Abstract

In Khuzdar (C-95/24) and Höldermann (C-447/24), the CJEU held that the ground for refusing recognition and enforcement of custodial sentences imposed following trials in absentia under Article 9(1)(i) of Framework Decision 2008/909 is optional. Consequently, even where none of the situations expressly listed in that provision applies, executing authorities may nevertheless recognise and enforce the judgment after taking into account all the circumstances of the case, including the conduct of the convicted person and his or her request to serve the sentence in the executing State.

This post argues that this approach is difficult to reconcile with the case law of the ECtHR, according to which a conviction rendered in absentia constitutes a flagrant denial of justice unless the accused has validly waived the right to appear or has subsequently been afforded the opportunity to obtain a fresh determination of the merits of the case. By allowing recognition and enforcement to proceed on grounds extending beyond a free, informed and unequivocal waiver, Khuzdar and Höldermann lower the Convention standard within the EU legal order, contrary to the objectives of Framework Decision 2009/299 and Article 52(3) of the Charter. The post concludes that, in the absence of a valid waiver of the right to a retrial or appeal, recognition and enforcement of convictions rendered in absentia should be refused.

Analysis

In Khuzdar (C-95/24) and Höldermann (C-447/24), both delivered on 21 May 2026, the CJEU deals with the mutual recognition of judgments involving custodial sentences handed down following trials in absentia. Both cases interpret Article 9(1)(i) of Framework Decision 2008/909, on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, as amended by Framework Decision 2009/299.

The facts and the rulings

In both cases, individuals were convicted of crimes in one EU Member State (the „issuing State“), allegedly without being present at their trials. They later sought to have those sentences enforced in their Member State of nationality or residence (the „executing State“) to facilitate their social rehabilitation.

Khuzdar is about a person residing in Italy who was sentenced in Slovakia and requested to serve his sentence in Italy to avoid surrender under a European Arrest Warrant. Höldermann is about a German national who was convicted in Poland and requested to serve his sentence in Germany.

Central to both rulings is the principle that under Framework Decision 2008/909, the ground for refusing recognition of a judgment rendered in absentia is optional. The following developments will focus on this aspect.

Observations

The distinctive feature of these two judgments, from a Convention perspective, lies in the impact of the mutual recognition of judgments imposing custodial sentences following trials conducted in absentia. According to the CJEU, the absence of the accused from his or her trial indeed does not necessarily preclude the recognition and enforcement of such judgments for the purpose of allowing the convicted person to serve the sentence in the executing State.

This approach raises a number of questions when viewed in light of the case law of the ECtHR. These questions are all the more pertinent because Recital 8 of the Preamble to Framework Decision 2009/299 requires the application of Framework Decision 2008/909 to comply with Convention standards, while Article 52(3) of the EU-Charter provides that the protection afforded under Article 48(2) of the Charter, which enshrines the right to a fair trial, must not fall below the level of protection guaranteed by Article 6 of the Convention.

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According to the ECtHR, the right of a criminal defendant to be present at trial – whether during the original proceedings or at a retrial – ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision. According to well-established case law:

“It is of capital importance that a criminal defendant should appear, both because of his or her right to a hearing and because of the need to verify the accuracy of his or her statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses … . For these reasons the Court has consistently held that when domestic law permits a trial to be held notwithstanding the absence of a person “charged with a criminal offence” that person should, once he or she becomes aware of the proceedings, be able to obtain from a court which has heard him or her a fresh determination of the merits of the charge … . The only situation where it is open to question whether this requirement applies is when the accused has waived his or her right to appear and to defend himself or herself, but at all events such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance … .” (Stoichkov v. Bulgaria, §§ 55-56).

The ECtHR added that a denial of justice occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been unequivocally established that he has waived his right to appear and to defend himself (§ 56).

Moreover, if a “conviction” is the result of proceedings which were a “flagrant denial of justice”, i.e. were “manifestly contrary to the provisions of Article 6 or the principles embodied therein”, the resulting deprivation of liberty would not be justified under Article 5 § 1 (a) of the Convention (§ 51). Criminal proceedings which have been held in absentia and whose reopening has been subsequently refused, without any indication that the accused has waived his or her right to be present during the trial, may fairly be described as “manifestly contrary to the provisions of Article 6 or the principles embodied therein”. (§ 56)

Before an accused can be regarded as having implicitly waived, through his or her conduct, an important right under Article 6, it must be shown that he or she could reasonably have foreseen the consequences of that conduct (Hermi v. Italy, § 74; Sejdovic v. Italy, § 87). This, in turn, presupposes that the defendant was properly made aware of the date, place, and purpose of the trial.

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Article 9(1)(i) of Framework Decision 2008/909 seeks to codify the various situations that may arise where recognition and enforcement are sought in respect of a criminal judgment rendered in absentia. It permits recognition to be refused where the defendant was not present at trial, unless it is established that the defendant was duly informed of the proceedings (point (i)); was represented by a legal counsel duly mandated for that purpose (point (ii)); or, after being informed of the right to a retrial or an appeal, either expressly indicated that he or she did not contest the judgment or failed to request a retrial or appeal within the prescribed time limit (point (iii)).

As the CJEU convincingly observed in Khuzdar, “in each of the situations referred to in those points, the recognition and enforcement of a sentencing judgment do not infringe the rights of the defence of the person concerned or the right to an effective judicial remedy and to a fair trial, as enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union … , since the person concerned is, in those situations, deemed to have waived, voluntarily and unambiguously, his or her right to be present at his or her trial” (§ 57).

The exceptions set out in Article 9(1)(i) of Framework Decision 2008/909 thus all relate to situations in which the defendant may be regarded as having waived the right to attend the criminal trial. Significantly, the national provisions transposing Framework Decision 2008/909 into German and Italian law treat this list of exceptions as exhaustive. Consequently, where none of the scenarios envisaged in Article 9(1)(i) applies, recognition and enforcement of a judgment rendered in absentia must be refused (Khuzdar, § 93; Höldermann, § 91). Given that an explicit or implied waiver constitutes the only exception recognised by the ECtHR to the right of the accused to attend his or her trial, this strict approach appears fully consistent with the Convention.

By contrast, relying on the wording of Article 9(1) (“the competent authority of the executing State may refuse”) and on Recital 15 of the Preamble to Framework Decision 2009/299 (“the grounds for non-recognition are optional”), the CJEU held that such legislation is incompatible with Article 9(1)(i). In its view, it deprives the competent authority of the executing Member State of the discretion to assess, in light of all the circumstances of the case, whether the rights of the defence of the person concerned may nevertheless be regarded as having been respected and, accordingly, whether the sentencing judgment should be recognised and enforced despite having been rendered in absentia (Khuzdar, §§ 93–94; Höldermann, §§ 91–92).

The CJEU therefore considers that, even where none of the three codified scenarios listed in Article 9(1)(i) applies, the competent authority of the executing Member State must nevertheless “take into account other circumstances that enable it to satisfy itself that the recognition and enforcement of the sentencing judgment concerned do not entail a breach of the rights of the defence of the person concerned, in particular the conduct of that person” (Höldermann, § 102; Khuzdar, § 90).

The CJEU continued:

“In those circumstances, the competent authority of the executing Member State may take into account an application, such as that made in the case in the main proceedings, to have the sentence enforced in the Member State in which the person concerned is a national and in which that person has his or her centre of interests, in order to decide that that enforcement does not involve a breach of his or her rights of defence, so that it is not necessary to apply the ground for non-recognition and non-enforcement provided for in Article 9(1)(i) of Framework Decision 2008/909, notwithstanding the fact that the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied.” (Höldermann, § 103; Khuzdar, § 92).

In other words, the fact that the person concerned has applied to serve his or her sentence in the executing State could, according to the CJEU, somehow remedy the violation of the rights of the defence resulting from the person’s absence at trial, such that enforcement of the resulting conviction would “not involve a breach of his or her rights of defence” (Höldermann, § 103; Khuzdar, § 92).

This raises the question of which rights of the defence the CJEU has in mind. Is the ECtHR referring to the rights applicable during the trial that led to the conviction, or to rights arising at the enforcement stage? What rights of the defence remain to be protected at the stage of enforcing a criminal conviction that could be sufficiently significant to offset the violation of one of the most fundamental rights of the defence at the trial stage: the right of the accused to be present at his or her criminal trial? The CJEU’s silence on this point strongly suggests that there are none.  

This is also why enforcement proceedings generally fall outside the scope of the right to a fair trial under the criminal head of Article 6 of the Convention (Enea v. Italy, § 97). Accordingly, the only rights of the defence that appear relevant in the present context are those applicable to the criminal proceedings conducted in absentia.

The CJEU thus seems to suggest that the violation of the defendant’s right to be present at trial may be cured by allowing the custodial sentence to be executed in the executing State, having regard to the circumstances of the case, the conduct of the convicted person and, in particular the latter’s request to be allowed to serve his or her sentence in the executing State.

The referring court in Khuzdar rightly pointed out, however, that enforcement presupposes recognition of the judgment (§ 23). Consequently, the CJEU’s approach could only be persuasive if a request to serve the sentence in the executing State were automatically understood as entailing a waiver of the right to seek a retrial or appeal. For in the absence of such a waiver, a conviction in absentia would entail a denial of justice (see above) which would in turn preclude recognition of the judgment. Yet this assumption remains unsubstantiated.

The quality and reliability of a waiver in such circumstances is another question arising here. One can indeed readily envisage situations in which pressure may be exerted on convicted persons to waive their right to a retrial in exchange for authorisation to serve their sentence in the executing State. The prospect of serving a sentence closer to one’s family and social environment could become the price for relinquishing a fundamental procedural guarantee.

That said, the CJEU itself appears to reject any automatic equation between such a request and a waiver of the right to seek a retrial or appeal. In Khuzdar, it stated:

“… it is possible for the competent authority of the executing Member State to take into account such a request and, as the case may be, the desire not to rely on a possible right to a new judgment in order to decide that that enforcement does not entail a breach of his or her rights of defence, so that it is not necessary to apply the ground for non-recognition and non-enforcement provided for in Article 9(1)(i) of Framework Decision 2008/909, notwithstanding the fact that conditions for applying the situations referred to in points (i) to (iii) of Article 9(1)(i) are not satisfied”. (§ 92, emphasis added)

Thus, a request to serve a sentence in the executing State and a waiver of the right to a retrial are distinct concepts. They cannot simply be conflated. Nor can such a request automatically be construed as an implied waiver, unless the person concerned has been adequately informed of the legal consequences attaching to it. Hence, without an informed and unequivocal waiver, such a request cannot remedy the serious denial of justice inherent in a criminal conviction rendered in absentia, provided of course that such a conviction has in fact occurred, which is a matter for the domestic courts to determine (Khuzdar, § 86; Höldermann, § 95).

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In light of the Strasbourg case law, which recognises only a free, informed and unequivocal waiver as a valid exception to the right to attend the trial in person, Khuzdar and Höldermann, to the extent that they extend the scope of exceptions to the conduct of the person concerned or his or her request for a service of the sentence in the executing State, lower the Convention protection level within the EU legal order, something the EU legislature obviously did not intend.

Article 1 of Framework Decision 2009/299 indeed defines the objectives of Framework Decision 2008/909 as follows:

“1. The objectives of this Framework Decision are to enhance the procedural rights of persons subject to criminal proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States.

2. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty, including the right of defence of persons subject to criminal proceedings, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected.”

Likewise, Recital 1 of the Preamble to Framework Decision 2009/299 provides:

“The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. The Court has also declared that the right of the accused person to appear in person at the trial is not absolute and that under certain conditions the accused person may, of his or her own free will, expressly or tacitly but unequivocally, waive that right.”

In light of these provisions, it seems clear that, while the EU legislature sought, through Framework Decision 2008/909, to strengthen the mutual recognition of judicial decisions between Member States, it did not intend this objective to be pursued at the expense of the rights of the defence as guaranteed by Article 6 of the Convention and interpreted by the ECtHR. Article 52(3) of the EU-Charter would likewise appear to preclude such a result.

The ECtHR, for its part, stated in Avotiņš v. Latvia:

“The Court is mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require. … It considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU.” (§§ 113–114, emphasis added)

And the ECtHR added:

“… if a serious and substantiated complaint is raised before [the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.” (§ 116)

In simple terms, Article 6 of the Convention, by which both the issuing and the executing State remain bound when applying EU law, limits the optional character of Article 9(1) of Framework Decision 2008/909.

Consequently, the only possibility for the competent authority of the executing State to avoid violating Article 5 § 1 (a) of the Convention by enforcing a custodial sentence imposed following a trial in absentia is to enquire about the existence of an unequivocal waiver by the convicted person of his or her right to a retrial or an appeal. In the absence of such a waiver, recognition and enforcement of the judgment should be refused.