In the case of Spetsializirana prokuratura (trial of an absconded suspect) (C-569/20, 19.5.2022) the CJEU applied 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 on a situation arising from the fact that an accused in domestic criminal proceedings had absconded. The issue was whether under that Directive the accused could be tried in absentia and, if so, would be, after reappearing, entitled to a new trial or, alternatively, another legal remedy allowing a fresh determination of the merits of the case.
The judgment is already noteworthy in that it represents another contribution by the CJEU to the interpretation of one of the directives on procedural rights in criminal proceedings, the list of those contributions being still rather short (see, for another recent example, the judgment in the case of IS).
A further interesting feature of this case is certainly the fact that it confronted the CJEU with a situation not explicitly covered by Directive 2016/343, i. e. the situation created by an accused who may be considered to have waived the right to a new trial laid down in Article 9 of the Directive. The Directive indeed covers the situations whereby an absent suspect is either properly informed about the upcoming trial or represented by a mandated lawyer (Article 8(2)) or indeed cannot be located by the authorities (Article 8(4)). It does not, however, deal with a suspect who, while being informed of his or her trial, waives his or her right to be present at it.
In the absence of an explicit provision addressing that eventuality, the CJEU therefore engaged into an interpretation of Article 8(2) of the Directive – which sets out the circumstances under which a judgment in absentia does not give rise to a right to a retrial –, with a view to determining when there could be such a waiver and whether it came within the scope of that provision.
Interestingly, the CJEU thereby relied on the case-law of the ECtHR on the requirements to be fulfilled for a waiver of procedural rights to be compliant with Article 6 of the Convention (Sejdovic v. Italy, Vilches Coronado and Others v. Spain) and, more specifically, on the fact that such a waiver can be inferred from the circumstance that the summons to appear could not be served on an accused on account of a change of address which the accused failed to communicate to the competent authorities (Lena Atanasova v. Bulgaria). In light of that case-law, the CJEU concluded that:
“It is only where it is apparent from precise and objective indicia that the person concerned, while having been officially informed that he or she is accused of having committed a criminal offence, and therefore aware that he or she is going to be brought to trial, takes deliberate steps to avoid receiving officially the information regarding the date and place of the trial that that person may, subject however to the particular needs of the vulnerable persons referred to in recitals 42 and 43 of Directive 2016/343, be deemed to have been informed of the trial and to have voluntarily and unequivocally foregone exercise of the right to be present at it. The situation of such a person who received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial in due time by means of the document referred to in paragraph 41 of the present judgment is thus covered by Article 8(2) of that directive. (§ 48, emphasis added)
According to the CJEU, it was for the referring court to examine, in the light of its interpretation of Article 8(2), whether the accused could be deemed to have, tacitly but unequivocally, waived his right to be present at his trial, in which case he would not be entitled to a new trial.
While the harmony thus being created between Luxembourg and Strasbourg on the issue at stake is of course a welcome development, this case also illustrates the risks involved in trying to codify a subject matter such as procedural fundamental rights, which is primarily the result of a dynamic case-law resulting from the application of Articles 6 of the Convention and 47-48 of the EU-Charter (right to a fair trial).
It is indeed a well-known fact that the Convention is a « living instrument » and is interpreted accordingly by the ECHR, with the consequence that its rights must on occasion be adapted to new situations and their requirements refined. Yet, the present case reveals that not only does Directive 2016/343 not address the waiver of one of the main rights laid down by it, but also that, for obvious chronological reasons, it could not take on board more recent case-law developments such as those resulting from the more recent ECHR judgments referred to by the CJEU. Against this background, the question arises whether such Directives are intended to be updated accordingly or whether they might gradually turn into static alternatives to a dynamic case-law (on this, see No more common understanding, at p. 27-28)?