In the event of inability to determine the defendant's whereabouts, he may be tried or convicted in absentia, but shall subsequently have the right to resume proceedings on the merits of the case and conduct it in his presence. However, that right can be denied if he deliberately evaded justice, preventing the authorities from notifying him of the trial.
A criminal investigation was initiated against the IR in Bulgaria in which he was accused of participating in an organized criminal group aimed at committing tax offences threatened by prison sentences. first The indictment file was served on the IR to its own hands and indicated the address at which it could be contacted.
However, at the time the judicial stage of the proceedings could not be established where he was staying, so Spetsaliziran ordered the court (specialised criminal court, Bulgaria) could not call him to trial. An attorney appointed by this court of his own did not make contact with the defendant either.
Furthermore, due to the flaw in the indictment of the served IR, the act was declared invalid and the proceedings were consequently dismissed. After drawing up a new indictment and proceeding, the IR was wanted again, but its whereabouts were not established.
The referring court finally concluded that the IR had escaped and therefore the case could be heard in his absence.
However, in order for the interested party to be properly informed of the procedural guarantees which he enjoys, the referring court wonders which hypothesis is provided for in Directive 2016/343 [1] is covered by the IR situation, which has escaped [2] after service first the indictment and before the judicial stage of criminal proceedings begins.
The Court replied that Article 8(9) Directive 2016/343 it must be interpreted as meaning that, in the case of the defendant whose whereabouts the competent national authorities have failed to determine, despite reasonable efforts, and which authorities have therefore failed to provide information on the case against him, a hearing may take place and, where appropriate, may be sentenced by default.
In such a case, it should, in principle, be possible to rely directly on the right to resume proceedings or to take an equivalent measure to reconsider the substance of the case in its presence.
However, the defendant may be denied that right if it is based on precise and objective grounds that he has received sufficient information to know that a hearing will take place in his case, and by means of deliberate actions and with the intention of withdrawing from the judiciary, he has prevented the official authorities from notifying him of the trial.
Findings of the Court
First of all, the Court points out that Article 8(4) and Article 9 Directive 2016/343, concerning the scope and importance of the right to resume proceedings, it should be considered directly effective.
This right is reserved for persons to whom proceedings are carried out by default, while the conditions provided for in Article 8(2) that Directive is not fulfilled.
However, it is foreseen Directive 2016/343 possibility where the conditions laid down in its Article 8(2), the conduct of the oral hearing and the enforcement of the judgment without the right to resume the proceedings is based on the assumption that the person concerned, being duly informed, voluntarily and unequivocally waived the right to attend the hearing.
This interpretation guarantees respect for the objective of this Directive, which consists in strengthening the right to a fair trial in criminal proceedings, so as to increase the trust of Member States in the criminal justice system of other Member States and to ensure respect for the rights of defence, while preventing a person who, despite being informed of the trial, resigns clearly or implicitly but unequivocally from being present at the trial, from demanding the reopening of the proceedings after the judgment has been given in absentia and thus, by misuse of the law, harming the effectiveness of law enforcement and proper enforcement of justice.
As regards the notification of the hearing and the consequences of non-promotion, The Court states that it is for the national court concerned to determine whether an authentic instrument has been issued against the person concerned, stating clearly the date and place of the hearing and, in the absence of representation by a lawyer, the consequences of a possible lack of standing.
It is also for the court to determine whether the document has been served in good time so as to enable the person concerned to prepare the defence effectively if he decides to take part in the hearing.
As regards, more specifically, the defendants who escaped, the Court found that Directive 2016/343 is in the way of national legislation which excludes the right to resume proceedings for the sole reason that the person concerned has escaped and the authorities have not been able to establish the whereabouts of the person concerned.
Only if, on the basis of precise and objective grounds, the person concerned is officially informed that he or she is accused of having committed a crime and, therefore, knowing that a trial will take place in his or her case, he or she is acting deliberately in such a way that he or she does not receive an official notification of the date and place of the trial, such a person may be considered to be a person who has been informed of the trial and who voluntarily and unequivocally waived the right to attend.
This situation is under hypothesis Article 8(2) Directive 2016/343 [3] . The existence of such precise and objective conditions can be established, for example, if the person concerned has deliberately given an incorrect address to the national authorities competent in criminal matters or is no longer at the address given.
In addition, particular attention should be paid to determining whether the interested party has been sufficiently informed, after first, to the care shown by public authorities to inform the person concerned and after second, to the care shown by the interested person to receive that information.
Moreover, the Court states that this interpretation respects the right to a fair trial enshrined in Article 47(48) The Charter of Fundamental Rights of the European Union and Article 6 The European Convention for the Protection of Human Rights and Fundamental Freedoms.
[1] Directive 2016/343 of 9 March 2016 on strengthening certain aspects of the presumption of innocence and the right to attend a trial in criminal proceedings (Official Journal of the European Union L (2016), No. 65, p. 1).
[2] More specifically. Article 8 Directive 2016/343 concerns the right to attend the hearing. According to section 2 that Article, Member States may provide that a hearing, the result of which may be a judgment on the fault or innocence of the person concerned, may take place in his absence, provided that he has been informed in due time of the trial and of the consequences of the instigation or of the interested person who has been informed of the trial, is represented by the lawyer whom he himself has empowered or appointed of his own motion. According to Article 8(4) that Directive, where the possibility is allowed in the Member States to hold hearings in the absence of the person concerned, but it is not possible to comply with the conditions laid down in section 2, because his whereabouts cannot be established despite reasonable efforts, Member States may, however, provide that a judgment may be given and enforced. In such a case, Member States shall ensure that, upon notification to the suspect or accused person of the decision, in particular at the time of its detention, he is also informed of the possibility to challenge the judgment and of the right to resume proceedings or to another measure, in accordance with Article 9 this directive. More specifically, based on this Article 9 the suspect or accused should be entitled to resume proceedings if they were not present at the trial and the conditions provided for in Article 8(2) that Directive has not been fulfilled.
[3] However, subject to the specific needs of vulnerable persons referred to in the recitals 42 and 43 Directive 2016/343