62020CC0420
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 3 March 2022 (
1
)
Case C‑420/20
HN
Criminal proceedings
interested party:
Sofiyska rayonna prokuratura
(Request for a preliminary rulingfrom the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria))
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Article 8(1) – Right to be present at the trial – Article 8(2) – Waiver of the right to be present at the trial – Enforcement of a return decision accompanied by an entry and residence ban imposed on a third-country national being prosecuted in criminal proceedings – Compatibility)
I. Introduction
1.
This case presents a conundrum. The person concerned, an Albanian national, is being prosecuted by the Bulgarian criminal authorities for a serious offence for which the provisions of the Bulgarian criminal code require him to be present at his trial. At the same time, the Bulgarian legislation on foreign nationals requires him to be removed to his country of origin and prohibits him from entering and residing on Bulgarian territory for five years. As a result, the person concerned has been prevented from appearing at his trial, even though he is obliged to do so under the provisions of national law and is entitled to do so under EU law.
2.
By its questions, the referring court is therefore asking the Court, in essence, to clarify the extent to which a Member State can enforce a return decision accompanied by an entry and residence ban against a third-country national who is accused of a serious offence and has not yet been tried, notwithstanding his right to be present at the trial, guaranteed in Article 8 of Directive (EU) 2016/343. (
2
)
3.
In this Opinion, I will set out, first, why those questions must be examined in the light of, on the one hand, the requirements laid down in Directive 2016/343 on the right to be present at the trial and, on the other, the rules set out in Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. (
3
)
4.
I will then set out the reasons why, in a situation where a return decision accompanied by an entry and residence ban has been made against a third-country national accused in criminal proceedings, it is necessary, in order to comply with Article 8(1) of Directive 2016/343, to verify, on a case-by-case basis, whether that third-country national can be present at the trial notwithstanding the immediate enforcement of that decision and, if he cannot, whether the removal should be postponed or the entry and residence ban should be withdrawn or suspended, in accordance with the relevant provisions of Directive 2008/115.
5.
I will also show that the provisions laid down in Article 8(2) of Directive 2016/343 do not preclude a Member State from trying that third-country national in absentia, provided that person has been informed, in due time, not only that the trial is to be held and of the consequences of non-appearance but also of any specific measures made available to him in order to appear at the trial, or provided that person, having been informed that the trial is to be held, is adequately represented by a mandated lawyer appointed by him or by the State.
6.
Conversely, I will set out why Article 8(2) does preclude the holding of a trial in absentia where the accused person, even though he has been informed of the consequences of non-appearance, expressed a wish to waive the right to be present at the trial only during the preliminary investigation procedure, at a time when the trial date had not been set.
7.
Lastly, I will elucidate why Article 8(1) of Directive 2016/343, according to which the Member States are to ensure that accused persons have the right to be present at their trial, in my view precludes national legislation under which accused persons are obliged to appear at their trial.
II. Legal context
A.
European Union law
1. Directive 2016/343
8.
Directive 2016/343, in accordance with Article 1, entitled ‘Subject matter’, lays down minimum rules concerning, on the one hand, certain aspects of the presumption of innocence and, on the other, the right to be present at the trial.
9.
Article 8 of that directive, entitled ‘Right to be present at the trial’, provides as follows in paragraphs 1 to 4:
‘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.’
10.
Article 9 of that directive, entitled ‘Right to a new trial’, states:
‘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.’
2. Directive 2008/115
11.
In accordance with Article 1, entitled ‘Subject matter’, Directive 2008/115 ‘sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of [EU] law as well as international law’.
12.
Article 3 of that directive, entitled, ‘Definitions’, states:
‘For the purposes of this Directive, the following definitions shall apply:
…
4.
“return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return;
5.
“removal” means the enforcement of the obligation to return, namely the physical transportation out of the Member State;
6.
“entry ban” means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision;
…’
13.
Article 9 of that directive, entitled ‘Postponement of removal’, provides as follows in paragraph 2:
‘Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account:
(a)
the third-country national’s physical state or mental capacity;
(b)
technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.’
14.
Article 11 of that directive, entitled ‘Entry ban’, provides as follows in paragraph 3, fourth subparagraph:
‘Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for [reasons other than those set out in the preceding subparagraphs].’
B.
Bulgarian law
1. Code of Criminal Procedure
15.
Article 247b of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) (
4
) provides:
‘(1)   … By order of the judge rapporteur, a copy of the indictment shall be served on the defendant. By service of the indictment the defendant shall be informed of the date set for the pre-trial hearing and of the questions referred to in Article 248(1), of the right to appear with a lawyer of his choice and of the option of having a lawyer appointed by the State in the cases provided for in Article 94(1), and of the fact that the case may be tried and adjudicated upon in absentia, in accordance with Article 269.
(2)   Notice of the pre-trial hearing and of the questions referred to in Article 248(1) shall be given to the public prosecutor and the lawyer, and to the victim or the victim’s heirs or the legal person injured party, who shall be informed of their right to appoint a lawyer.
…’
16.
Article 248(1) of the NPK, in the version applicable to the facts in the main proceedings, states as follows:
‘… The pre-trial hearing shall consider the following questions:
…
2.
whether there are grounds for discontinuing or suspending the criminal proceedings;
3.
whether the pre-trial procedure has been affected by a material breach of the rules of procedure, capable of being remedied, which has led to a restriction of the procedural rights of the accused, the victim or the victim’s heirs;
4.
whether the examination should be subject to specific rules;
…
8.
setting the date for the hearing and the persons to be summoned.’
17.
Article 269 of the NPK provides:
‘(1)   In cases trying serious offences, the presence of the accused at the hearing shall be mandatory.
(2)   The referring court may also order the accused person to appear in cases where that presence is not mandatory but is necessary in order to determine the objective truth.
(3)   Where non-appearance does not prevent the determination of the objective truth, the case may be tried in the absence of the accused person, if:
1.
he is not at the address he indicated or has changed address without informing the authority;
2.
his place of residence in Bulgaria is unknown and could not be determined by a thorough search;
3.
… he has been duly summoned and has not indicated valid reasons for failing to appear, and the procedure laid down in Article 247b(1) has been complied with;
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 has not indicated valid reasons for failing to appear.’
2. Law on foreign nationals in the Republic of Bulgaria
18.
The Zakon za chuzhdentsite v Republika Bulgaria (Law on foreign nationals in the Republic of Bulgaria) (
5
) of 23 December 1998, in the version applicable to the facts in the main proceedings, transposes Directive 2008/115. (
6
)
19.
Under Article 10(1) of the ZChRB:
‘(1)   … A foreign national shall be refused a visa or leave to enter the country where:
…
7.
… he has attempted to enter or transit through 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;
…’
20.
Under Article 10(2) of the ZChRB:
‘(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.’
21.
Under Article 41(5) of the ZChRB:
‘… Return shall be ordered where:
…
5.
… it is established that the foreign national entered the country lawfully across the border but has attempted to leave it at crossing points not authorised for that purpose or using a false or forged passport or travel document serving as a passport.’
22.
Article 42h(1) of the ZChRB provides as follows:
‘… 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;
…
(3)
… The ban on entering and residing on the territory of the Member States of the European Union shall be imposed [for a maximum period of] five years. The ban on entering and residing on the territory of the Member States of the European Union may exceed five years where the person poses a serious threat to public policy or national security.
(4)
… The ban on entry may be imposed in parallel with the coercive measure provided for in Article 40(1)(2) or Article 41 if the conditions laid down in Article 10(1) are met.’
23.
Article 44(5) of the ZChRB provides:
‘(5)   … Where the foreign national is prevented by obstacles from leaving the territory immediately or from entering another country, and no measure is planned for his imminent removal, the authority which issued the order imposing the coercive measure or the director of the immigration department, after assessing the individual circumstances and the risk of absconding or of the return being hindered in any other way, shall order by decree in accordance with the arrangements laid down by the decree implementing this law, the enforcement, either jointly or separately, of one of the following precautionary measures:
1.
the foreign national concerned shall be obliged to attend the local section of the Ministry of Internal Affairs at his place of residence each week;
…’
24.
Under Article 44(6) of the ZChRB:
‘(6)   … Where a coercive measure has been taken under Article 39a(1)(2) and (3) against a foreign national and where the foreign national is hindering enforcement of the decree imposing that measure, or where there is a risk of absconding, the authorities mentioned in paragraph 1 may order that the foreign national be detained at a special temporary detention centre for foreign nationals, for the purpose of preparing to escort the foreign national to the border of the Republic of Bulgaria or to expel him. Compulsory detention shall also be ordered where the foreign national fails to observe the conditions of the precautionary measures provided for in paragraph 5.’
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
A.
Facts of the dispute
25.
The Sofiyska rayonna prokuratura (Public Prosecutor’s Office, Sofia, Bulgaria) brought criminal proceedings against HN, an Albanian national, alleging that, on 11 March 2020, he used false foreign identity documents, that is to say, a passport and an identity card, at the border inspection post at Sofia airport, in an attempt to leave Bulgarian territory to travel to the United Kingdom. Under the applicable national legislation, that offence is a serious criminal offence punishable by a term of imprisonment of more than five years.
26.
It follows from the decision to refer that, when HN was apprehended, on 11 March 2020, the Granichno politseysko upravlenie (Bulgarian Border Police Authority) commenced a pre-trial investigation before the Sofia Public Prosecutor’s Office. The following day, the director of the Bulgarian Border Police Authority in Sofia adopted, first, a return decision against HN under Article 41(5) and Article 44(1) of the ZChRB, and, secondly, an ‘entry and residence ban’ for a period of five years from 12 March 2020 to 11 March 2025, under Article 43h(3) and (4) in conjunction with Article 10(1)(7) and (22) and Article 44(1) of the ZChRB.
27.
No appeal was brought against either of those two coercive measures.
28.
On 27 April 2020, HN, accompanied by his State-appointed lawyer, was notified that the charge of deliberately using false identity documents, under Article 316 in conjunction with Article 308(1) and (2) of the Nakazatelen kodeks (Criminal Code), had been formally preferred against him. On that occasion, in the presence of an interpreter, he was informed of his rights, including those set out in Article 269 of the NPK concerning the conduct and consequences of a trial in absentia. At the hearing held the same day, he stated that he understood the rights of which he had been informed and that he did not wish to appear in the proceedings.
29.
On 27 May 2020, the Sofia Public Prosecutor’s Office forwarded the indictment to the referring court and the main criminal proceedings were commenced on the basis of that indictment.
30.
On 16 June 2020, HN left the detention centre for third-country nationals and was escorted to the border, at the Gyueshevo crossing point, in implementation of the measures issued against him.
31.
By order of 24 June 2020, the date of the pre-trial hearing was set for 23 July 2020 and the judge rapporteur ordered that HN be sent copies of the order and of the indictment in Albanian, via the immigration department of the Bulgarian Interior Ministry, having regard for the requirements of Article 247b(3) of the NPK. Notice was also given that HN’s presence at a hearing was mandatory under Article 269(1) of the NPK and that the case could proceed in the absence of the accused person in the circumstances laid down in Article 269(3) of the NPK.
32.
On 16 July 2020, the immigration department of the Bulgarian Interior Ministry informed the referring court that HN had left the detention centre and had been escorted to the border. It can be seen from the decision to refer that HN was not informed that criminal proceedings had been commenced against him.
33.
At the hearing on 23 July 2020, the Sofia Public Prosecutor’s Office stated that the conditions were satisfied for proceedings to be held in absentia because HN was outside Bulgarian territory and his place of residence was unknown. The Bulgarian authorities indeed currently do not know his whereabouts.
B.
The main proceedings
34.
The referring court notes that under Article 10(1) and (2) of the NPK, where criminal proceedings are brought against a third-country national for attempting to enter or transit through the territory using false or forged official documents, that person’s right to be personally present at those criminal proceedings is compromised.
35.
The referring court therefore envisages three scenarios intended to remedy that infringement of the rights of accused persons.
36.
Where the accused person has been removed and is subject to a ban on entering and residing in the State where the prosecution is taking place, the referring court believes it is possible, under the applicable international instruments, to determine that person’s place of residence abroad so that he can be informed of the proceedings and so that the trial can be held in absentia, provided the accused person is represented by a State-appointed lawyer.
37.
In a second scenario, the criminal proceedings would be suspended until expiry of the ban on entry and residence, in order to ensure that the procedural rights of the accused person are upheld.
38.
A third scenario would consist of setting the hearing dates in advance and informing the border police services at the Bulgarian Interior Ministry that they must allow the accused person to enter Bulgarian territory so that he can fully exercise the right under Article 8(1) of Directive 2016/343 to be present at the trial, notwithstanding the entry ban. However, that solution amounts to subjecting the right to be present at the trial to the precondition that the executive authority issues permission for entry into national territory. The referring court notes that such permission cannot be appealed to a court, thereby in practice creating administrative obstacles that impair the right to a fair trial.
C.
The questions referred
39.
In those circumstances, the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘(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 2016/343] 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?
(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 2016/343] 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 2016/343], 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 2016/343], which was clearly expressed during the pre-trial investigation, permissible, provided that the accused person was informed of the consequences of non-appearance?’
D.
Procedure before the Court
40.
The German, Hungarian and Netherlands Governments and the European Commission submitted written observations on those questions.
41.
On 5 October 2021, the Court sent the referring court a request for information on the legal context of the main proceedings, to which that court responded on 11 October 2021.
42.
HN and the Commission presented oral argument at the hearing.
IV. Analysis
A.
Preliminary observation
43.
I will make a preliminary observation on the relevant legal context.
44.
I believe that the questions raised call for consideration of provisions of EU law other than those to which express reference is made in the decision to refer. (
7
)
45.
The referring court in fact invites the Court of Justice to interpret the terms of Article 8 of Directive 2016/343 in a specific situation in which, in application of the ZChRB, the accused person is subject, on the one hand, to a removal measure and, on the other, to a ban on entering and residing on national territory for five years.
46.
Those measures do not constitute a penalty, but rather are coercive measures that can be adopted independently of the commencement of any criminal proceedings. In response to the Court’s request for clarification, the referring court stated that the ZChRB, under which those measures were adopted, transposes Directive 2008/115. That being so, and in the absence of any clarifications that the Bulgarian Government may have been able to supply in this case, I believe that HN’s situation falls within the scope of application of Directive 2008/115, as defined in Article 2(1) of that directive. There is nothing to suggest that the Republic of Bulgaria elected to exclude the situations referred to in Article 2(2) of that directive from its scope of application.
47.
As a result, and subject, once again, to any clarifications that the Bulgarian Government may have been able to provide, it appears, first, that the decision by which the competent national authorities ordered the person concerned to return to his country of origin is a ‘return decision’ within the meaning of Article 3(4) of Directive 2008/115, and therefore gives rise to his ‘removal’ from Bulgarian territory within the meaning of Article 3(5) of that directive, and, secondly, that the decision by which those authorities adopted an entry and residence ban is an ‘entry ban’ within the meaning of Article 3(6) of that directive.
48.
To my mind therefore the referring court’s questions make it necessary to refer to the rules under Directive 2008/115 in order to place them in the context of the principles set out in Directive 2016/343.
B.
The extent of the right to be present at the trial as enshrined in Article 8(1) of Directive 2016/343 (first question)
49.
By its first question, the referring court is in essence asking the Court to rule on whether Article 8(1) of Directive 2016/343 must be interpreted as meaning that it precludes a national practice under which the competent national authorities may enforce a return decision accompanied by an entry and residence ban against a third-country national, where that third-country national is being prosecuted in criminal proceedings for a serious offence and has not yet appeared at the trial.
50.
The question arises because, quite clearly, the enforcement of a return decision, in so far as it involves the physical transportation of the relevant individual out of the Member State concerned, (
8
) and the adoption of a ban on entering and residing on the territory of that State for five years, in so far as it prevents that person from re-entering that territory and subsequently residing there, (
9
) are likely to infringe that person’s right to appear at the trial where, in parallel to those measures, he or she is subject also to a criminal prosecution.
51.
It is therefore necessary to coordinate the criminal proceedings and the removal and return procedure. To determine the details of that coordination, I will begin my analysis by examining the wording of Article 8 of Directive 2016/343, which enshrines the right of the accused person to be present at the trial, before focusing on the scheme and objectives of that directive. (
10
) I will also have regard to the case-law of the European Court of Human Rights. In recitals 11, 13, 33, 45, 47 and 48 of that directive the EU legislature in fact clearly set out its wish to strengthen and ensure effective implementation of the right to a fair trial in criminal proceedings by integrating into EU law the case-law developed by that court on compliance with Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (
11
)
1. The wording of Article 8(1) of Directive 2016/343
52.
Article 8(1) of Directive 2016/343 establishes the right of suspects and accused persons to be present at their trial. (
12
) By requiring Member States to ‘ensure that [those persons] have the right to be present at their trial’, the EU legislature places a duty on those States to take the necessary measures to enable them to exercise that right.
53.
The right to be present at the trial is, in effect, inherent in the fundamental right to a fair trial. (
13
) I would call to mind that fundamental rights form an integral part of the general principles of law whose observance the Court ensures. (
14
) The right to a fair trial is established both in the second and third subparagraphs of Article 47 (
15
) and in Article 48 of the Charter of Fundamental Rights of the European Union (
16
) and in Article 6 ECHR.
54.
Article 48(2) of the Charter states, in particular, that respect for the rights of the defence of anyone who has been charged shall be guaranteed. (
17
) Those rights require, inter alia, that the accused person must be afforded the opportunity effectively to make known his view on the charges against him.
55.
It can be seen from the judgment in Spetsializirana prokuratura (Hearing in the absence of the accused person) that a public hearing is particularly important in criminal cases since an individual is entitled to have his case ‘heard’, with the opportunity, inter alia, to give evidence in his defence, hear the evidence against him, and examine and cross-examine witnesses. (
18
) The European Court of Human Rights has also held, in the same vein, that the presence of the person charged at the trial is of paramount importance both because there is a right to be heard and because it is necessary to review the accuracy of that person’s statements and to compare them with those of the victim, whose interests must also be protected, and of the witnesses. (
19
)
56.
It can also be seen from the judgment of 29 July 2019, Gambino and Hyka, that those who have the responsibility for deciding the guilt or innocence of an accused ought, in principle, to be able to hear witnesses in person. (
20
) A fundamental aspect of criminal proceedings is the ability for the accused to be confronted with the witnesses and/or victims in the presence of the judge who is to rule on guilt or innocence on conclusion of the proceedings. That principle of immediacy is an important guarantee in criminal proceedings in which the observations made by the court about the demeanour and credibility of a witness may have important consequences for the accused. (
21
) That case-law is therefore underpinned by the belief that only a criminal trial can formally establish guilt under criminal law. (
22
)
57.
Having regard to the wording of Article 8(1) of Directive 2016/343 and the position that the right to be present at the trial holds in EU law, I believe that where the authorities of a Member State have brought a criminal prosecution against a third-country national, they cannot enforce a removal measure against that foreign national – a removal measure which is moreover accompanied by a five-year ban on entry and residence – without ordering the necessary measures of organisation of procedure to enable that foreign national fully to exercise the right to be present at the trial, unless that person has clearly and unequivocally waived that right.
58.
That interpretation is in my view supported by the scheme of Directive 2016/343.
2. The scheme of Directive 2016/343
59.
It should be noted in the first place that in Chapter 3 of Directive 2016/343 the EU legislature did not envisage the situation in which the accused person is prevented from being present at the trial, either in Article 8 or Article 9.
60.
The sole subject matter and purpose of Article 8 of that directive is to establish, in paragraph 1, the right of the accused person to be present at the trial and, in paragraph 2, to define the situations in which a person can be tried in absentia. Indeed, in recital 35 of that directive the EU legislature states that the right in question is not absolute and that accused persons may, expressly or tacitly, but unequivocally, waive that right, under certain conditions.
61.
Under Article 8(2) and (3) of Directive 2016/343, Member States may therefore establish that accused persons can be tried in their absence and that the sentence handed down at the end of the trial can be enforced if the person concerned has been informed, in due time, of the trial and of the consequences of non-appearance or if that person, having been informed that the trial is to be held, is adequately represented by a lawyer appointed by him or by the State. Those circumstances serve to demonstrate that the accused person has clearly waived the right to appear in person at the trial.
62.
Where the accused person has not been informed that the trial is to be held because he cannot be located, despite the efforts to do so made by the competent authorities, the EU legislature permits the Member States, under Article 8(4) of Directive 2016/343, to provide for the possibility of trying the accused person in his absence. However, Member States must provide in their rules that accused persons are to be informed, in particular when they are apprehended in enforcement of a conviction, of the possibility to challenge the decision made as a result of the trial in which they did not appear, and to have a new trial, in accordance with Article 9 of that directive. (
23
)
63.
A situation in which the accused person is prevented from being present at the trial because, for example, he has been removed from the territory and is subject to a ban on entry and residence, clearly does not fall under those provisions.
64.
First, that situation is inherently different from the situation under Article 8(2) and (3) of Directive 2016/343 in which the accused person, in full knowledge of the facts, waives the right to appear at the trial.
65.
Secondly, such a situation cannot necessarily be understood in terms of Article 8(4) of Directive 2016/343, which can only be applied if the competent national authorities find themselves unable to locate and inform that person that the trial is to be held, despite their reasonable efforts. By removing a third-country national whom the authorities have decided to prosecute under criminal law before that person has been informed of the trial to be held, and failing to take the necessary steps to ensure that the person concerned, once returned to the country of origin, can be informed of the trial, the competent national authorities run the risk of no longer being able to locate the accused person to inform him of the date and place of the trial. In the present case, it emerges from the oral procedure that the criminal proceedings brought against HN in April 2020 were delayed because of the Covid-19 pandemic. However, given the chronology of events, it does not seem to me that every necessary effort was made to ensure that HN, who at that time was held in a detention centre, was informed that his trial was to be held. For example, enforcement of the removal could have been suspended pending the holding of the criminal trial. Similarly, international judicial cooperation instruments could have been utilised. (
24
)
66.
In that vein I would note, in the second place, that the situation where an accused person is prevented from being present at the trial is, in contrast, covered by recital 34 of Directive 2016/343.
67.
According to that recital, ‘if, for reasons beyond their control, accused persons are unable to be present at the trial, they should have the possibility to request a new date for the trial within the time frame provided for in national law’.
68.
Admittedly, that recital is not reflected in the provisions of Directive 2016/343 and, according to the Court’s case-law, the recitals of EU acts do not have any independent legal value and are descriptive and not prescriptive in nature. (
25
) It nevertheless holds true that the EU legislature has here revealed its intention to provide for situations in which accused persons are prevented from being present at their trial for reasons beyond their control, in which the Member State is then bound to act diligently to ensure that they can effectively enjoy their right to be present at the trial.
69.
That principle takes inspiration from the case-law of the European Court of Human Rights, which assesses on a case-by-case basis the nature and severity of the reasons claimed as preventing the accused person from being present and the diligence of the competent national authorities in ensuring that the accused person is present at the hearing. (
26
) In the judgment of 28 August 1991, F.C.B. v. Italy, that court held that the Italian appeal court had violated Article 6 ECHR by not adjourning proceedings where the accused person, who was charged with very serious crimes, was detained in a Dutch prison and had not expressed a wish to waive the right to appear in those proceedings. (
27
)
70.
Recital 34 of Directive 2016/343 is to my mind worded sufficiently broadly to include situations in which the accused person is prevented from being present at the trial because he has been removed to a third-country and is also unable to travel to and reside on the territory of the State of judgment as the result of coercive measures taken against him. However, that recital seems to envisage situations in which accused persons are aware of the date of the trial, since they request the court to postpone it, which is not the situation in the present case. Furthermore, the measures envisaged by the EU legislature in that recital are not sufficient to enable the accused person to attend the trial. In that recital, the legislature in fact envisages only that the trial will be adjourned. (
28
) The scope and duration of the obstacle to attending the trial resulting from enforcement of a return decision accompanied by an entry and residence ban which, it should be recalled, may be for five years, call for other measures of organisation of procedure to be adopted, both by the administrative authorities, by postponing the removal, for example, and by the court, including by availing itself of international judicial mutual assistance.
71.
Such measures are necessary in view of the purpose of Directive 2016/343.
3. The purpose of Directive 2016/343
72.
According to recital 9 and Article 1, Directive 2016/343 seeks to enhance the right to a fair trial and the rights of the defence of accused persons in criminal proceedings by laying down common minimum rules concerning, inter alia, the right to be present at the trial.
73.
First, effective access to a court and exercise of the rights of the defence imply that the accused person must be able to be present at the trial. To remove a third-country national against whom the authorities of the Member State have brought criminal proceedings for a serious offence and, moreover, to ban that person from entering and staying on the territory of that State, when the trial has not yet taken place, renders the right to be present at the trial completely ineffective unless those measures are accompanied by specific provisions enabling that person to be informed of the date and place of the trial and ensuring that he is present or represented at the hearing.
74.
Secondly, it can be seen from recitals 2, 4 and 10 of Directive 2016/343 that the EU legislature is also seeking to enhance Member States’ trust in each other’s criminal justice systems, in order to facilitate the mutual recognition of judicial decisions convicting accused persons, including the decision determining the custodial sentence to be served. (
29
) The mutual recognition of a conviction handed down in absentia requires that decision to have been made under conditions ensuring compliance with the procedural rights of the person concerned. If it was not, that circumstance is a ground for non-enforcement under, for example, Article 9 of 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. (
30
) Admittedly, the context of the present case is different since it involves a Member State and a third country. I would note, however, that the international law provisions on extradition have been interpreted to the same effect. (
31
) Under those circumstances, the competent national authorities must therefore take all necessary measures to ensure that the accused person is informed that the trial is to take place, either before the removal or afterwards. Where necessary, where that person has been removed, those authorities must also undertake the necessary steps to ensure his appearance at the trial.
75.
Thirdly, the right to a fair trial, which underpins Directive 2016/343, requires the sound administration of justice. Enforcing a return decision not only immediately but concomitantly with criminal proceedings, without adopting measures to ensure that the accused person can be located on the territory of the third country, is likely in practice to prevent the judicial authorities from informing that person that the trial is to take place. Thus, in the present case, the removal of the person concerned to a third country gave rise to procedures conducted with the consular authorities of that country but which were unsuccessful. That situation risks giving rise to a de facto suspension of the criminal proceedings, thereby making them lengthier, or to a conviction in absentia, which might then not be recognised by that third country if it receives a request for judicial mutual assistance, or might be challenged under Article 8(4) of Directive 2016/343 with a view to a new trial.
76.
Given those factors, I believe it is essential, first, that the competent criminal and administrative authorities cooperate with each other. Thus, the chronology in the present case needs to be highlighted: having been arrested on 11 March 2020, the person concerned was notified of the charges formally preferred against him by the judicial authorities on 23 April 2020 and was removed from the territory by the border police on 16 June 2020, that is to say, eight days before the date of the pre-trial hearing was set for 23 July 2020.
77.
Secondly, I believe that the competent national authorities must weigh up the various interests at stake in order to protect, at the same time, both the fundamental rights of the accused person and the general interests of the Member State. In my view, striking that balance requires those authorities to compensate for, correct or remedy the consequences of enforcing the administrative measures at issue, using appropriate procedural mechanisms that ensure a satisfactory level of fairness in the procedure. I believe they should consider the practical arrangements for enforcing the return decision accompanied by a ban on entry and residence and, in particular, whether it is necessary to enforce that decision immediately while criminal proceedings are pending. In that context, they must be able to take account of the gravity of the alleged criminal offence and the dangers posed by the presence of the person concerned on the territory. In that regard, the fact that a third-country national is suspected of having committed a serious criminal offence does not, of itself, justify that foreign national being immediately removed from the territory without the appropriate measures being taken to ensure that he can be present at his trial.
78.
In view of the foregoing analysis of both the wording and of the scheme and purpose of Directive 2016/343, my view is that Article 8(1) of that directive must be interpreted as meaning that it precludes a national practice under which a removal measure accompanied by an entry and residence ban against a third-country national is enforced where that third-country national is being prosecuted in criminal proceedings for a serious offence and where the competent national authorities have not taken the specific measures necessary so that the foreign national in question can fully exercise his rights of the defence and be present at the trial.
79.
Since Directive 2016/343 does not lay down any such mechanisms, I believe it is for the Member States to establish them, under the principle of procedural autonomy and, where necessary, using the instruments made available to them under Directive 2008/115.
4. The procedural mechanisms established in Directive 2008/115
80.
In accordance with Article 79(2)(c) TFEU and as recitals 2 and 24 of Directive 2008/115 underscore, that directive is intended to establish an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. (
32
) It follows that the measures adopted under that directive must be enforced without prejudice to the third-country national’s right to a fair trial and in accordance with that person’s right to be present at the trial.
81.
Moreover, in recital 6 of Directive 2008/115 the EU legislature states that when ending the illegal stay of a third-country national, Member States should ensure that they follow a fair procedure and, according to general principles of EU law, adopt decisions on a case-by-case basis and based on objective criteria other than the mere fact that the foreign national is staying illegally. The Court has accordingly held that the Member States must observe the principle of proportionality throughout all the stages of the return procedure established by that directive, including the stage relating to the return decision. (
33
) It has further stated that the competent national authorities must hear the person concerned before making a return decision and that that person is entitled to express his point of view on the detailed arrangements for the return. (
34
)
82.
Under those circumstances, where the competent national authorities adopt a return decision accompanied by an entry and residence ban they must, in my view, examine on a case-by-case basis the extent to which immediate enforcement of those measures is likely to compromise the rights of the defence of the third-country national concerned.
83.
The EU legislature has in fact established provisions relating to deferral of the removal, in Article 9 of Directive 2008/115.
84.
Under Article 9(2) of that directive, Member States may ‘postpone removal for an appropriate period taking into account the specific circumstances of the individual case’. Although the EU legislature invites the Member States to take into account for that purpose grounds relating to the third-country national’s physical state or mental capacity or technical reasons, such as lack of transport capacity, use of the expression ‘in particular’ attests to the fact that other circumstances may be taken into account. The individual examination that the competent national authorities are required to carry out should therefore make them aware of the existence of a criminal prosecution against the third-country national in question so that they can determine the extent to which postponement, and non-enforcement, of the removal should be considered.
85.
In that regard, I note that where a removal is postponed, under Article 9(3) of Directive 2008/115 the Member States may impose certain obligations on the person concerned aimed at avoiding the risk of absconding, such as regular reporting to the authorities or an obligation to stay at a certain place. Those obligations are set out in Article 7(3) of that directive.
86.
In the fourth subparagraph of Article 11(3) of that directive the legislature also establishes provisions on the withdrawal or suspension of entry bans.
87.
Using that mechanism the Member States may withdraw or suspend an entry ban ‘in individual cases or certain categories of cases for other reasons’. That article quite clearly gives the Member States relatively broad discretion as regards the situations in which they can withdraw or suspend an entry ban. In that context, for the same reasons as set out in point 83 of this Opinion, I believe that the Member States should be able to withdraw or suspend enforcement of a ban on entering and residing on the territory, in order to ensure that the rights of the third-country national concerned are upheld and, where applicable, that the person concerned is able to appear at his trial.
88.
In the light of the foregoing, I therefore propose that the Court should find that Article 8(1) of Directive 2016/343 must be interpreted as meaning that it precludes a national practice under which a removal measure accompanied by an entry and residence ban against a third-country national is enforced where the person concerned is being prosecuted in criminal proceedings for a serious offence and where the competent national authorities have not taken specific measures to ensure that the foreign national in question can be present at the trial. Under those circumstances, I also propose that the Court should find that where a removal measure accompanied by an entry and residence ban is adopted in a situation where criminal proceedings are taking place against the person concerned, it is necessary to verify whether immediate enforcement of that measure is compatible with that person’s rights of the defence and, where applicable, whether the removal should be postponed or the entry and residence ban should be withdrawn or suspended, in accordance with Article 9 and Article 11(2) of Directive 2008/115.
C.
Admissibility of a waiver of the right to be present at the trial under Article 8(2) of Directive 2016/343
89.
It is appropriate now to examine the second and third questions concerning the circumstances in which an accused person, against whom a return decision accompanied by an entry and residence ban has been adopted, can waive the right to appear at the trial under Article 8(2) of Directive 2016/343.
90.
It should be noted, as a preliminary matter, that Article 8(2) and (3) of that directive provides that a person may be tried in absentia and that any conviction resulting from that procedure may be enforced as if it had been made in adversarial proceedings. Article 8(4) of Directive 2016/343 also provides that a person can be tried in absentia but is entitled to challenge a conviction and have a new trial in accordance with the provisions laid down in Article 9 of that Directive. The two situations differ according to whether the accused person was aware of the trial and deliberately waived the right to appear, or was unaware of the trial.
1. The situation in which the accused person is prevented from being present at the trial by enforcement of a return decision accompanied by an entry and residence ban (second question)
91.
By its second question, the referring court enquires of the Court, in essence, whether Article 8(2) of Directive 2016/343 must be interpreted as meaning that a Member State may try an accused person in absentia where that person, although prevented from appearing at the trial by a return decision accompanied by an entry and residence ban adopted against him, has been informed that the trial is to be held and of the consequences of non-appearance and where the accused person is represented by a mandated lawyer appointed by the accused person or by the State.
92.
Under Article 8(2) and (3) of Directive 2016/343, Member States may provide that a person can be tried in absentia and that any conviction may be enforced, without that person being entitled to a new trial, if certain conditions are fulfilled.
93.
Indeed, the EU legislature states, in recital 35 of that directive, that the right of suspects and accused persons to be present at the trial is not absolute and that under certain conditions they should be able, expressly or tacitly, but unequivocally, to waive that right. (
35
) In principle, therefore, that right can only be waived in the two situations described in Article 8(2)(a) and (b) of Directive 2016/343. (
36
)
94.
The first situation, addressed in Article 8(2)(a) of that directive, concerns the provision of information to the accused person. It envisages a scenario in which that person has been informed, in due time, of the trial and of the consequences of non-appearance. It can be seen from recital 36 of that directive that for that information to be provided validly, the person in question must have been summoned in person or provided in due time with official information by other means about the date and place of the trial in a manner that makes him aware of the trial, and must have been informed that a decision could be handed down if he does not appear at the trial. According to recital 38 of that directive, the competent national authorities must exercise all necessary diligence to inform the person concerned, and the person concerned must exercise all necessary diligence in order to receive that information, (
37
) in order to dispel any doubt as regards the intention not to be present at the trial.
95.
The second situation, addressed in Article 8(2)(b) of Directive 2016/343, concerns the legal representation of the accused person. It covers the case in which that person, having been informed of the trial, deliberately chose to be represented by legal counsel instead of appearing in person at the trial. (
38
) That election is, in principle, sufficient to demonstrate that the accused person both waived the right to be present at the trial and guaranteed the right to defend himself, with the effect that he cannot subsequently rely on the right to a new trial established in Article 9 of that directive.
96.
In the light of the foregoing, nothing prevents an accused person who is in addition subject to a return decision accompanied by an entry and residence ban from waiving the right to be present at the trial. Indeed, that right applies to all persons accused in criminal proceedings, irrespective of their legal status in the Member State. (
39
)
97.
However, in a situation such as that at issue, the waiver of that right must be accompanied by special safeguards.
98.
First, the waiver of an accused person’s right to be present at the trial, under Article 8(2)(a) of Directive 2016/343, in itself requires that the accused person is able in practice to make an informed decision to waive that right. Accused persons cannot be considered to have waived that right freely and unequivocally if they are deprived of freedom of movement either because they have been detained for the purposes of enforcement of the removal measure or as a result of a ban on entry and residence adopted against them. In that situation, the competent national authorities should put in place specific measures to enable the accused person to be present at the trial (for example, by allowing him to leave the detention centre, postponing the removal or suspending the ban on entry and residence) and should inform him of those measures.
99.
Secondly, the waiver of an accused person’s right to be present at the trial, under Article 8(2)(b) of Directive 2016/343, requires arrangements to be put in place so that an accused person who has been removed from the territory is represented by a lawyer. I note that the European Court of Human Rights has indeed attached great importance to the fact that the absence of the accused person from the trial must not be penalised by derogating from the right to the assistance of a defence counsel. (
40
) Indeed, ‘although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial.’ (
41
) According to the European Court of Human Rights, ‘it is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal’. (
42
) Since, as the present case testifies, enforcement of a removal measure involves a risk that an accused person will lose contact with his lawyer, I believe that particular attention should therefore be paid to the arrangements for that representation.
100.
Thirdly, those safeguards are necessary in the light of the objectives of Directive 2016/343, referred to in point 72 et seq. of this Opinion. Although in Article 8(2) of that directive the EU legislature acknowledges that the accused person is entitled to waive the right to be present at the trial, that waiver must nevertheless be exercised in a manner that leaves no room for any doubt, since the right to a fair trial is a fundamental right and in view of the consequences of waiving the right to be present.
101.
In the light of all the foregoing, my view is that Article 8(2) of Directive 2016/343 should be interpreted as meaning that it does not preclude a Member State from trying in absentia a third-country national who is subject to a return decision accompanied by a ban on entering and residing on the national territory, provided not only that the accused person has been informed, in due time, that the trial is to be held and of the consequences of non-appearance, but also that specific measures have been made available to him in order to appear at that trial, and that person has freely and unequivocally waived the right to do so, or provided that the accused person, having been informed that the trial is to be held, is adequately represented by a lawyer appointed by him or by the State.
2. The situation in which the accused person has expressly waived the right to be present at the trial, during the pre-trial investigation (fourth question)
102.
By its fourth question, the referring court enquires of the Court whether Article 8(2) of Directive 2016/343 must be interpreted as meaning that a Member State may try an accused person in absentia where, during the pre-trial investigation and before the date of the trial has been set, that person, having been informed of the consequences of non-appearance, unequivocally waived the right to be present at the trial.
103.
In my view, the EU legislature did not, in Article 8(2) of that directive, expressly provide for the situation envisaged by the referring court.
104.
It is therefore necessary to consider whether a Member State may establish that a person can also be tried in absentia in a situation other than that expressly referred to in Article 8(2) of Directive 2016/343. As already indicated in point 89 of this Opinion, the difference between the arrangements under Article 8(2) and (3) of that directive and those under Article 8(4) lies not in the fact that a person can be tried in absentia but in the consequences in terms of enforcement of the decision handed down as a result of the proceedings held in absentia.
105.
First, the provisions set out in Article 8(2) and (3) of Directive 2016/343 must be interpreted strictly, since any waiver of the right to appear implies that the decision resulting from the trial held in absentia can be enforced and that the accused person is not entitled to a new trial. That is why the situations covered by Article 8(2)(a) and (b) of that directive are scenarios in which the accused person, having been informed of the date and place of the trial, (
43
) knows that criminal proceedings have been brought against him and is aware of the nature and cause of the accusation, and therefore unequivocally waives the right to appear in person.
106.
A waiver of the right in question, expressed ‘in advance’ during the pre-trial investigation is equivocal, and the fact that the accused person has been informed of the consequences of non-appearance cannot remedy that circumstance. Indeed, that waiver occurs at an early stage in the criminal proceedings, when the competent judicial authority is investigating the case, that is to say, is conducting enquiries into facts which may or may not constitute a criminal offence. To find that a waiver of that nature can be regarded as consent to be tried in absentia would therefore conflict with the principles set out by the EU legislature and the line of cases developed by the European Court of Human Rights. That case-law, I reiterate, requires the person in question to be notified personally of the charges against him and to have been summoned in the prescribed manner. (
44
) Otherwise, it requires the waiver to be established on the basis of precise, objective and relevant facts demonstrating that the accused person was informed that criminal proceedings had been brought against him, was aware of the nature and cause of the accusations and did therefore, unequivocally, waive the right to appear and to defend himself. (
45
) In any event, according to the European Court of Human Rights, it is not sufficient that the accused person ‘had [an] inkling’ of the opening of criminal proceedings against him. (
46
)
107.
Secondly, in my view the fact that the situations referred to in Article 8(2)(a) and (b) of Directive 2016/343 are very specific shows that the EU legislature, for reasons relating to legal certainty, intended to establish exhaustively the situations in which it must be found that there has been no infringement of the procedural rights of a person who has not been present in person at the trial. Admittedly, these are common minimum rules for the Member States. However, those rules must be defined so as to foster judicial cooperation in criminal matters by facilitating the mutual recognition of decisions in criminal matters. (
47
) To allow a Member State to try a person in absentia, with that person’s agreement but on a ground other than those established in Article 8(2) of that directive, is likely to compromise that aim.
108.
In the light of the foregoing, I am therefore of the view that Article 8(2) of Directive 2016/343 must be interpreted as meaning that it precludes a Member State from finding that a person has freely waived the right to be present at the trial where that person, even though he has been informed of the consequences of non-appearance, expressed the intention to waive that right during the pre-trial investigation at a stage when the trial date had not yet been set.
109.
In the present case, the waiver by the person concerned of his right to appear at the trial did, admittedly, enjoy certain minimum safeguards. According to the information available to the Court, he was indeed accompanied by his State-appointed lawyer. He was notified that charges had formally been preferred against him, and, in the presence of an interpreter, was informed of his rights, including those set out in Article 269 of the NPK concerning the conduct and consequences of a trial in absentia. Although he stated that he understood those rights and did not wish to appear in the proceedings, it nevertheless remains true that he did not receive a copy of either the indictment or the order setting the date of the pre-trial hearing for 23 July 2020, because he had been removed from the territory on 16 June 2020 and his address remains unknown to date. It flows from the foregoing that he was therefore not informed, in due time, of the date and place of his trial under Article 8(2)(a) of Directive 2016/343, and therefore cannot be considered to have voluntarily and unequivocally waived his right to be present at it.
D.
The existence of a procedural obligation to be present at the trial (third question)
110.
By its third question, the referring court enquires of the Court, in essence, whether Article 8(1) of Directive 2016/343, according to which the Member States are to ensure that accused persons have the right to be present at their trial, precludes national legislation under which accused persons are obliged to appear at their trial.
111.
That question arises from the fact that under Article 269(1) and (2) of the NPK the accused person’s presence at the hearing is mandatory where that person has committed a serious offence, such as the offence in the main proceedings, or where it is necessary in order to determine the objective truth. (
48
)
112.
Quite clearly, it is neither the purpose nor an aim of Directive 2016/343 to place an obligation on suspects and accused persons to appear at the trial.
113.
That directive is intended to ‘enhance’ accused persons’ right to a fair trial in criminal proceedings, by requiring the Member States to ensure that they are entitled to be present at their trial. As indicated above, Article 8 of Directive 2016/343 imposes a positive obligation on those States, which have a duty to take measures to safeguard the rights under Articles 48 and 49 of the Charter.
114.
The sole subject matter and purpose of Article 8 of Directive 2016/343 is therefore to establish, in paragraph 1, the right of an accused person to be present at the trial and, in paragraph 2, to define the extent of that right, by defining the conditions under which it can be waived by the accused person. (
49
) Indeed, in recital 35 of that directive the EU legislature states that the right in question is not absolute and that accused persons are able, expressly or tacitly, but unequivocally, to waive that right, under certain conditions. In contrast to the Commission’s assertion in its observations, I believe that the EU legislature has therefore established a
right not to be present at the trial, in the same way that, in Article 7 of Directive 2016/343, it has established a
right to remain silent and a right not to incriminate oneself.
115.
In his concurring opinion in the judgment in Van Geyseghem v. Belgium, (
50
) Judge Bonello noted moreover that ‘the right of the [accused person] to be absent from his trial corresponds quite closely to his right to silence. If, in the name of the acknowledged benefits to the administration of justice, the accused’s presence at his trial were to be considered a prerequisite to any defence, substantially the same arguments could coerce him into renouncing his right to silence – in deference to those same interests of the administration of justice. In practice, I cannot foresee any case where, in a search for equilibrium between society’s interests and this particular fundamental right of the accused (even were any balancing legitimate), the latter should ever succumb to the former’.
116.
Admittedly, as the Court has highlighted, Directive 2016/343 is intended to establish common minimum rules and is therefore not a complete and exhaustive instrument intended to lay down all the conditions for the adoption of a judicial decision. (
51
) The EU legislature accordingly indicates in recital 48 of that directive that Member States should be able to extend ‘the rights laid down in [that] Directive in order to provide a higher level of protection’. However, it seems to me that by requiring accused persons to appear at their trial, a Member State is not extending the right to be present at their trial but is, conversely, restricting it, by converting that right into a duty and removing the opportunity, which is nevertheless expressly acknowledged by that directive, for accused persons, of their own free will, to waive the right to be present. Such a measure therefore cannot be regarded as contributing to enhancement of that person’s procedural rights given that, if necessary in order to protect a significant interest, the Member States can order measures to ensure that the person concerned appears at the hearing, such as immediate appearance or placing the person concerned under judicial supervision or in pre-trial detention.
117.
That interpretation is in line with the case-law developed by the European Court of Human Rights. Although that court acknowledges that the presence of the person charged at the trial is important, both on account of the right to be heard and because it is necessary to review the accuracy of that person’s statements and to compare them with those of the victim and witnesses, it leaves the Member States full discretion to organise the rules governing the trial in order to ensure that proceedings are adversarial and to ‘encourage’ the presence of the person charged. That court therefore confines itself to inviting the national legislature to ‘discourage’ unjustified absences (
52
) using the means available to it in its domestic legal order. As borne out by the terminology used, that court therefore does not impose any obligation on the accused person to appear at the trial.
118.
In the light of the foregoing, I propose that the Court should find that Article 8(1) of Directive 2016/343, according to which the Member States are to ensure that accused persons have the right to be present at their trial, must be interpreted as meaning that it precludes national legislation under which accused persons are obliged to appear at their trial.
V. Conclusion
119.
In the light of the foregoing, I propose that the Court should answer the questions referred by the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria) as follows:
(1)
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 must be interpreted as meaning that it precludes a national practice under which a return decision accompanied by an entry and residence ban against a third-country national is enforced where that person is being prosecuted in criminal proceedings for a serious offence and where the competent national authorities have not taken the specific measures necessary to ensure that the foreign national in question can be present at the trial.
In those circumstances, where a return decision accompanied by an entry and residence ban is adopted, it is necessary to verify, on a case-by-case basis, whether immediate enforcement of that decision is compatible with the rights of the defence of the accused person and, where applicable, whether the removal should be postponed or the entry and residence ban should be withdrawn or suspended, in accordance with Article 9 and Article 11(2) of that directive.
(2)
Article 8(2) of Directive 2016/343 should be interpreted as meaning that it does not preclude a Member State from trying in absentia a third-country national who is subject to a return decision accompanied by a ban on entering and residing on the national territory, provided not only that the accused person has been informed, in due time, that the trial is to be held and of the consequences of non-appearance, but also that specific measures have been made available to him in order to appear at that trial, and that person has freely and unequivocally waived the right to do so, or provided that the accused person, having been informed that the trial is to be held, is adequately represented by a lawyer appointed by him or by the State.
(3)
Article 8(2) of Directive 2016/343 must be interpreted as meaning that it precludes a Member State from finding that a person has freely waived the right to be present at the trial where that person, even though he has been informed of the consequences of non-appearance, expressed the intention to waive that right during the pre-trial investigation at a stage when the trial date had not yet been set.
(4)
Article 8(1) of Directive 2016/343, according to which the Member States are to ensure that accused persons have the right to be present at their trial, precludes national legislation under which accused persons are obliged to appear at their trial.
(
1
)	Original language: French.
(
2
)	Directive of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).
(
3
)	OJ 2008 L 348, p. 98.
(
4
)	‘The NPK’.
(
5
)	DV No 153, (‘the ZChRB’).
(
6
)	Following a request for clarification from the Court, the referring court stated that Paragraph 16 of the Zakon za izmenenie i dopalnenie na zakona za Chuzhdentsite v Republika Balgaria (Law amending the Law on foreign nationals in the Republic of Bulgaria, DV No 36) of 15 May 2009 indicates that the requirements of Directive 2008/115 have been implemented.
(
7
)	It will be recalled that it is apparent from consistent case-law that in the procedure laid down by Article 267 TFEU providing for cooperation with national courts, it is for the Court of Justice to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. For that purpose, the Court may consider provisions of EU law which the national court has not referred to in the questions it has referred, where those provisions are necessary in order to examine the dispute in the main proceedings. See, among others, judgments of 29 April 2021, Banco de Portugal and Others (C‑504/19, EU:C:2021:335, paragraph 30 and the case-law cited), and of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraph 99).
(
8
)	See judgment of 6 December 2012, Sagor (C‑430/11, EU:C:2012:777, paragraph 44 and the case-law cited).
(
9
)	See, among others, judgment of 3 June 2021, Westerwaldkreis (C‑546/19, EU:C:2021:432, paragraph 52 and the case-law cited).
(
10
)	It should be noted that, according to consistent case-law, when interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. See, by way of illustration, judgment of 14 October 2021, Dyrektor Z. Oddziału Regionalnego Agencji Restrukturyzacji i Modernizacji Rolnictwa (C‑373/20, EU:C:2021:850, paragraph 36 and the case-law cited).
(
11
)	Signed in Rome on 4 November 1950 (‘ECHR’).
(
12
)	Judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraph 43).
(
13
)	See recital 33 of Directive 2016/343.
(
14
)	Judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 29).
(
15
)	According to the second subparagraph of Article 47 of the Charter of Fundamental Rights of the European Union, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law and everyone is to have the possibility of being advised, defended and represented.
(
16
)	‘The Charter’.
(
17
)	Judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628, paragraph 38).
(
18
)	See, among others, judgment of 13 February 2020 (C‑688/18, EU:C:2020:94, paragraph 36), which refers to judgments of the European Court of Human Rights (‘ECtHR’) of 23 November 2006, Jussila v. Finland (CE:ECHR:2006:1123JUD007305301, § 40), and of 4 March 2008, Hüseyin Turan v. Turkey (CE:ECHR:2008:0304JUD001152902, § 31).
(
19
)	See judgment of the ECtHR of 23 May 2000, Van Pelt v. France (CE:ECHR:2000:0523JUD003107096, § 66).
(
20
)	C‑38/18, EU:C:2019:628, paragraph 42.
(
21
)	See judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628, paragraph 43).
(
22
)	I note in that respect that, according to the Court’s case-law, the expression ‘trial resulting in the decision’ must be understood as referring to the proceeding that led to the judicial decision which finally sentenced the person and, where criminal proceedings have taken place at several instances which have given rise to successive decisions, the Court has held that that concept refers to the last instance in those proceedings during which a court, after assessing the case in fact and in law, made a final ruling on the guilt of the person concerned and imposed a custodial sentence on him. See, to that effect, judgment of 22 December 2017Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraphs 64 and 65). The Court has held that the expression must be given an autonomous and uniform interpretation within the European Union, independently of the classifications and substantive and procedure rules in criminal matters, which by nature diverge in the various Member States (paragraph 63). The Court also stated that the concept also referred to subsequent proceedings at the end of which a judicial decision that finally amended the level of one or several previous sentences was handed down, in so far as the authority which adopted the latter decision enjoyed some discretion in that regard (paragraph 66).
(
23
)	On the interpretation of Articles 8 and 9 of Directive 2016/343, see my Opinion in Spetsializirana prokuratura and Others (Trial of an absconded accused person) (C‑569/20, EU:C:2022:26), pending before the Court, which concerns the extent to which a person who has absconded is entitled to a new trial.
(
24
)	See, for example, the European Convention on Mutual Assistance in Criminal Matters, signed in Strasbourg on 20 April 1959 (ETS No 30).
(
25
)	See, on the weight to be given to recitals, Opinion of Advocate General Szpunar in Planet49 (C‑673/17, EU:C:2019:246, point 71).
(
26
)	See, for example, where the accused person is in detention, judgments of the ECtHR of 28 August 1991, F.C.B. v. Italy (CE:ECHR:1991:0828JUD001215186), and of 31 March 2005, Mariani v. France (CE:ECHR:2005:0331JUD004364098), on violation of Article 6 ECHR. Where there is a risk of persecution see, among others, judgment of the ECtHR of 2 October 2018, Bivolaru v. Romania (CE:ECHR:2018:1002JUD006658012), on non-violation of Article 6 ECHR. For health reasons, see, for example, decision of the ECtHR of 12 February 2004, De Lorenzo v. Italy (No 69264/01, CE:ECHR:2004:0212DEC006926401), on non-violation of Article 6 ECHR. Because the person is in a foreign country, see judgment of the ECtHR of 24 March 2005, Stoichkov v. Bulgaria (CE:ECHR:2005:0324JUD000980802), concerning violation of Article 6 ECHR.
(
27
)	CE:ECHR:1991:0828JUD001215186.
(
28
)	In that respect, Directive 2016/343 differs from 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 (OJ 2012 L 315, p. 57), in which Article 17 is given over to the rights of victims resident in another Member State.
(
29
)	See judgments of 22 December 2017, Ardic (C‑571/17 PPU, EU:C:2017:1026), and of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94).
(
30
)	OJ 2008 L 327, p. 27. See also Article 2 of 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), in so far as it adds Article 4a to 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). As can be seen from the wording itself of Article 4a(1), the executing judicial authority is entitled to refuse to execute a European arrest warrant issued for the purpose of executing a custodial sentence or a detention order if the person concerned did not appear in person at the trial resulting in the decision, unless the European arrest warrant states that the conditions set out in subparagraphs (a) to (d) respectively of that provision are satisfied. See, to that effect, judgment of 17 December 2020, Generalstaatsanwaltschaft Hamburg (C‑416/20 PPU, EU:C:2020:1042, paragraph 38 and the case-law cited).
(
31
)	See, for example, judgment of the ECtHR of 17 January 2012, Othman (Abu Qatada) v. United Kingdom (CE:ECHR:2012:0117JUD000813909, §§ 258 and 259).
(
32
)	See, recitals 2 and 11 of Directive 2008/115 and judgments of 18 December 2014, Abdida (C‑562/13, EU:C:2014:2453, paragraph 42), and of 2 July 2020, Stadt Frankfurt am Main (C‑18/19, EU:C:2020:511, paragraph 37 and the case-law cited).
(
33
)	Judgment of 11 June 2015, Zh. and O. (C‑554/13, EU:C:2015:377, paragraph 49 and the case-law cited).
(
34
)	See paragraphs 69 and 70 of that judgment.
(
35
)	Here the EU legislature has incorporated the case-law of the European Court of Human Rights, according to which neither the letter nor the spirit of Article 6 ECHR prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees associated with a fair trial. However, that waiver must be established unequivocally. See, for example, judgment of the ECtHR of 1 March 2006, Sejdovic v. Italy (CE:ECHR:2006:0301JUD005658100, § 86), and of 13 March 2018, Vilches Coronado and Others v. Spain (CE:ECHR:2018:0313JUD005551714, § 36). See also in that respect, judgment of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94, paragraph 37).
(
36
)	Where those conditions cannot be fulfilled because the accused person cannot be located, despite the efforts made by the competent national authorities to do so, under Article 8(4) and Article 9 of Directive 2016/343 Member States must ensure that a new trial can be held.
(
37
)	According to the case-law of the ECtHR, the national courts must exercise the diligence required by properly summoning the accused person. See, for example, judgments of the ECtHR of 12 February 1985, Colozza v. Italy (CE:ECHR:1985:0212JUD000902480, § 32), and of 12 June 2018, M.T.B. v. Turkey (CE:ECHR:2018:0612JUD004708106, §§ 49 to 53). That means that he must be notified of a hearing in such a way as not only to have knowledge of the date, time and place of the hearing, but also enough time to prepare his case and to attend the court hearing. See, to that effect, judgment of the ECtHR of 28 August 2018, Vyacheslav Korchagin v. Russia (CE:ECHR:2018:0828JUD001230716, § 65).
(
38
)	See also recital 37 of Directive 2016/343.
(
39
)	See, in that respect, recital 12 of Directive 2016/343.
(
40
)	See, among others, judgment of the ECtHR of 14 June 2001, Medenica v. Switzerland (CE:ECHR:2001:0614JUD002049192), in which that court states in relation to the person concerned, who had been informed in due time of the proceedings against him and of the date of his trial, that ‘[his] defence at the trial was conducted by two lawyers of his own choosing’ (§ 56).
(
41
)	See, in that regard, judgments of the ECtHR of 13 February 2001, Krombach v. France (CE:ECHR:2001:0213JUD002973196, § 89), and of 1 March 2006, Sejdovic v. Italy (CE:ECHR:2006:0301JUD005658100, § 91).
(
42
)	See, among others, judgment of the ECtHR of 1 March 2006, Sejdovic v. Italy (CE:ECHR:2006:0301JUD005658100, § 91). Emphasis added.
(
43
)	I note that according to the Court, the concept of ‘trial resulting in the decision’ must be given an autonomous and uniform interpretation within the European Union, independently of the classifications and substantive and procedure rules in criminal matters, which by nature diverge in the various Member States. The Court has defined that concept as referring to the proceeding that led to the judicial decision which finally sentenced the person. Where criminal proceedings take place at several instances giving rise to successive decisions, the Court has held that that concept refers to the last instance in those proceedings during which a court, after assessing the case in fact and in law, made a final ruling on the guilt of the person concerned and imposed a custodial sentence on him. See, to that effect, judgment of 22 December 2017Ardic (C‑571/17 PPU, EU:C:2017:1026, paragraphs 63 to 65 and the case-law cited).
(
44
)	See, for example, judgments of the ECtHR of 12 February 1985, Colozza v. Italy (CE:ECHR:1985:0212JUD000902480, § 32), and of 12 June 2018, M.T.B. v. Turkey (CE:ECHR:2018:0612JUD004708106, §§ 49 to 53). According to the case-law of that court, such a waiver cannot be inferred either from vague and non-official knowledge (see, inter alia, ECtHR, 23 May 2006, Kounov v. Italy, CE:ECHR:2006:0523JUD002437902, § 47), or from a mere presumption, or from a mere classification as an absconded person (see ECtHR, 12 February 1985, Colozza v. Italy, CE:ECHR:1985:0212JUD000902480, § 28).
(
45
)	See judgments of the ECtHR of 1 March 2006, Sejdovic v. Italy (CE:ECHR:2006:0301JUD005658100, §§ 98 and 99); of 23 May 2006, Kounov v. Bulgaria (CE:ECHR:2006:0523JUD002437902, § 47); of 26 January 2017, Lena Atanasova v. Bulgaria (CE:ECHR:2017:0126JUD005200907, § 52); and of 2 February 2017, Ait Abbou v. France (CE:ECHR:2017:0202JUD004492113, §§ 62 to 65).
(
46
)	See ECtHR, 12 February 1985, Colozza v. Italy (CE:ECHR:1985:0212JUD000902480, § 28).
(
47
)	See recitals 2, 3, 4 and 10 of Directive 2016/343.
(
48
)	I would point out nevertheless that there are many exceptions to that rule. In particular, Article 269(4) of the NPK states that the presence of the person concerned is not mandatory if that absence does not preclude the determination of the objective truth, where that person is located outside the Republic of Bulgaria and his place of residence is unknown.
(
49
)	See also recital 35 of Directive 2016/343.
(
50
)	See concurring opinion of Judge Giovanni Bonello in the judgment of the ECtHR of 21 January 1999, Van Geyseghem v. Belgium (ECLI:CE:ECHR:1999:0121JUD002610395).
(
51
)	See, to that effect, judgments of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraphs 45 to 47), and of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94, paragraph 30 and the case-law cited).
(
52
)	See, among others, judgments of the ECtHR of 23 November 1993, Poitrimol v. France (CE:ECHR:1993:1123JUD001403288, § 35), and of 9 July 2015, Tolmachev v. Estonia (CE:ECHR:2015:0709JUD007374813, § 47).