Fostering in absentia proceedings when the individual absconds: Criminal proceedings against IR

BERNARDINI, Lorenzo

doi:10.54648/COLA2023098

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Fostering in absentia proceedings when the individual absconds: Criminal proceedings against IR

BERNARDINI, Lorenzo

2023 • In Common Market Law Review, 60 (5), p. 1413–1432

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10.54648/COLA2023098

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Keywords :

Criminal Procedure; Criminal Law; Fair trial; In absentia proceedings

Abstract :

[en] The purpose of proposed comment is to examine the implications of the ECJ’s ruling in Case C-569/20 (IR) in light of the relevant case-law from the European Court of Human Rights. In a nutshell, the judgment addressed a preliminary ruling referred by a Bulgarian court regarding Articles 8 and 9 of Directive 2016/343/EU, specifically focusing on the possibility of conducting criminal proceedings in absentia against an individual who has absconded during preliminary investigations. This marked the first time the ECJ had delivered a ruling in this area. After having summarised the valuable Opinion of the Advocate General and the highlights of the decision, the analysis will be developed depicting a comparative and updated overview of the issues at stake – first of all, the balance between the right to defence and the necessity to ensure the effectiveness of the criminal justice system. Particular emphasis will be placed on the need for consistency among the common standards stemming from EU law and the ECHR, making the judicial dialogue between national and European courts a crucial aspect of the judgment under consideration.

Disciplines :

Criminal law & procedure

Author, co-author :

BERNARDINI, Lorenzo ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Department of Law (DL)

External co-authors :

Language :

English

Title :

Fostering in absentia proceedings when the individual absconds: Criminal proceedings against IR

Publication date :

September 2023

Journal title :

Common Market Law Review

ISSN :

0165-0750

eISSN :

1875-8320

Publisher :

Kluwer Law International, Alphen aan den Rijn, Netherlands

Volume :

Issue :

Pages :

1413–1432

Peer reviewed :

Peer Reviewed verified by ORBi

Focus Area :

Law / European Law

Additional URL :

https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/60.5/COLA2023098

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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, O.J. 2016, L 65/1 (hereinafter: “the Directive”). The Directive applies “to natural persons who are suspects or accused persons in criminal proceedings… at all stages of the criminal proceedings” and in respect of any criminal offence (see Recital 12 and Art. 2 of the Directive).
2. For a comprehensive analysis of the matter see BachmaierWinter, “New developments in EU law in the field of in absentia national proceedings. The Directive 2016/343/EU in the Light of the ECtHR Case Law”, in Quattrocolo and Ruggeri (Eds.), Personal Participation in Criminal Proceedings (Springer, 2019), pp. 641–649.
3. See Recital 33 of the Directive and the Opinion of A.G. Tanchev in Case C-416/20 PPU, TR, EU:C:2020:1020, para 50.
4. See inter alia Case C-216/18 PPU, LM, EU:C:2018:586, para 33.
5. Case C-688/18, TX and UW, EU:C:2020:94, para 35.
6. See, in this regard, Case C-305/05, Ordre des barreux francophones et germanophones e. a. EU:C:2007:383, para 29 and the case law cited therein.
7. See, by analogy, Case C-704/18, Kolev and Others, EU:C:2020:92, paras. 41–42.
8. In addition to the aforementioned Case C-688/18, TX and UW, see also Case C-416/20 PPU, TR, EU:C:2020:1042 and Case C-564/19, IS, EU:C:2021:949. Notably, at the time when IR was decided, another procedure was pending before the ECJ, that is Case C-420/20, HN, EU:C:2022:157. The latter was finally decided after IR.
9. Lacking any reference to domestic law in the body of the judgment, this aspect may be inferred from para 58 of the judgment, and from paras. 3 and 29 of the Opinion of A.G. Richard de la Tour in Case C-569/20, Criminal procedure against IR, EU:C:2022:26 (hereinafter: “Opinion”).
10. As per Art. 247b(1) of the Bulgarian Code of Criminal Procedure (hereinafter “the NPK”).
11. Judgment, para 15 in fine.
12. Ibid., para 16.
13. That remedy, whose applicability is triggered by non-compliance with the grounds laid down in Art. 8(2) of the Directive, shall allow “a fresh determination of the merits of the case… which may lead to the original decision being reversed”.
14. Art. 423(1) of the NPK.
15. Judgment, para 18.
16. Council Framework Decision on the European ArrestWarrant and the surrender procedures between Member States, 2002/584/JHA, O.J. 2002, L 190/1.
17. Opinion, para 1.
18. Ibid., paras. 5–6 which essentially recalled Recital 38 of the Directive.
19. Ibid., paras. 24–27.
20. Ibid., para 30.
21. Ibid., para 39.
22. Ibid., paras. 36–38. The grounds for denying a new trial are listed in Art. 8(2)(a) and (b) of the Directive. Para (a) covers the circumstances of an individual who “has been informed, in due time, of the trial and of the consequences of non-appearance”; para (b) covers the situation of a person who has been informed of the trial and “is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State”. A common ground is that of knowledge of the trial.
23. Ibid., paras. 34–35.
24. Ibid., paras. 44–47.
25. Ibid., para 48. The A.G. mentioned the relevant ECtHR case law on the matter, inter alia ECtHR, Colozza v. Italy, Appl. No. 9024/80, judgment of 12 Feb. 1985, para 32.
26. Ibid., paras. 49–50.
27. Ibid., paras. 53–54.
28. Ibid., paras. 55–56 and 73.
29. Ibid., paras. 53 and 72.
30. Ibid., paras. 58–61. Notably, the A.G. stressed that the right to a new trial, as enshrined in the Directive, serves “to safeguard the rights of defence of a person who neither intended to waive his right to appear and defend himself, nor intended to evade justice”.
31. Ibid., paras. 62–71.
32. Ibid., para 74.
33. Judgment, paras. 20–23.
34. Ibid., paras. 25–28.
35. See supra note 22.
36. Judgment, para 32, referring inter alia to Case C-649/19, Spetsializirana prokuratura, EU:C:2021:75, para 42.
37. Ibid., referring to Case C-418/18 P, Puppinck and Others v. Commission, EU:C:2019: 1113, para 75.
38. Ibid., paras. 33–38, mentioning Recital 35 of the Directive.
39. Ibid., para 41.
40. Ibid., para 42.
41. Ibid., para 48.
42. Ibid., paras. 51–53.
43. Ibid., paras. 54–56.
44. Ibid., paras. 57–58, referring to Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, O.J. 2012, L 142/1.
45. Ibid., para 59.
46. See infra section 5.1.
47. See infra section 5.2.
48. See supra note 25.
49. Judgment, paras. 48, 50 and 58–59.
50. Recital 39 of the Directive.
51. Case C-310/18 PPU, Criminal proceedings against Emil Milev, EU:C:2018:732, para 47.
52. Judgment, para 59.
53. For the purpose of the present analysis, Arts. 8 and 9 of the Directive refer indistinctly to suspects and accused persons, whereas Art. 6(3) of Directive 2012/13 ensures that solely the accused person “at the latest on submission of the merits of the accusation to a court” shall be provided with “detailed information… onthe accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person”. This might confirm that, once the accusation has been defined, the individual concerned will only be regarded as an “accused” (and no more as a “suspect”).
54. See ECtHR, Simeonovi v. Bulgaria, Appl. No. 21980/04, judgment of 12 May 2017, para 121.
55. See ECtHR, Eckle v. Germany, Appl. No. 8130/78, judgment of 15 July 1982, para 73.
56. See ECtHR, Ibrahim and Others v. the United Kingdom, Appl. Nos. 50541/08, 50571/ 08, 50573/08 and 40351/09, judgment of 13 Sept. 2016, para 296.
57. See, inter alia, ECtHR (Grand Chamber), Pedersen and Baadsgaard v. Denmark, Appl. No. 49017/99, judgment of 17 Dec. 2004, para 44.
58. Judgment, paras. 48, 58–59.
59. Quattrocolo, “Assenza, latitanza, rimedi restitutori: una posizione non scontata della Corte di Giustizia” 9, Cassazione Penale (2022), 3253–3265, at 3261. This may be the situation of the accused person served with the information laid down in Art. 6(3), Directive 2012/ 13.
60. Art. 6(1) of Directive 2012/13.
61. Allegrezza and Covolo, “The Directive 2012/13/EU on the right to information in criminal proceedings: Status quo or step forward?” in Ðurević and Ivičević Karas (Eds.), European Criminal Procedure Law in Service of Protection of European Union Financial Interest: State of Play and Challenges (Croatian Association of European Criminal Law, 2016), p. 44.
62. Art. 6(3) Directive 2012/13.
63. See Opinion, para 29, referring to the “notification of the charges during the investigation”.
64. Art. 247b(1) NPK. Such a document shall indicate inter alia “the date fixed for the preliminary hearing”. See amplius Petrova, “Report on Bulgaria”, in Quattrocolo and Ruggieri (Eds.), op. cit. supra note 2, p. 53, whereby it is highlighted that “the defendant knows about the criminal proceedings after having been charged at the pre-trial stage”.
65. Mancano, “Convictions in absentia and the right to a fair trial. The building of an EU theory of justice continues: Spetsializirana prokuratura (C-569/20)”, EU Law Live (3 June 2022), available at (last visited 29 May 2023).
66. See Judgment, para 53 and Opinion, paras. 68–69, referring to ECtHR, Lena Atanasova v. Bulgaria, Appl. No. 52009/07, judgment of 26 Jan. 2017.
67. ECtHR, Appl. No. 52009/07, Lena Atanasova, cited supra note 66, para 48.
68. See, by analogy, ECtHR, M.T.B. v. Turkey, Appl. No. 47081/06, judgment of 12 June 2018, paras. 49–50; ECtHR, Kounov v. Bulgaria, Appl. No. 24379/02, judgment of 23 May 2006, paras. 49–50; ECtHR, Abdelali v. France, Appl. No. 43353/07, judgment of 11 Oct. 2012, para 54; ECtHR, Zunic v. Italy, Appl. No. 14405/05, judgment of 21 Dec. 2006, para 60; ECtHR, Pititto v. Italy, Appl. No. 19321/03, judgment of 12 June 2007, para 69.
69. Judgment, para 58.
70. This could be the situation of a suspect who is questioned as such by the police and leaves the country afterwards. See ECtHR, in Vybornova v. Russia, Appl. No. 34839/11, decision of 26 March 2019, para 30 in fine, where the Strasbourg Court held that such an individual “may be regarded as having been sufficiently aware of the prosecution and the charges against her”. In particular, the applicant was not officially informed of the criminal charges against her during her interrogation, yet she subsequently applied for international protection in the Czech Republic, “stating that she was being prosecuted in Russia” for the same facts on which she had previously been questioned by the police.
71. This situation recalls the obligations to inform accused persons, under Art. 6(3) Directive 2012/13.
72. Opinion, paras. 56 and 73.
73. Ibid., paras. 53 and 56, where the A.G. attached great importance to the fact that, ab origine, national authorities must have behaved with “sufficient diligence in their efforts to inform the accused person, ensure his presence before the trial court and locate him”.Yet, the obligations imposed on that person “to receive the information relating to the trial” must also be considered, as per Recital 38 of the Directive.
74. Opinion, para 60.
75. See ECtHR, Stoyanov v. Bulgaria, Appl. No. 39206/07, judgment of 31 Jan. 2012, paras. 30–34 and the case law cited therein. Notably, the ECtHR highlighted that “the outright fact of fleeing from the crime scene in fear of prosecution or a general expectation that criminal proceedings might be instituted [is not sufficient] to justify the assumption that the accused was aware of the proceedings for the determination of the charges against him and has waived his right to appear in court” (para 31).
76. ECtHR, Iavarazzo v. Italy, Appl. No. 50489/99, decision of 4 Dec. 2001.
77. Opinion, paras. 53 and 56.
78. Judgment, para 48.
79. Opinion, para 50.
80. Ibid., para 53.
81. ECtHR, Yeğer v. Turkey, Appl. No. 4099/12, judgment of 7 June 2022, para 34.
82. It is worth recalling that the accused’s absence from their usual place of residence is not a circumstance from which it can be inferred per se that such a person is absconding (see ECtHR, Pititto, supra note 72, para 69). There must be evidence that such a behavior is intentional and has been carried out with the aim of evading justice.
83. ECtHR (Grand Chamber), Sejdovic v. Italy, Appl. No. 56581/00, judgment of 1 March 2006, para 99 in fine.
84. The latter was one of the features analysed in ECtHR, T. v. Italy, Appl. No. 14104/88, judgment of 12 Oct. 1992, paras. 27–29.
85. Hearsay evidence, on the contrary, should not suffice in this regard.
86. Opinion, para 54.
87. Opinion, para 59; see mutatis mutandis, Case C-769/19, Spetsializirana prokuratura (Vices de forme de l’acte d’accusation), EU:C:2021:28, para 45.
88. See, in this regard, ECtHR, Colozza, supra note 25, para 28.
89. Opinion, para 59.
90. In essence, the two courts agree on one point – should the individual be served with the indictment or officially informed of the charges against him or her, albeit not being informed of the date and place of the trial, it can be presumed that such individual knows about the trial and accordingly does not hold the right to ask for a new trial, after his or her conviction in absentia.
91. Given that there are several inconsistencies within the case law of the two European courts on the discipline of reo absente proceedings, it is difficult to define which approach is more respectful of the fundamental rights of the defendant. However, as explained, it could be argued that the standard of knowledge laid down in IR is higher than that set out in the ECtHR’s case law – this element may improve the chances of suspects and defendants to request a retrial and, in the meanwhile, would narrow the possibility for national authorities to refuse to reopen the case.