In Khuzdar<\/em> (C-95\/24) and H\u00f6ldermann<\/em> (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.<\/p>\n\n\n\n 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<\/em> and H\u00f6ldermann<\/em> 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.<\/p>\n\n\n\n In Khuzdar<\/em><\/a> (C-95\/24) and H\u00f6ldermann<\/em><\/a> <\/em>(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<\/em><\/strong>. Both cases interpret Article 9(1)(i) of Framework Decision 2008\/909<\/strong>, 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.<\/p>\n\n\n\n The facts and the rulings<\/em><\/p>\n\n\n\n In both cases, individuals were convicted of crimes<\/strong> in one EU Member State (the “issuing State”), allegedly without being present at their trials<\/strong>. They later sought to have those sentences enforced in their Member State of nationality or residence<\/strong> (the “executing State”) to facilitate their social rehabilitation.<\/p>\n\n\n\n Khuzdar<\/em><\/strong> 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. H\u00f6ldermann<\/strong><\/em> is about a German national who was convicted in Poland and requested to serve his sentence in Germany.<\/p>\n\n\n\n Central to both rulings is the principle that under Framework Decision 2008\/909, the ground for refusing recognition of a judgment rendered in absentia <\/em>is optional<\/strong>. The following developments will focus on this aspect.<\/p>\n\n\n\n Observations<\/em><\/p>\n\n\n\n The distinctive feature of these two judgments, from a Convention perspective, lies in the impact of the mutual recognition<\/strong> of judgments imposing custodial sentences following trials conducted in absentia<\/em>. According to the CJEU, the absence of the accused from his or her trial indeed does not necessarily preclude the recognition and enforcement<\/strong> of such judgments for the purpose of allowing the convicted person to serve the sentence in the executing State.<\/p>\n\n\n\n This approach raises a number of questions when viewed in light of the case law of the ECtHR. They 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<\/strong>, while Article 52(3) of the EU-Charter<\/strong> provides that the protection afforded under Article 48(2) of the Charter, which enshrines the right to a fair trial<\/strong>, must not fall below the level of protection guaranteed by Article 6 of the Convention<\/strong>.<\/p>\n\n\n\n * * *<\/p>\n\n\n\n According to the ECtHR, the right of a criminal defendant to be present at trial \u2013 whether during the original proceedings or at a retrial \u2013 ranks as one of the essential requirements of Article 6<\/strong> and is deeply entrenched in that provision. According to well-established case law:<\/p>\n\n\n\n \u201cIt 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 \u2013 whose interests need to be protected \u2013 and of the witnesses \u2026 . For these reasons the Court has consistently held that when domestic law permits a trial to be held notwithstanding the absence of a person \u201ccharged with a criminal offence\u201d 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 \u2026 . 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 \u2026<\/em> .\u201d (Stoichkov v. Bulgaria<\/em><\/a>, \u00a7\u00a7 55-56).<\/p>\n\n\n\n The ECtHR added that a denial of justice<\/strong> occurs where a person convicted in absentia<\/em> 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 this person has waived his or her right<\/strong> to appear and to defend him- or herself (\u00a7 56).<\/p>\n\n\n\n Moreover, if a \u201cconviction\u201d is the result of proceedings which were a \u201cflagrant denial of justice<\/strong>\u201d, i.e. were \u201cmanifestly contrary to the provisions of Article 6 or the principles embodied therein\u201d, the resulting deprivation of liberty<\/strong> would not be justified under Article 5 \u00a7 1 (a)<\/strong> of the Convention (\u00a7 51). Criminal proceedings which have been held in absentia<\/em> 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 \u201cmanifestly contrary to the provisions of Article 6<\/strong> or the principles embodied therein\u201d. (\u00a7 56)<\/p>\n\n\n\n Before an accused can be regarded as having implicitly waived<\/strong>, through his or her conduct<\/strong>, an important right under Article 6, it must be shown that he or she could reasonably have foreseen the consequences<\/strong> of that conduct (Hermi v. Italy<\/em><\/a>, \u00a7 74; Sejdovic v. Italy<\/em><\/a>, \u00a7 87). This, in turn, presupposes that the defendant was properly made aware<\/strong> of the date, place, and purpose of the trial. <\/p>\n\n\n\n * * *<\/p>\n\n\n\n Article 9(1)(i) of Framework Decision 2008\/909 seeks to codify<\/strong> the various situations that may arise where recognition and enforcement are sought in respect of a criminal judgment rendered in absentia<\/em>, with a view to allowing the sentence to be served in the executing State. It permits recognition to be refused<\/strong> where the defendant was not present at trial<\/strong>, unless it is established that the defendant was duly informed<\/strong> of the proceedings (point (i)); was represented by a legal counsel<\/strong> 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<\/strong> or failed to request a retrial or appeal<\/strong> within the prescribed time limit (point (iii)).<\/p>\n\n\n\n As the CJEU convincingly observed in Khuzdar<\/em>, \u201cin 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<\/strong> of the person concerned or the right to an effective judicial remedy and to a fair trial<\/strong>, as enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union<\/strong> \u2026 , since the person concerned is, in those situations, deemed to have waived<\/strong>, voluntarily and unambiguously, his or her right to be present at his or her trial\u201d (\u00a7 57).<\/p>\n\n\n\n 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<\/strong>. Significantly, the national provisions<\/strong> transposing Framework Decision 2008\/909 into German and Italian law treat this list of exceptions<\/strong> as exhaustive<\/strong>. Consequently, where none of the scenarios envisaged in Article 9(1)(i) applies, recognition and enforcement of a judgment rendered in absentia<\/em> must be refused (Khuzdar, \u00a7 93; H\u00f6ldermann, \u00a7 91). Given that an explicit or implied waiver<\/strong> constitutes the only exception<\/strong> 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.<\/p>\n\n\n\n By contrast, relying on the wording of Article 9(1) (\u201cthe competent authority of the executing State may refuse\u201d) and on Recital 15 of the Preamble to Framework Decision 2009\/299 (\u201cthe grounds for non-recognition are optional\u201d), the CJEU held that such legislation is incompatible<\/strong> with Article 9(1)(i). In its view, it deprives the competent authority of the executing Member State of the discretion<\/strong> to assess, in light of all the circumstances of the case<\/strong>, whether the rights of the defence<\/strong> of the person concerned may nevertheless be regarded as having been respected<\/strong> and, accordingly, whether the sentencing judgment should be recognised and enforced<\/strong> despite having been rendered in absentia<\/em> (Khuzdar, \u00a7\u00a7 93\u201394; H\u00f6ldermann, \u00a7\u00a7 91\u201392).<\/p>\n\n\n\n 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 \u201ctake into account other circumstances<\/strong> 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<\/strong> of the person concerned, in particular the conduct<\/strong> of that person\u201d (H\u00f6ldermann, \u00a7 102; Khuzdar, \u00a7 90).<\/p>\n\n\n\n The CJEU continued:<\/p>\n\n\n\n \u201cIn 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<\/em>.\u201d (H\u00f6ldermann, \u00a7 103; similar in Khuzdar, \u00a7 92).<\/p>\n\n\n\n In other words, the fact that the person concerned has applied to serve his or her sentence in the executing State<\/strong> could, according to the CJEU, remedy the violation<\/strong> of the rights of the defence resulting from the person’s absence at trial<\/strong>, such that enforcement of the resulting conviction would \u201cnot involve a breach of his or her rights of defence<\/strong>\u201d.<\/p>\n\n\n\n This raises the question of which rights of the defence<\/strong> the CJEU has in mind. Is the ECtHR referring to the rights applicable during the trial<\/strong> that led to the conviction, or to rights arising at the enforcement stage<\/strong>? In particular, 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. \u00a0<\/p>\n\n\n\nAnalysis<\/h2>\n\n\n\n