18.9.2023

EN

Official Journal of the European Union

C 329/11

(Case C-400/23, VB II)

(2023/C 329/15)

Language of the case: Bulgarian

Referring court

Questions referred

1.1Must the second sentence of Article 8(4) of Directive (EU) 2016/343 (1) 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?

1.2What 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 (EU) 2016/343, and does it mean that a copy of that decision must be served?

1.3.If the answers to Questions 1.1. and 1.2. are in the negative, does the second sentence of Article 8(4) of Directive (EU) 2016/343 preclude a national court from deciding to ensure that a copy of that decision is served?

2.1.Is national legislation which — in the event that a criminal charge is examined and a judicial decision convicting an accused person 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 detained, compatible with the second sentence of Article 8(4) of Directive (EU) 2016/343?

2.2.Is it relevant that the national legislation — Article 423 of the Code of Criminal Procedure (NPK) — stipulates that the person convicted in absentia is 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?

2.3.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 (EU) 2016/343 met if the court examining a criminal charge and handing down a decision convicting the accused person in absentia, when the situations provided 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?

2.4.If that is the case, does the second sentence of Article 8(4) of Directive (EU) 2016/343 preclude a court which hands down a decision convicting an accused person 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 accused person without the conditions laid down Article 8(2) of Directive (EU) 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 accused person to be taken into account in the decision referred to in Question 3 above?

5.1.Does the expression ‘the possibility to challenge the decision’ in the second sentence of Article 8(4) of Directive (EU) 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?

5.2.What should be the content of the information to be provided in accordance with the second sentence of Article 8(4) of Directive (EU) 2016/343 to a person who has been convicted in absentia, without the conditions laid down in paragraph 2 being met, about ‘the possibility to challenge the decision and [about] the 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 such a request, 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 (EU) 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 (EU) 2016/343?

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

(1) Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).