DD (Réitération de l’audition d’un témoin)

On 15 October 2022, the Eighth Chamber of the Court of Justice deliverd a preliminary ruling regarding the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, established in the Directive (EU) 2016/343. The article under examination is the provision number 8 (1) concerning the Right of an accused person to be present at the trial. The case regards Mr. DD, a border police officer who is being prosecuted for offences relating to illegal migration. At the initial hearings the accused was present with his lawyer, and in that hearings the Court listened to several witnesses and the defence lawyer had the possibility to put question to that witness. The continuation of the examination was fixed for 30 November 2020, but DD asked the proceedings be adjurned due to the absence of his lawyer who was recovering from coronavirus and who already requested the postponing of the trial on 27 November 2020. The referring court proceeded with the examination of the anonymous witness No 263, considering the possibility to remedy to this infringement of DD’s rights, re-examining the witness at the following hearing on 18 December 2020. The parties present at the hearing on 30 November 2020 put their questions to that witness. Subsequently, a copy of the minutes of that examination was sent to his lawyer VV. On 18 December both DD and his defence lawyer where recovering from coronavirus; however, the hearing took place and the party had the possibility to examine (under reexamination) the witness only on 11 January 2021. The question arose is whether this is an infringement of the right to the accused to be present at his trial. The Specialised Criminal Court of Bulgaria decided to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the right of the accused person to be present in person under Article 8(1) of Directive 2016/343, read in conjunction with Article 10(1) and recital 44 thereof, safeguarded where a witness has been examined in the absence of the accused person at a separate hearing but the accused person had the opportunity to put questions to that witness at the subsequent hearing but stated that he or she had no questions, or is it necessary, in order to safeguard the right to be present in person, for that examination to be repeated in its entirety, including the questions put by the other parties who were present at the first examination? (2) Is the right to be defended by a lawyer under Article 3(1) of Directive 2013/48, read in conjunction with Article 12(1) thereof, safeguarded where two witnesses have been examined in the absence of the lawyer [of the accused person] at two separate hearings but the lawyer was given the opportunity to put questions to the two witnesses at the subsequent hearing, or is it necessary, in order to safeguard the right of defence by a lawyer, for those two examinations to be repeated in their entirety, including the questions of the other parties from the first [examinations], and, in addition, for the lawyer who was absent from the two previous hearings to be given the opportunity to ask his or her questions?’ The Court examined the questions together affirming that Article 8(1) of Directive 2016/343 provides that Member States are to ensure that suspects and accused persons have the right to be present at their trial. This enshrines in article 6 ECHR and, this right corresponds to the one affirmed by article 47 paragraph second and third and article 48 of the EU Charter of Fundamental Rights. In that case the Court affirmed that it is sufficient that the accused person and the defence lawyer are able to question the witness in another moment, if they request so, but they have to be provided with a copy of the minute of the examination of that witness when they did not attend the trial.