62023CJ0400_RES
Case C‑400/23
VB
(Request for a preliminary ruling from the Sofiyski gradski sad)
Judgment of the Court (Fourth Chamber) of 16 January 2025
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Right to be present at the trial – Article 8(2) – Trial resulting in a decision imposing a conviction in absentia or a decision of acquittal in absentia – Conditions – Article 8(4) – Obligation to inform the person tried in absentia of the legal remedies available – Article 9 – Right to a new trial or to another legal remedy which allows a fresh determination of the merits of the case and which may lead to the original decision being reversed – Article 10(1) – Right to an effective remedy – National legislation making the recognition of the right to a new trial subject to the submission of a request to reopen criminal proceedings to a judicial authority before which the person tried in absentia must appear)
Judicial cooperation in criminal matters – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Directive 2016/343 – Right to be present at the trial – Proceedings in absentia – Right to a new trial or to another legal remedy – National legislation making the recognition of the right to a new trial subject to the submission of a request to reopen criminal proceedings – Whether permissible – Conditions
(European Parliament and Council Directive 2016/343, Arts 8(2) and (4) and 9)
(see paragraphs 43-46, 59-69, 75, operative part 1)
Judicial cooperation in criminal matters – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Directive 2016/343 – Right to be present at the trial – Proceedings in absentia – Right to a new trial or to another legal remedy – Obligation to inform the person tried in absentia of his or her right to a new trial or to another legal remedy – Assessment whether that right exists by the court conducting a trial in absentia and reference to that right in the decision provided to the person concerned – Whether permissible
(European Parliament and Council Directive 2016/343, Arts 8(2) and (4), 9 and 10(1))
(see paragraphs 85-87, operative part 2)
Judicial cooperation in criminal matters – Strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings – Directive 2016/343 – Right to be present at the trial – Proceedings in absentia – Right to a new trial or to another legal remedy – Obligation to inform the person tried in absentia of his or her right to a new trial or to another legal remedy – Scope – Acquittal decision rendered in absentia – Included
(European Parliament and Council Directive 2016/343, Arts 8(2) and (4) and 9)
(see paragraphs 90-95, operative part 3)
Résumé
Ruling on a request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria), the Court of Justice clarifies the obligations of the Member States in criminal proceedings conducted in absentia.
The referring court is seised of criminal proceedings brought against VB, who is charged with acts constituting criminal offences punishable by custodial sentences. VB has not been formally notified of the charges brought against him. Moreover, he has not been informed either that his case has been brought before a court, or, more specifically, of the date and place of the trial or of the consequences of his non-appearance. The competent national authorities have not succeeded in locating VB, since he absconded during the pre-trial stage, prior to the police operation to apprehend the suspects.
Taking the view that the conditions for conducting the trial in the absence of the accused person, provided for by Directive 2016/343, (
1
) are not satisfied in the present case, the referring court is uncertain as regards the scope of its obligation to inform the person tried in absentia of the legal remedies available. (
2
) It states that in Bulgaria, as soon as the time limit for lodging an appeal against a conviction imposed in absentia expires, the only legal remedy available against that conviction is a request to reopen the criminal proceedings, which must be submitted to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). That ‘right to a new trial or to another legal remedy’ is neither communicated nor even recognised at the time the person convicted in absentia is informed of the conviction. Furthermore, Bulgarian law provides for an obligation on the part of the person who has submitted a request to reopen the criminal proceedings to appear before the court that will examine that request, failing which no further action will be taken on the request.
The referring court, having doubts as regards the compatibility of the Bulgarian procedural system with Directive 2016/343, referred several questions to the Court of Justice for a preliminary ruling.
Findings of the Court
First of all, as regards the right of the person convicted in absentia‘to a new trial or to another legal remedy’ within the meaning of Article 8(4) of Directive 2016/343, the Court states that that directive does not preclude a Member State from establishing a procedural system that does not automatically lead to the reopening of criminal proceedings but requires persons convicted in absentia who are interested in such a reopening to submit a request to that end to another court, separate from that which rendered the decision in absentia, in order for that other court to ascertain that the condition governing the right to a new trial is satisfied, that is to say, that the conditions laid down in Article 8(2) of that directive were not satisfied. This follows, in particular, from the wording of Article 8(4) of the directive concerned. First, the fact that the possibility of challenging the decision rendered in absentia is presented as a separate procedural element independent of the ‘right to a new trial or to another legal remedy’ indicates that Member States have the possibility of providing for proceedings which precede a new trial or the exercise of another legal remedy, since the purpose of such proceedings may be to ascertain that the abovementioned conditions were not satisfied. Second, the use of the coordinating conjunction ‘or’ in the phrase ‘right to a new trial or to another legal remedy’ implies that the Member States have the choice of providing for the reopening of criminal proceedings in the form of a new trial or of providing for ‘another legal remedy’ equivalent to a new trial.
The Court considers that such a procedural system is compatible with Directive 2016/343 provided that, first, the proceedings relating to the request for the reopening of criminal proceedings do in fact allow a new trial to be held in all cases where it is established, after verification, that the conditions laid down in Article 8(2) of that directive were not satisfied, and second, the person convicted in absentia, when he or she is informed of the conviction, is also informed of the existence of those proceedings.
Next, the Court recalls that it is for the referring court to assess whether the procedural system established by the Bulgarian legislature is compatible with Directive 2016/343, and in particular whether the proceedings relating to the reopening of criminal proceedings meet all the requirements stemming from the principle of effectiveness.
As regards the assessment of whether the system established by the Bulgarian legislature observes the principle of effectiveness, in the first place, the Court states that it is important to guarantee that the proceedings relating to the request to reopen criminal proceedings lead to the recognition of the right to a new trial in all cases where the conditions laid down in Article 8(2) of that directive were not satisfied.
In the second place, it must be ascertained whether the person convicted in absentia receives, at the time he or she is informed of that conviction or shortly thereafter, a copy in full of the decision rendered in absentia and information as regards his or her procedural rights, including as regards the possibility of making a request to reopen the criminal proceedings and as regards the court before which and the time limit within which that request must be made.
In the third place, any proceedings relating to a request for a new trial must be organised in such a way that that request is dealt with all due speed, so that it is determined as soon as possible whether the trial in absentia took place without the conditions laid down in Article 8(2) of Directive 2016/343 having been satisfied. That requirement of speed is all the more important since decisions rendered in absentia can be enforceable.
In the last place, the principle of effectiveness requires that the person concerned be able to express his or her views, in person or through a lawyer, on the question whether the trial in absentia took place without the conditions laid down in Article 8(2) of Directive 2016/343 having been satisfied. That possibility cannot be understood as meaning that there is an obligation on the part of the person concerned to appear in person before the court examining that request. The obligation for the person concerned who has become aware of the conviction to appear in person before the court to which he or she submitted a request for a new trial amounts to obliging a person still at liberty to surrender to custody in order to secure the right to a new trial. This would be incompatible with the fundamental right to a fair trial.
Furthermore, as regards the obligation to inform the person tried in absentia of his or her right to a new trial, the Court recalls (
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) that the EU legislature has refrained from specifying the manner in which the information relating to the ‘right to a new trial or to another legal remedy’ is to be provided. Although Directive 2016/343 cannot be interpreted as requiring a court adjudicating in absentia to rule, in its decision, on the right to a new trial, (
4
) it leaves a broad discretion to the Member States as regards its implementation. It cannot therefore be interpreted as prohibiting that court from examining, during a trial conducted in absentia, whether the conditions laid down in Article 8(2) of that directive are satisfied and, where those conditions are not satisfied, from stating in its decision that the person concerned is entitled to a new trial. It is important, nevertheless, in the examination carried out in that regard by the court conducting a trial in absentia, that that court hear the lawyer who represents the person concerned, since that person is, in that situation, absent. The requirements imposed by Directive 2016/343 are thus met where the court conducting a trial in absentia itself examines, after hearing both the prosecution and defence counsel on that matter, whether the conditions laid down in Article 8(2) of that directive are satisfied and, where they are not satisfied, states, in the decision rendered in absentia, a copy in full of which is to be provided to the person concerned at the time that person is informed of that decision or shortly thereafter, that he or she is entitled to a new trial.
(
1
)	Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1). Under Article 8(2) of that directive, ‘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.’
(
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)	Article 8(4) of Directive 2016/343 provides that, in the event of a trial being held without it being possible to satisfy the conditions laid down in Article 8(2) of the directive because the suspect or accused person cannot be located despite reasonable efforts having been made, Member States are to 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.
(
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)	Judgment of 8 June 2023, VB (Information for a person convicted in absentia) (C‑430/22 and C‑468/22, EU:C:2023:458, paragraph 27).
(
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)	Judgment of 8 June 2023, VB (Information for a person convicted in absentia) (C‑430/22 and C‑468/22, EU:C:2023:458, paragraph 31).