Opinion of the Advocate General — ECLI:EU:C:2026:318
Date: 2026-04-16
Language of the case: Italian

summary of reasons for the decision concerned, except in the case of a jury decision or a decision where the reasons are confidential in which cases the reasons are not provided as a matter of national law. 4. The wish of victims as to whether or not to receive information shall bind the competent authority, unless that information must be provided due to the entitlement of the victim to active participation in the criminal proceedings. Member States shall allow victims to modify their wish at any moment, and shall take such modification into account. 5. Member States shall ensure that victims are offered the opportunity to be notified, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention. Furthermore, Member States shall ensure that victims are informed of any relevant measures issued for their protection in case of release or escape of the offender. 6. Victims shall, upon request, receive the information provided for in paragraph 5 at least in cases where there is a danger or an identified risk of harm to them, unless there is an identified risk of harm to the offender which would result from the notification. … Article 10 Right to be heard 1. Member States shall ensure that victims may be heard during criminal proceedings and may provide evidence. … 2. The procedural rules under which victims may be heard during criminal proceedings and may provide evidence shall be determined by national law. … Article 18 Right to protection Without prejudice to the rights of the defence, Member States shall ensure that measures are available to protect victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying. … … Article 20 Right to protection of victims during criminal investigations Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations: … (b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation.’ 2. Directive 2016/343 7. Directive 2016/343 was adopted on the basis of Article 82(2)(b) TFEU; recitals 3, 9, 10, 33, 35, 36, 37, 38, 39, 42 and 48 of that directive read as follows: ‘(3) According to the Treaty on the Functioning of the European Union (TFEU), judicial cooperation in criminal matters in the Union is to be based on the principle of mutual recognition of judgments and other judicial decisions. … (9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. (10) By establishing common minimum rules on the protection of procedural rights of suspects and accused persons, this Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules may also remove obstacles to the free movement of citizens throughout the territory of the Member States. … (33) The right to a fair trial is one of the basic principles in a democratic society. 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. … (35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right. (36) Under certain circumstances it should be possible for a decision on the guilt or innocence of a suspect or accused person to be handed down even if the person concerned is not present at the trial. This might be the case where the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance and does not, nevertheless, appear. Informing a suspect or accused person of the trial should be understood to mean summoning him or her in person or, by other means, 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. Informing the suspect or accused person of the consequences of non-appearance should, in particular, be understood to mean informing that person that a decision might be handed down if he or she does not appear at the trial. (37) It should also be possible to hold a trial which may result in a decision on guilt or innocence in the absence of a suspect or accused person where that person has been informed of the trial and has given a mandate to a lawyer who was appointed by that person or by the State to represent him or her at the trial and who represented the suspect or accused person. (38) When considering whether the way in which the information is provided is sufficient to ensure the person’s awareness of the trial, particular attention should, where appropriate, also be paid to the diligence exercised by public authorities in order to inform the person concerned and to the diligence exercised by the person concerned in order to receive information addressed to him or her. (39) Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but the conditions for taking a decision in the absence of a particular suspect or accused person are not met because the suspect or accused person could not be located despite reasonable efforts having been made, for example because the person has fled or absconded, it should nevertheless be possible to take a decision in the absence of the suspect or accused person and to enforce that decision. In that case, Member States should ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they should also be informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy. Such information should be provided in writing. The information may also be provided orally on condition that the fact that the information has been provided is noted in accordance with the recording procedure under national law. … (42) Member States should ensure that in the implementation of this Directive, in particular with regard to the right to be present at the trial and the right to a new trial, the particular needs of vulnerable persons are taken into account. According to the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, [(6)] vulnerable suspects or accused persons should be understood to mean all suspects or accused persons who are not able to understand or effectively participate in criminal proceedings due to their age, their mental or physical condition or any disabilities they may have. … (48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights.’ 8. Article 1, Article 8(1) to (4) and Article 9 of Directive 2016/343 are worded as follows: ‘Article 1 Subject matter This Directive lays down common minimum rules concerning: (a) certain aspects of the presumption of innocence in criminal proceedings; (b) the right to be present at the trial in criminal proceedings. … Article 8 Right to be present at the trial 1. Member States shall ensure that suspects and accused persons have the right to be present at their trial. 2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that: (a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State. 3. A decision which has been taken in accordance with paragraph 2 may be enforced against the person concerned. 4. Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9. … Article 9 Right to a new trial Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence.’ B. Italian law 9. Article 420-bis of the Codice di procedura penale (Code of Criminal Procedure), entitled ‘Absence of the accused person’, provides: ‘1. If the accused person, whether at liberty or in custody, is not present at the hearing, the court shall continue the proceedings in his or her absence: (a) where the accused person has been summoned to appear by means of service of the document in person or on a person expressly mandated by him or her to receive that document; (b) where the accused person has expressly waived his or her right to appear or, if there is an impediment within the meaning of Article 420-ter, he or she has expressly waived his or her right to rely on that impediment. 2. The court shall also continue the proceedings in the absence of the accused person where it considers it otherwise proven that the accused person had actual knowledge of the pending proceedings and that his or her absence from the hearing is due to a voluntary and conscious choice. For this purpose, the court shall take into account the manner of service, the actions taken by the accused person prior to the hearing, the appointment of legal counsel and any other relevant circumstances. 3. The court shall also continue the proceedings in the absence of the accused person, in cases other than those provided for in paragraphs 1 and 2, where that person has been declared a fugitive or has otherwise deliberately avoided knowledge of the pending proceedings. 4. In the cases provided for in paragraphs 1, 2 and 3, the court shall declare the accused person absent. Unless otherwise provided for by law, an accused person who is declared absent shall be represented by his or her lawyer. 5. In cases other than those provided for in paragraphs 1, 2 and 3, the court, before continuing the proceedings in accordance with Article 420-quater, shall adjourn the hearing and order that the notice referred to in Article 419, the request to refer the case to a trial court and the record of the hearing be served, in person, on the accused person by the Polizia giudiziaria (police). 6. The order declaring the accused person absent shall be revoked ex officio if the accused person appears in court prior to the judgment. A new time limit shall be granted to the accused person to exercise the rights that he or she forfeited: (a) if he or she provides evidence that, due to unforeseeable circumstances, force majeure or another legitimate impediment, it was impossible for him or her to appear in due time to exercise the rights forfeited and that he or she was unable to provide proof of the impediment in good time through no fault of his or her own; (b) if, in the cases provided for in paragraphs 2 and 3, the accused person provides evidence that he or she had no actual knowledge of the pending proceedings and that, through no fault of his or her own, he or she was unable to take action in due time to exercise the rights forfeited; (c) if it transpires, in any event, that the conditions for continuing the proceedings in his or her absence were not met. 7. Other than in the case provided for in paragraph 6, if it transpires that the conditions for continuing the proceedings in the absence of the accused person were not met, the court shall of its own motion annul the order declaring the accused person absent and shall proceed in accordance with paragraph 5.’ 10. Article 629-bis of the Code of Criminal Procedure, entitled ‘Setting aside of the final judgment’, provides: ‘1. In cases other than those governed by Article 628-bis, a convicted person or a person subject to a preventive measure pursuant to a final judgment given against him or her in absentia may have the judgment set aside if that person proves that he or she was declared absent even though the conditions laid down in Article 420-bis were not met and that, through no fault of his or her own, he or she was unable to bring an appeal against that judgment within the time limit, unless it transpires that he or she had actual knowledge of the pending proceedings before the judgment was handed down. 2. The application shall be submitted to the Corte d’appello (Court of Appeal, Italy) in the district in which the court that issued the judgment is based, either personally by the person concerned or by his or her legal counsel with a special mandate, within thirty days of the person concerned becoming aware of the judgment, failing which it will be rejected as inadmissible. 3. The Corte d’appello (Court of Appeal) shall proceed in accordance with Article 127 and, if it upholds the application, shall set aside the judgment and order that the case be sent to the court at the stage or level at which the illegality occurred. 4. Articles 635 and 640 shall apply.’ III. Background to the dispute 11. By judgment of 23 October 2023 of the Tribunale ordinario di Roma (District Court, Rome, Italy), CV was given a custodial sentence of five years and three months and a fine of EUR 1 500 as a joint perpetrator of the offences of aggravated bodily harm and aggravated robbery with violence. 12. Since CV did not lodge an appeal, that judgment became final on 14 April 2024 and CV was arrested on 19 November 2024 for the purpose of executing the sentence imposed. 13. On 19 December 2024, CV lodged an application before the Corte d’appello di Roma (Court of Appeal, Rome) seeking to have the judgment of the Tribunale ordinario di Roma (District Court, Rome) set aside, arguing that he had been declared absent even though the conditions laid down in Article 420-bis of the Code of Criminal Procedure had not been met. Accordingly, he had not been aware that proceedings were pending against him. 14. After examining the documents from the proceedings at first instance, the Corte d’appello di Roma (Court of Appeal, Rome) noted that those proceedings had been initiated on 2 April 2022 following CV’s arrest in the act of committing the offences of aggravated bodily harm and aggravated robbery with violence as a joint perpetrator with another person who was also arrested, as well as eight other persons who remained unknown. CV was also charged with being a repeat offender because he had previously been convicted of other offences of the same nature. 15. At CV’s request, the police informed his mother of his arrest and CV appointed a lawyer to act as his legal counsel. 16. On 4 April 2022, CV was brought under arrest before the Tribunale ordinario di Roma (District Court, Rome) with a view to confirming his arrest and with a view to trying him under the urgent procedure. On that occasion, he stated that he was residing with his mother in Sicily for the purposes of the register of natural persons, but that he had been permanently resident in Rome for five years. Moreover, he stated that his place of residence was in Rome at a ‘mensa per i poveri’ (soup kitchen for the poor) run by the ‘Comunità di Sant’Egidio’. 17. Following the hearing on 4 April 2022, CV’s arrest was not confirmed, the urgent procedure was not initiated, the case was referred back to the Public Prosecutor’s Office and CV was released. 18. The Public Prosecutor’s Office next requested the Giudice per le indagini preliminari (Judge responsible for the criminal investigation, Italy) at the Tribunale ordinario di Roma (District Court, Rome) to issue an order for immediate judgment on the ground that the convincing nature of the evidence allowed the case to be heard directly without a preliminary hearing. 19. That request was granted and the Giudice per le indagini preliminari (Judge responsible for the criminal investigation) referred CV’s case to the Tribunale ordinario di Roma (District Court, Rome) for immediate judgment at the hearing on 4 October 2022. 20. On 9 May 2022, the police went to the aforementioned ‘mensa per i poveri’ to serve the order for immediate judgment but did not find CV there and left the notification with one of the persons responsible for running the association. That person stated that CV had visited the premises two days earlier and assured the police that the order for immediate judgment would be placed in CV’s personal mailbox. 21. On 13 July 2022, the lawyer appointed by CV sent him a telegram at his residence at the ‘mensa per i poveri’ to inform him that he was renouncing the mandate due to the impossibility of locating CV. 22. On 4 October 2022, the order for immediate judgment was served, by certified email, on the lawyer appointed by CV, because the place of residence declared by CV was not suitable for that purpose. 23. During the hearing on 4 October 2022, following the renunciation of the mandate by the lawyer appointed by CV, the Tribunale ordinario di Roma (District Court, Rome) appointed another lawyer as court-appointed defence counsel. 24. At the end of the hearing on 4 October 2022, the Tribunale ordinario di Roma (District Court, Rome) found that the order for immediate judgment had not been served on the accused person and referred the case back to the registry so that service could be effected once again. 25. At the hearing on 17 January 2023, the Tribunale ordinario di Roma (District Court, Rome) found that it was necessary to trace the person concerned, since it had not been proven that CV had had actual knowledge of the proceedings, and it sent the case file to the registry to that end. 26. On 20 January 2023, the police returned to the ‘mensa per i poveri’ in order to effect service but were again unable to locate CV and left a notice to appear with a volunteer, who stated that he would place it in CV’s personal mailbox. 27. By telephone, on 20, 21 and 23 January 2023, the police unsuccessfully tried to contact CV, who had left his mobile number. 28. On 20 January 2023, the police carried out a search in the registers of natural persons and found that CV was residing with his mother in Sicily. On 3 February 2023, however, CV’s mother went to the municipal registry office and submitted a declaration that her son was no longer residing at the family home and requested that he be removed from her family record. 29. At the hearing on 13 June 2023, the Tribunale ordinario di Roma (District Court, Rome) stated that it was clear from the police note concerning service that CV could not be located and therefore ordered that a search be carried out for the person concerned at his home address, that is to say, at his mother’s address in Sicily, in order to serve him with a copy of the order for immediate judgment and a copy of the record of the hearing of 13 June 2023 adjourning the hearing to 23 October 2023. 30. On 19 June 2023, the police served those documents by delivery to CV’s mother, referred to as the ‘cohabiting mother’. 31. At the hearing on 23 October 2023, the Tribunale ordinario di Roma (District Court, Rome) found that service of the order for immediate judgment had been effected by delivery to the cohabiting mother and that the accused person must therefore be deemed to have been made aware of the proceedings. 32. Accordingly, the Tribunale ordinario di Roma (District Court, Rome) ordered that the proceedings should continue in CV’s absence, finding that it had been proven that he had had actual knowledge of the proceedings and that his absence from the hearing was to be regarded as a voluntary and conscious choice pursuant to Article 420-bis(3) of the Code of Criminal Procedure. 33. On 23 October 2023, during the oral hearing, the testimony of the victim of the offence was taken and, following exchange of argument between the parties, the Tribunale ordinario di Roma (District Court, Rome) sentenced CV to a custodial sentence of five years and three months and a fine of EUR 1 500 as a joint perpetrator of the offences of aggravated bodily harm and aggravated robbery with violence. That judgment became final on 14 April 2024. 34. CV was arrested on 19 November 2024 and brought the action to have a judgment set aside referred to in point 13 of this Opinion. IV. The procedure before the Court and the questions referred 35. In the context of those proceedings, by order of 7 January 2026 lodged at the Registry of the Court of Justice on 22 January 2026, the Corte d’appello di Roma (Court of Appeal, Rome) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 6, 10 and 18 of [Directive 2012/29], read in the light of Articles 47 and 54 of the Charter of Fundamental Rights of the European Union and Articles 6 and 17 of the European Convention on Human Rights, be interpreted, taken together, as precluding national legislation such as that contained in Article 629-bis of the Italian Code of Criminal Procedure which, in proceedings to have the final judgment set aside so as to quash a conviction and to require a new substantive trial, does not provide for any form of notification to, communication with, or participation by a victim of the crime who did not join as a civil party to the criminal proceedings? (2) Must Articles 8 and 9 of [Directive 2016/343], read in the light of Articles 47 and 54 of the Charter of Fundamental Rights of the European Union and Articles 6 and 17 of the European Convention on Human Rights, be interpreted, taken together, as precluding national legislation such as that provided for in Articles 420-bis and 629-bis of the Italian Code of Criminal Procedure, which allows for a conviction to be quashed where the accused person claims that he or she had no actual knowledge of the proceedings, in so far as that legislation excludes the possibility of inferring that the accused person deliberately avoided knowledge of the proceedings through gross negligence on his or her part or through the conscious acceptance of the risk of not receiving the relevant documents, as demonstrated by objective conduct and circumstantial evidence?’ 36. Following administrative meetings held on 5 and 9 February 2026, the Fourth Chamber of the Court decided to deal with the present case under the urgent preliminary ruling procedure referred to in Article 107 of the Rules of Procedure of the Court of Justice. 37. Written observations were submitted by the Italian Government and the European Commission in the proceedings before the Court. Those parties also attended the hearing, which was held on 18 March 2026. V. Assessment A. The second question referred 38. By its second question, which I propose to address first, the referring court requests an interpretation of Articles 8 and 9 of Directive 2016/343, read in the light of Articles 47 and 54 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 6 and 17 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’). It seeks to ascertain whether those provisions preclude national legislation which, according to its interpretation by the relevant case-law, prevents a court hearing an application for a new trial on the basis of a conviction in absentia from inferring from the conduct of the person concerned and from circumstantial evidence that that person deliberately avoided knowledge of the original proceedings. 1. The requirements of the relevant provisions 39. Under Article 8(2) and (3) of Directive 2016/343, Member States may provide that a trial which can result in an enforceable decision on the guilt or innocence of the person concerned can be held in his or her absence. This is possible on condition that the person concerned either has been informed, in due time, of the trial and of the consequences of non-appearance (Article 8(2)(a)), or simply has been informed of the trial where he or she is, in addition, represented by a mandated lawyer whom he or she appointed or who was appointed by the State (Article 8(2)(b)). (7) In accordance with paragraph 4 of that article, where it is not possible to comply with those conditions because the person concerned cannot be located despite reasonable efforts having been made, a decision can also be taken and enforced, but the person concerned must then have the right to a new trial as provided for by Article 9 of that directive. 40. According to the judgment in Spetsializirana prokuratura (Trial of an absconded accused person), (8) the power given to the Member States by Article 8(2) and (3) of Directive 2016/343 to conduct a trial in absentia when the conditions laid down in Article 8(2) are met and to enforce the decision without providing for the right to a new trial is based on the premiss that, in the situation envisaged in Article 8(2), the person concerned, having been duly informed, has voluntarily and unequivocally foregone exercise of the right to be present at the trial. 41. In that judgment, the Court also found that, where appropriate, a person may also be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it where he or she cannot be located for the purposes of service of the summoning to trial. That may be the case where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she was accused of having committed a criminal offence, and therefore aware that he or she was going to be brought to trial, took deliberate steps to avoid receiving officially the information regarding the date and place of the trial. Such precise and objective indicia may, for example, be found to exist where that person, as in the case which gave rise to the judgment in Spetsializirana prokuratura (Trial of an absconded accused person), has deliberately communicated an incorrect address to the competent authorities or is no longer at the address that he or she has communicated. (9) 42. The situation of such a person who prevented the authorities from informing him or her officially of the trial in due time by means of an official document is thus covered by Article 8(2) of Directive 2016/343. (10) Moreover, in such circumstances, the dispatch in due time, by the competent authorities, of the official document indicating the date and place of the trial to the address which the person concerned communicated to those authorities, and the proof that that document was actually delivered to that address, are tantamount to informing that person, who can no longer be located, of that date and place, in accordance with Article 8(2) of Directive 2016/343. However, that holds true only if those authorities have made reasonable efforts to locate that person and to summon him or her in person or, by other means, to provide him or her with official information about the date and place of the trial. (11) 43. Furthermore, such a person may be denied a new trial only where, in addition, the other conditions laid down in Article 8(2)(a) and (b) of Directive 2016/343 are satisfied, namely that that person either was informed, in due time, of the consequences of non-appearance or was represented by a lawyer. (12) 2. The questions raised by the referring court in the context of its understanding of national law 44. By its second question, the referring court seeks to ascertain, in essence, whether, under EU law, it must have discretion allowing it to take into account CV’s conduct in assessing whether he deliberately avoided knowledge of the proceedings, with the result that his application for a new trial should be regarded as abusive. 45. In the light of the statements made by the Italian Government, this question appears to be hypothetical. According to those statements, the circumstances of the case should allow the referring court to refuse to initiate a new trial. It is true that, according to national case-law, it is actual knowledge of the trial which justifies a declaration of non-attendance and it cannot automatically be inferred from the accused person’s ‘negligence in matters relating to information’ that he or she intended to avoid it. However, such negligence could be taken into account where the competent authorities have made reasonable efforts to locate the person concerned. Those authorities must then provide ‘precise and objective indicia’ demonstrating that that person received sufficient information. 46. According to that government, consideration of those two conditions excludes any abusive reliance on the rights of the defence, since it attaches importance both to the diligence exercised by the authorities in order to inform the person concerned and to the diligence exercised by that person in order to receive the relevant information. In the light of those conditions, the circumstances set out in the order for reference make it possible to refuse CV the right to a new trial. 47. In response to that line of argument, it should be noted that the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered only to rule on the interpretation or the validity of the acts of EU law referred to in that provision. In that context, it is not for the Court to rule on the interpretation of provisions of national law or to decide whether the referring court’s interpretation of them is correct. It follows that the Court must take account of the factual and legal context of requests for preliminary rulings, as described in the order for reference. In the present case, it is therefore necessary to adhere to the interpretation of the Italian legislation set forth in the request for a preliminary ruling and on which the question referred to the Court is predicated. (13) 48. According to the referring court, it is true that Article 420-bis of the Code of Criminal Procedure sets out the elements on the basis of which it may be concluded that the accused person intended to avoid knowledge of the proceedings and that his or her absence resulted from a deliberate choice. However, according to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), an application for a new trial can be rejected only if direct evidence of the intention to avoid knowledge of the proceedings is adduced. 49. According to the referring court, this is tantamount de facto to requiring an express statement from the person concerned setting out his or her intention to evade the proceedings. It is not permissible to find that the impossibility of locating him or her is due to conduct which indirectly, but undoubtedly, demonstrates such an intention. It is therefore not possible to take into account negligence which is indicative of a conscious acceptance of the risk of not being aware of the proceedings and which might be treated as intentional avoidance of such awareness. Accordingly, in the circumstances of the present case, the referring court is, in its view, obliged to grant the application for a new trial on account of the absence of direct evidence of CV’s intention to avoid knowledge of the original proceedings. 50. The referring court thus appears to take the view that national law – as it is required to apply it – ‘overprotects’, as it were, the rights of the defence. It requires the referring court to reopen the proceedings and prevents that court from examining evidence which might demonstrate that CV’s absence from the trial results, depending on the circumstances, from a conscious choice on his part. 3. The prohibition of misuse of the right to a new trial guaranteed by Directive 2016/343 51. Directive 2016/343, according to its legal basis in Article 82(2) TFEU and as stated in recitals 9 and 48 and Article 1 of that directive, provides for only a minimum level of harmonisation and not for complete and exhaustive harmonisation, with the result that Member States may extend the rights laid down in that directive in order to provide a higher level of protection. (14) 52. Accordingly, it is clear from the very wording of Article 8(2) of that directive that Member States ‘may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence’. (15) Member States are therefore free not to provide for the possibility of trials in absentia in their national law. (16) 53. However, where they do provide for the possibility of such trials, Member States must comply with the requirements of Directive 2016/343. Those requirements make provision and establish a framework for the obligations incumbent on the Member States as regards the right of suspects and accused persons to be present at their trial, together with exceptions to that right. (17) This means not only that they must ensure the right of the accused person to be present at his or her trial, but also that they must, in the event of a judgment in absentia, prevent any misuse of the right to a new trial which would hinder the effectiveness of the prosecution and the sound administration of justice. 54. It is true that Member States remain in principle free to offer a higher level of protection of the rights of the defence than that provided for by Directive 2016/343. However, the guarantee of such rights must not undermine the purpose and effective implementation of that directive. Where an EU act grants Member States a choice between various methods of implementation, the exercise of that discretion falls within the implementation of EU law. Consequently, the assessment of the conformity of the national rules established for that purpose falls within the interpretation of that directive in the light of the general principles of EU law. (18) 55. Similarly, when implementing those rules, Member States are bound by the provisions of the Charter. It is true that they may apply national standards of protection of fundamental rights, provided, however, that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not thereby compromised. (19) 56. In accordance with those principles, the Court has previously held that the provisions of Directive 2016/343 that relate to the right to be present at the trial and to the right to a new trial must be interpreted in such a way as to prevent a person who, although informed of a trial, has foregone, either expressly or tacitly, but unequivocally, being present at it from being able, after a conviction in absentia, to claim a new trial and thereby improperly hinder the effectiveness of the prosecution and the sound administration of justice. (20) 57. According to the Court, that interpretation arises from the aim of Directive 2016/343, which, as recitals 9 and 10 thereof state, consists in enhancing the right to a fair trial in criminal proceedings, so as to increase the trust of Member States in each other’s criminal justice systems. The premiss that, where the conditions laid down in Article 8(2) of that directive are met, the person concerned, having been duly informed, has voluntarily and unequivocally foregone exercise of the right to be present at the trial ensures observance of that aim. (21) 58. That interpretation is supported by the fact that Directive 2016/343, having been adopted to facilitate mutual recognition and police and judicial cooperation in criminal matters between Member States, pursues the same objective as the framework decisions on the mutual recognition of judgments in criminal matters and on surrender procedures between Member States. (22) Since it forms part of the same body of legislation, Directive 2016/343 must be interpreted in a manner consistent with those framework decisions. (23) 59. As Advocate General Richard de la Tour has explained, under those framework decisions, national courts must also have discretion allowing them to assess whether, in the light of the circumstances of the case, the rights of the defence have been respected notwithstanding a judgment in absentia. (24) He also bases that view, inter alia, on the effectiveness of the prosecution and the sound administration of justice. (25) 60. Finally, the proposed interpretation is consistent with the victim’s right to have his or her case heard within a reasonable time and not to be re-traumatised, with the principle of procedural economy in criminal proceedings and with the general principle of prohibition of abuse of rights, according to which individuals are to be prevented from improperly or fraudulently taking advantage of provisions of EU law. (26) 61. The prohibition of abuse of rights is indeed always applicable. It is true that Article 54 of the Charter and Article 17 ECHR expressly enshrine a prohibition of abuse of rights which does not appear to be relevant in the circumstances of the present case. As the Commission argues, those provisions have the specific objective of preventing individuals, groups or States from using the freedoms guaranteed therein to destroy or unduly restrict the rights recognised therein. However, that specific prohibition does not preclude the more general prohibition recognised by the Court. 4. Conclusion on the second question referred 62. It follows from the foregoing considerations that, when assessing whether the conditions for the application of the right to a new trial in the event of a judgment in absentia, laid down in Article 9 of Directive 2016/343, have been satisfied, the court having jurisdiction must have discretion. 63. In exercising that discretion, that court must be able to examine whether the conditions summarised in paragraphs 39 to 43 of this Opinion have been satisfied. It must therefore assess whether there are precise and objective indicia that the person concerned, while having been officially informed that he or she was accused of having committed a criminal offence, and therefore aware that he or she was going to be brought to trial, took deliberate steps to avoid receiving officially the information regarding the date and place of the trial. In so doing, it must take due account of the particular situation of the vulnerable persons referred to inter alia in recital 42 of Directive 2016/343. (27) Lastly, in that assessment, the referring court must determine whether one of the alternative conditions stipulated in Article 8(2)(a) and (b) of that directive is satisfied, namely that the person either was informed of the date and place of the trial and of the consequences of non-appearance, or was represented by a duly mandated lawyer throughout that trial. (28) 64. It is only where the referring court concludes, on the basis of that assessment, that the person concerned took deliberate steps to avoid receiving officially the information regarding the trial and that, in addition, one of the abovementioned conditions is satisfied, that the right of that person to a new trial may be refused. The situation could be otherwise only if it were proved that the person in question took deliberate steps to prevent the fulfilment of those conditions, for example by avoiding receipt of the information regarding the date and place of the trial and the consequences of a judgment in absentia, or by deliberately and repeatedly breaking off contact with his or her lawyer. In such a situation, the general principle of the prohibition of abuse of rights may militate against the reopening of a new trial. 65. In the present case, subject to assessment by the referring court, it is unclear whether there are indicia suggesting that CV deliberately and unreasonably prevented the fulfilment of the conditions laid down in Article 8(2) of Directive 2016/343. It will therefore be for that court to assess, in particular in the light of the record and transcript of the questioning of CV on 4 April 2022 (point 16 above), during which he was assisted by a duly mandated lawyer of his choice, (29) whether it is apparent from those documents that CV was sufficiently informed that he was accused of having committed a criminal offence and that he was going to be brought to trial. Similarly, the referring court must assess, having regard, in particular, to CV’s statements concerning his addresses and to the efforts made to notify him of the details of his trial, whether it must be concluded that he took deliberate steps to avoid receiving officially the information regarding the date and place of the trial, even though the competent authorities made sufficient efforts to locate him. 66. In the course of those assessments, the referring court must not only take due account of CV’s vulnerability resulting from his homelessness, but also of whether it is apparent from his statements during the questioning on 4 April 2022 that he was sufficiently informed and lucid to be able to assess the implications of the situation in which he found himself. Moreover, in the proceedings relating to the application for a new trial, CV must be able to rely, in particular, on any specific circumstances which may have prevented him, where appropriate, from receiving the notifications delivered to the ‘mensa per i poveri’ (soup kitchen for the poor) run by the ‘Comunità di Sant’Egidio’ (see points 16, 20 and 26 of this Opinion). 67. In addition, the referring court must assess whether, in the present case, one of the two conditions stipulated in Article 8(2)(a) and (b) of Directive 2016/343 is satisfied. In that respect, first, it must determine whether it may be considered that CV was represented by a duly mandated lawyer throughout the proceedings in the light of the circumstances of the case (see points 15, 21 and 23 of this Opinion). (30) 68. Second, in relation to the condition stipulated in Article 8(2)(a) of Directive 2016/343, the referring court must assess whether the service of the order for immediate judgment to the ‘mensa per i poveri’ (soup kitchen for the poor) run by the ‘Comunità di Sant’Egidio’ may be tantamount to informing CV as regards the date and place of the trial, in accordance with Article 8(2)(a) of that directive (see point 42 of this Opinion). Furthermore, it must assess whether it has been sufficiently demonstrated that CV was officially informed in due time, inter alia during the questioning on 4 April 2022, of the consequences of non-appearance. 69. Lastly, for the sake of completeness, it should be recalled that the proceedings in which a suspect or accused person must be able to request a new trial under Article 9 of Directive 2016/343 have to satisfy the conditions relating to the right to an effective remedy. This implies, inter alia, that the request for reopening must be examined within a sufficiently short period of time in order to ensure, especially where a custodial sentence is imposed on the person concerned as in the present case, the effectiveness of those proceedings which may, where appropriate, lead to the original decision being reversed and to the release of the person concerned. In the circumstances of the present case, it is doubtful whether the main proceedings satisfy those conditions, given that CV was arrested on 19 November 2024, he applied to have the original judgment set aside on 19 December 2024 and the referring court did not submit the present request for a preliminary ruling to the Court until 7 January 2026, that is to say, more than a year later, by which time CV had already served a significant portion of the sentence imposed on him. (31) B. The first question referred 70. By its first question, the referring court asks whether Articles 6, 10 and 18 of Directive 2012/29, read in the light of Articles 47 and 54 of the Charter and Articles 6 and 17 ECHR, must be interpreted as precluding a national provision, such as Article 629-bis of the Italian Code of Criminal Procedure, which, in proceedings to set aside the final judgment such as to annul a conviction and require new substantive proceedings, does not provide for any form of notification to, communication with or participation by a victim of the crime who was not joined as a civil party. 71. Under the first subparagraph of Article 1(1) of Directive 2012/29, the purpose of that directive is to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings. 72. To that end, Article 6 of Directive 2012/29 provides for the right of victims to receive information about their case. That provision does not expressly refer to proceedings seeking to reopen proceedings, such as those at issue in the main proceedings, in the course of which the court having jurisdiction examines whether the conditions for a judgment in absentia were met during the original proceedings. Similarly, for the purposes of the right of victims to receive, in principle, information enabling them to know about the state of the criminal proceedings, laid down specifically in Article 6(2)(b) of that directive, Article 6(2) refers, as does recital 20, to the role of the victim in the relevant criminal justice system. 73. Article 10 of Directive 2012/29, which establishes the right of victims to be heard, also refers only in general terms to ‘criminal proceedings’. 74. Nevertheless, it is clear from the general scheme and purpose of Directive 2012/29 that that directive is based on taking into account the serious implications which proceedings against offenders have for victims of such offences and that it aims to ensure that victims may adequately and actively participate in those proceedings. 75. To that end, recital 26 of Directive 2012/29 emphasises the importance of providing victims with information allowing them to know about the current status of any proceedings. Recital 31 of that directive further states that the right to information about the time and place of a trial should also apply to information about the time and place of a hearing related to an appeal of a judgment in the case. 76. Proceedings in which the court having jurisdiction examines whether the original judgment should be set aside and substantive proceedings reopened may be treated as equivalent to appeal proceedings against a judgment handed down in criminal proceedings. Such proceedings to have a judgment set aside mean that substantive proceedings which were in principle closed by a final judgment may be reopened. 77. Such proceedings are of paramount importance to the victim. They mean that the victim may have to be confronted once again with a traumatic experience and may be required, where necessary, to testify again during the new substantive proceedings. 78. In those circumstances, the victim’s right to participate actively in criminal proceedings cannot, in my view, be limited to substantive proceedings aimed at establishing the offence, but must also apply in the context of proceedings to have the original judgment set aside. Similarly, the victim’s right to participate in such proceedings cannot depend on whether the victim was joined as a civil party or whether it was the victim’s complaint or an ex officio investigation which initiated the original proceedings. (32) 79. It is true, as the Commission points out, that there can be no question of balancing the rights of the victim against those of the accused person when assessing the right to a new trial. As stated in recital 12 of Directive 2012/29, the rights of the victim set out in that directive are without prejudice to the rights of the offender. There is therefore no need to limit the accused person’s right to a fair trial on account of the implications of a new full trial for the victim. The provisions of that directive aimed at preventing secondary victimisation or an unnecessarily high number of hearings (33) cannot be interpreted in such a way as to undermine the accused person’s right to a new trial if the conditions for the application of that right are satisfied. 80. Moreover, proceedings to have a judgment set aside are not concerned with the offence as such and the victim’s testimony regarding that offence is not relevant when examining the conditions for reopening the substantive proceedings. 81. However, it is possible that the victim may furnish information which serves to provide useful clarification to the court having jurisdiction as to whether or not the accused person intended to evade the original trial in full knowledge of the facts. This is particularly true in situations, such as domestic violence, in which the accused person and the victim know each other or have a close relationship. 82. It follows that, in response to the first question from the referring court, it must be stated that the rights guaranteed to the victim by Directive 2012/29 require that the victim be informed of any application seeking to secure a new trial. Similarly, the victim must be able to be heard during the examination of such an application in order to be able to provide any information which may be relevant for the purpose of assessing the accused person’s conduct. VI. Conclusion 83. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Corte d’appello di Roma (Court of Appeal, Rome, Italy) as follows: Articles 8 and 9 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 and Articles 6, 10 and 18 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA must be interpreted as meaning that: – national courts must have discretion to determine whether, in the light of all the relevant aspects of the individual case, an accused person who was not present at the trial must have the right to a new trial in order to safeguard his or her right to a fair trial; – in the context of that assessment, national courts must examine whether it has been sufficiently demonstrated that the accused person had knowledge of the trial and of the consequences of a judgment in absentia and that his or her absence resulted from a deliberate choice; – the victim must be informed of any application by the accused person for a new trial and must have the right to be heard in the proceedings in which the court having jurisdiction examines that application. 1 Original language: French. i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 2 Directive of the European Parliament and of the Council of 9 March 2016 (OJ 2016 L 65, p. 1). See recital 33 thereof. 3 Recital 35 of that directive. See, also, judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 49). 4 See, to that effect, judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, ‘the judgment in Spetsializirana prokuratura (Trial of an absconded accused person)’, EU:C:2022:401, paragraphs 34 and 35). 5 Directive of the European Parliament and of the Council of 25 October 2012 (OJ 2012 L 315, p. 57). 6 OJ 2013 C 378, p. 8. 7 Judgments in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraphs 33 and 39 to 43); of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16, paragraph 37); and of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraph 34 et seq.). 8 See paragraphs 34 and 35 of that judgment; see also judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraphs 35, 36 and 58). 9 See paragraphs 48 and 49 of that judgment. 10 Judgment in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraph 48). 11 See, to that effect, judgments of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16, paragraph 42), and of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraph 37). That scenario was not addressed in the judgment of 24 May 2016, Dworzecki (C‑108/16 PPU, EU:C:2016:346, paragraph 33 et seq.), discussed in the present case, in which the question arose as to whether service of the indictment to an adult living in the household of the accused was sufficient for the purpose of considering that the accused had been informed of the trial, without any consideration of whether the accused had been informed, prior to such service, that he was to be brought to trial. 12 Judgments in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraphs 38 and 54 et seq.); of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16, paragraph 43); and of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraph 38). See, also, Opinion of Advocate General Medina in Kachev (C‑135/25 PPU, EU:C:2025:306, point 41 et seq.). 13 See, to that effect, judgment of 26 September 2013, Texdata Software (C‑418/11, EU:C:2013:588, paragraphs 28 and 29 and the case-law cited). 14 Judgments of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94, paragraphs 29 and 30), and in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraph 43 and the case-law cited). 15 Emphasis added. 16 Judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraphs 37 to 39). 17 Judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraphs 40 and 47). 18 See, to that effect and by analogy, judgments of 25 May 2016, Meroni (C‑559/14, EU:C:2016:349, paragraph 39); of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, paragraphs 52 and 53); and of 13 June 2017, Florescu and Others (C‑258/14, EU:C:2017:448, paragraph 48). 19 Judgments of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 60), and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 29). 20 Judgment in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraph 37). 21 Judgment in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraphs 34 to 36). 22 See, concerning that objective, judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 51). See, also, Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) and Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27), as amended by 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). 23 See Opinion of Advocate General Richard de la Tour in Höldermann (C‑447/24, EU:C:2025:716, point 83 et seq.). 24 See Opinion of Advocate General Richard de la Tour in Khuzdar (C‑95/24, EU:C:2025:712, point 59 et seq.). 25 See, to that effect, Opinion of Advocate General Richard de la Tour in Khuzdar (C‑95/24, EU:C:2025:712, point 73). 26 See, concerning the latter principle, judgments of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 24); of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 38); of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 57); and of 26 February 2019, T Danmark and Y Denmark (C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 70). 27 See, to that effect, judgment in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraph 48), and Opinion of Advocate General Richard de la Tour in Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, EU:C:2022:26, point 54). 28 See, in that regard, judgment of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraphs 59 to 63), and Opinion of Advocate General Medina in Kachev (C‑135/25 PPU, EU:C:2025:306, points 61 to 67). 29 See, as regards the conditions to be satisfied for that purpose, judgments in Spetsializirana prokuratura (Trial of an absconded accused person) (paragraph 56); of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16, paragraph 48); and of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraphs 41 and 61). 30 See, in that regard, judgment of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraphs 59 to 63), and Opinion of Advocate General Medina in Kachev (C‑135/25 PPU, EU:C:2025:306, points 61 to 67). 31 See, in that regard, judgments of 16 January 2025, VB II (Information concerning the right to a new trial) (C‑400/23, EU:C:2025:14, paragraphs 63 and 64), and of 20 May 2025, Kachev (C‑135/25 PPU, EU:C:2025:366, paragraphs 67 to 70), and Opinion of Advocate General Medina in Kachev (C‑135/25 PPU, EU:C:2025:306, point 80). 32 Article 6(2) of Directive 2012/29 indeed refers to ‘the criminal proceedings instituted as a result of the complaint with regard to a criminal offence suffered by [the victim]’. Such a reference is also found in recital 31 of that directive. However, in the light of the seriousness of the implications, for the victim, of proceedings to have a judgment set aside, his or her right to participate in those proceedings cannot depend on whether he or she made a complaint or was joined as a civil party. That interpretation is supported by recital 22 of Directive 2012/29, which equates the making of a complaint with the initiation of proceedings ex officio for the purposes of defining situations falling within the context of the criminal proceedings. 33 Article 18 and Article 20(b) of Directive 2012/29. See, in relation to those provisions, judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628, paragraph 30 et seq. and paragraph 50 et seq.).