HN (Procès d’un accusé éloigné du territoire)

On 15 September 2022, the First Chamber of the Court ruled on the interpretation of the right to be present at trial under Article 8(1) and (2) of Directive (EU) 2016/343. The reference for preliminary ruling arose in criminal proceedings for use of forged documents, carried out in Bulgaria agains Mr. HN, an Albanian national. In essence, HN was arrested and a criminal investigation against him commenced, but the following day he was also subject to a resturn decision accompanied by a five-year entry ban. Subsequently, during the investigation phase, HN accepted being tried in absentia after being duly informed of his rights. Nonetheless, when the indictment was then submitted to the referring court (the District Court of Sofia, in Bulgaria), the latter considered that HN’s presence at the preliminary public hearing would be mandatory. In that regard, the Ministry of Internal Affairs informed the referring judge that HN had been meanwhile deported, which prevented him from being informed of the ongoing criminal proceedings. In that context, the District Court of Sofia raised various questions, which were interpreted by the Court as asking whether ‘Article 8(1) of Directive 2016/343 must be interpreted as precluding national legislation which imposes an obligation on suspects and accused persons in criminal proceedings to be present at their trial’, and whether ‘Article 8(1) and (2) of Directive 2016/343 must be interpreted as precluding legislation of a Member State which permits a trial to be held in the absence of the suspect or accused person, where that person is outside that Member State and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member State’.

As for the first question, the Court recalled that Directive 2016/343 simply allows Member States to provide – at the conditions laid down in the Directive – for cases of trial in absentia. Still, it pursues a minimal degree of harmonisation, in whose context Member States remain free to require the mandatory presence of the accused at trial. As for the second question, the Court considered that, in laying down the conditions under which Member States may allow for a trial in absentia, Article 8(2) of the Directive does not expressly lay down any condition regarding the possibility of the accused to physically travel to the trial State. Nonetheless, after recalling the aim of the Directive, as well as the relevant ECtHR case-law concerning the right to be present at trial, the Court concluded that Article 8(2) only allows for proceedings in absentia where the ‘person has had a genuine opportunity to attend, and voluntarily and unequivocally waived that option’. Hence, the Court held that Article 8(1) of Directive 2016/343 shall be interpreted as ‘not precluding national legislation which imposes an obligation on suspects and accused persons in criminal proceedings to be present at their trial’, while Article 8(2) must be interpreted as ‘precluding legislation of a Member State which permits a trial to be held in the absence of the suspect or accused person, where that person is outside that Member State and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member States.