Provisional text

delivered on 30 April 2025 (1)

Case C‑135/25 PPU [Kachev] (i)

other party:

(Request for a preliminary ruling from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))

( Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Article 8 – Right to be present at the trial – Information regarding the holding of the trial and the consequences of non-appearance – Inability to locate the accused person – Reasonable efforts made by the competent authorities – Proportionality – Possibility of a trial and a decision in absentia – Article 9 – Right to a new trial – No such right where the person concerned absconds – Article 47 of the Charter of Fundamental Rights of the European Union )

Once the fundamental principle that no one may be convicted without being able to defend himself or herself has been enshrined in law, the full extent and complexity of the responsibility of the court, which is to provide the necessary guarantees for its application so as to ensure that there is a balance between the imperatives of justice and the practical requirements of the trial, becomes apparent.

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 (2) and of the principles of equivalence and effectiveness. The request has been made in connection with a request to reopen criminal proceedings made by M.S.T. following his conviction in absentia for aggravated theft and sentencing to one year’s imprisonment, which he is currently serving in prison in Bulgaria.

The reference for a preliminary ruling concerns the same issue in relation to criminal proceedings in absentia that has been addressed in the Court’s recent case-law. (3) Thus, the referring court states that it is encountering difficulties in interpreting and applying that case-law. Those difficulties arise, in particular, where the accused person absconded deliberately when he or she had already been informed of the charges against him or her in the preliminary investigation phase of the criminal proceedings, making his or her appearance impossible.

I.Legal framework

A.European Union law

1.Directive 2016/343

Recital 35 of Directive 2016/343 states:

‘The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right.’

Recital 37 of that directive provides:

‘It should also be possible to hold a trial which may result in a decision on guilt or innocence in the absence of a suspect or accused person where that person has been informed of the trial and has given a mandate to a lawyer who was appointed by that person or by the State to represent him or her at the trial and who represented the suspect or accused person.’

Article 8 of the directive, entitled ‘Right to be present at the trial’, provides in 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.

Article 9 of Directive 2016/343, entitled ‘Right to a new trial’, reads 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.’

2.Regulation (EU) 2018/1862

Article 34(1)(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, (4) provides:

‘1. 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:

…

(c)persons who are to be served with a criminal judgment or other documents in connection with criminal proceedings in order to account for acts for which they are being prosecuted.’

B.Bulgarian law

Article 219(3)(3) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure), (5) in its version applicable to the main proceedings (‘NPK’), provides:

‘The notice of charges … shall specify … the acts with which [the person concerned] is charged and their legal classification.’

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.’

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.

…

1.he or she is not to be found at the address indicated by that person, or he or she has changed address without notifying the competent authority;

2.his or her place of residence in Bulgaria is not known and has not been identified following an extensive search;

…

4.the accused person is outside the territory of the Republic of Bulgaria and … his or her place of residence is unknown.’

Article 423(1) of the NPK provides:

‘Within six months of becoming aware of the final judgment in criminal proceedings …, 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.’

II.Facts, main proceedings and questions referred

By order of the public prosecutor of 5 February 2024, M.S.T. and his court-appointed lawyer were served the preliminary indictment, drawn up in accordance with Article 219 of the NPK (‘the preliminary indictment’), relating to aggravated theft committed in October 2023. That indictment required M.S.T., inter alia, periodically to sign a register held by the police authorities in his place of residence. In addition, the preliminary indictment informed M.S.T. that he should not leave that place and that he should present himself to the competent authorities in the event of being summoned.

After he had been charged, M.S.T. was questioned and provided an address at which he could be contacted by the competent 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.

On 28 February 2024, the public prosecutor filed an indictment 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.

After having failed to serve that indictment on M.S.T. at the address provided by him, the Rayonen sad Montana (District Court, Montana) attempted to summon M.S.T. in person, in particular by ordering that he be summoned by telephone, checking on his journeys abroad and ordering an official in the security service at the Ministry of Justice to search for him. However, those efforts proved unsuccessful.

In those circumstances, 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.

On 8 May 2024, that court sentenced M.S.T. 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.

That court states that, in accordance with its own case-law, a person convicted in absentia may not request the reopening of the trial if his or her absence is the result of absconding, making it impossible to serve the indictment and to inform that person of the date and place of the trial and of the consequences of non-appearance. In such a case, the request to reopen the proceedings is refused on grounds of bad faith, since that person may not derive advantage from his or her unlawful conduct. On that basis, the referring court considers that Article 423(1) of the NPK is consistent with EU law, Articles 8 and 9 of Directive 2016/343 in particular.

It is uncertain, however, whether that approach is compatible with the Court’s interpretation of those provisions in the judgment in Spetsializirana prokuratura (Trial of an absconded accused person) and the judgment in Stangalov. It asks, more specifically, whether receipt of a preliminary indictment can be treated as equating to the person to whom the 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.

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 for a preliminary ruling:

‘(1) Do the legislative requirements of EU law, laid down in Article 9 and Article 8(4) of [Directive 2016/343], permit national legislation such as [Article 423(1) of the NPK], which rules out the reopening of [criminal proceedings] and denies the right to a new trial to a person convicted in absentia, where he or she has absconded after the charge was served on him or her in person during the pre-trial investigation, thus making it impossible for the court to inform him or her of the date and place of the trial, or of the consequences of not appearing before the court, namely that the case can be heard and decided in his or her absence?

(2) If the answer to the first question is in the affirmative, do the principles of [equivalence] and effectiveness permit the national court to hold that a person convicted in absentia is not entitled to a new trial where:

(2.1) the court has made every reasonable effort to inform him or her of the trial, but, 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, has taken deliberate steps to avoid receiving officially the information regarding the date and place of the trial by absconding from the address at which he or she was to carry out the detention order imposed on him or her during the pre-trial proceedings, namely the house arrest;

(2.2) the indictment drawn up pursuant to Article 246 of the [NPK] and the document indicating the date and place of the scheduled trial have been sent and actually delivered to the address which the convicted person had communicated to the investigating authorities after receiving the preliminary indictment referred to in Article 219 of the [NPK], and aware of the fact that the indictment and the [preliminary indictment issued] in the criminal investigation concerned the same offence and legal characterisation[, and]

(2.3) the convicted person was defended by the lawyer appointed by the Bar throughout the judicial proceedings conducted in his or her absence?’

III.The urgent procedure before the Court

The referring court requested that the present reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice. In support of that request, it argued that the case concerns the interpretation of provisions of EU law covered by Title V of Part Three of the FEU Treaty.

As regards the criterion relating to urgency, the referring court stated that M.S.T. is currently being detained, that the reopening of the criminal proceedings could result in his release pending a new trial and that the questions asked seek specifically to determine whether such reopening must be ordered.

In those circumstances, the Third Chamber of the Court of Justice decided, on 26 February 2025, to grant that court’s request for the present case to be dealt with under the urgent preliminary ruling procedure.

Written observations were submitted by the Varhovna kasatsionna prokuratura na Republika Bulgaria (Public Prosecutor’s Office at the Supreme Court of Cassation of the Republic of Bulgaria) and the European Commission. The Commission presented oral argument at the hearing held on 3 April 2025.

IV.Analysis

A.Rewording of the questions referred for a preliminary ruling

First of all, since the two questions referred for a preliminary ruling are intrinsically linked, I propose that the Court reword them and examine them together, even though the second question is asked only if the answer to the first question is in the affirmative.

Second, I must recall that the rights to an effective remedy and to a fair trial are fundamental principles of EU law, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In that regard, Directive 2016/343 gives specific expression to the right to a fair trial, laying down common minimum rules concerning, in particular, the right to be present at the trial in criminal proceedings. That directive must therefore be interpreted in the light of Article 47 of the Charter. (6)

30.In criminal proceedings, the right to a fair trial includes the right to be present at the trial and, in the event that that right is infringed, the right to a new trial. Those two rights are given specific expression in Articles 8 and 9 of Directive 2016/343, respectively. Furthermore, Article 9 provides, in essence, that where suspects or accused persons have not waived their right to be present at their trial, Member States must ensure that 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’. Thus, with regard to Article 47 of the Charter, Article 9 of Directive 2016/343 gives specific expression to, in addition to the right to a fair trial, the right to an effective remedy, which requires Member States to provide for means of obtaining redress which make the right to a new trial effective.

31.National legislation which transposes the common minimum rules laid down by Directive 2016/343 constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter. (7) Because Directive 2016/343 does not provide for a uniform level of protection, Member States may apply national standards of protection, ‘provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’. (8)

32.It follows that national standards which do not comply with the requirements laid down by Articles 8 and 9 of Directive 2016/343 constitute a deficient or non-compliant implementation of Article 47 of the Charter.

33.As regards the reference to procedural autonomy with a view to answering the questions referred, to which the Commission also responded at the hearing, I consider that, because the national legislation at issue in the main proceedings implements Article 9 of Directive 2016/343, which provides for the right to a new trial where the conditions laid down in Article 8(2) of that directive are not met, it can hardly be claimed that there is an ‘absence of EU legislation’ which would trigger the application of the Court’s case-law concerning such autonomy. (9) Moreover, in so far as Article 47 of the Charter applies in the present case, it would seem that an examination of the questions referred having regard to the principle of effectiveness would be redundant. In addition, in my view, the principle of equivalence is not relevant in this case, as there is nothing in the case file to suggest a difference in treatment between actions based on EU law and actions based on national law having a similar purpose and cause of action.

34.I am therefore of the view that the questions referred for a preliminary ruling concern the interpretation of Articles 8 and 9 of Directive 2016/343, read in the light of Article 47 of the Charter.

35.Lastly, in the request for a preliminary ruling, the referring court is uncertain as to the interpretation to be adopted on account of the clarifications given by the Court in paragraphs 37 to 43 of the judgment in Stangalov, which, it asserts, contain an inherent contradiction. Specifically, the questions asked by the referring court relate to, first, whether the receipt of the charge in person by the accused person during the pre-trial investigation must be treated as equating to that person being aware that he or she is going to be brought to trial and, second, the legal consequences of that person absconding before being brought before the court.

36.As a result, it should be considered that, by its two questions, which should be examined together, the referring court is asking, in essence, whether Articles 8 and 9 of Directive 2016/343, interpreted in the light of Article 47 of the Charter, preclude national legislation and practice which deprive a person convicted in absentia of his or her right to a new trial on the ground that that person absconded after receiving a preliminary indictment drawn up against him or her during the pre-trial investigation phase of the criminal proceedings leading to that conviction, thus preventing the competent authorities from informing him or her in person of the final indictment, as well as of the date and place of the trial and of the consequences of non-appearance. Furthermore, the referring court asks about the notion of ‘reasonable efforts’ within the meaning of Article 8(4) of Directive 2016/343 in establishing that the person concerned has been adequately informed of the date and place of the trial and about the notion of ‘mandated lawyer’ within the meaning of Article 8(2)(b) of that directive in determining whether representation by a lawyer appointed by the bar throughout the judicial proceedings is sufficient to satisfy the obligation of representation of the person convicted in absentia.

37.It should be noted 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 is expressly confirmed by recital 33 of the directive, that right forms an integral part of the fundamental right to a fair trial (10) enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). That provision corresponds, as stated in the Explanations relating to the Charter, (11) to the second and third paragraphs of Article 47 of the Charter as well as Article 48 thereof. The Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed in Article 6 of the ECHR, as interpreted by the European Court of Human Rights (‘the ECtHR’). (12)

38.The Court ruled, applying those provisions of the Charter, in its judgment of 26 February 2013 in Melloni, (13) that, although the right of the accused to appear in person at his or her trial is an essential component of the right to a fair trial, that right is not absolute. The accused may waive that right of his or her own free will, either expressly or tacitly, provided that the waiver is established in an unequivocal manner, is attended by minimum safeguards commensurate to its importance and does not run counter to any important public interest. Specifically, infringement of the right to a fair trial has not been established, even where the accused did not appear in person, if he or she was informed of the date and place of the trial or was defended by a legal counsellor to whom he or she had given a mandate to do so.

39.Article 8(1) of Directive 2016/343 codifies the case-law arising from that judgment and applies it in the context of criminal proceedings; it imposes upon the Member States the obligation to ensure that the right to be present at the trial is observed. However, under Article 8(2) and (4) of that directive, the Member States may, subject to certain conditions, provide for trials to be held in absentia. (14)

40.Where the conditions under Article 8(2) are met, Article 8(3) provides that a decision on the guilt or innocence of a suspect or accused person may be enforced against him or her.

41.By contrast, if those conditions are not met, suspects or accused persons may be the subject of an enforceable decision taken in absentia, but must, when they are informed of the decision, ‘in particular when they are apprehended’, also be informed of all the legal remedies available to them to challenge the decision. In that regard, pursuant to Article 8(4) and Article 9 of Directive 2016/343, which have direct effect, the person concerned has 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 new trial’). (15)

42.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 met. (16) However, in the light of the Court’s case-law stemming from the judgments in Melloni (17) and Spetsializirana prokuratura (Trial of an absconded accused person), (18) that sentence must be interpreted as also including the requirement of a voluntary and unequivocal waiver, even though that is not clear from the wording of Article 8(2) of Directive 2016/343. Indeed, even though that provision does not mention a waiver explicitly, the Court has interpreted it as a requirement underlying the criteria set out therein. In my view, such a requirement could be based on the right to be present at the trial, enshrined in Article 8(1) of that directive, which is not absolute. (19)

43.An examination of paragraphs 37 to 43 of the judgment in Stangalov, which refer in turn to the judgment in Spetsializirana prokuratura (Trial of an absconded accused person), shows that, in deciding whether a person tried in his or her absence has a right to a new trial, the national court must determine whether the guarantees of a fair trial were complied with during the proceedings leading to his or her conviction in absentia.

44.It should therefore be noted that, in its judgment in Spetsializirana prokuratura (Trial of an absconded accused person), (20) the Court held that the power given to the Member States to conduct a trial in absentia and to enforce the decision without providing for the right to a new trial is based on three cumulative requirements. In the first place, the person concerned must have been duly informed (information requirement). In the second place, he or she must have foregone, voluntarily and unequivocally, exercise of the right to be present at the trial (waiver requirement). In the third and last place, the holding of a trial in absentia must comply with the requirement flowing from the wording of Article 8(2) of Directive 2016/343, which imposes two alternative conditions, namely that the person concerned either has been informed of the consequences of non-appearance (Article 8(2)(a) of the directive) or has been represented by a mandated lawyer (Article 8(2)(b) of the directive).

45.In the following paragraphs, I will examine those three cumulative requirements more closely.

1.The requirement to inform the person of the trial

46.First of all, the information requirement follows from the very wording of Article 8(2)(a) and (b) of Directive 2016/343.

47.It is apparent from recital 36 of Directive 2016/343 that the person concerned has been duly informed if he or she has, in due time, been ‘[summoned] in person’ or ‘by other means [provided] with official information about the date and place of the trial in a manner that enables him or her to become aware of the trial’. According to the EU legislature, informing the person concerned of the consequences of non-appearance means, in particular, informing that person, in due time, ‘that a decision might be handed down if he or she does not appear at the trial’. (21)

48.The Court has noted, in particular, that, if the person concerned was not informed in due time of the trial, that person enjoys, as a rule, the right to a new trial. (22) To that end, the Court introduces a two-fold condition for determining whether a person has been informed of the trial: the diligence of the competent authorities and the diligence of the accused person. (23) Thus, it is appropriate to consider whether, on the one hand, those authorities took reasonable steps to notify the accused person and whether, on the other hand, the accused person sought to receive or to avoid that information.

49.With regard to the first condition, in the judgment in Stangalov, the Court observed that, even though the person concerned has absconded after receiving a preliminary indictment, that person is deemed to have been properly informed if the competent authorities sent the official document indicating the date and place of the trial to the address which that person had himself or herself communicated during the investigation and if proof was provided that that document was actually delivered to that address. However, that person will be deemed to have been informed of that trial only if those authorities have made reasonable efforts to locate that person and to summon him or her in person or to inform him or her, by other means, of the date and place of the trial. (24)

50.In that regard, I consider that the notion of ‘reasonable efforts’ within the meaning of Article 8(4) of Directive 2016/343 should be interpreted, first, in the light of the principle of proportionality, (25) such that the intensity and extent of the search efforts must depend on the seriousness of the consequences for the person concerned, in particular the penalty incurred. In other words, the heavier the penalty incurred (in particular, the longer the custodial sentence), the greater the search efforts required of the competent authorities in order to ensure that the person concerned has indeed been searched for diligently before authorising a judgment in absentia. Second, that notion of ‘reasonable efforts’ must be assessed in the light of the particular circumstances of each case, including the extent to which the competent authorities are aware of the location of the person concerned and the specific and up-to-date information available to them. Thus, the means employed must be commensurate with the information actually available and the factual situation in the case. Consequently, it is only by taking account of the combination of the seriousness of the consequences and the circumstances of each case that it can be determined whether the efforts made by the competent authorities can be regarded as ‘reasonable’.

51.As far as the second condition is concerned, it seeks to determine whether the person concerned has deliberately avoided being informed. To that end, the Court has held that precise and objective indicia may show the desire to avoid being informed, in particular if the person has given an incorrect address to the competent authorities or if he or she has left the address that he or she had communicated. If a person has intentionally avoided being informed (for example, by communicating an incorrect address deliberately to the competent national authorities or by no longer being at the address that he or she has communicated), he or she may not claim the right to a new trial. (26)

52.Furthermore, in paragraphs 40 and 41 of the judgment in Stangalov, the Court sought to set aside an argument which might call into question the information requirement. According to that argument, where the final indictment and the trial are not certain at the pre-trial investigation stage, the accused person cannot be considered to have been fully informed. Such an argument would, in fact, allow accused persons to evade justice simply by claiming that they did not know whether they were actually going to be brought to trial. That Court stated in that regard that the fact that the accused person was aware of the preliminary indictment is sufficient to find that he or she knew that proceedings against him or her were ongoing, with the possibility of a trial. In other words, even if the further course of the proceedings was not yet entirely certain at the time when that person received that indictment, that did not prevent him or her from understanding that proceedings had been brought against him or her and that a new trial stage could possibly take place.

53.Consequently, where the person concerned absconded after having officially received the preliminary indictment, but before being served the final indictment, Member States may consider that he or she is properly informed of the trial. To that end, first, three conditions must be fulfilled: the accused person communicated an address to the authorities, the final indictment and the summons to appear on trial were sent in due time and there is proof that those documents were delivered to the address in question. (27) Second, the competent authorities must 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.

54.However, in the judgment in HN (Trial of an accused person removed from the territory), (28) the Court stated that Member States are entitled to have recourse to a conviction in absentia only where the person concerned could genuinely attend the trial and voluntarily and unequivocally waived that option. It follows that a distinction should be drawn between the conditions in which the person concerned can be presumed to have been informed of the trial and the conditions in which he or she can be considered to have voluntarily and unequivocally waived his or her right to be present. (29) In doing so, the Court adds a further requirement, which overlaps with the information requirement, namely the waiver requirement.

2.The requirement to waive the right to appear

55.Although Article 8(2) of Directive 2016/343 does not explicitly mention the notion of ‘waiver’, the Court has drawn inspiration from the case-law of the ECtHR concerning the right to a fair trial in ruling that that notion is an essential condition for justifying the absence of a new trial. The waiver requirement thus seeks to protect the right to a fair trial by ensuring that the accused person has not been tried in absentia without having had a genuine opportunity to defend himself or herself.

In that regard, according to the case-law of the ECtHR, neither the letter nor the spirit of Article 6 of the ECHR prevents a person from waiving of his or her own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. (30)

) In the judgment of 12 February 1985 in Colozza v. Italy, (31) the ECtHR set out three important principles. In the first place, an accused person may be considered to have waived his or her right to appear only if his or her waiver is clear, unequivocal and attended by safeguards. In the second place, the State may not presume that there is such a waiver solely on the ground that the accused person did not attend the trial, without having first made active efforts to find that person and to inform him or her of the proceedings brought against him or her. In the third place, if the accused person was never informed of the proceedings and if no efforts were made to guarantee his or her right of defence, he or she must have the possibility to obtain a new trial.

In my view, the information requirement and the waiver requirement are closely linked and overlap. In its judgment of 15 September 2022 in HN (Trial of an accused person removed from the territory), (32) the Court made clear that a trial in absentia can be held only if the person concerned has had a genuine opportunity to attend and has voluntarily waived that right. If a person is to be considered to have waived his or her right to attend the trial, the authorities must take every possible step to inform him or her of the trial. This means that they must use appropriate means to inform him or her of the trial. Only after satisfying that information obligation may the competent authorities consider the accused person to have waived his or her right.

Thus, relying on the case-law of the ECtHR, the Court stated, in the judgment in Spetsializirana prokuratura (Trial of an absconded accused person), (33) that a waiver may be found to have been given where it is established that the accused person has been informed of the existence of the criminal proceedings against him or her, is aware of the nature and the cause of the accusation, and does not intend to take part in the trial or wishes to escape prosecution. (34)

Lastly, I note that, in his Opinion in Sofiyska rayonna prokuratura and Others (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:157), Advocate General Richard de la Tour addressed, for the sake of completeness, whether a waiver which occurs at an early stage in the criminal proceedings when the competent authority is investigating the case can be regarded as consent to be tried in absentia. In his view, Article 8(2) of Directive 2016/343 must be interpreted as meaning that it precludes such a waiver, (35) as it would, inter alia, conflict with the line of cases developed by the ECtHR (36) from which follows the need for the waiver of the right to appear to be demonstrated by precise, objective and relevant information. (37)

3.The requirement to inform the person of the consequences of non-appearance at the trial and of representation by a mandated lawyer

Even if the accused person is presumed to have been informed in due time of the trial and has waived his or her right to appear, it is also necessary, under Article 8(2)(a) and (b) of Directive 2016/343, that he or she has been informed of the consequences of non-appearance (first condition) or has been represented by a mandated lawyer (second condition). As was mentioned in point 43 of this Opinion, the third requirement comprises two alternative conditions.

The first condition, referred to in Article 8(2)(a) of Directive 2016/343, relates to the content of the information provided to the suspect or accused person. In other words, that person must have been aware of the fact that a decision on guilt or innocence may be made against him or her if he or she is not present at the trial. In the light of the circumstances in the main proceedings, because M.S.T. was not informed of the consequences of non-appearance, it is clear that that condition is not applicable in the present case.

The second condition, referred to in Article 8(2)(b) of Directive 2016/343, relates to the representation of the accused person by a lawyer. It covers the case in which that person, having been informed of the trial, deliberately chose to be represented by legal counsel instead of appearing in person at the trial. That is, in principle, sufficient to demonstrate that he or she waived his or her right to be present at the trial, while guaranteeing his or her right to defend himself or herself. As is apparent from recital 37 of the directive, in order for there to be a ‘mandate’, within the meaning of the directive, the person concerned must himself or herself in fact have entrusted a lawyer, as the case may be a court-appointed lawyer, with the task of representing him or her.

The ECtHR has held in that regard that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, appointed officially if need be, is one of the fundamental features of a fair trial. An accused person does not lose the benefit of that right merely on account of not being present at the trial. It is therefore of crucial importance for the fairness of the criminal justice system that the absence of the accused person from his or her trial is not penalised by derogating from the right to the assistance of a defence counsel and that he or she be adequately defended both at first instance and on appeal. (38)

The waiver by a suspect or an accused person of the right to be present at the trial, under Article 8(2)(b) of Directive 2016/343, requires arrangements to be put in place so that an accused person who has been removed from the territory is represented by a lawyer. (39) The seminal judgments in Krombach v. France (40) and Sejdovic v. Italy (41) confirm the position consistently taken by the ECtHR that effective representation by a lawyer is essential for ensuring that the trial is fair, including where the accused person is tried in absentia. More specifically, the latter judgment made clear that the absence of the accused person must not prevent a real and effective defence. (42)

It follows, in my view, that the court-appointed lawyer must have a genuine representation function, ensuring an effective defence of the interests of the accused person, even in his or her absence. It is not enough for the lawyer to be appointed formally: he or she must be able to play an active role in the trial and defend the accused person in a meaningful way such that the right to a defence is respected. However, to my knowledge, those judgments do not define precisely the arrangements for the grant of the lawyer’s mandate.

In that regard, the Court held, in the judgment in Spetsializirana prokuratura (Trial of an absconded accused person), (43) that it was apparent from the request for a preliminary ruling that the court-appointed lawyer for the accused person was not at any time in contact with that person, who did not express a view on that lawyer’s appointment either. The Court held that, accordingly, that lawyer might not be regarded as having been ‘mandated’, within the meaning of that provision, by that person, a matter which was for the referring court to establish in the light of the conditions laid down by national law. Consequently, for the definition of ‘mandated lawyer’ within the meaning of Article 8(2)(b) and recital 37 of Directive 2016/343 to be satisfied, the referring court is required to ascertain that ‘the person concerned must himself or herself in fact have entrusted a lawyer, as the case may be a court-appointed lawyer, with the task of representing him or her’, which implies a real and meaningful interaction between the person concerned and his or her lawyer.

In that regard, I would point out that Article 8(2)(b) of Directive 2016/343 requires that the accused person is represented by a lawyer who he or she has mandated, which means that the lawyer must be appointed by the accused person himself or herself or with his or her consent for the purposes of the trial. The fact that a lawyer assisted the accused person in the preliminary investigation does not necessarily mean that that lawyer has been expressly mandated to represent him or her at the trial in his or her absence. Accordingly, there is a need for the clear agreement of the accused person, explicitly or implicitly, to be represented by that lawyer at the trial in his or her absence. It follows that the fact that the lawyer has already assisted the accused person during the preliminary investigation may be relevant, as it may indicate a continuity of defence. However, that fact alone is not sufficient to satisfy the condition laid down in Article 8(2)(b) of Directive 2016/343, since it must be established that the accused person has actually mandated that lawyer to represent him or her at the trial.

As to the question of when that contact must take place, neither the case-law of the ECtHR nor that of the Court stipulates a precise time for contact between the lawyer and his or her client, but they do establish basic principles from which it can be assessed whether such contact was effective and sufficient for guaranteeing a fair trial. It is therefore for the court to consider whether the assistance provided by the lawyer is effective from the initial phases of the proceedings and during the trial in absentia. (44) In that regard, if the accused person has a lawyer, but never meets with him or her or does not communicate with him or her in such a way as to permit an effective defence, that may be regarded as an infringement of Article 6(3)(c) of the ECHR, which provides, inter alia, for the right to be assisted by a lawyer. Thus, even in the case of defence in absentia, the ECtHR requires that efforts be made to ensure effective contact. (45)

D.General principles relating to the right of accused persons to be present at their trial

In the present case, it is apparent from the order for reference that the national court has doubts as to whether it is possible to deny the right to a new trial to a person convicted in absentia on the ground that that person absconded after receiving a preliminary indictment, thus preventing the competent authorities from informing him or her in person of the final indictment, as well as of the date and place of the trial and of the consequences of non-appearance. In that regard, it is clear from the request for a preliminary ruling that, according to Bulgarian case-law concerning the second sentence of Article 423(1) of the NPK, the right to a new trial is not granted to a person who absconded after being charged in the pre-trial proceedings.

The referring court’s doubts are therefore focused on the compatibility with Article 8(2) and (4) and Article 9 of Directive 2016/343 of that court’s decision to deprive the person convicted in absentia of the right to a new trial where the competent authorities were unable to inform the accused person in person.

In the present case, it will be for the referring court to assess whether, in the light of the foregoing clarifications, the procedural system established by the Bulgarian legislature is compatible with Directive 2016/343. That said, the Court of Justice may provide some useful indications for the purposes of that assessment. (46)

At first sight, as the Commission asserts in its written observations, Article 423(1) of the NPK remains problematic in so far as that provision does not include with sufficient clarity all the conditions for the denial of a new trial laid down by Directive 2016/343. Indeed, both that provision and the case-law developed by the referring court concerning that provision seem to be incompatible with Article 8(4) and Article 9 of Directive 2016/343 in that they deprive a person tried in absentia of the right to a new trial solely on the ground that he or she absconded after being charged during the pre-trial stage of the proceedings but has not yet been duly informed of the trial (or of the date and place of the trial) pursuant to Article 8(2)(a) and (b) of that directive. (47)

As far as the circumstances of the case in the main proceedings are concerned, it is apparent from the file submitted to the Court that, on receiving a preliminary indictment on 5 February 2024, M.S.T. was informed in person of the charge against him at the pre-trial stage of the proceedings. He left Bulgaria on 16 February 2024 despite the requirement to report periodically to the police of his place of residence. However, since M.S.T. did not receive the indictment, it seems that he did not have precise information on the date and place of the trial or on the consequences of his absence, which could preclude the application of Article 8(2)(a) of Directive 2016/343. Given that the accused person may not have been informed of the hearing pursuant to Articles 8(2) and (4) of that directive, he may have a right to a new trial under Article 9 of that directive.

With regard to the circumstances raised by the referring court in connection with its second question, it must be examined whether the fact that the accused person, although officially informed of the charges against him and of the opening of an investigation, deliberately avoided receiving the summons to appear by leaving the address at which he was required to serve his house arrest and whether, despite the reasonable efforts of the Rayonen sad Montana (District Court, Montana) to serve the indictment on him, that can justify the denial of his right to a new trial following a conviction in absentia.

The key question in that regard is whether M.S.T.’s conduct can be interpreted as a voluntary waiver of his right to be present at the trial. To that end, it must be considered whether the law enforcement authorities made reasonable efforts to summon M.S.T. As I stated above, (48) the competent authorities must 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 information about the date and place of the trial. (49) It is only on that condition that the person concerned can be deemed to have voluntarily and unequivocally waived his or her right to be present at the trial.

It is for the referring court to ascertain whether the authorities made such reasonable efforts. In that regard, it may seem surprising that the court having jurisdiction apparently failed to locate M.S.T. in order to inform him of the conduct of his trial and of the consequences of absence, given that he was found relatively quickly after his conviction, as he began to serve his sentence less than one month after that sentence became final. The referring court must therefore satisfy itself that the steps taken before the trial were indeed sufficient and proportionate, taking into account the seriousness of the offence and of the penalty incurred. (50)

More specifically, as the Commission has suggested, in circumstances where the competent authorities hold information indicating that the person had moved and was in the territory of another Member State, it might be considered reasonable for those authorities to enter an alert into SIS in accordance with Article 34(1)(c) of Regulation 2018/1862, which makes it possible to locate (to a large extent by automated means) persons who have been summoned before the judicial authorities in connection with criminal proceedings. (51)

In the circumstances of the case in the main proceedings, first, it is apparent from the file submitted to the Court that the charge concerned a serious intentional offence which is punishable by a custodial sentence of significant duration. (52) Second, the national authorities seemed to be aware that M.S.T. was working in Germany and recorded in the national files that he left Bulgaria on 16 February 2024. They therefore seemed to have known about M.S.T.’s departure abroad. In those circumstances, the question is whether they were obliged to search for the person concerned via SIS before trying him in absentia. In that regard, if the offence in question is serious and if the penalty incurred is significant, alerts and checks in SIS constitute necessary elements in establishing that the competent authorities made reasonable efforts to inform the accused person in question in person, especially if they already had strong evidence that he was located abroad. In the light of those circumstances, the fact that the competent authorities continued to search for the accused person, undertaking domestic searches only, and ordered that the indictment and information concerning the date and place of the trial be served on him by an official from the regional unit does not appear to be a sufficient basis to conclude that those authorities made reasonable efforts. However, it is for the referring court to make that assessment.

Furthermore, with regard to the condition concerning the representation of the accused person by a lawyer in accordance with the requirement of representation by a mandated lawyer (the second condition referred to in Article 8(2)(b) of Directive 2016/343), it is apparent from the file submitted to the Court that M.S.T. declared that he wished to be represented by the court-appointed lawyer, who was present at the trial in absentia. However, a mandate given at the pre-trial stage does not automatically apply to a trial in absentia. As I have already noted in point 66 of this Opinion, it must be established that the accused person has actually mandated that lawyer to represent him or her at the trial. It is also for the referring court to ascertain whether that lawyer had sufficient contact with M.S.T. and whether the lawyer kept his client informed of the trial.

Lastly, as regards the principle of effectiveness, the Court has already held that it must be guaranteed that the proceedings relating to the request to reopen the criminal proceedings lead to the recognition of the right to a new trial in all cases where the conditions laid down in Article 8(2) of Directive 2016/343 were not satisfied. (53) As I have already explained, I consider that that sentence must really be interpreted as including the three cumulative requirements referred to above. (54) The Court has also held, in paragraph 44 of the judgment in Stangalov, that it appeared, subject to verification by the national court, that a request to reopen criminal proceedings such as that at issue in that case did not offer such a guarantee. It should also be stated that, in the judgment of 16 January 2025 in VB II (Information concerning the right to a new trial), (55) in order to observe the principle of effectiveness, the Court invited the referring court to ascertain whether Bulgarian procedural law guarantees that the person convicted in absentia