1 This request for a preliminary ruling concerns the interpretation of Article 8(4) and Article 9 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).
2 The request has been made in connection with a request to reopen criminal proceedings made by M. S. T. following his conviction in absentia to one year’s imprisonment for aggravated theft.
3 Recitals 33, 36 and 38 of Directive 2016/343 read as follows:
4 Article 1 of that directive, entitled ‘Subject matter’, provides: ‘This Directive lays down common minimum rules concerning:
5 Article 8 of the Directive, entitled ‘Right to be present at the trial’, provides, in paragraphs 2 and 4 thereof: ‘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 he absence, provided that: 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.’
6 Article 9 of Directive 2016/343, entitled ‘Right to a new trial’, is worded as follows: ‘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.’
7 Article 34(1)(b) and (c) of Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU (OJ 2018 L 312, p. 56), provides: ‘For the purposes of communicating the place of residence or domicile of persons, Member States shall, at the request of a competent authority, enter into SIS alerts on: …
8 Article 219(3)(3) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, DV No 86 of 28 October 2005), in the version thereof applicable to the main proceedings (‘the NPK’), provides: ‘The notice of charges … shall specify … the acts with which [the person concerned] is charged and their legal classification.’
9 Article 247c(1) of the NPK provides: ‘By order of the judge rapporteur, a copy of the indictment shall be served on the accused person. Through service of the indictment, the accused person shall be informed of the date fixed for the preliminary hearing … and of the fact that the case may be heard and decided in his or her absence in accordance with Article 269.’
10 Under Article 269 of the NPK: ‘1. In cases where the accused person has been indicted for a serious criminal offence, his or her presence at the hearing shall be mandatory. … 3. Provided that this does not prevent the truth from being ascertained objectively, the case may be heard in the absence of the accused person, if:
11 Article 423(1) of the NPK provides: ‘Within six months of becoming aware of the final judgment in criminal proceeding …, the person convicted in absentia may request the reopening of the criminal [proceedings] relying on the fact that he or she was not present during [those proceedings]. The request shall be granted, except in the event that the convicted person absconded after notification of the charges in the preliminary procedure, with the result that the procedure under Article 247c(1) cannot be carried out, or, after that procedure was carried out, the convicted person failed to appear at the hearing without valid reason.’
12 On 5 February 2024, M. S. T. and his court-appointed lawyer were served a preliminary indictment, drawn up in accordance with Article 219 of the NPK (‘the preliminary indictment’), relating to aggravated theft allegedly committed in October 2023. The preliminary indictment required M. S. T. periodically to sign a register held by the police authorities in his place of residence. In addition, that indictment informed M. S. T. that he should not leave that place and that he should present himself to the authorities in the event of being summoned.
13 During the preliminary investigation, M. S. T. was questioned and provided an address at which he could be contacted by the authorities. He also stated that he had been informed of the obligation to pay the costs of the court-appointed lawyer if he were to be convicted.
14 On 28 February 2024, the public prosecutor filed an indictment against M. S. T. pursuant to Article 246 of the NPK, and brought the case before the Rayonen sad Montana (District Court, Montana, Bulgaria). The charge made in that indictment coincided, in fact and in law, with the charge in the preliminary indictment which had been served on him during the preliminary investigation.
15 The Rayonen sad Montana (District Court, Montana) sent a notification regarding the date and place of the trial to the address provided by M. S. T. during the preliminary investigation. However, that notification was returned to that court together with a statement by the competent official that it was apparent from information provided by his relatives that M. S. T. was working in Germany.
16 Subsequently, the referring court attempted to summon M. S. T. in person, in particular by ordering that he be summoned by telephone on a number that he had indicated, checking on his cross-border movements and ordering the police to search for him. However, those searches proved unsuccessful, with the information gathered indicating that M. S. T. had left Bulgaria on 16 February 2024.
17 The Rayonen sad Montana (District Court, Montana) heard the charge against M. S. T. in his absence. The court-appointed lawyer who had assisted M. S. T. during the preliminary investigation phase appeared in the proceedings before that court.
18 On 8 May 2024, that court sentenced M. S. T. in absentia to one year’s imprisonment. That judgment became final on 24 May 2024 and M. S. T. began to serve his sentence on 16 June 2024.
19 M. S. T. submitted before the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), the referring court, a request to reopen the criminal proceedings which led to his conviction in absentia.
20 That court explains that it consistently interprets Article 423(1) of the NPK as meaning that a person convicted in absentia is not entitled to a new trial where the court which imposed the conviction took the procedural steps required to inform that person, in due time, of the date and place of the trial, but that person absconded after receiving a preliminary indictment drawn up against him or her during the preliminary investigation, the charge against the person has not been materially altered, in fact or in law, since then, and the person was represented by a court-appointed lawyer.
21 Since it considers that a convicted person should not be able to rely on non-appearance resulting from his or her unlawful conduct, the referring court takes the view that a person who has absconded, infringed a detention order or unlawfully left the address that he or she had provided to the authorities should not be granted the right to a new trial. That court deduces from that line of reasoning that the Bulgarian legislation, as interpreted by it, is compatible with EU law and, in particular, with Article 8(4) and Article 9 of Directive 2016/343.
22 The referring court does, however, question the compatibility of that interpretation of the national legislation with the Court’s interpretation of Articles 8 and 9 of that directive in the judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, EU:C:2022:401), and of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16). It asks, more specifically, whether service of a preliminary indictment can be treated as equating to the person to whom that indictment is addressed being aware that he or she is going to be brought to trial and of the legal consequences of absconding before being brought before a trial court.
23 In those circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
24 The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in the first paragraph of Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Rules of Procedure of the Court of Justice.
25 In support of that request, that court states that M. S. T. is serving the prison sentence imposed on him in absentia and that it could order his release if the criminal proceedings which led to the imposition of that sentence were reopened. It also states that new criminal proceedings could result in a plea agreement, under which a lesser penalty than the statutory minimum incurred for aggravated theft could be imposed on M. S. T.
26 In that regard, it should be noted, in the first place, that this reference for a preliminary ruling concerns the interpretation of Directive 2016/343, which comes under Title V of Part Three of the FEU Treaty, relating to the area of freedom, security and justice. Consequently, the reference may be dealt with under the urgent preliminary ruling procedure.
27 In the second place, as regards the criterion relating to urgency, it follows from settled case-law of the Court that that criterion is satisfied when the person concerned in the case in the main proceedings is, as at the date when the request for a preliminary ruling is made, deprived of his or liberty and the question as to whether he or she may continue to be held in custody turns on the outcome of the dispute in the main proceedings (judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 52 and the case-law cited).
28 In the present case, it is apparent from the information provided by the referring court that M. S. T. is deprived of his liberty, that the reopening of the criminal proceedings that led to his conviction in absentia could result in him being released pending a new trial and that the questions referred seek to determine whether such a reopening must be ordered in the context of the main proceedings.
29 In those circumstances, pursuant to Article 108(1) of the Rules of Procedure, the Third Chamber of the Court decided, on 26 February 2025, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.
30 By its two questions, which should be examined together, the referring court asks, in essence, whether Articles 8 and 9 of Directive 2016/343 must be interpreted as precluding, pursuant to national legislation relating to accused persons who have absconded, the right to a new trial from being denied to a person convicted in absentia who has submitted a request to that end where - firstly, the competent authorities made efforts to inform that person of the date and place of the trial but he or she had absconded, in infringement of a detention order which had been imposed on him or her, after receiving a preliminary indictment; - secondly, the indictment and a document indicating the date and place of that trial were sent to that person and actually delivered to the address which he or she had provided to those authorities after receiving the preliminary indictment, the content of which corresponds, as regards the alleged acts and their legal classification, to that of the indictment; and - thirdly, the person was represented by a court-appointed lawyer throughout the judicial proceedings conducted in his or her absence.
31 It should be borne in mind that, in accordance with Article 1 thereof, Directive 2016/343 has as its subject matter the laying down of common minimum rules concerning certain aspects of criminal proceedings, including the ‘right to be present at the trial’. As recital 33 of that directive expressly confirms, that right forms an integral part of the fundamental right to a fair trial (judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 25, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 34).
32 Member States may, however, in accordance with Article 8 of Directive 2016/343, subject to certain conditions, provide for a trial to be held in absentia, on the understanding that where such a trial is conducted without the conditions laid down in Article 8(2) being met, the person concerned has - pursuant to Article 8(4) and Article 9 of that directive, which have direct effect - the 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 (‘the right to a fair trial’) (see, to that effect, judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraphs 26 to 28, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 35).
33 It follows that a person convicted in absentia may be deprived of the right to a new trial only if the conditions laid down in Article 8(2) of Directive 2016/343 are satisfied (judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 31, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 36).
34 In that regard, it must be observed that points (a) and (b) of Article 8(2) of that directive are applicable alternatively and that they each set out two cumulative conditions, the first of which requires that the person concerned is informed of the trial.
35 As is apparent from recital 38 of Directive 2016/343, it is necessary, when determining whether that condition is met, to pay particular attention to the diligence exercised by public authorities in order to inform the person convicted in absentia of the trial and to the diligence exercised by that person in order to receive the information relating thereto. Consequently, any precise and objective indicia that that person, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial are relevant for the purpose of assessing that same condition. Such precise and objective indicia may, for example, be found to exist where that person has deliberately communicated an incorrect address to the competent authorities or is no longer at the address that he or she communicated to them (see, to that effect, judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraphs 48 to 50, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 38).
36 A person convicted in absentia may inter alia be regarded as having sufficient information to know that he or she was going to be brought to trial if he or she received a preliminary indictment, the content of which corresponds, as regards the alleged acts and their legal classification, to the content of the final indictment ultimately drawn up in his or her regard (see, to that effect, judgment of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 39).
37 It follows that, where the person concerned absconded after receiving such a preliminary indictment, Member States are entitled to take the view that the dispatch in due time, by the competent authorities, of an official document indicating the date and place of the trial to the address which that person communicated to those authorities during the pre-trial investigation of the case, and the proof that that document was actually delivered to that address, are tantamount to informing the person of that date and place, in accordance with Article 8(2) of Directive 2016/343. However, that holds true only if those authorities have made reasonable efforts to locate that person and to summon him or her in person or, by other means, provide him or her with official information about the date and place of the trial, as contemplated in recital 36 of that directive. In that situation, the person concerned is deemed to have been informed of the trial (see, to that effect, judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 48, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 42).
38 The second condition required in order for a person convicted in absentia to be denied the right to a new trial may be satisfied either, in accordance with Article 8(2)(a) and (4) of Directive 2016/343, if that person has been informed, in due time, of the consequences of not appearing at the trial or, pursuant to Article 8(2)(b) and (4) of that directive, if the person was represented at the trial by a mandated lawyer, who was appointed either by that person or by the State.
39 In that regard, it must be observed that, while the information regarding the consequences of non-appearance may be communicated to the person concerned when he or she is summoned to trial, it cannot be ruled out that it may already have been sent to him or her prior to the criminal proceedings. This may be the case inter alia where, during the pre-trial investigation, a person to whom a preliminary indictment is addressed is clearly made aware of the fact that he or she would risk being tried in his or her absence if he or she were to abscond from the competent authorities, for example by infringing detention measures imposed or no longer being contactable at the address provided to those authorities (see, to that effect, judgment of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 51).
40 In contrast, if the information on the consequences of failing to appear at the trial are not actually communicated, in due time, to the person concerned, in accordance with the detailed rules which afford certainty that that information has been provided and actually received by that person, the second condition laid down in Article 8(2)(a) of Directive 2016/343 cannot be regarded as having been satisfied. Thus, the person can under no circumstances simply be deemed to have received the information, even if he or she absconded before the stage of the procedure at which that information should normally have been communicated to him or her in accordance with the applicable national rules. Whilst knowing that charges have been laid against him or her can reasonably allow a suspected or accused person to ascertain that he or she will probably be brought to trial, that knowledge alone does not enable that person to understand the consequences of failing to appear at that trial.
41 Furthermore, as regards representation by a mandated lawyer, it must be stated that, in order for there to be a ‘mandate’ within the meaning of Article 8(2)(b) of Directive 2016/343, the person concerned must himself or herself have entrusted a lawyer, as the case may be a court-appointed lawyer, with the task of representing him or her at the trial in absentia (see, to that effect, judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 56).
42 It follows from the foregoing that, if the person concerned has not been informed in due time of the trial, or if, having been informed thereof or being deemed to have received such information, he or she was not informed of the consequences of non-appearance and was also not duly represented at that trial by a mandated lawyer, that person enjoys, as a rule, upon becoming aware of the decision handed down in absentia, the right to a new trial (see, to that effect, judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), C‑569/20, EU:C:2022:401, paragraph 31, and of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 37).
43 In the present instance, it is apparent from the request for a preliminary ruling that the referring court considers that the fact that the person convicted in absentia absconded after receiving a preliminary indictment justifies, on its own, the right to a new trial provided for in that directive being denied to that person, since his non-attendance at the trial is, ultimately, the result of unlawful conduct on his part.
44 It must, however, be stated, first, that, as observed in paragraph 37 above, the fact that a convicted person absconded after receiving a preliminary indictment can only be grounds for considering that that person is deemed to have been informed of the trial if, in addition, the competent authorities made reasonable efforts to locate that person and to summon him or her in person or, by other means, provide him or her with official information about the date and place of that trial.
45 Second, as is apparent from paragraphs 33, 34 and 38 above, even where a person is deemed to have been informed of the trial, it is also necessary, in order for that person to be legitimately denied the right to a new trial pursuant to Article 8(4) of Directive 2016/343, that the second condition laid down in either Article 8(2)(a) or Article 8(2)(b) of that directive is satisfied (see, to that effect, judgment of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 43).
46 In addition, in the light of the requirements arising from that second condition, which have been recalled in paragraphs 38 to 41 above, that condition cannot be regarded as being satisfied simply because that person absconded before the trial was held. Similarly, the fact that the person absconding prevented, in practice, him or her from being informed about that trial and about the consequences of non-appearance is incapable of satisfying those requirements.
47 It follows from the foregoing that an interpretation of the Bulgarian legislation at issue in the main proceedings as set out in paragraph 43 above would be incompatible with Directive 2016/343.
48 That said, it cannot be ruled out that that legislation may be interpreted differently from how it has been interpreted thus far by the referring court. It is thus for that court to examine whether the legislation may be interpreted in such a way as to limit the forfeiture of the right to a new trial solely to cases in which all the conditions laid down in Article 8(2) of Directive 2016/343 are met. If it is not possible to interpret that legislation in compliance with the requirements of EU law, and since, as recalled in paragraph 32 above, Article 8(4) and Article 9 of that directive have direct effect, that court is required to disapply any national provision which is contrary to those provisions of EU law, without having to request or await the prior setting aside of the provision of national law which is incompatible with the provisions of EU law (see, to that effect, judgment of 16 January 2025, Stangalov, C‑644/23, EU:C:2025:16, paragraph 45 and the case-law cited).
49 In that situation, the referring court would then have to consider for itself whether or not the conditions laid down in Article 8(2) of Directive 2016/343 are satisfied in the situation at issue in the main proceedings.
50 In that connection, with regard, in the first place, to whether M. S. T. can be deemed to have been informed of the trial, it will be for the referring court to rely upon the guidance arising from paragraphs 34 to 37 above.
51 From that perspective, the fact that that person had received a preliminary indictment and infringed a detention order imposed by that indictment, by leaving the address provided to the investigating authorities without informing them, appears, prima facie, to be a precise and specific indication that the person, knowing that he was going to be brought to trial, took deliberate steps to avoid receiving officially the information relating to the date and place of that trial.
52 In such circumstances, the service of the indictment and of a document indicating the date and place of the scheduled trial at the address which M. S. T. had provided to the investigating authorities after receiving the preliminary indictment, the content of which corresponds, as regards the alleged acts and their legal classification, to that of the indictment, is such as to allow the view to be taken that that person is deemed to have been informed of that trial, once provided, however, that the competent authorities made reasonable efforts to locate the person and to summon him or her in person or, by other means, provide him or her with official information about the date and place of that trial.
53 With regard more specifically to the latter obligation, steps such as those mentioned in paragraph 16 above do, admittedly, appear capable of assisting in the location of the person concerned.
54 However, with a view to determining whether that obligation was fulfilled in the case in the main proceedings, it is for the referring court to establish whether the competent authorities had other effective means at their disposal which would have allowed M. S. T. to be located and which they did not use even though they could reasonably have done so.
55 In that regard, it must be observed, in particular, that Article 34(1)(b) and (c) of Regulation 2018/1862 allows Member States, for the purposes of communicating the place of residence or domicile of persons, to enter into SIS alerts on, respectively, persons summoned or sought to be summoned before the judicial authorities in connection with criminal proceedings in order to account for facts for which they are being prosecuted and persons who are to be served with documents in connection with criminal proceedings in order to account for such acts.
56 In the light of the interest in entering such an alert to obtain information about a person located in another Member State, the view must be taken that where, as appears to be the case in the situation at issue in the main proceedings, the competent authorities have information indicating that a person on whom they wish to serve an indictment and a document indicating the date and place of the trial has travelled to another Member State, those authorities are required, in order to be regarded as having made ‘reasonable efforts’, within the meaning set out in paragraph 52 above, to enter an alert into SIS pursuant to Article 34 of Regulation 2018/1862.
57 With regard, in the second place, to the second condition that must be met in order for a person convicted in absentia to be denied the right to a new trial, first, it is not apparent from the information stated in the second question and, more broadly, from the presentation of the dispute in the main proceedings contained in the order for reference that the questions referred concern a situation in which the convicted person was, in some way or another, informed, in due time, of the consequences of non-appearance, as is required under Article 8(2)(a) of Directive 2016/343.
58 In particular, the referring court does not state that the preliminary indictment served on M. S. T. contained information about the consequences of non-appearance, as, on the contrary, the wording of the first question demonstrates that that court intends to ask the Court about a situation in which the absconding of the person convicted in absentia prevented such information from being communicated to him.
59 Second, as regards the condition relating to the representation of the person convicted in absentia by a lawyer mandated for that purpose, it follows from the case-law of the Court recalled in paragraph 41 above that the mere fact that a person convicted in absentia was defended by a court-appointed lawyer throughout the judicial proceedings conducted in his or her absence is not sufficient to satisfy the second condition laid down in Article 8(2)(b) of Directive 2016/343.
60 In that context, it must admittedly be observed that the situation at issue in the main proceedings differs from that which gave rise to the judgments of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person) (C‑569/20, EU:C:2022:401), and of 16 January 2025, Stangalov (C‑644/23, EU:C:2025:16). In the case which gave rise to those judgments, it was established that the accused person had had no contact with his court-appointed lawyer, whereas it is apparent from the information provided by the referring court that the lawyer who represented M. S. T. before the trial court had already been appointed, before the latter absconded, to assist him during the pre-trial proceedings. It cannot therefore be ruled out that that lawyer was in contact with M. S. T. at that time.
61 However, representation by a lawyer demonstrates that a person tried in his or her absence voluntarily and unequivocally waived the right to present at the trial only if that person deliberately left it to that lawyer to mount his or her defence before the trial court, which presupposes that he or she appointed the lawyer specifically to represent him or her, in his or her absence, during the trial.
62 It follows that contact between the person convicted in absentia and a court-appointed lawyer which occurred solely over the course of the pre-trial stage cannot be regarded as being sufficient to show that that person was represented, during his or her trial in absentia, ‘by a mandated lawyer’ within the meaning of Article 8(2)(b) of Directive 2016/343.
63 It therefore falls to the referring court to determine whether, on the basis of the information available to it, M. S. T. unequivocally entrusted the court-appointed lawyer with the task of representing him, in his absence, before the trial court.
64 Furthermore, regardless of the foregoing, it should be recalled that Directive 2016/343 does not preclude a Member State from establishing a procedural system that requires persons convicted in absentia who are interested in reopening criminal proceedings 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. Such a system is compatible with that directive provided that, first, the proceedings relating to the request for that reopening 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 was informed of the conviction, was also informed of the existence of those proceedings (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 46).
65 Accordingly, the establishment of proceedings to reopen criminal proceedings such as those at issue in the main proceedings, which do not, in themselves, involve a new trial, but which are liable to lead to such a trial, does not appear incompatible with Directive 2016/343, provided that the conditions set out in the preceding paragraph are verified and those proceedings meet all the requirements stemming from the principle of effectiveness and observe, moreover, the principle of equivalence (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 57).
66 In that regard, it must be borne in mind that the principle of effectiveness requires inter alia that 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 (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 61).
67 The principle of effectiveness also requires that any proceedings relating to a request for a new trial must be organised in such a way that that request is dealt with in 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. Where a Member State establishes a procedural system under which it has not yet been determined, at the time the person concerned is informed of his or her conviction in absentia, if that conviction was imposed without those conditions having been satisfied, it is for that Member State, if the principle of effectiveness is not to be undermined, to ensure that that examination takes place shortly after the submission of the request for a new trial (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 63).
68 More specifically, in cases such as that at issue in the main proceedings in which the request to reopen criminal proceedings is examined whilst the person concerned is serving the prison sentence imposed on him or her, the adoption with the utmost speed of the decision relating to that request is essential in order for the principle of effectiveness to be observed (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraphs 64 and 65).
69 The purpose of that requirement to adopt a decision with the utmost speed is to ensure that the fundamental rights of the person convicted in absentia are respected, by precluding his or her long-term detention on the basis of a sentence imposed in his or her absence, whilst it has not yet been determined whether that person’s guilt and the penalty imposed on him or her were decided in a manner compatible with the right to a fair trial, as given concrete expression by the EU legislature in Directive 2016/343.
70 Furthermore, since the judicial authorities of the Member State concerned usually have, on the date of the judgment in absentia, the information required to be able to assess whether the conditions laid down in Article 8(2) of Directive 2016/343 are satisfied, the court before which a request to reopen the criminal proceeding is brought must be regarded as being capable of ruling on that request within a short period of time.
71 In the light of all the foregoing reasons, the answer to the questions referred is that Articles 8 and 9 of Directive 2016/343 must be interpreted as not precluding, pursuant to national legislation relating to accused persons who have absconded, the right to a new trial from being denied to a person convicted in absentia who has made a request to that effect where - firstly, the competent authorities made efforts to inform that person of the date and place of the trial but he or she had absconded, in infringement of a detention order which had been imposed on him or her, after receiving a preliminary indictment, - secondly, the indictment and a document indicating the date and place of that trial were sent to that person and actually delivered to the address which he or she had provided to those authorities after receiving the preliminary indictment, the content of which corresponds, as regards the alleged acts and their legal classification, to that of the indictment, and - thirdly, the person was represented by a court-appointed lawyer throughout the judicial proceedings conducted in his or her absence, provided that, first, those authorities used all the means to which they could reasonably have recourse to locate the person convicted in absentia before his or her trial and, second, that person either was informed, in due time, of the consequences of non-appearance or he or she entrusted, unequivocally, to his or her court-appointed lawyer a mandate to represent him or her, in his or her absence, before the trial court.
72 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.