TX & UW (Spetsializirana prokuratura (Audience en l'absence de la personne poursuivie))

On 2 April 2020, the Sixth Chamber of the Court of Justice delivered its judgment in case C‑688/18 PPU, concerning the interpretation of Article 8(1) and (2) of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. The request for a preliminary ruling concerned, in particular, the procedural consequences of defendants’ non-participation in hearings for reasons within or beyond their control, as the referring court had doubt on whether national legislation complied with the Directive.

The Specialist Prosecutor’s Office of Bulgaria charged TX and UW with participation in a criminal organization. In compliance with to Bulgarian legislation, TX and UW were informed of the conditions under which their trial could take place in their absence and of the fact that, in such a case, the final judgment would be binding on them and could not be challenged on the ground that they had not personally participated in the trial. At the trial, TX did not appear at the hearing held on 16 May 2018 because he was ill, while UW decided not to participate in that hearing. Both TX and UW were defended by their lawyers during the hearing and were sent copies of its transcripts. TX and UW appeared at the next hearing and, after consulting with their lawyers, stated that they were aware of the transcript of the hearing of 16 May 2018, including the evidence taken in their absence, and did not wish for that evidence to be taken again with their participation. According to the law, the steps taken in their absence were therefore not repeated. TX again did not appear at a hearing on 1 October 2018 because of illness and was represented by his lawyer. TX was sent a copy of the transcript of that hearing and, when he appeared at the next hearing, asked to repeat the examination of a witness, which was carried out in his absence. The court granted that request and conducted a further examination of that witness, giving TX the opportunity to fully participate and ask all the questions he wished to ask.

The reasoning of the Court provides for an interpretation of Directive 2016/343 and the right that defendants must enjoy to be present at their trial. The Courts starts its arguments by underscoring that this right is not absolute and, under certain conditions, can be expressly or tacitly waved by the same suspects and accused persons. However, the Court states that this must happen “unequivocally” (para. 32). The two alternative condition upon which a trial can be held in the absence of the defendant, as set forth in Article 8(2) of the Directive, are that the defendant has been informed in due time of the trial and of the consequences of non-appearance (Art. 8(2)(a)), or that, having been informed of the trial, the defendant is represented by a mandated lawyer appointed by the person of the State (Art. 8(2)(b)).

The Court stresses that the right to participate in one own trial is based on the right to a fair trial, as enshrined in Article 6 of the ECHR as well as in Articles 47 and 48 of the Charter. Recalling the case-law of the ECtHR, the Court states that also the Strasbourg Court allows for the defendants to waive their right to take part in hearings, provided that this has been established unequivocally and minimum safeguards are put in place. In addition, the waiver cannot “run counter to any important public interest” (para. 37).

Referring to the main proceedings, the Courts notes that, on the one hand, TX and UW were informed, according to the law, of the conditions in which the trial could take place if they do not appear without a valid reason and, on the other hand, their lawyers participated in all the hearings. In the case of UW, who deliberately waived his right to appear at one hearing, the Court underlines that both conditions laid down in point (a) and (b) of Article 8(2) of the Directive were complied with. At the same time, minimum proportionate safeguards were ensured and the waiver did not run counter to any important public interest. Concerning the situation of TX, who was unable to appear at hearings of his trial for a reason beyond his control, the Court examines both the case in which TX did not want to repeat the steps taken in his absence and the one where he asked to repeat the examination of the witness. In the first occasion, the Court observes that the fact of being informed of the steps taken during that hearing and having TX expressly stated that he did not want to have them repeated constitute an “unequivocal waiver of the right to be present at the hearing concerned” (para 46). Finally, referring to the situation in which FX had the examination of the witness repeated in his presence with his full participation, the Court affirms that in such a case FX “cannot be regarded as having been absent from his trial” (para. 48).

Therefore, the Court concludes that the rules provided for in Bulgarian legislation and concerning the participation of defendants in their trial, as applied in the main proceedings by the Bulgarian court, comply with Article 8(1) and (2) of Directive 2016/343.