Rito penale in absentia e obbligo alla presenza processuale: la lettura (pilatesca) della Corte di Giustizia

This paper aims to analyze a recent judgment of the Court of Justice of the European Union concerning in absentia criminal proceedings and the right to be present during the trial. Initially, a brief examination of the case facts and the decision's content is presented, followed by an exploration of the main critical aspects of the decision. Primarily, the approach adopted by the Luxembourg Court in allowing the compatibility of national legislation that mandates the accused's appearance at trial with EU law is critiqued. This stance appears to be in conflict with the provisions set forth in the European Convention on Human Rights (i.e., Article 6 ECHR) regarding trial presence. Such a conflict potentially undermines the coherence between the two supranational legal systems, while simultaneously disregarding the minimum standards established at the conventional level, possibly in contradiction with Article 52(3) of the Charter of Fundamental Rights of the European Union. Despite these issues, the judgment also contains further analytical aspects that seem agreeable. Notably, the Court's hermeneutic approach to ensuring that a deported migrant, subject to a re-entry ban, retains the right to participate in the criminal proceedings concerning them, despite the administrative measures imposed, is commendable. In this way, the Court of Justice has reinforced the prerogative of procedural participation protected by European Union law, rendering it practical and effective.