criminal trial with more than one accused person may be conducted in the absence 
of an accused person where the charges examined at the hearing are against other 
accused persons, if the attendance of that accused person is not necessary at that 
hearing and that accused person does not wish to participate in the hearing in 
question and has informed the court of that fact. It is therefore not mandatory for 
E to participate in the hearings taking evidence from witnesses whose depositions 
are not being used in the case against E. The accused person himself does not wish 
to participate in the hearing of those witnesses. 
Under Section 478, Paragraph 2, of the Law on Criminal Procedure, if a 
preliminary ruling by the Court of Justice of the European Union on the 
interpretation or validity of a provision of EU law is necessary to resolve a 
particular dispute, the court is to refer the questions that are unclear to the Court of 
Justice of the European Union in the form of a reasoned decision and must, at the 
same time, stay the criminal proceedings until the date on which the preliminary 
ruling becomes effective. 
This court draws attention to the fact that on the date of this decision an estimated 
60 depositions unrelated to the charges against E remain to be examined. Were 
this court to order a stay of those criminal proceedings, that stay would present a 
considerable obstacle to the proceedings in question being heard within a 
reasonable time. The hearing of the case must therefore continue at least until 
examination of the evidence relied on in respect of the charges against E. 
Operative part 
Pursuant to […] Article 267 of the Treaty on the Functioning of the European 
Union, this court hereby 
decides 
to refer the following questions to the Court of Justice of the European Union for 
a preliminary ruling: 
1. Do Articles 1(1), 6(1)(a) and 24(1), second subparagraph, of Directive 
2014/41 permit legislation of a Member State according to which a person 
residing in a different Member State may, without a European investigation order 
being issued, participate by videoconference, as an accused person, in judicial 
proceedings, where the accused person is not being heard in that phase of the 
proceedings, that is to say, where no evidence is being gathered, provided the 
person directing the proceedings in the Member State in which the case is being 
tried is able, by technical means, to verify the identity of the person in the other 
Member State and provided that person’s rights of the defence and assistance by 
an interpreter are ensured? 
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2. If the answer to the first question is in the affirmative, could the consent of 
the person who is to be heard constitute an independent or supplementary criterion 
or prerequisite for that person to participate by videoconference in the judicial 
proceedings in question, where no evidence is being gathered in that phase of the 
proceedings, if the person directing the proceedings in the Member State in which 
the case is being tried is able, by technical means, to verify the identity of the 
person who is in the other Member State and provided that person’s rights of the 
defence and assistance by an interpreter are ensured? 
No appeal lies against this decision. 
[…] 
[Signature of the judge]