Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 6 November 2018 — Criminal proceedings against TX and UW

(Case C-688/18)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Parties to the main proceedings

TX and UW

Question referred

Is the right of a defendant to be present at the trial pursuant to Article 8(1) and (2) in conjunction with recitals 35 and 44 of Directive (EU) 2016/343 ¹ infringed if one of the hearings in criminal proceedings took place in the absence of the defendant, who was duly summoned, informed of the consequences of non-appearance and defended by a lawyer chosen by him, if:

(а)    he did not appear for a reason within his control (namely he decided not to participate in that specific hearing);

(b)    he did not appear for a reason beyond his control (namely illness), if he was subsequently informed of the acts carried out in his absence and, with full knowledge of the situation, decided and declared that:

–    he does not call the legality of those acts into question by relying on his non-appearance and does not request that they be repeated in his presence;

–    he wishes to participate in these acts, whereupon the court conducted an additional examination of the person specified by the defendant and gave the defendant the opportunity to participate in it to an appropriate extent?

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¹ Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).