Spetsializirana prokuratura (Procès d’un accusé en fuite)

On 19 May 2022, the Fourth Chamber of the Court of Justice of the European Union (hereinafter: ‘CJEU’ or ‘Court’) delivered a judgement concerning the interpretation of the rights to be present and to a new trial in the context of a trial in absentia.

In the present case, the Specialised Public Prosecutor’s Office in Bulgaria brought criminal proceedings against IR for tax offences punishable by custodial sentences. IR indicated his address, but he was nowhere to be found when the judicial stage of the criminal proceedings started, and he could not be located later when a second indictment was issued against him. The referring court considered that the case can still be heard despite IR absence.

However, under those circumstances, it is unclear whether Article 8 and 9 of Directive 2016/343 on the rights to be present at the trial in criminal proceedings and to a new trial would apply, especially in the context where the person absconded after having been notified of the first indictment and before the commencement of the judicial stage of criminal proceedings. In this perspective, three questions were asked to the Court.

Firstly, the referring court asked whether Article 8(2)(b) must be interpreted as covering a case in which the accused person was informed of the list of charges against him, in its original version, and then, due to the fact that he has fled, objectively cannot be informed of the trial and is defended by a court-appointed lawyer with whom he has no contact. Secondly, if this is answered by negative, whether national provisions under which no legal protection against investigative measures carried out in absentia and against a conviction handed down in absentia where the accused person, after having been informed of the original list of charges, is in hiding, are consistent with Directive 2016/343 and Framework decision 2002/584 on the European arrest warrant (EAW). Thirdly, if this question is answered in the negative, whether Article 9 of the Directive 2016/343 read in conjunction with Article 47 of the Charter of fundamental rights (‘the Charter’) have direct effect.

Considering that the questions referred should be examined together, the Court first elucidated the obligations of Member States under Directive 2016/343 in the context of trials in absentia. On this occasion the Court stated that Article 8(4) and Article 9 of the said Directive – which set out the extent of the right to a new trial for those tried in absentia – must be regarded as having direct effect. After clarifying the conditions under which a person may be tried in absentia without being provided for the right to a new trial, the Court held that the situation at issue could fall within the case envisaged in Article 8(2)(a) of Directive 2016/343 – which allows for in absentia trial in case where the accused has been informed of the trial and of the consequences of non-appearance – rather than in the case envisaged in Article 8(2)(b) of the said Directive, which allows for trial in absentia in case where the accused is represented by a mandated lawyer. In this regard, the Court provided two further clarifications. It highlighted that the mere fact that the person concerned has absconded and the authorities have not succeeded in locating him or her is not enough to conclude that Article 8(2)(a) applies. On the contrary, it explained that the said Article requires inter alia the person concerned to have received sufficient information to know that he or she was going to be brought to trial, and by deliberate acts and with the intention of evading justice, to prevent the authorities from informing him or her officially of that trial in due time. The Court, then, pointed out that the situation in question could qualify as such case, nevertheless it is up to the national courts to carry out all the checks in the light of all the circumstances and to verify whether the conditions set out in the relevant provisions of the said Directive are met.

In light of the foregoing considerations, the Court ruled that Article 8 and 9 of Directive 2016/343 must be interpreted as meaning that an accused person whom the competent national authorities, despite their reasonable efforts, do not succeed in locating may be tried and convicted in absentia. Nevertheless, the CJEU highlighted that in the latter case, in principle, the accused should be able, after notification of the conviction, to rely directly on the right, conferred by that directive, to secure the reopening of the proceedings or access to an equivalent legal remedy resulting in a fresh examination, in his or her presence, of the merits of the case. That person may, however, be denied that right if it is apparent from precise and objective indicia that he or she received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial.