OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 18 April 2024 (1)
Case C‑760/22
FP,
QV,
IN,
YL,
VD,
JF,
OL
joined party:
Sofiyska gradska prokuratura
(Request for a preliminary ruling from the Sofiyski gradski sad (Sofia City Court, Bulgaria))
(Preliminary ruling – Judicial cooperation in criminal matters – Charter of Fundamental Rights of the European Union – Articles 47 and 48 – Directive (EU) 2016/343 – Right to be present at the trial in criminal proceedings – Taking part in the trial remotely by videoconference during the COVID-19 pandemic – Obligation to be present at the trial)
I. Introduction
1. The digitalisation of justice has important implications for the fundamental procedural rights in criminal proceedings, particularly the right to be present at one’s trial and respect for the rights of the defence. The need to ensure the continuity of justice during the COVID-19 pandemic and the public interest of the protection of public health led Member States and countries around the world either to introduce in their systems the use of videoconferencing in criminal proceedings or to increase and generalise its use. (2) The resurgence of the challenges surrounding the ‘remote defendant’ (3) raises delicate questions on the appropriate balance to be struck between the exercise of fundamental procedural rights in criminal proceedings and the use of digital means to administer justice effectively.
2. In EU law, Article 8(1) of Directive (EU) 2016/343 (4) lays down the procedural right of suspects and accused persons to be present at the trial, which is an essential element of the fundamental right to a fair trial enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The case in the main proceedings raises the question whether that provision precludes a decision taken by a criminal court to allow an accused person to participate by videoconference in the trial despite the absence of a specific legal basis in national law providing for such means of participation. It thus gives the Court the opportunity to interpret for the first time the right to be present at the trial in the context of use of videoconferencing or other distance communication technologies.
II. Legal framework
European Union law
Directive 2016/343
3. Recitals 9, 33, 35 and 48 of Directive 2016/343 provide:
‘(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial.
…
(33) The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the Union.
…
(35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right.
…
(48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the [European Convention on Human Rights (“the ECHR”)], as interpreted by the Court of Justice and by the European Court of Human Rights.’
4. Article 1 of Directive 2016/343, entitled ‘Subject matter’, states:
‘This Directive lays down common minimum rules concerning:
…
(b) the right to be present at the trial in criminal proceedings.’
5. Article 8 of that directive, entitled ‘Right to be present at the trial’, provides in paragraphs 1 and 2 thereof as follows:
‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial.
2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that:
(a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or
(b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.’
Bulgarian law
6. Article 6a(2) of Zakon za merkite i deystviyata po vreme na izvanrednoto polozhenie, obyaveno s reshenie na Narodnoto sabranie ot 13.03.2020 i za preodolyavane na posleditsite (Law on the measures and actions taken during the state of emergency declared by decision of the National Assembly of 13 March 2020 and on the management of the effects; ‘the Law on the measures during the state of emergency’), applicable until 31 May 2022, provided:
‘During the state of emergency or the period of the epidemic and for two months after the lifting of that state of emergency, public court hearings … may be conducted remotely if direct virtual participation by the parties in the trial or in the proceedings is ensured. A transcript of the court hearings held shall be produced and published without delay, and the record of the court hearing shall be kept until the time limit for correcting and supplementing the transcript has expired, unless the rules of procedure provide otherwise. The court … shall notify the parties if the court hearing is to be conducted remotely.’
7. Article 55 of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’), states:
‘The accused person shall have the following rights: … to participate in the criminal proceedings.’
8. Article 269 of the NPK states:
‘(1) In cases where the accused person has been indicted for a serious criminal offence, his or her presence at the hearing shall be mandatory.
(2) The court may order that the accused person also appear in cases in which his or her presence is not compulsory, where this is necessary to ascertain the objective truth.
(3) Provided that this does not prevent the truth from being ascertained objectively, the case may be heard in the absence of the accused person, if:
1. he or she is not to be found at the address indicated by that person, or he or she has changed address without notifying the competent authority;
2. his or her place of residence in Bulgaria is not known and has not been identified following an extensive search;
3. having been duly summoned, he or she has not given a valid reason for not appearing, and the procedure laid down in Article 247c(1) of the NPK has been complied with;
4. the accused person is outside the territory of the Republic of Bulgaria and:
(a) his or her place of residence is unknown;
(b) he or she cannot be summoned to appear for other reasons;
(c) he or she was duly summoned and gave no valid reason for not appearing.’
9. Article 115(2) of the NPK states:
‘The accused person shall not be questioned by a delegated judge or by videoconference unless he or she is located outside Bulgaria and this does not prevent the truth from being objectively ascertained.’
10. Article 474(1) of the NPK states:
‘The judicial authority of another State may question an individual who is a witness or expert in criminal proceedings and is located in the Republic of Bulgaria by video- or telephone conference, or conduct questioning with the participation of an accused person, only if this does not run counter to the fundamental principles of Bulgarian law. Questioning by videoconference with the participation of an accused person may take place only with the latter’s consent and after the participating Bulgarian judicial authority and the judicial authorities of the other State have agreed on the manner in which the videoconference is to be conducted.’
III. Succinct presentation of the facts and procedure in the main proceedings
11. FP is being prosecuted for membership of a criminal organisation for the purposes of enrichment and the concerted commission of tax offences under Article 255 of the Nakazatelen kodeks (Penal Code; ‘the NK’). That is a serious offence under the NK.
12. FP has mandated a defence counsel since the start of the proceedings.
13. By judgment of 11 April 2019, FP was found guilty by the former Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) and was sentenced to six months’ imprisonment suspended for three years. That judgment was set aside on appeal. The case was remitted for retrial to another chamber of the former Spetsializiran nakazatelen sad (Specialised Criminal Court), the Sofiyski gradski sad (Sofia City Court, Bulgaria), which is the referring court. The retrial of the case began on 30 June 2021.
14. At the preliminary public hearing of 12 October 2021, FP asked to take part in the proceedings remotely via an online communication link providing video and sound, as he lived and worked in the United Kingdom. He stated that he was familiar with all of the procedural documents and that his rights would not be infringed by remote participation.
15. FP’s lawyer was physically present in the courtroom and stated that any new materials could be transmitted to FP electronically so that the latter could review them in a timely manner. FP’s lawyer also stated that the consultations with his client could be arranged by means of a separate connection, which could take place with interruption of the video transmission and outside the courtroom.
16. The referring court allowed FP to participate remotely in the public hearing of 12 October 2021 on the basis of Article 6a(2) of the Law on the measures during the state of emergency, in compliance with the guarantees and conditions set by the court. During the following hearings, with the exception of that of 28 February 2022, at which he was physically present, FP participated by videoconference.
17. At the hearing scheduled for 13 June 2022, FP wished to continue to participate remotely in the proceedings. However, the referring court had doubts as to whether this possibility still existed under Bulgarian law, given that Article 6a(2) of the Law on the measures during the state of emergency had ceased to apply as of 31 May 2022. The referring court notes that the NPK does not provide for the possibility for accused persons to participate by videoconference in the legal proceedings except in certain specific cases, none of which is applicable to the present proceedings. However, according to the referring court, the Bulgarian legislation does not explicitly prohibit the use of videoconferencing.
18. In view of the absence of a specific legal basis, FP’s counsel suggested that his client could participate at the hearing remotely while being regarded as absent.
19. The referring court did not accept the proposal to regard FP as absent. It took the view that even if FP was not physically present in the courtroom, he could participate in the trial effectively.
20. In the absence of a legal basis in national law allowing the use of videoconferencing, the referring court considered it necessary to verify whether it is compatible with Directive 2016/343 to give the accused person the possibility to decide how to discharge the duty to be present at the criminal proceedings. In that regard, the referring court harbours doubts as to whether FP should be regarded as present in so far as his rights have not been infringed and all the measures have been taken to ensure that there is no substantial difference between his physical presence in the courtroom and his participation in the proceedings using an online connection.
21. It is in the light of those considerations that the Sofiyski gradski sad (Sofia City Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the right of an accused person to be present at his or her trial, as provided for in Article 8(1) of [Directive 2016/343], read in conjunction with recitals 33 and 44 thereof, infringed if, at his or her express request, he or she takes part in the court hearings being conducted in the criminal case in question via an online link, in a situation where he or she is defended by a lawyer mandated by him or her and present in the courtroom, and where that link enables him or her to follow the course of the proceedings and to adduce and be given access to evidence, where he or she can be heard without technical hindrances and he or she is guaranteed an effective and confidential means of conferring with his or her lawyer?’
22. Written observations have been submitted by FP, the Hungarian and Latvian Governments, as well as by the European Commission.
IV. Assessment
A. The reformulation of the question referred for a preliminary ruling
23. According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. (5)
24. In the present case, the referring court’s question arises from the fact that the NPK requires the presence of the accused person at the criminal proceedings when that person is indicted for a serious criminal offence, while it does not provide for the possibility to participate by videoconference in those proceedings. It follows from the order for reference for a preliminary ruling that there are certain situations in which online participation is possible, namely at the pre-trial stage and in other specific proceedings. However, those situations are not applicable to the case in the main proceedings.(6)
25. FP, the accused person in the main proceedings, was allowed to participate in the trial until a certain stage of the proceedings, while the Law on the measures during the state of emergency was applicable. After that law ceased to apply, and in the absence of another legal provision providing for online participation at the hearing, FP requested to continue participating in the trial remotely while being treated as absent. The referring court did not adhere to that request as it considered that regarding FP as absent was not consistent with his actual participation in the proceedings. The referring court took the view that it could allow FP to decide how to discharge the duty to be present at the criminal proceedings (set out by Article 269(1) of the NPK) and enable that person to participate online provided it ensured that the accused person took full part in the proceedings. However, it entertains doubts as to whether that decision is compatible with Article 8(1) of Directive 2016/343.
26. In the light of the foregoing, the referring court asks, in essence, whether Article 8(1) of Directive 2016/343 must be interpreted as precluding a criminal court from giving an accused person, who is obliged to be present at the trial according to national law, the possibility to participate by videoconference in the proceedings, despite the absence of an explicit provision in national law allowing for such mode of participation.
B. General principles on the right of the accused persons to be present at the trial
27. Article 8(1) of Directive 2016/343 provides that Member States are to ensure that suspects and accused persons have the right to be present at their trial.
28. The general principles related to the exercise of the right to be present at one’s trial have been established in the Court’s case-law drawing from the case-law of the European Court of Human Rights.
29. The Court of Justice has more specifically recalled that, according to recital 47 of Directive 2016/343, that directive observes the fundamental rights and principles recognised by the Charter and the ECHR, including the right to a fair trial, the presumption of innocence and the rights of the defence. (7)
30. As is apparent from recital 33 of that directive, the right of suspects or of accused persons to be present at their trial is based on the right to a fair trial, enshrined in Article 6 ECHR, which corresponds, as stated in the explanations relating to the Charter, to the second and third paragraphs of Article 47 of the Charter as well as Article 48 thereof. The Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights. (8)
31. It is apparent from the case-law of the European Court of Human Rights that the appearance of an accused person is of capital importance in the interests of a fair criminal trial, and the duty to guarantee that person the right to be present in the courtroom being, in that regard, one of the essential requirements of Article 6 ECHR. (9)
32. Furthermore, according to the case-law of the European Court of Human Rights, while Article 6(3)(c) ECHR confers on everyone charged with a criminal offence the right to ‘defend himself in person or through legal assistance …’, it does not specify the manner of exercising this right. The European Court of Human Right has thus reiterated that the ECHR ‘leaves to the Contracting States the choice of the means of ensuring that [this right] is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial’. (10)
33. In that connection, the European Court of Human Rights has emphasised that, in view of the rights of the defence being guaranteed, inter alia, by Article 6(3)(c) ECHR, the right of the accused person to take part in the hearing implies the right of that person to participate effectively in his or her criminal trial. (11) In general, this includes, inter alia, not only his or her right to be present, but also to hear and follow the proceedings. (12)
34. On the basis of those considerations, the Court of Justice has held that the right for an accused person to be present at his or her trial, enshrined in Article 8(1) of Directive 2016/343, must be guaranteed in such a way that it can be exercised, at the judicial stage of criminal proceedings, in a manner which complies with the requirements of a fair trial. Thus, that right is not limited to ensuring the mere presence of the accused person at the hearings held in the context of the trial to which he or she is subject, but requires that the accused person be able to participate effectively in that trial and to exercise, to that end, the rights of the defence. (13)
C. The use of videoconferencing in criminal proceedings according to the case-law of the European Court of Human Rights
35. The European Court of Human Rights has examined certain issues relating to the conduct of hearings by videoconference from the perspective of the right to a fair trial under Article 6 ECHR. Its case-law provides some guiding principles in that regard. (14)
36. The European Court of Human Rights sought to establish principles for recourse to online hearings in its leading judgment in Marcello Viola v. Italy. (15) That case concerned the alleged violation of Article 6 ECHR in relation to the use of videoconferencing in criminal proceedings as provided for by the Italian legislation. That legislation was adopted in the context of the fight against mafia crimes. It gave the possibility to a criminal court to order the participation of the accused person in the hearings at a distance when certain restrictive conditions set out by the law applied.
37. In that judgment, the European Court of Human Rights recalled, first of all, the basic principles in relation to the fundamental importance of the right of the accused person to be present at the trial and to participate effectively in the trial. (16)
38. With regard to the application of those principles to the specific case, the European Court of Human Rights noted, then, that participation by videoconference in the proceedings was explicitly provided for in Italian law, which specified the cases in which videoconferencing could be used, the authority competent to order it and the technical arrangements for installing an audiovisual link. It observed that the Italian Constitutional Court has held it to be compatible with the (Italian) Constitution and the ECHR.
39. Moreover, the European Court of Human Rights emphasised that, provided that the use of that method is not barred by domestic law and international instruments on the question, it is authorised for taking evidence from witnesses or experts, possibly with the participation of a person being prosecuted. It referred in this connection to several international law instruments other than the ECHR. (17)
40. In view of the above, the European Court of Human Rights held that ‘the defendant’s participation in the proceedings by videoconference is not as such contrary to the [ECHR]’. Nevertheless, it found that it is incumbent on that court to ensure that recourse to such a measure in any given case serves a legitimate aim and that the arrangements governing its conduct are compatible with the requirements of respect of due process, as laid down in Article 6 ECHR. (18)
41. The European Court of Human Rights considered that in the specific case, the applicant’s participation in the appeal hearings by videoconference pursued legitimate aims under the ECHR, namely, prevention of disorder, prevention of crime, protection of witnesses and victims of offences in respect of their rights to life, freedom and security, and compliance with the ‘reasonable time’ requirement in judicial proceedings. (19) After examining whether the arrangements for the conduct of the proceedings respected the rights of the defence, it concluded that the right to a fair trial was not violated.
42. In subsequent case-law on the use of videoconferencing in criminal proceedings, the European Court of Human Rights applied the Marcello Viola principles, mostly from the perspective of the effectiveness of legal representation of an accused person appearing via videoconferencing. (20) For instance, in the Grand Chamber judgment in Sakhnovskiy v. Russia, (21) the European Court of Human Rights reiterated that videoconferencing as a form of participation in the proceedings is not, as such, incompatible with the notion of a fair and public hearing. However, it must be ensured that the accused person is able to follow the proceedings and to be heard without technical impediments and that effective and confidential communication with a lawyer is provided for. (22)
43. The existing case-law of the European Court of Human Rights on the use of videoconferencing mainly concerns situations where the use of videoconferencing is rather exceptional and where the accused person complained about the use of such a method of participation in the proceedings. So far, there is no case on a situation where, conversely, the accused person is complaining that the absence of a legal framework allowing remote participation in the trial amounts to a violation of the right to be present at the trial. (23)
44. Interestingly, in the case in Dijkhuizen v. the Netherlands, the applicant complained that his right to a fair trial had been violated because he was prevented from attending the trial physically or by videoconference. (24) In that case, the applicant was detained in a third country which prevented the extradition to foreign powers of persons who were detained as criminal suspects in that third country. Although Netherlands law provided for the possibility to participate by videoconference in the trial, the applicant repeatedly refused that mode of participation. He did not ask for it until an advanced stage of the proceedings. At that time, in order for the domestic court to provide for all necessary arrangements, the case would have to be adjourned again. The national court thus considered that the accused person had waived his right to be heard by videoconference. (25) The European Court of Human Rights found that there was no violation of Article 6 in view of the specific circumstances of that case.
45. Even if in view of the circumstances of the case there was no violation of the right to a fair trial, Dijkhuizen v. the Netherlands remains a relevant example. It demonstrates that there can be situations in which the accused person wants to be present by videoconference at the trial. Videoconferencing can be used as a tool to facilitate the exercise of the right to be present at the trial in situations in which it would be impossible or extremely difficult for the accused person to be physically present at the trial.
46. I find it also relevant to note that the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe has issued ‘Guidelines on videoconferencing in judicial proceedings’ (‘the CEPEJ Guidelines’). (26) The CEPEJ Guidelines provide a set of key measures that States and courts should follow to ensure that use of video-conferencing in judicial proceedings does not undermine the right to a fair trial as enshrined in Article 6 ECHR. The guidelines contain four fundamental principles, a set of guidelines applicable to all judicial proceedings emphasising the particularities of criminal proceedings and a set of guidelines on the organisational and technical issues of videoconferencing.
47. The principles set out in the CEPEJ Guidelines highlight the importance of preserving at all times the right to a fair trial, the principle of legality, fairness in the proceedings and the rights of the defence. More specifically, the first principle of the CEPEJ Guidelines states that all guarantees to a fair trial under the ECHR apply to remote hearings in all judicial proceedings. According to the second principle, ‘States should establish a legal framework that provides a clear basis for allowing courts to hold remote hearings in judicial proceedings’. According to the third principle, ‘it is for the court to decide, within the applicable legal framework, whether a certain hearing should be held remotely, with the aim of ensuring the overall fairness of the proceedings’. Last, according to the fourth principle, ‘the court should safeguard the right of a party to be effectively assisted by a lawyer in all judicial proceedings, including confidentiality of their communication’.
48. With regard specifically to criminal proceedings, the CEPEJ Guidelines set out that in circumstances in which ‘legislation does not require the free and informed consent of the defendant, the court’s decision for his or her participation in the remote hearing should serve a legitimate purpose’. They also stress out the importance of safeguarding effective participation of the defendant and legal representation.
49. It follows from the case-law of the European Court of Human Rights and the CEPEJ Guidelines that remote participation in the trial can be compatible with the ECHR provided that all guarantees to a fair trial apply. The compatibility of remote participation with the right to a fair trial must be examined in relation to the specific applicable legal framework and the conditions and the arrangements set out therein, to which the use of videoconferencing is subject.
D. The use of videoconferencing in criminal proceedings under EU legislation
50. The use of videoconferencing in domestic criminal proceedings is not harmonised at EU level. The harmonisation of rules on the use of videoconferencing concerns only cross-border situations covered by specific EU legislation. (27) The most recent development in that regard is the adoption of Regulation (EU) 2023/2844. (28)
51. The application of that regulation is without prejudice to procedural rights as enshrined in the Charter and EU law, such as the procedural rights directives, including Directive 2016/343, and in particular, they are without prejudice to the right to be present at the trial. (29) Moreover, the rules it lays down on the use of videoconferencing for hearings in judicial cooperation procedures in criminal matters do not apply to hearings through videoconferencing for the purposes of taking evidence or of holding a trial which could result in a decision on the guilt or innocence of a suspect or an accused person. (30)
52. To the extent that Regulation 2023/2844 does not apply in the case in the main proceedings, there is no need to elaborate further on its provisions. Suffice it to note that its provisions recognise the importance of seeking the consent of the accused or convicted persons to the use of videoconferencing for a hearing in the judicial cooperation procedures in criminal matters. (31) Moreover, the particular circumstances of the case must justify the use of such technology. That regulation also makes specific provision for compliance of the distance communication technology with data protection principles and a high level of cybersecurity. (32)
E. Whether Article 8(1) of Directive 2016/343 allows participation by videoconference in the trial
53. This part of the analysis will delve into the question whether Member States may provide that the right to be ‘present’ at the trial, enshrined in Article 8(1) of Directive 2016/343, can be exercised by videoconference, in particular where such presence has been expressly requested by the accused person and the conditions for his or her participation are effective.
54. In accordance with the case-law cited above (33) the Court must ensure that its interpretation of Article 8(1) of Directive 2016/343 ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights.
55. It is clear from the wording of Article 8(1) of Directive 2016/343 that Member States must allow suspects and accused persons to be present at their trial. (34)
56. The Court interpreted that provision in the judgment in HN (Trial of an accused person removed from the territory)in the context of the question whether Member States have the possibility to make such presence compulsory. In that regard, the Court held that Article 8 of Directive 2016/343 merely makes provision and establishes a framework for the right of suspects and accused persons to be present at their trial, together with the exceptions to that right, without, however, requiring Member States to impose an obligation for any suspect or accused person to be present at his or her trial, or prohibiting them from imposing such an obligation. (35)
57. In the same context, the Court recalled that it follows from Article 1 of that directive that its purpose is to lay down common minimum rules concerning certain aspects of the presumption of innocence in criminal proceedings and the right to be present at the trial in those proceedings, and not to carry out exhaustive harmonisation of criminal procedure. (36)
58. Directive 2016/343 confines itself, in accordance with recital 10 thereof, to establishing common minimum rules on the protection of procedural rights of suspects and accused persons, in order to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. (37)
59. It must also be recalled that that directive cannot be interpreted, in the light of the minimal degree of harmonisation it seeks to attain, as being a complete and exhaustive instrument. (38)
60. In the light of the limited scope of the harmonisation carried out by that directive and the fact that it does not govern the question whether Member States may require the suspect or accused person to be present at the trial, the Court held that the question of mandatory presence is a matter for national law alone. (39)
61. That line of reasoning can be applied by analogy with regard to the question whether Member States may provide that the right to be present at the trial can be exercised by videoconference at the request of the accused person. That provision does not say anything about such possibility and, a fortiori, it does not govern the holding of a criminal trial by videoconference. Article 8(1) of Directive 2016/343 recognises the capital importance of the appearance of an accused person for the purposes of ensuring a fair trial. The fundamental guarantee of the right to be present covers, as a minimum standard, the right to be physically present in the courtroom. In view of the importance of the fundamental guarantee attached to the physical presence of suspects and accused persons, that right cannot be replaced or substituted by virtual presence against the accused person’s will. (40) Moreover, any restriction to the right to be present at the trial must serve a legitimate aim and comply with Article 52 of the Charter.
62. However, as already pointed out, Article 8(1) of Directive 2016/343 establishes a framework for the right of suspects and accused persons to be present at their trial. Since it does not specify the manner in which that right is to be exercised, it leaves to Member States a degree of latitude in the choice of the means of ensuring that that right is guaranteed in their judicial systems, allowing them to provide for additional means to secure presence at the trial. As it follows from recital 48 of Directive 2016/343, Member States are able to extend the rights laid down in that directive in order to provide a higher level of protection. (41) That recital also states that the level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice and the European Court of Human Rights.
63. Therefore, Article 8(1) of Directive 2016/343 does not preclude Member States from allowing the right to be present at the trial to be exercised by videoconference or by other distance communication technology at the express request of the accused person.
64. That being said, when Member States allow the accused person to exercise the right to be present at the trial remotely, the rules they lay down may not undermine the objective pursued by Directive 2016/343. (42) In that regard, recital 9 thereof states that the purpose of that directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning the right to be present at the trial. Member States must therefore ensure that the right of a suspect or accused person to be present at the trial enshrined in Article 8(1) of Directive 2016/343 is guaranteed in such a way that it can be exercised in a manner which complies with the requirements of a fair trial, in accordance with the second and third paragraphs of Article 47 of the Charter and Article 48 thereof. More particularly, that person must be able to participate effectively in the trial and to exercise effectively the rights of the defence.
65. The Latvian Government referred specifically to the example of its national legislation, which gives accused persons the possibility to participate by videoconference in the trial, with their full and informed consent, in a manner which ensures the right to fair trial.
66. In circumstances in which the relevant national legislative framework complies with the requirements of a fair trial, in which the suspect or the accused person requests the application of that method of participation and participates effectively in his or her trial, it may not be considered that that person has waived his or her right to be present at trial guaranteed under Article 8(1) of Directive 2016/343.
67. Given the limited scope of harmonisation of Directive 2016/343 and the limited scope of the question in the main proceedings, it would not be appropriate to attempt to provide comprehensive guidance on the requirements of a fair trial held in remote presence. I will limit myself to the following observation. The use of videoconferencing in criminal proceedings and more broadly the digitalisation of trials is not a standalone aim but a means to enhance the fairness of criminal proceedings (43) as part of a ‘human-centred’ approach to justice. (44) In that context, Article 8(1) of Directive 2016/343 allows Member States to provide for the possibility of the remote presence of suspects or accused persons at the trial provided that they ensure respect for the right to a fair trial.
F. Application to the present case
68. In the instant case, it follows from the order for reference that the referring court harbours doubts as to whether it is possible to recognise the accused person’s right to participate by videoconference in the proceedings despite the absence of a specific legal provision in Bulgarian law allowing such mode of participation in the circumstances of a person indicted for a serious criminal offence. (45) Indeed, the legislative provision which allowed for such means of participation during the state of emergency due to the COVID-19 pandemic had ceased to apply when the hearing in the main proceedings took place.
69. The doubts of the referring court focus, therefore, on the compatibility of the decision of that court to allow participation by videoconference in the proceedings with Article 8(1) of Directive 2016/343 despite the lack of a specific legal basis.
70. The response to those doubts is apparent from the analysis of the previous section. To the extent that Article 8(1) of Directive 2016/343 does not govern the use of videoconferencing in criminal proceedings, it does not preclude national legislation, such as Bulgarian law, that provides for mandatory physical presence for offences qualified as serious and that does not provide for online participation as a general rule of procedure. At the present stage of development of EU law, it is a matter for Member States to decide whether to provide for the possibility of remote participation in criminal trials and in which situations. (46)
71. A fortiori, Article 8(1) of Directive 2016/343 does not establish a right of accused persons or suspects to choose between physical presence or presence by videoconference.
72. Moreover, it does not follow from the information before the Court that FP was deprived of a real possibility to exercise his right to be present at the trial due to the absence of technical means allowing for remote participation. (47)
73. In the absence of harmonisation at EU level, as the Commission essentially pointed out, Article 8(1) of Directive 2016/343 cannot be considered to govern the situation in the main proceedings, in which a criminal court takes a decision to allow the use of videoconferencing despite the absence of national legislation allowing for such a mode of participation. The fact that the referring court takes all the necessary measures to ensure that the videoconferencing is held in such a way as to comply with the right to a fair trial does not change the above finding in as much as there is no harmonisation at EU level and no specific legal basis. Thus, the legality of a relevant decision adopted by the referring court is to be examined in the light of national law.
74. It follows from the above considerations that Article 8(1) of Directive 2016/343 must be interpreted as meaning that it does not govern the use of videoconferencing in criminal proceedings, which is a matter for Member States to decide. More particularly, that provision does not govern a situation in which a criminal court gives an accused person, who is obliged to be present at the trial according to national law, the possibility to participate by videoconference in the proceedings, despite the absence of an explicit provision in national law allowing for such mode of participation.
V. Conclusion
75. In the light of the foregoing, I propose that the Court answer the question referred for a preliminary ruling by the Sofiyski gradski sad (Sofia City Court, Bulgaria) as follows:
Article 8(1) of 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
must be interpreted as meaning that it does not govern the use of videoconferencing in criminal proceedings, which is a matter for Member States to decide. More particularly, that provision does not govern a situation in which a criminal court gives an accused person, who is obliged to be present at the trial according to national law, the possibility to participate by videoconference in the proceedings, despite the absence of an explicit provision in national law allowing for such mode of participation.