Provisional text

delivered on 11 July 2024 (1)

Case C-400/23

Criminal proceedings

against

VB

interested party:

Sofiyska gradska prokuratura

(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Right to be present at the trial – Article 8(2) – Proceedings leading to a conviction or acquittal in absentia – Procedures for the examination of the conditions governing recognition of the right to a new trial – Right for the prosecution and the defence to be heard – Article 8(4) – Form and scope of the legal remedies available following a decision handed down in absentia – Information for the person convicted in absentia of his or her procedural rights – Procedures – Article 9 – Right to a new trial – National legislation under which recognition of the right to a new trial is conditional on the prior submission of a request to have the criminal proceedings reopened before a judicial authority before which the person tried in absentia must appear in person – Whether compatible – Directive 2012/13/EU – Right to information in criminal proceedings – Article 6 – Right to information about the accusation )

1.In the present reference for a preliminary ruling, which is the second reference made in the context of the main proceedings, the Sofiyski gradski sad (Sofia City Court, Bulgaria) seeks clarification relating, first, to the assessment of the conditions governing the recognition, on the part of a person tried in absentia, of his or her right to a new trial and, second, to the information given to that person of his or her procedural rights within the meaning of Article 8(4) and Article 9(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. (2)

2.In its judgment of 8 June 2023, VB (Information for a person convicted in absentia), (3) the Court ruled that Article 8(4) of Directive 2016/343, pursuant to which the Member State is to ensure that when an accused person is informed of the decision handed down in absentia, in particular when he or she is apprehended, he or she is also informed of the possibility to challenge that decision and of the right to a new trial, does not impose an obligation on a national court to include such information in that decision. In that context, the Court held that the choice of the manner in which such information is to be provided to the person concerned is left to the discretion of the Member State, provided that it is brought to the attention of that person when he or she is informed of the decision in question. (4)

3.In the present case, the referring court seeks to compare those principles with the national procedural system. It observes that, in accordance with the Bulgarian legislation, the trial court that adjudicates on the merits of the accusation and hands down a decision in absentia does not have jurisdiction to determine whether the accused person may have the advantage of a new trial in the light of the conditions laid down in Directive 2016/343. In that regard, it states that such an appraisal comes within the exclusive jurisdiction of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), which must first be requested by the person concerned to reopen the criminal proceedings and which adjudicates subject to his or her personal appearance.

4.The referring court submits to the Court a set of questions designed to ascertain the extent to which such procedures meet the requirements laid down in Article 8(4) and Article 9 of Directive 2016/343. To that end, the Court will be required to take account of the provisions set out, in particular, in Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, (5) which also establishes procedures for safeguarding the rights of suspects and accused persons in the context of the criminal proceedings against the person concerned.

II. Legal framework

5.Directive 2012/13 establishes the right to information of the suspect or accused person in criminal proceedings.

6.Article 3(1)(c) of that directive defines the right to information about rights as follows:

‘Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

…

(c) the right to be informed of the accusation, in accordance with Article 6’.

7.Article 6 of that directive, entitled ‘Right to information about the accusation’, provides:

‘1. Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

…

3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.

…’

8.Directive 2016/343 lays down, in accordance with Article 1, minimum rules concerning, first, certain aspects of the presumption of innocence and, second, the right to be present at the trial.

9.Article 8 of that directive, entitled ‘Right to be present at the trial’, provides, paragraphs 1 to 4:

‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial.

(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.

10.Article 9 of that directive, entitled ‘Right to a new trial’, provides:

‘Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed. In that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence.’

B. Bulgarian law

11.Article 15(2) and (3) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) (‘the NPK’) provides:

‘(2) The accused person and all other persons taking part in the criminal proceedings shall be afforded all procedural means necessary for the defence of their rights and legitimate interests.

(3) The court, the public prosecutor and the investigating authorities shall explain to the persons referred to in paragraph 2 the procedural rights that those persons enjoy as well as ensure that those persons have the possibility of exercising those rights.’

12.Article 423(1) to (4) of the NPK provides:

‘(1) Within six months of becoming aware of the final verdict …, the person convicted in absentia may request the reopening of the criminal [proceedings] on the ground that he or she did not take part in [those proceedings]. The request shall be granted unless the convicted person absconded following notification of the charges during the pre-trial stage of the proceedings, with the result that the procedure provided for in Article 247c(1) could not be carried out, or, after that procedure was carried out, that person failed to appear at trial without a valid reason.

(2) The request may not suspend the enforcement of the verdict, unless the court decides otherwise.

(3) The proceedings relating to the reopening of the criminal [proceedings] shall be discontinued if the person convicted in absentia fails to appear at trial without a valid reason.

(4) Where the person convicted in absentia has been apprehended for the purposes of the enforcement of the final verdict and the court reopens the criminal proceedings, that court shall rule, in its decision, also on the coercive measure.’

13.Article 424(1) and (2) of the NPK provides:

‘(1) The request to reopen criminal [proceedings] in accordance with Article 422(1)(5) shall be examined by the relevant apelativen sad [(court of appeal)], where the decision pursuant to Article 419 has been taken by a rayonen sad [(district court)] or by an okrazhen sad [(provincial court)] acting as an appellate court, with the exception of new verdicts.

(2) Except in the cases referred to in paragraph 1, the request to reopen the criminal [proceedings] shall be examined by the Varhoven kasatsionen sad [(Supreme Court of Cassation, Bulgaria)].’

14.Article 425(2) of the NPK states:

‘In the situations referred to in Article 423(1), the proceedings shall be reopened and the case returned to the stage at which the proceedings in absentia began.’

III. <b>The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling </b>(6)

15.The request for a preliminary ruling was made in the context of criminal proceedings against VB concerning offences punishable by custodial sentences. Those criminal proceedings were from the outset conducted in the absence of VB, who was unable to receive any formal notification of the charges against him. In addition, he could not be informed either of his committal before a court or, a fortiori, 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, as he absconded during the investigation stage, before the police operation to arrest the suspects. He was placed on the wanted list, including by means of a European arrest warrant, but was not found.

16.The criminal proceedings in question are still pending and most of the evidence has been collected. The national court dealing with those criminal proceedings, which was previously the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) – at the origin of the reference for a preliminary ruling in the case that gave rise to the judgment in VB I – and which is now the Sofiyski gradski sad (Sofia City Court), is uncertain, first, about the measures which it will have to adopt in order to ensure that VB, if he were convicted in absentia and received a custodial sentence, will be informed, at the time of his arrest, of the decision handed down in respect of him and also of his procedural rights, in accordance with the provisions laid down in Article 8(4) and Article 9 of Directive 2016/343, as interpreted by the Court in the judgment in VB I.

17.Furthermore, that court asks whether the Bulgarian legislation, which establishes a mechanism whereby the person convicted in absentia is informed of his or her right to a new trial only at the close of the hearing adjudicating on his or her request to have the criminal proceedings reopened, at which he or she must appear in person, meets the requirements laid down by Directive 2016/343 and, in particular, the right to be informed of the right to a new trial laid down in Article 8(4) of that directive.

18.In those circumstances, the Sofiyski gradski sad (Sofia City Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) (a) Must the second sentence of Article 8(4) of Directive [2016/343] be interpreted as meaning that a person who is convicted in absentia, when the situations provided for in Article 8(2) do not apply, and is given a custodial sentence, must be informed of the decision convicting him or her when he or she is apprehended for the purpose of the execution of the sentence?

(b) What is the content of the requirement that a person be “informed of the decision” pursuant to the second sentence of Article 8(4) of Directive [2016/343], and does [that requirement] mean that a copy of that decision must be served?

(c) If the answers to Question 1(a) and (b) are in the negative, does the second sentence of Article 8(4) of Directive [2016/343] preclude a national court from deciding to ensure that a copy of that decision is served?

(2) (a) Is national legislation which – in the event that a criminal charge is examined and a judicial decision convicting [a defendant] is handed down in the absence of that person, without the conditions laid down in Article 8(2) of the directive being met – lays down no procedures for informing the person convicted in absentia of his or her right to a new trial with his or her participation, and, in particular, such information is not provided when the person convicted in absentia is [apprehended], compatible with the second sentence of Article 8(4) of Directive [2016/343]?

(b) Is it relevant that the national legislation – Article 423 of the [NPK] – [makes provision for] the person convicted in absentia … to be informed of his or her right to a new trial, but only after that person has made a request for that conviction to be overturned and for a new trial to be held with his or her participation, in that he or she is to be provided with the information in the form of a judicial decision in response to that request?

(c) If that is not the case, are the requirements laid down in the second sentence of Article 8(4) and Article 10(1) of Directive [2016/343] met if the court examining a criminal charge and handing down a decision convicting the [defendant] in absentia, when the situations provide for in Article 8(2) of the directive do not apply, sets out in its decision that person’s right to a new trial or other legal remedy and requires the persons detaining the convicted person to serve him or her with a copy of that decision?

(d) If that is the case, does the second sentence of Article 8(4) of Directive [2016/343] preclude a court which hands down a decision convicting [a defendant] in absentia, when the situations provided for in Article 8(2) of the directive do not apply, from deciding to set out in its decision that person’s right to a new trial or to another legal remedy under Article 9 of the directive, and from requiring the persons detaining the convicted person to serve him or her with a copy of that decision?

(3) What are the first and the last possible points in time at which the court must determine whether the criminal proceedings are being conducted in the absence of the [defendant] without the conditions laid down in Article 8(2) of Directive [2016/343] being met and must take measures to ensure that information is provided in accordance with the second sentence of Article 8(4) of the directive?

(4) Are the views of the prosecution and the defence counsel for the absent [defendant] to be taken into account in the decision referred to in [Question 3]?

(5) (a) Does the expression “the possibility to challenge the decision” in the second sentence of Article 8(4) of Directive [2016/343] refer to a right of appeal within the appeal period or does it refer to the challenging of a judicial decision that has become final?

(b) What should be the content of the information to be provided in accordance with the second sentence of Article 8(4) of Directive [2016/343] to a person who has been convicted in absentia, without the conditions laid down in paragraph 2 being met, about “[his or her] right to a new trial or to another legal remedy, in accordance with Article 9”: should it concern the right to obtain such a legal remedy, if he or she challenges his or her conviction in absentia, or the right to make … a request [to that end], the merits of which are to be assessed at a later stage?

(6) What is meant by the expression “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 the first sentence of Article 9 of Directive [2016/343]?

(7) Is a provision of national law – Article 423(3) of the NPK – which requires the appearance in person of the person convicted in absentia as a prerequisite for consideration of his or her request for a new trial and for its approval compatible with Article 8(4) and Article 9 of Directive [2016/343]?

(8) Are the second sentence of Article 8(4) and Article 9 of Directive [2016/343] applicable to persons who are acquitted?’

19.Only the European Commission lodged written observations.

20.Before examining those questions, it is appropriate to bear in mind that Directive 2016/343, like Directive 2012/13, was adopted on the basis of Article 82(2) TFEU. It follows from that article that, in order to facilitate mutual recognition and police and judicial cooperation in criminal matters, the EU legislature may establish minimum rules concerning, inter alia, the rights of individuals in criminal procedure. The purpose of Directive 2016/343, in accordance with recital 9 and Article 1 thereof, is thus to enhance the fundamental right to a fair trial in criminal proceedings in such a way as to increase the trust of Member States in each other’s criminal justice systems, by laying down common minimum rules concerning, in particular, the right to be present at the trial. (7) Those ‘minimum’ rules relate, in reality, to procedural principles from which Member States cannot derogate and which are essential in order to safeguard the rights of the defence and respect for the right to a fair trial, in particular of persons in respect of whom a decision has been handed down in absentia.

21.While the EU legislature must, in accordance with the final sentence of the first subparagraph of Article 82(2) TFEU, take into account the legal traditions and systems of the Member States, so that a single procedural system cannot be imposed, those national procedural systems must nonetheless respect not only the principles in question, on pain of impeding the exercise of the right to attend his or her trial recognised to the accused person, but also the mutual recognition of the judicial decisions convicting that person in absentia. (8)

22.It is in that context that the referring court questions the Court. It is apparent from the order for reference that, in so far as cross-border cooperation might appear necessary, such cooperation seeks to ensure that the conviction decision which it will hand down at the close of the proceedings that will be conducted in the absence of VB will respect his procedural guarantees, in such a way that that decision can be recognised by the judicial authorities of the other Member States in the context of the execution of any European arrest warrant that may be issued. (9)

23.For that purpose, the referring court addresses several questions relating to the detailed rules for the application of Article 8(4) and Article 9 of Directive 2016/343, which I propose that the Court should rearrange for the purposes of their examination.

24.The referring court asks the Court to clarify the conditions on which it may find that Article 8(2) of Directive 2016/343 has not been satisfied and that the provisions relating to recognition of a right to a new trial, within the meaning of Article 8(4) and Article 9 of Directive 2016/343, are satisfied. While, by its eighth question, the referring court asks whether that examination must be carried out where the accused person has been acquitted, it asks, by its third question, about the ‘first and last possible moments’ at which that examination must be carried out and, by its fourth question, about the need to take into consideration the observations both of the prosecution and defence counsel, for the purposes of that examination.

25.In order to analyse each of those questions, it is necessary, first of all, to recall the sense and the scope of the assessment required by Article 8(2) of Directive 2016/343.

26.Articles 8 and 9 of Directive 2016/343 establish a legal regime that guarantees suspects and accused persons in criminal proceedings the right to be present at trial. (10) Although Article 8(1) of that directive places on the Member State the obligation to ensure respect for the right to be present at the trial, Article 8(2) and (4) of that directive, conversely, establishes two legal regimes that allow the Member State to adjudicate on the merits of an accusation following proceedings carried out in the absence of the accused person, while ensuring effective respect for his or her right to a trial.

27.The regime provided for in Article 8(2) and (3) of Directive 2016/343, read in the light of recitals 35 to 37 of that directive, concerns a situation in which a Member State may provide that a trial can be carried out and give rise to a ‘decision on the guilt or innocence’ of the accused person and execute that decision without providing for a right to a new trial on the ground that that person has voluntarily and unequivocally waived the right to appear at his or her trial or to defend himself or herself, in the circumstances laid down in paragraph 2 of that article. Any waiver of the right to appear or to put forward a defence therefore entails the execution of the decision handed down following the trial in absentia and the impossibility for the accused person to challenge that decision and request a new trial.

28.Conversely, the regime provided for in Article 8(4) of Directive 2016/343 assumes that the conditions set out in Article 8(2) of that directive could not be met, because the accused person could not be located in spite the efforts of the competent authorities. It allows the Member State to provide that the accused person may be tried in his or her absence and that ‘a decision’ can be handed down, on condition that he or she is duly 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 of that directive. (11)

It is in the light of those considerations that the questions submitted by the referring court should be answered.

30.By its eighth question, the referring court asks the Court to clarify whether the provisions relating to the right to information and the right to a new trial, laid down in Article 8(4) and Article 9, respectively, of Directive 2016/343, are applicable when the accused person has been acquitted in absentia.

31.The referring court emphasises that, unlike Article 8(2) of Directive 2016/343, which determines the conditions in which ‘a decision on the guilt or innocence of a suspect or accused person’ may be executed following proceedings held in his or her absence, such a detail is not found in either Article 8(4) of that directive, which regulates the circumstances in which ‘a decision can nevertheless be taken and enforced’, or Article 9 thereof, which determines the conditions in which ‘the original decision’ may be reversed on the ground that a new trial is being held.

32.It seems to me, first of all, that that question relates to a rather theoretical hypothesis in which a person acquitted in his or her absence challenges the acquittal decision and requests a new trial in which he or she may well be convicted.

33.Next, in view of the connection which the EU legislature establishes between Article 8(2), Article 8(4) and Article 9 of Directive 2016/343, there is no doubt that those provisions form a whole and should therefore be read and understood together. It thus follows from the drafting history of that directive that the legislature intended to define the scope of the provisions applicable to a trial in absentia and, in particular, of the associated procedural guarantees, as covering any trial aiming at assessing ‘the question of the guilt of the accused person (both conviction and acquittal decisions)’.

34.Last, to exclude, as a matter of principle, a person in respect of whom a decision has been handed down in absentia from the right to a new trial, on the ground that he or she has been acquitted, would amount to a blatant misunderstanding of the meaning and purpose of the right to be present at the trial and upset the fairness of the procedure of which it constitutes an essential element. Even though the person concerned has the advantage of an acquittal, he or she might consider that he or she has been deprived of the possibility to be ‘heard’ by the court and to be confronted with the witnesses and/or victims, which is a fundamental element of criminal proceedings.

35.In the light of those factors, I conclude that Article 8(4) and Article 9 of Directive 2016/343 should be interpreted as meaning that they apply to a person who has been acquitted in absentia.

36.It is settled case-law that Directive 2016/343 does not carry out exhaustive harmonisation of criminal procedure. While the EU legislature lays down the substantive conditions by reference to which a Member State is required to ensure that a person in respect of whom a decision has been handed down in absentia will or will not have a right to a new trial under the provisions laid down in Article 9 of that directive, it does not, however, determine the detailed procedural rules according to which the assessment of those conditions must be carried out and, in particular, the framework of that assessment and the period within which it must be carried out.

37.In accordance with the principle of procedural autonomy, it is therefore for the Member State to define, according to the particular features of its legal system, the conditions and the detailed procedural rules applicable to that assessment, provided, however, that those rules are not, in situations covered by EU law, less favourable than in similar situations under domestic law (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).

38.Furthermore, as is apparent from recital 47 of Directive 2016/343, the Member States are required to ensure that the fundamental rights and principles recognised both by the Charter of Fundamental Rights of the European Union and by the Convention for the Protection of Human Rights and Fundamental Freedoms are upheld.

39.It is on the basis of those factors, and in particular in the light of the principle of effectiveness and the right to a fair trial, that it is necessary to assess whether a Member State has established procedures permitting recognition of the right to a new trial after the trial court has adjudicated on the merits of the accusation and handed down a decision in absentia.

40.The ‘first possible point in time’ at which the Member State may establish procedures relating to that assessment is, in my view, readily identifiable, as it corresponds to the opening of the trial. It is only from the time when the trial court establishes that the accused person is not present at his or her trial or is not represented that it can assess the extent to which that person has unequivocally waived the right to appear or to defend himself or herself, and conduct the criminal proceedings in absentia.

41.On the other hand, the ‘last possible point in time’, generally, corresponds, as I see it, to the time when the competent authorities intend to enforce the decision handed down in absentia, when the conditions of Article 8(2) of Directive 2016/343 are not met. The legal regime laid down in Article 8(4) of that directive does not provide for the possibility of trying a person in his or her absence, but specifies the consequences connected with the enforcement of the decision handed down in absentia, in addition to the conditions laid down in Article 8(2) of that directive. In criminal proceedings, the enforcement of a conviction decision assumes that the decision is enforceable and final. Where the trial court has adjudicated on the merits of the accusation and handed down a decision in absentia, when it was not established that the accused person had waived the right to appear or to defend himself or herself, the enforcement of that decision will be possible only if the accused person does not exercise the remedies provided for by national law or does not seek a new trial. In those circumstances, I believe that there is nothing to preclude a Member State from establishing a procedure whereby the competent authorities examine the conditions governing recognition of the right to a new trial at a subsequent stage in the criminal proceedings, after the trial court has delivered a decision in absentia, provided that the enforcement of that decision is stayed pending completion of that examination.

42.However, in so far as the referring court asks the Court about the ‘last possible moment in time’ at which it, as the court adjudicating on the merits of the accusation, may determine whether the conditions laid down in Article 8(2) of Directive 2016/343 are met, in such a way, where appropriate, as to inform the accused person of the possibility to challenge the decision which it will hand down and of his or her right to a new trial, that ‘last possible point in time’ is the point at which that court will hand down the decision whereby it adjudicates on the guilt or innocence of that person, since that court will then have completed its role in the proceedings.

43.It is now appropriate to examine the extent to which the referring court must take account of the observations of the prosecution and of those of defence counsel for the purpose of examining the conditions laid down in Article 8(2) of Directive 2016/343.

44.I recall that that examination is an essential stage in the criminal proceedings, since its outcome determines whether the decision handed down in absentia will be enforced or whether a new trial will be held. For that reason, it must be conducted in a manner that respects the procedural guarantees that ensure respect for the rights of defence of the persons concerned, referred to in Article 47 of the Charter.

45.It is settled case-law that the adversarial principle, which forms part of the rights of the defence, means, inter alia, that the parties to a case must have the right to examine all the documents or observations submitted to the court for the purpose of influencing its decision, and to comment on them. As for the principle of equality of arms, which is a corollary of the very concept of a fair hearing, it implies an obligation to offer each party a reasonable opportunity to present its case, including evidence, in conditions that do not place it in a clearly less advantageous position by comparison with its opponent.

46.In the context of a procedure aimed at determining whether the conditions laid down in Article 8(2) of Directive 2016/343 were met, the accused person must be able to be heard and to put forward effectively, through his or her lawyer where necessary, all the grounds justifying recognition of his or her right to a new trial, especially since the fact that he or she is legally represented is, in principle, likely to demonstrate that the accused person intends to ensure his or her right to defend himself or herself.

47.In the light of the nature of the examination carried out by the competent authority, the accused person must be able to discuss, in an adversarial procedure, the facts which are determinative of the outcome of the proceedings and must, in particular, be heard on whether he or she knew the nature and the cause of the criminal charge against him or her and on the extent to which he or she was notified in person of that charge or duly summoned. Thus, that examination requires that the competent authority establish the existence or absence of a waiver on the basis of specific, objective and relevant facts. In that context, the observations submitted by both the prosecution and the defence seem essential and may have a decisive influence on the assessment of the conditions set out in Article 8(2) of Directive 2016/343.

48.In the light of those factors, I consider that Article 8(4) of Directive 2016/343 must be interpreted as meaning that the Member State may provide for procedures relating to the examination of the conditions governing recognition of a right to a new trial, set out in Article 8(2) of Directive 2016/343, after the trial court has handed down a decision in absentia against the accused person, provided that enforcement of that decision is stayed pending the completion of that examination and that the competent authority hears both the prosecution and the defence for that purpose.

49.There again, however, the referring court seems to position itself at the point in time at which it must adjudicate in absentia and seeks to ascertain whether, for the purpose of establishing that the conditions laid down in Article 8(2) of Directive 2016/343 are or are not met, it must obtain the opinions of the prosecution and of the lawyer appointed to defend the interests of the accused person. To my mind, the principles set out in the preceding point of this Opinion are applicable.

3. The detailed procedural rules on recognition of the right to a new trial laid down in Article 423 of the NPK

50.By its seventh question, the referring court asks the Court, in essence, whether the second sentence of Article 8(4) and Article 9 of Directive 2016/343 should be interpreted as meaning that they preclude a national procedural system in which the person who has been convicted in absentia and given a custodial sentence, when it had not been established that he or she had waived the right to appear or to defend himself or herself, is required, in order to benefit from the right to a new trial, to submit a request to the Varhoven kasatsionen sad (Supreme Court of Cassation) to have the criminal proceedings reopened, and to appear in person before that court.

51.A procedural system such as that at issue does not in itself seem to me to call for criticism, not only for the reasons stated in point 41 of this Opinion, but also in order to respect the rule laid down in Article 82(2) TFEU, namely that the rules adopted on the basis of that provision are to take into account the differences between the legal traditions and systems of the Member States.

52.It is further necessary, however, for that procedural system to comply, at the stage of its implementation, with the conditions governing recognition of the right to a new trial laid down in Article 8(2) and (4) and Article 9 of Directive 2016/343, as interpreted by the Court, and, by reason of those characteristics, permit the person convicted in absentia, when it was not established that he or she had waived the right to appear or to exercise in full his or her rights of defence, which should now be examined.

53.Subject to the verifications which it will be for the referring court to carry out, it seems to me that the characteristics of that system, as they emerge from the order for reference, do not allow respect for the procedural rights of that person to be ensured.

54.I recall that the request to reopen the criminal proceedings constitutes a particular stage in the criminal proceedings, the importance of which may be crucial for the person who has been convicted in absentia and given a custodial sentence. The possibility to submit such a request is therefore essential, a fortiori because, as an appeal is no longer possible, it is the only legal remedy available that leads to a new substantive assessment of the case.

55.In accordance with Article 423(2) of the NPK, the submission of a request to reopen the criminal proceedings does not have suspensory effect ‘unless the court provides otherwise’. In itself, such a rule seems to me to be contrary to the principle that a conviction decision handed down in absentia cannot be immediately enforced until such time as it has been established whether or not the person concerned is entitled to a new trial.

56.In addition, it is apparent from Article 423(3) of the NPK that the examination of the request to reopen the criminal proceedings requires, in principle, the appearance in person of the person convicted in absentia. The proceedings are closed when the person convicted in absentia fails to appear in person before the competent court, unless he or she shows lawful reason.

57.Whatever the nature of that reason and the extent to which the person concerned might be represented by a lawyer, such a requirement amounts to making the right to a new trial guaranteed in Article 9 of Directive 2016/343 subject to a condition not provided for by the EU legislature.

58.Admittedly, that requirement reflects the legitimate desire not to improperly hinder the effectiveness of the prosecution and the sound administration of justice. In the context of a request to reopen the criminal proceedings, a Member State cannot be criticised for wishing to avoid situations in which that request is submitted in an abusive manner, without proper cause or good reason, in order to impede the enforcement of a decision delivered in absentia. Nor can it be criticised for giving priority to the testimony in person of the person concerned in order to assess the reasons for his or her failure to be present at the trial. As the European Court of Human Rights acknowledges, the appearance is important owing to both the right of the accused person to be heard and to put before the court ‘his version of the events’ and the need to verify the accuracy of his or her statements.

59.However, such a requirement may entail a particularly severe restriction of the right to a new trial, where the accused person is given a custodial sentence. In such a situation, it seems that that person has no choice other than to appear in person and, therefore, to surrender to custody in order to comply with the judgment handed down in absentia, if he or she wishes to secure a new trial, since his or her absence ‘without lawful reason’ will entail, in accordance with Article 423(3) of the NPK, the closure of the procedure and therefore his or her waiver of the right to a new trial. As the request to reopen the criminal proceedings does not have suspensory effect, the accused person will in principle be placed in custody for the purposes of the enforcement of the sentence handed down in absentia ‘unless the court decides otherwise’, even though the competent judicial authority has not yet established whether he or she had waived the right to appear or to defend himself or herself. I would add, moreover, that the conviction decision will become irrevocable if that request is refused, since the period prescribed for lodging an appeal has expired and no appeal lies against the decision whereby the Varhoven kasatsionen sad (Supreme Court of Cassation) rejects the request to reopen the criminal proceedings.

60.In view of the importance of the request to reopen the criminal proceedings, which may be crucial for the person convicted in absentia and given a custodial sentence, I think that the requirement to appear in person, in that it constitutes a mandatory precondition of the examination of the request and thus of the reopening of the criminal proceedings, does not justify the person concerned being deprived of the right to a new trial on the ground that he or she does not appear in person. Such a rule, in conjunction with the other characteristics of that procedure, is apt to entail an excessive restriction of the rights of defence of the person convicted in absentia, a fortiori because, as the referring court emphasises, Article 423 of the NPK lays down the only remedy available against a conviction in absentia once that decision, on the 16th day after it was handed down, becomes final.

61.That interpretation is in keeping with the case-law of the European Court of Human Rights, which must be taken into account here. That Court holds that the right to a new trial prevails over the importance of the appearance before the court of the person convicted in absentia. The fact that the accused person, although duly informed, does not appear, because he or she is prevented from appearing, or prefers not to do so for personal reasons, cannot in itself, and even in the absence of an excuse, justify depriving him or her of the right to a new trial. That Court also holds that the rule that the person convicted in absentia cannot be represented by a lawyer also appears to be manifestly disproportionate, since it effectively penalises the applicant’s failure to appear by placing an absolute bar on any defence.

62.The European Court of Human Rights also holds that it is disproportionate to impose such a requirement in order to secure a new trial if the national authorities also execute the conviction decision delivered in absentia. According to that Court, such a procedure would amount to making the exercise of the right to a fair trial conditional on ‘the accused offering up his or her physical liberty as a form of guarantee’ and is intended to substitute for procedures having to do with the exercise of police powers an obligation which is imposed on the defendants themselves. While the concern to ensure that judicial decisions are enforced is in itself legitimate, the European Court of Human Rights considers that the national authorities have other means at their disposal whereby they can take the convicted person in charge. Thus, according to that Court, there can be no question of requiring a person at liberty to surrender to custody in order to comply with the conviction decision handed down in absentia, for however short a time, in order to exercise the right to a retrial in conditions consistent with Article 6 ECHR, as such a rule constitutes a breach of the principle of the presumption of innocence.

63.In the judgment in Khalfaoui v. France, which turned on a provision of the French Code of Criminal Procedure under which failure to comply with the obligation to surrender to custody was penalised by forfeiture of the right to appeal on a point of law, the European Court of Human Rights held that, ‘having regard to the importance of the final review carried out by the Court of Cassation [France] in criminal matters, and to what is at stake in that review for those who may have been sentenced to long terms of imprisonment, the Court considers that this is a particularly severe sanction affecting the right of access to a court guaranteed by Article 6 [ECHR]’. It added, moreover, that ‘where an appeal on points of law is declared inadmissible solely because … the appellant has not surrendered to custody pursuant to the judicial decision challenged in the appeal, this ruling compels the appellant to subject himself in advance to the deprivation of liberty resulting from the impugned decision, although that decision cannot be considered final until the appeal has been decided or the time limit for lodging an appeal has expired’. The European Court of Human Rights considered that this ‘impair[ed] the very essence of the right of appeal, by imposing a disproportionate burden on the appellant, thus upsetting the fair balance that must be struck between the legitimate concern to ensure that judicial decisions are enforced, on the one hand, and the right of access to the Court of Cassation and exercise of the rights of the defence on the other’.

64.Consequently, although the procedural system at issue does not seem to me to call for criticism in so far as it requires the accused person to submit a request to the competent judicial authority to reopen the criminal proceedings in order to obtain a new trial, I consider, however, that certain characteristics of that procedure and, in particular, the fact that it does not have suspensory effect and that it requires the appearance in person of the person concerned, do not guarantee to him or her the effective exercise of the rights of the defence, in particular the right to be present at the trial.

65.In the light of all of those factors, I think that the second sentence of Article 8(4) and Article 9 of Directive 2016/343 must be interpreted as meaning that they do not preclude a Member State from establishing a procedure requiring a person in respect of whom a decision in absentia has been handed down, when it has not been established that he or she had waived the right to appear or to defend himself or herself, to submit, before the competent authority, a request to reopen the criminal proceedings in order for that authority to assess, in the light of the conditions laid down in Article 8(2) of that directive, whether that person has the right to a new trial, provided that the characteristics of that procedure allow him or her to be guaranteed the right to be present at the trial and to the effective exercise of his or her rights of defence.

66.On the other hand, the second sentence of Article 8(4) and Article 9 of Directive 2016/343 must be interpreted as meaning that they preclude the rule such a procedure does not have suspensory effect and, in addition, requires the appearance in person of the person convicted in absentia and given a custodial sentence.

The scope and content of the right to information of the person convicted in absentia (first, second and fifth questions)

67.By its first, second and fifth questions, the referring court asks the Court, in essence, whether the second sentence of Article 8(4) of Directive 2016/343 must be interpreted as meaning that it precludes a person who has been convicted in absentia and given a custodial sentence, when it has not been established, in the light of the conditions laid down in Article 8(2) of that directive, that he or she had waived the right to appear or to defend him or herself, from not being informed at the time of arrest, either of that decision or of the possibility to challenge it or of the right to a new trial or another legal remedy. It also asks about the necessary form and content of that information.

68.The referring court puts those questions in so far as, in application of the Bulgarian legislation, the decision delivered in absentia would not be notified to the accused person and the latter, moreover, would not be informed of his or her procedural rights and, in particular, of the possibility to submit a request to reopen the criminal proceedings on the basis of Article 423 of the NPK.

69.By its first question, the referring court therefore seeks to ascertain the extent to which a Member State is required to provide for procedures so that, at the time when the decision handed down in absentia against him or her is executed, or when he or she is apprehended, as the case may be, the accused person will be informed of that decision, and to ensure that a copy of the entire decision is served on him or her.

70.In addition, by its second question, it asks the Court to clarify the way in which a Member State must fulfil its duty to provide information in a procedural system such as that at issue, in which, at time when the decision handed down in absentia is executed or when the person convicted in absentia is apprehended, the competent authorities have not yet determined that there is a right to a new trial, as that right is recognised at a later stage, following the examination of a request to reopen the criminal proceedings which that person must submit.

The framework of the examination of the questions

71.Pursuant to the second sentence of Article 8(4) of Directive 2016/343, the Member State is to ensure that a person in respect of whom a decision has been handed down in absentia, when he or she is informed of that decision, in particular when he or she is apprehended, is also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy.

72.It follows unequivocally from the wording of that provision that the EU legislature places an obligation on the Member State to achieve a specific result, namely to ensure that a person in respect of whom a decision in absentia has been taken is informed of his or her procedural rights when he or she is informed of the decision and no later than the execution of that decision, in particular, when the convicted person is apprehended where a custodial sentence has been imposed. It is therefore a minimum rule, concerning a procedural principle essential for compliance with the rights of defence and the right to a fair trial of the person concerned, from which the Member State cannot derogate.

73.There is thus no doubt whatsoever, to my mind, that Article 8(4) of Directive 2016/343 precludes a person in respect of whom a decision in absentia has been taken, when it was not established that he or she had waived the right to appear or to defend himself or herself, not being informed, when that decision is executed or when he or she is apprehended, either of that decision or of the possibility to challenge it or of the right to a new trial or to another legal remedy. Such a situation has the effect of rendering the rights of defence of that person ineffective and the right to a new trial enshrined in Article 9 of that directive otiose.

74.On the other hand, the second sentence of Article 8(4) of Directive 2016/343 has neither the aim nor the purpose of determining the detailed rules of that duty to provide information and, in particular, the rules according to which the accused person must, when the decision handed down in absentia is executed or when he or she is apprehended, be informed of that decision and of the right to a new trial or to another legal remedy.

75.In my view, those particular rules must be assessed in the light of the general provisions laid down by Directive 2012/13 on the right to information of suspects and accused persons in criminal proceedings, to which reference is made in recital 8 of Directive 2016/343. As stated in recital 25 of Directive 2012/13, that directive is closely linked to Directive 2010/64/EU, which confers on suspects and accused persons who do not speak or understand the language of the criminal proceedings in question a right to the interpretation and translation of the information thus communicated.

76.In accordance with Article 1 thereof, Directive 2012/13 is intended to lay down common minimum rules concerning the right of suspects or accused persons to be informed or their rights in criminal proceedings and of the accusation against them.

77.According to the Court’s case-law, the right referred to in Article 1 concerns at least two separate rights.

78.The first is the right for suspects or accused persons to be informed ‘at least’ of certain procedural rights, as they apply under national law. That right is enshrined in Article 3 of Directive 2012/13, and it is in the light of that provision that I shall examine the detailed rules relating to respect for the right to be informed of the right to a new trial or to another legal remedy enshrined in Article 8(4) of Directive 2016/343.

79.The second is the right to be informed of the accusation, enshrined in Article 6 of Directive 2012/13. It is from the aspect of the latter article that I shall examine the conditions in which the person convicted in absentia must, when the decision handed down in absentia against him or her is executed or when he or she is apprehended, be informed of that decision.

80.In order to ensure the effectiveness of the information thus provided for, Article 8(2) of Directive 2012/13 provides that suspects or accused persons or their lawyers are to have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with that directive.

81.It follows unequivocally from the wording of Article 8(4) of Directive 2016/343 that that article has neither the aim nor the purpose of determining the detailed rules according to which a Member State must ensure, when a decision handed down in absentia is executed or when a person in respect of whom that decision was adopted is apprehended, that he or she is informed of that decision. In requiring the Member State to ensure that the accused person is informed of his or her procedural rights when he or she is ‘informed’ of the decision handed down in absentia in respect of him or her, ‘in particular when [he or she is] apprehended’, the EU legislature did not mean to require the Member State to communicate a copy of that entire decision, with a Letter of Rights attached, at the actual time when it executes that decision or when it apprehends that person.

82.Such procedural rules should, in my view, be determined by reference to the rules relating to the right to be informed of the accusation, laid down in Article 6 of Directive 2012/13, and those relating to the right of access to the file, set out in Article 7 of that directive.

83.In the judgment of 15 October 2015, Covaci, the Court held that, having regard in particular to Articles 2, 3 and 6 of Directive 2012/13, the service of a penalty order, such as that provided for in German law, must be considered to be a form of communication of the accusation against the person concerned, with the result that it must comply with the requirements set out in Article 6. I would point out that, in German law, a penalty order is a provisional decision issued by a court upon application by the Public Prosecutor’s Office in the case of minor offences where the accused is not required to appear in person. That order, which forms part of simplified criminal proceedings, without a hearing, acquires the force of res judicata upon expiry of a period of two weeks from its service, where appropriate, on the persons authorised to accept service for the accused.

84.For reasons similar to those applied by the Court in that judgment, I consider that the information relating to a decision which has been handed down in absentia, when it was not established that the accused person waived the right to appear or to defend himself or herself, must be considered to be a form of communication of the accusation against that person, with the result that that information must meet the requirements laid down in Article 6 of Directive 2012/13.

85.First, it follows from Article 2(1) of Directive 2012/13 that the EU legislature clearly intended that that directive should apply throughout the criminal proceedings, from the first suspicions until the judgment is handed down, as the case may be after all remedies have been exhausted.

86.Second, in the context of proceedings carried out in absentia in application of Article 8(4) of Directive 2016/343, the decision is delivered when it is not known whether the accused person intended to waive the right to appear or to defend himself or herself, so that that information may in reality represent the first opportunity for that person to be informed of the accusation. That is confirmed by the fact that that person, if he or she does not fulfil the conditions laid down in Article 8(2) of that directive, may secure the reopening of the trial or have access to an equivalent legal remedy in the context of which he or she will be able to exercise the rights of the defence in full, before the trial court again decides on the merits of the accusation in fact and in law.

87.I think, therefore, that the right to be informed of the accusation, provided for in Article 6 of Directive 2012/13, also entails the right, for a person in respect of whom a decision has been handed down in absentia, when it was not established that he or she had waived the right to appear or to defend himself or herself, to be informed of that decision.

88.Admittedly, as the Court has recognised, Directive 2012/13 does not regulate the procedures whereby the information about the accusation, provided for in Article 6 of that directive, must be provided to the accused person. Article 6(1) of that directive provides that the Member State is to ensure that information about the criminal act which the suspect or accused person is suspected or accused of having committed is communicated promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence. Paragraph 2 of that article refers specifically to a suspect or accused person who is arrested or detained. In that case, the Member State is to ensure that such a person is informed of the reasons for his or her arrest or detention, including the criminal act he or she is suspected or accused of having committed. Last, in accordance with paragraph 3 of that article, the Member State is to ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, and also on the nature of participation by the accused person.

89.In the light of the discretion which the EU legislature leaves to the Member States, it is for those States to define, by reference to the characteristics of their procedural system, the procedures whereby a person in respect of whom a decision has been handed down in absentia must be informed of that decision. It follows from the Court’s case-law that those procedures must not, however, undermine the objective referred to inter alia in Article 6 of Directive 2012/13, which, as is also apparent from recital 27 of that directive, consists in enabling that person to prepare his or her defence and safeguarding the fairness of the proceedings.

90.In the particular context in which the accused person is arrested in execution of a conviction handed down in absentia, when it was not established that he or she had waived the right to appear or to defend himself or herself, the information which that person receives at the actual time of arrest is intended, in particular, to inform him or her of the reasons for the arrest and of the accusations, within the meaning of Article 6 of Directive 2012/13, and of his or her procedural rights.

91.That purpose does not, in my view, require of the Member State, when the competent authorities execute the decision handed down in absentia or apprehend the accused person, that those authorities fulfil their duty to provide information by communicating to the person in question, when that decision is executed or when he or she is arrested, a copy of the entire decision. Such a requirement is not necessary. The information relating to the content of that decision and to the fact that it was delivered in absentia seems to me to be sufficient in itself.

92.On the other hand, as the referring court observes, in the light of the right to an effective remedy, the person convicted in absentia will have to be made fully aware of the reasons for the conviction. The Member State will then have to provide that the competent authorities take particular care to advise that person promptly and officially that he or she has been convicted in absentia by means of a procedure of service or notification, for example. That decision will become enforceable only from the time when the person concerned has been officially notified of it, following exhaustion of the remedies, in respect of which time begins to run on completion of that procedure and after he or she has waived the right to a new trial or that right has not been recognised. Furthermore, as the referring court points out, it follows from Article 4a(1)(d) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, that the executing judicial authority cannot refuse to execute the European arrest warrant if that warrant states, in particular, that the person concerned will be served with the decision delivered in absentia without delay after his or her surrender.

93.Last, I would add that, in application of Article 7(1) of Directive 2012/13, where a person is arrested and detained at any stage of the criminal proceedings, the Member State is to ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to him or her. As Directive 2010/64 makes clear, the conviction decision or the ‘judgment’ is an essential document communication, and, moreover, a translation, of which is required to enable the convicted person to exercise his or her rights of defence and to ensure the fairness of the proceedings.

94.In the light of those factors, I consider that Article 8(4) of Directive 2016/343 must be interpreted as meaning that, in a situation in which the competent authorities of a Member State execute a decision handed down in absentia or arrest a person in respect of whom that decision was handed down, those authorities are required to inform the person concerned of the accusation, including the grounds of the conviction, in accordance with the provisions set out in Article 3(1)(c) and Article 6(1) to (3) of Directive 2012/13. Compliance with that requirement does not entail the obligation for the Member State to provide that a copy of that entire decision be communicated to that person at the time of execution or of arrest.

95.I recall that, by its second question, the referring court asks the Court, in essence, to clarify the procedures relating to respect for the right to be informed of the right to a new trial or to another legal remedy referred to in the second sentence of Article 8(4) of Directive 2016/343.

96.In particular, the referring court seeks to compare the principles set out by the Court in the judgment in VB I with the Bulgarian procedural system. In that judgment, the Court held that ‘the choice of the manner in which [the information relating to the right to a new trial and the possibility to challenge the decision handed down in absentia] is to be provided to the persons concerned is left to the discretion of the Member States, provided that it is brought to the attention of the person concerned when he or she is informed of the decision in question’. The referring court observes that, in the Bulgarian procedural system, the competent authorities adjudicate on the existence of the right to a new trial following the examination of a request to reopen the criminal proceedings which must be submitted by the person convicted in absentia.

97.In the judgment in VB I, the Court held that the second sentence of Article 8(4) of Directive 2016/343 does not determine the precise manner in which the person convicted in absentia must be informed of the right to a new trial or to another legal remedy. Only recital 39 of that directive states that that information should be given either in writing or orally, provided that, in the latter case, the fact that the information has been given is noted in accordance with the recording procedure under national law.

98.In order to answer the question put by the referring court, it is necessary, in the first place, to refer to the provisions laid down in Directive 2012/13. In so far as the right to be informed of the right to a new trial or to another legal remedy is a procedural right, the second sentence of Article 8(4) of Directive 2016/343 must be read in the light of the general provisions laid down in Articles 3 and 4 of Directive 2012/13.

99.Under Article 3(1) of Directive 2012/13, Member States are required to ensure that ‘information concerning at least the … procedural rights [set out in subparagraphs (a) to (e)], as they apply under national law, in order to allow for those rights to be exercised effectively’ is provided promptly. That provision sets out a list consisting of the right of access to a lawyer; the right to free legal advice and the conditions of obtaining such advice; the right to be informed of the accusation; the right to interpretation and translation; and the right to remain silent. As the use of the expression ‘at least’ shows, the EU legislature did not intend to limit the procedural rights of which suspects or accused persons must be informed, as that directive applies, moreover, until final judgment is handed down. In addition, it follows from recital 20 of that directive that those rules are ‘without prejudice to information to be given on other procedural rights arising out of the Charter, the ECHR, national law and applicable Union law’.

100.Pursuant to Article 3(2) of Directive 2012/13, that information must be brought ‘promptly’ to the attention of the suspect or accused person either orally or in writing, in simple and accessible language. When that person is arrested or detained, Article 4 of that directive requires the Member State to ensure that he or she is provided promptly with a Letter of [Procedural] Rights, as they apply under national law. That letter must be in writing, in simple and accessible language which the person concerned understands. It must contain the information relating to the procedural rights referred to in Article 3 of Directive 2012/13, the list of which is not exhaustive, and the rights set out in Article 4(2) and (3) of that directive, such as the right of access to the materials of the case, and basic information about any possibility, under national law, of challenging inter alia the lawfulness of the arrest. Where the competent authorities of a Member State arrest the accused person in execution of a conviction handed down in absentia, it seems to me that that Letter of Rights could contain a reference to the right to a new trial or to another legal remedy.

101.As regards, in the second place, the content of the information to be provided, it seems to me that it must be assessed, on the one hand, in the light of the particular features of the national procedure concerned and, on the other, by reference to the purpose of the second sentence of Article 8(4) of Directive 2016/343, namely to ensure the effectiveness of the rights of defence of the accused person and his or her right to a new trial enshrined in Article 9 of Directive 2016/343.

102.I have already pointed out that it is not the intention of the EU legislature to impose a single procedural system in which Member States would be required to establish the need to hold a new trial at the stage at which the decision in absentia is handed down. It is expressly stated in Article 3(1) of Directive 2012/13, moreover, that Member States are to provide the accused person with information concerning his or her procedural rights ‘as they apply under national law’. That means, in a procedural system such as that at issue, that the Letter of Rights states the address of the person convicted in absentia and the procedure which is then made available in order for him or her to seek a new trial, in accordance with Article 9 of Directive 2016/343.

103.In the present case, the referring court considers that Article 15(3) of the NPK provides it with a sufficient legal basis to be able to take the necessary measures to ensure that the accused person is informed of his or her procedural rights in accordance with the second sentence of Article 8(4) of Directive 2016/343. In those circumstances, there is nothing in my view to preclude that court from stating, in the decision which it hands down in absentia, the procedures whereby the accused person may seek a new trial or another legal remedy in the conditions set out in Article 9 of that directive.

104.By its fifth and sixth questions, the referring court asks the Court, in essence, whether Article 8(4) of Directive 2016/343 must be interpreted as meaning that a person in respect of whom a decision in absentia has been handed down must have two separate legal remedies, one allowing him or her to lodge an appeal against that decision and the other allowing him or her to secure another trial or another legal remedy in accordance with Article 9 of that directive.

105.I recall that Article 8(4) of Directive 2016/343 requires that a person in respect of whom a decision has been handed down in absentia is, when he or she is informed of that decision, also informed of the ‘possibility to challenge the decision and of the right to a new trial or to another legal remedy’ which, in accordance with Article 9 of that directive, allows ‘a fresh determination of the merits of the case … which may lead to the original decision being reversed’.

106.It follows from the wording of Article 8(4) of Directive 2016/343 and, in particular, from the use of the coordinating conjunction ‘or’, that the Member States must ensure that a person in respect of whom a decision has been handed down in absentia, without the conditions of Article 8(2) of that directive being fulfilled, has the possibility to challenge that decision either by requesting a new trial or by exercising a remedy.

107.As the Court held in the judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded accused person), that possibility must allow the person concerned 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. The scope of that new trial is expressly defined in Article 9 of Directive 2016/343. The EU legislature places precise and unambiguous obligations on the Member States. It requires that they either provide for the reopening of the trial or establish a procedure allowing a fresh determination of the merits of the case, including of the new evidence, and capable of leading to the original decision being reversed. It also requires the Member States to ensure that the accused person will benefit, in the context of that new trial or of the exercise of that new remedy, from the right to be present and to participate effectively in the resulting proceedings, in accordance with procedures under national law, and that he or she may exercise the rights of the defence.

108.As I have already stated in my Opinion in the case that gave rise to that judgment, the EU legislature integrates the essential requirements of a new trial established by the European Court of Human Rights. That Court requires that the accused person have the opportunity to secure a new assessment of the merits of the charges against him or her, in fact and in law, by a tribunal which is ‘competent to determine all the aspects of the matter’ in his or her presence, providing him or her with all the guarantees of a fair trial provided for in Article 6 ECHR. I recall that that Court leaves the Contracting States ‘a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements [of that article]’, provided that ‘the resources available under domestic law must be shown to be effective where a person “charged with a criminal offence” has neither waived his right to appear and to defend himself nor sought to escape trial’.

109.I also recall that, in the same way, Directive 2016/343 does not bring about an exhaustive harmonisation of criminal procedure. Under the principle of procedural autonomy, the Member States thus have a wide discretion to define the system of remedies and procedures allowing the rights of defence of a person in respect of whom a decision has been handed down in absentia to be respected, provided, first, that they are not less favourable than those governing similar situations covered by domestic law (principle of equivalence) and, secondly, that they do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).