Abstract
In the light of the right to a fair trial and the possibility of in absentia trials, the main purpose of this article is to discuss the meaning of the concept of “having been informed, in due time, of the trial,” under Article 8(2a) of Directive (EU) 2016/343, read in parallel with Article 4a(1) (a) (i) of Council Framework Decision 2002/584/JHA. When thus read and taking into account the legislative history of the Directive, it seems that a different standard is foreseen for the summoning of the accused person for trial under each of the referred legal instruments. I then test the Portuguese standards for summoning the accused person for trial and trials in absentia under each of the possible standards.
Keywords
Introduction: Article 8 of Directive (EU) 2016/343 read in parallel with Article 4a of Framework Decision 2002/584/JHA
The duty to guarantee the right of the accused person to be present at trial ranks as one of the essential requirements of a fair trial under the European Convention on Human Rights (hereinafter “ECHR”). 1 Indeed, the right of the accused person to be present at trial is based on the right to a fair trial, enshrined in Article 6 of the ECHR, which corresponds—as stated in the Explanations Relating to the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”)—to Article 47, second and third paragraphs, and Article 48 of the Charter. 2
However, it is understood that the right to be present at trial is not absolute and that, under certain circumstances, it should be possible for a decision on the guilt or innocence of a suspect or accused person to be handed down even if the person concerned is not present at the trial (in absentia). 3
A problem therefore arises to strike a balance between the right to be present at trial and the possibility of holding trials in absentia. At the EU level, we can find two legal provisions that resolve this problem in quite some detail, more specifically Article 8 of Directive (EU) 2016/343 4 (hereinafter “the Directive”) and Article 4a of Council Framework Decision 2002/584/JHA 5 (hereinafter “the Framework Decision”).
The scope of each of the referred legal provisions naturally differs. The Framework Decision’s article was concluded in the context of the European Arrest Warrant (hereinafter “the EAW”) and the mutual recognition principle, establishing an optional ground for the nonrecognition of an EAW issued by the judicial authorities of one Member State to another, for when the accused person did not appear at trial. On the other hand, the Directive’s purpose is to enhance the right to a fair trial in criminal proceedings held in Member States, by laying down common minimum rules concerning, inter alia, the right of the suspect or accused person to be present at trial and the rules that should apply when he or she does not appear in person at the trial. 6
Albeit their different scopes, the abovementioned articles of the Framework Decision and of the Directive contain rules that apply to trials held in absentia, further including standards on the summoning of, and/or the provision of information to, the suspects and accused persons of the scheduled trials, the former for the verification, by the executing judicial authority, of exceptions to the aforementioned optional ground of nonrecognition of an EAW and the later for purposes of common minimum rules in the EU.
It should be noted that although both Article 8 of the Directive and 4a of the Framework Decision refer to trials in absentia and related standards, somewhat surprisingly, the wording, in particular, of Article 8(2a) of the Directive differs from the wording we find in Article 4a(1) (a) (i) of the latter. Let us thus recall the relevant sections of the texts at issue, underlining the differences that we will focus on:
Article 4a [of the Framework Decision]
Decisions rendered following a trial at which the person did not appear in person 1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or a detention order if the person did not appear in person at the trial resulting in the decision, unless the European Arrest Warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State: (a) in due time
and
(ii) was informed that a decision may be handed down if he or she does not appear for the trial;
or (b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial
or (c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be reexamined, and which may lead to the original decision being reversed: (i) expressly stated that he or she does not contest the decision;
or
(ii) did not request a retrial or appeal within the applicable time frame.
Article 8 [of the Directive]
Right to be present at the trial Member States shall ensure that suspects and accused persons have the right to be present at their trial. 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) (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. A decision which has been taken in accordance with paragraph 2 may be enforced against the person concerned. Where Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9.
When comparing these texts, we find it noteworthy that in the event of an in absentia trial, in order for the executing judicial authority to verify an exception to the aforementioned optional ground for the nonrecognition of the EAW, the Framework Decision foresees the summoning of the accused in much more detail than Article 8 of the Directive. Focusing on Article 8(2a) of the Directive and on Article 4a(1) (a) (i) of the Framework Decision, we can therefore draw the following from the mere wording of these legal provisions that in cases of in absentia trials: (a) The Framework Decision, for the purpose of verification, by the executing judicial authority, of an exception to the optional ground of nonrecognition of the EAW (in absentia trial), explicitly foresees the summoning of the accused in person or by other means whereby she actually receives official information on the trial, in such a manner that it was unequivocally established that she was aware of the scheduled trial; (b) The Directive only foresees that the accused shall have been informed of the trial.
It is thus for the (legal) interpreter to establish if the different wordings imply a real difference in meaning, in particular if the Framework Decision contains a stricter standard for trials in absentia than the one contained in the Directive.
In this aspect, some have said that the Directive opted for “a much lighter and more readable text,” suggesting that the difference is more a question of form than of substance. 7 Others overtly sustain the inexistence of substantial differences in spite of the different wordings. 8 From my point of view, the textual differences may be a sign of an actual difference in substance. In either case, those differences do raise doubts about the standard actually established in the Directive, which might even call for an interpretation from the Court of Justice of the European Union (hereinafter “the CJEU”) in the context of a preliminary ruling.
The interpretation of the Directive through recital 36 thereof: Enabling the accused to be aware of the trial
As we have seen, the text of the Directive is much sparser than the Framework Decision when it comes to determining how the accused person should be informed of the trial. The Directive is notably silent on whether that information should occur by personal summoning or, as further underlined in the Framework Decision, by another means that still ensures she actually received that official information in an unequivocal manner.
On this issue, it would seem that recital 36 of the Directive could rescue us from further interpretation difficulties. But that is only partially true. It is true that the recital clarifies that informing a suspect or accused person of the trial should be understood to mean “summoning him or her in person.” We can therefore establish that the Directive, although sparse with words, also partakes of the view that informing the accused of the trial obviously includes his or her personal summoning.
However, the difficulty remains, since the recital further states that informing an accused person of the trial also includes doing so “by other means, providing that person with official information about the date and place of the trial in a manner that enables him or her to become aware of the trial.” This further statement begs for a new question to be answered: What constitutes a means that enables the accused to become aware of the official information on the trial?
On this particular point, it should be noted that, in ordinary language, a means that enables someone to become aware of a future event (the scheduled trial) is not quite the same thing as a means through which she actually receives the information, in such a manner that it is possible to unequivocally establish that she was aware of the scheduled trial.
One could say that enabling someone in this sense only means to potentially make her aware of the scheduled trial and not to actually make her aware. In the first case, the accused could actually not be aware of the trial although she was able to be aware of it. In the second case, there is no room for such an interpretation—it must unequivocally be the case that she is aware.
In light of the recital at hand, our doubts on whether the Framework Decision actually contains a stricter standard for trials in absentia than the Directive are thereby reinforced.
The Framework Decision’s concepts as interpreted by the Court of Justice: Making sure the accused actually received the information on the trial
The strictness of the concepts underlying the Framework Decision is sustained through the case-law of the CJEU but, as we shall see, with an important caveat.
When interpreting Article 4a(1) (a) (i) of the Framework Decision, the CJEU has stated that the concepts contained in that provision are autonomous concepts of EU Law and should therefore be interpreted uniformly throughout the territory of the European Union. 9 Focusing on the concept of the suspect or accused person having “by other means actually received information [on the trial 10 ],” the CJEU ruled that it must be unequivocally established that the person concerned “was aware of the scheduled trial.” It further concluded that a summons that was handed over to a third party who undertook to pass it on to the person concerned, whether or not that third party belonged to the household of the person concerned, could not in itself satisfy those requirements. In the Court’s own words, “[s]uch a method of service does not allow it to be unequivocally established either that the person concerned ‘actually’ received the information relating to the date and place of his trial or, where appropriate, the precise time when that information was received.” 11
It follows that it must unequivocally be established that the third party actually passed the summons on to the person concerned, being it the responsibility of the issuing judicial authority to indicate in the European Arrest Warrant the evidence on the basis of which it found that the person concerned actually received official information relating to the date and place of her trial. 12
At this point, it could be asked if the CJEU were to be interpreting the text of the Directive, in particular the aforementioned concept of enabling the accused person to be aware of the information on the trial, would its arguments be the same? Perhaps its conclusion would be similar, but the arguments most certainly would have to differ.
Coming back to the decision of the Court, it should be noted that when clarifying the concept of having “by other means actually received information [on the trial]” and proposing a strict interpretation of the qualifiers “unequivocally” and “actually,” the CJEU underlined that the scenarios described in Article 4a(1) (a) (i) of the Framework Decision were conceived as exceptions to an optional ground for the nonrecognition of the European Arrest Warrant.
It follows from this special circumstance that the executing judicial authority may, in any event, including after having found that the accused was not in fact aware of the scheduled trial or in the absence of evidence thereof, take into account other circumstances that enable the judicial authority to confirm that the surrender of the person concerned does not mean a breach of her rights of defence. Those circumstances include the conduct of the accused herself. In the words of the CJEU, “[i]n the context of such an assessment of the optional ground for nonrecognition, the executing judicial authority may thus have regard to the conduct of the person concerned. It is at this stage of the surrender procedure that particular attention might be paid to any manifest lack of diligence on the part of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him.” 13
What this means then is that although Article 4a(1) (a) (i) of the Framework Decision establishes a strict standard for considering that the accused person was actually aware of the scheduled trial, an executing judicial authority may still recognise a European Arrest Warrant if that condition is not fulfilled for reasons pertaining to the person under consideration. Obviously, this has to be evaluated on a case-by-case basis. Nevertheless, in such cases, if there is evidence that the accused is not actually aware of the trial because of his or her own manifest lack of diligence, namely where it “transpires” that he or she is avoiding the service of the information, it may be said that it would be contrary to the fundamental principles of Justice or, to use a well-known Roman Law expression, contrary to the venire contra factum proprium principle, not to recognise and execute the EAW. 14
In other words, even if the interpretation of the concept of having “by other means actually received official information [on the trial]” should be indeed strict, there is still margin for an evaluation of the accused persons manifest behaviour to avoid (the making of) Justice, so here is the important caveat I mentioned in the beginning of this section.
Furthermore, as recalled by the CJEU, it follows from recital 4 of the Framework Decision that the Framework Decision is not designed to regulate, at EU level, the forms and methods, including the procedural requirements, that are used by the competent authorities to achieve the results specified therein, which are a matter for the national laws of the Member States. 15 This means that it is up to the Member States to determine the procedural forms and methods for the summoning in person and for other means by which the accused actually receives official information on the trial.
A glance at the Commission’s original proposal for Article 8 of the Directive
As we have seen, while the Directive seems satisfied with the mere enabling of the accused to be aware of the scheduled trial, the Framework Decision, as a rule, demands that there be certainty on the fact that the accused actually received the relevant information.
With this possible difference in mind, let us go back in time and look at the initial proposal of the Directive and at the subsequent discussions within the Council.
Regarding the standards that should apply to in absentia trials, the Commission’s proposal for the Directive 16 contained, in Article 8(2) (a) (i), the exact same wording as the text of the Framework Decision. That is, to say that the wording of the Directive was, in the Commission’s view, to be most perfectly aligned with the text of the Framework Decision, explicitly foreseeing both the summoning in person of the accused and the actual reception of the information about the trial by other means.
The proposed Commission’s text read as follows:
Article 8
Right to be present at one’s trial 1. Member States shall ensure that suspects or accused persons have the right to be present at their trial. 2. Member States may provide for a possibility under which the trial court may decide on the guilt in the absence of the suspect or the accused person, provided that the suspect or accused person: (a) in due time
and
(ii) was informed that a decision may be handed down if he or she does not appear for the trial; or
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial.
3. If the conditions of paragraph 2 have not been met, a Member State can proceed to execution of a decision intended in that paragraph if, after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision to be reversed, the person
(a) expressly states that he or she does not contest the decision;
or (b) does not request a retrial or appeal within a reasonable time frame.”
17
Albeit the alignment of the Commission’s proposal with the Framework Decision, which had evident gains in consistency, from the moment of its presentation, this proposal was met with various degrees of discontent, which could be described, in some cases, as the position manifested by the United Kingdom, as pure scepticism.
In fact, early on in the legislative procedure (February 2014), well before the Brexit 2016 referendum, the United Kingdom stated, through the House of Commons, that in their opinion, the proposal did not even comply with the principle of subsidiarity. 18 It therefore decided not to participate in the adoption of the Directive, along with Ireland and Denmark.
On a slightly more positive note, various other Member States shared the view that paragraphs 2 and 3 of the proposed text should be eliminated. These Member States observed that those paragraphs were almost a copy-paste of the wording of the Framework Decision and were, so to say, too detailed and prescriptive. They underlined that the Framework Decision was concluded in a different legal context and that it had a different aim from that of the proposed Directive (mutual recognition versus minimum rules). Hence, it would not be desirable to transpose the text of the Framework Decision into the draft Directive. 19
Objecting to this stance, the Commission insisted that the provisions on the right to be present at one’s trial and the provisions on trials in absentia should not differ from the formulation used in the Framework Decision since this would create “different sets of rules for one single right; one regarding the national law level and the other regarding the mutual recognition of judicial decisions issued by another Member State.” 20
Not much later in the legislative process, the Coordinating Committee in the area of police and judicial cooperation in criminal matters (ex-Article 36 Committee or CATS) confirmed that the problem with Article 8 laid “with the fact that it is generally felt the rules on trials in absentia in the draft Directive should be aligned with the rules set out in Framework Decision 2009/299/JHA on trials in absentia. Indeed, setting different rules at European level concerning trials in absentia that apply in national criminal proceedings, on the one hand, and concerning mutual recognition between judicial authorities of Member States, on the other hand, may cause legal uncertainty and pose practical difficulties.” 21
Nevertheless, a significant number of Member States reiterated in the discussions held in the CATS that they did not want to commit to paragraphs 2 and 3 of the proposed Article 8 for the reasons already mentioned.
22
In both quantitative and qualitative terms, the outcome of the discussion in the CATS was described as follows: 11 Member States stated that they would prefer deleting paragraphs 2 and 3; six Member States stated that they would prefer maintaining paragraphs 2 and 3; two Member States showed perfect flexibility on the issue; one Member State said that it could accept paragraphs 2 and 3 if there would be a general exclusion of minor offences; one Member State observed that paragraphs 2 and 3 “are not convenient” and need to be reformulated.
23
It may therefore come as little surprise that the quoted paragraph 2, quite to the dissatisfaction of the Commission, suffered changes to make it significantly different from the text of the Framework Decision. As a matter of fact, in a new draft of the Directive dated from November 2014, the wording of the Framework Decision is no longer there; in its place is the almost exact wording of the final text of the Directive. 24 In a footnote to recital 22c, it is then stated that the Commission was opposed to the deletion of the part that read “in such a manner that it was unequivocally established that he or she was aware of the scheduled trial.”
From these discussions, it seems difficult to conclude that the rephrasing of Article 8(2) of the Directive was a mere question of form. It very much seems that the difference in wording was intended to reflect a less strict standard expressed by the Directive when compared to that of the Framework Decision, due to the majority of Member States not being willing to commit, in the transversal scope of minimum rules, with the same detail and prescriptiveness as found in the much more limited domain of mutual recognition.
As pointed out by the Commission, different wordings may indicate different sets of rules for a single right, 25 thus strengthening our doubts on whether the standards contained in both legal instruments are to have the same meaning. In any case, as was underlined by the CATS discussion, due to the differences in the texts of both instruments, legal uncertainty and practical difficulties seem inevitable.
Testing the Portuguese criminal procedural rules against both possible standards
As we know, the transposition date of the Directive expired on 1 April 2018. To date, no modifications to conform to the Directive have been taken by the Portuguese Legislator, so we may conclude that none have been deemed necessary.
In this context and to illustrate the importance of the possible difference in standards to be found in the Directive and in the Framework Decision, we propose testing the Portuguese procedural law against both possible meanings.
For this purpose, we will first summarise the most important parts of the Portuguese system relating to the summoning of the accused for trial.
The Portuguese procedural standards for summoning the accused for trial and trials in absentia
It follows from Article 196 of the Portuguese Criminal Procedure Code (in Portuguese, Código de Processo Penal) (hereinafter “the CPP”) that, as a rule, anyone that is reasonably suspected of committing a crime and that therefore may be subject to criminal responsibility should be subject, during the investigation phase of the proceedings, to a measure entitled “Statement of Identity and Residence” (in Portuguese, Termo de identidade e residência).
Through this provisional coercive measure, the suspect is obliged, during the criminal proceedings, among other things, to provide an address where future notifications of judicial nature may be sent and, when delivered to the relevant letterbox (when located within the Portuguese territory 26 ), may be considered to be effective. That address can be a place where the suspect person actually lives, a professional domicile or any other address chosen by the suspect person. When committing to this measure, the suspect person is informed that she is obliged to present herself before the competent authority when summoned and that a failure to do so, namely in trial, legitimises her representation by a lawyer and the holding of the trial in her absence. 27 The suspect is also informed, among other rights, of the right to be present in any procedural act that may directly affect her and of the right to be heard by the court (Article 61(1) (a) (b) of the CPP).
Any modification in the suspect’s given address should be promptly communicated to the competent judicial authority (either a public prosecutor’s office or a court). In this respect, some case-law states that, where problems arise with the notification due to a conduct of the suspect, for example, from the suspect not communicating a change of her address or from her providing a nonexistent address or one that does not have a letterbox, the responsibility should fall on the suspect and therefore should not influence the validity of the notification. 28
On the other hand, it follows from Article 113(1c) (3) (4) of the CPP that the national postal service (CTT – Correios de Portugal, SA), through its officials, is responsible for the delivering of judicial notifications on behalf of the judicial authorities. These officials are thus obliged by law to issue a statement when making the postal delivery of the judicial notifications, confirming the time and exact location of each delivery (or of the impossibility of the delivery and of its causes), promptly informing the judicial authority of those facts. The suspects or accused persons will thereby be considered notified within 5 days upon the delivery of the letter, by the postal service official, to the letterbox of the address chosen by the suspect in the abovementioned Statement of Identity and Residence.
Where official information on the trial is specifically concerned and the accused is to be considered committed to a Statement on Identity and Residence, the described procedures apply. In addition to those procedures for the summoning of the accused person, Article 113(10) of the CPP states that the lawyer of the accused, which can be a lawyer chosen by the person concerned or a lawyer appointed ex officio by the State, should also be notified and thereby informed of the scheduled trial (at her professional domicile). 29 These notifications should occur no later than 30 days before the trial (Article 313(2) of the CPP).
In this context, we may conclude that, in practice, a personal summoning of the accused is quite exceptional in Portuguese criminal proceedings. It mostly occurs either when the accused is only located after the indictment has been brought to court and she did not commit, in a timelier manner, to a Statement on Identity and Residence, or when she was awaiting trial subject to preventive detention (remand in custody). It could also take place when the suspect did not have an actual address to provide to the authorities in the first place, for example, because she was homeless. In these cases, the summoning for the trial is delivered in person either by the police, a court clerk, or by the prison authorities.
It should also be pointed out that in the case of a failure to commit to a valid Statement on Identity and Residence, thereby not enabling the summoning of the accused person to be obtained with a simple postal delivery in the way described and a total failure to locate the person, in particular after looking for the person in all known official addresses (namely through the civil identification and tax authorities’ databases) and nonofficial addresses (namely through information collected by the police at known addresses), the CPP foresees another legal treatment of the accused entitled “contumácia” 30 (Articles 335 to 337 of the CPP). In this case, after a public notice is displayed at various locations, namely at the accused person’s last known residence, she is declared “contumaz,” which essentially means that a court order is issued and disseminated through the national authorities for that person to be detained and submitted to a Statement on Identity and Residence. This declaration also may imply other measures like the impossibility of obtaining official documents, to motivate the accused person to voluntarily appear before the competent authorities. Until either the detention by the police or the voluntary appearance of the accused, the proceedings are suspended.
On a more constructive note, Articles 332(1) and 333(1) (2) (3) of the CPP not only establish that the accused person has an obligation to attend but a right to attend the trial and to be heard by the court. This right endures until the end of the trial and if, on a first date, she fails to attend the trial, the defence lawyer may ask for her to be heard on a second date. The accused person may also waive her right to attend the trial under Article 334(2) of the CPP.
It is further foreseen that if the accused person fails to appear in court, be it for justified reasons like illness, or be it without any valid reasons, the trial should only be adjourned if the presence of the accused is absolutely necessary to establish the truth from an objective point of view (Article 333(1) (2) of the CPP). If not, the court may proceed immediately and hear whoever is to be heard (victims, witnesses, etc.) and finish the trial if it does not deem the hearing of the accused necessary and further provided that a request for that hearing has not been made by the defence lawyer. If the court believes that it is necessary to hear the accused, it may order that she be coerced to attend the trial, that is, to be detained by the police for that effect (this detention cannot exceed 24 h). For any unjustified failure to attend the trial, a fine is imposed on the accused (Article 116(1) of the CPP).
If the accused does not attend the trial, the sentence always has to be served on her in person, and the time for appeal only starts to count from this moment onwards (Article 334(6) of the CPP). 31 However, for in absentia trials, no new trial or appeal that could include the examination of new evidence is foreseen in the CPP.
The system thus described has been declared to be in accordance with the Constitution of the Portuguese Republic by its Constitutional Court. In effect, the Constitutional Court explicitly stated that Article 113(9) (current Article 113(10)) and Article 333(3) of the CPP were not unconstitutional when interpreted in the sense that the accused does not have to be summoned in person for the scheduled trial. It further considered that summoning the accused by means of a simple postal notification, delivered to the address provided for in the Statement on Identity and Residence (in the terms described above), was in accordance with the Constitution. 32 As a matter of fact, Article 32 of the Constitution was modified in 1997 to allow for the system of in absentia trials to be implemented in the first place. 33
It should also be noted that before the relevant changes of the CPP were introduced in 1998 34 and more assertively in the year 2000, 35 and the summoning of the accused to trial started to operate in the way described in the present text, the absence of the accused was a very frequent obstacle to the holding of trials and led, in practice, to indefinitely repeated adjournments, to the despair of the courts, victims, witnesses and many lawyers.
In the words of a judgement of the Portuguese Supreme Court of 09-10-2003, “the established system [prohibiting trials in absentia since 1987] simply did not work, and the quantity of trials that were indefinitely adjourned and were not actually held became scandalous.” 36 The causes of the referred “scandal,” according to the quoted Supreme Court judgement, involved, among others, national cultural factors linked to a certain traditional idiosyncratic complacency and lack of civic awareness.
Evaluating the Portuguese system against the standards of the Framework Decision and of the Directive
As an attentive reader will by now most certainly have inferred, while it is difficult to say that the Portuguese system of summoning the accused for trial lives up to the standard contained in the Framework Decision, it may still be considered in accordance with a less strict (if this actually is the case) standard of the Directive.
Indeed, although the above-described delivering of a notification containing the details of the trial to the letterbox of an address provided for by the accused does not guarantee that she actually receives the information in an unequivocal manner, it may still be considered to enable that person to become aware of it, for she most certainly knows that precise address, and that the proceedings are pending. On the other hand, if this system of summoning presumes that the accused person has received the information 5 days after the delivery to the aforementioned letterbox, it would be difficult to ascertain a precise date when she actually became aware of the trial.
It follows that these different standards seem to have very different outcomes when evaluating a concrete Member State’s systems conformity with EU Law.
Maybe this evaluation or other similar ones were in the minds of the Member States’ representatives when they showed reluctance at the Commission’s proposal of the Directive containing very detailed and prescriptive minimum rules in parallel to the standards contained in the Framework Decision.
We may even come to understand the roots of the difference in standards. Minimum rules are meant to be transversal to all criminal cases, while the Framework Decision has a much more limited scope of application. In the bulk of any national Member State’s criminal cases, only a small percentage of them will be of a cross-border nature and so require the use of a mutual recognition instrument. Adding to this fact, it is well known that the issuing of an EAW should obey strict requirements of proportionality, for the execution of an EAW necessarily implies a significant period of detention. 37 Thus, the establishment of different standards, one for all cases and another stricter for the EAW regime, may be understandable.
In any case, our referred doubts on the existence of double standards remain.
This is all the more important for, as it follows from Article 8(4) of the Directive, it is foreseen that “[w]here Member States provide for the possibility of holding trials in the absence of suspects or accused persons but it is not possible to comply with the conditions laid down in paragraph 2 of this Article because a suspect or accused person cannot be located despite reasonable efforts having been made, Member States may provide that a decision can nevertheless be taken and enforced. In that case, Member States shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they are also informed of the possibility to challenge the decision and of the right to a new trial or to another legal remedy, in accordance with Article 9.”
It should thus be recalled that, in accordance with Article 9 of the Directive, in these cases, Member States shall ensure a right to challenge the decision through a new trial, or another legal remedy, which allows for a fresh determination of the merits of the case, including examination of new evidence, and which may lead to the original decision being reversed.
In this context, if it is to be concluded that the Portuguese form of summoning the accused through the described postal delivery system is a case of noncompliance with Article 8(2a) of the Directive, it would follow from paragraph 4 (and Article 9 of the Directive) that the person under consideration should have the right to a new trial or another legal remedy, including the examination of new evidence and this is most certainly not the case in Portugal. 38
On the other hand and where the European Arrest Warrant is concerned, it should be noted that in Case C-416/20 PPU, 39 the CJEU stated (paragraphs 43–47) that rights foreseen in the Directive, in particular the right to a retrial as established in Article 9, cannot be autonomously invoked to obstruct the execution of a European Arrest Warrant, for the executing judicial authority may only refuse to execute such a warrant in exceptional cases exhaustively listed in the Framework Decision, that is to say, on the specific grounds for obligatory non-execution laid down in Article 3 or on grounds of optional non-execution laid down in Articles 4 and 4a.
This recent decision of the CJEU, however, does leave the door open for the direct effect of rights that are foreseen in the Directive, when the respective provisions are unconditional and sufficiently precise. 40 This begs the question on if the right to a new trial or another legal remedy, as foreseen in Article 9, meets those criteria so it can be relied upon before the national courts by individuals against the State where the State has failed to implement the Directive in domestic law within the period prescribed or where it has failed to implement the Directive correctly. 41
In my opinion, Article 9, although precise when it stipulates that the legal remedy to be implemented by Member States should allow for a fresh determination of the merits of the case, including examination of new evidence, still leaves a relevant margin of discretion when it foresees, for that same purpose, an alternative between a new trial and another legal remedy. And even where a new trial is concerned, it seems to me that it remains for the Legislator of each MS to choose between a first instance retrial and a new trial at an appeal level.
Furthermore, the existing margin of discretion reveals itself through other related problems. For example, without a decision by the Legislator, who is to decide upon the kind of legal remedy that should exist, a first instance court or a higher court? Namely should the first instance court simply admit an appeal, and if so, to what higher court? And what if the higher court has a diverse interpretation of the Law?
It should also be added that the provision at hand is dependent on the national Legislator when it comes to other procedural aspects of the right at hand, namely leaving to the Member States to choose in what time frame should the request be submitted in. It should also be noted that a mere allegation that the conditions laid down in paragraph 2 of Article 8 of the Directive were not met in the case at hand, namely that the person sentenced in absentia was not properly informed of the trial, may not be sufficient for the right to a new trial or another legal remedy. Some kind of verification that the conditions laid down in paragraph 2 of Article 8 of the Directive were not met is warranted.
In all these aspects, it should be recalled that discretion implicates the fact that certain choices can be made by the national Legislator (or by the Executive) excluding other equally legitimate possibilities; hence, the national court cannot make those decisions in his stead. Having all of this in mind, it therefore follows that this right, as foreseen in Article 9, does not appear to be unconditional and therefore cannot have direct effect.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
1.
See, for example, in the European Court of Human Rights case-law (hereinafter “ECtHR”), Sejdovic v. Italy App no 56581/00 (ECtHR, 1 March 2006), para 81.
2.
Praesidium of the European Convention, Explanations relating to the Charter of Fundamental Rights [2007] OJ C 303.
3.
See, for example, Lena Atanasova v. Bulgaria App no 52009/07 (ECtHR, 26 January 2017), para 52.
4.
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 [2016] OJ L65/1. The transposition date of this Directive was 1 April 2018.
5.
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States [2002], OJ L190/1, as amended by Framework Decision 2009/299/JHA [2009], OJ L81/24.
6.
For a concise overview of the six EU criminal procedural safeguard Directives, see Cornelia Riehle and Allison Clozel, “10 years after the roadmap: procedural rights in criminal proceedings in the EU today” (2020) (20) ERA Forum 321 <https://doi.org/10.1007/s12027-019-00579-5> accessed 25 December 2020. For an overview of Directive (EU) 2016/343 in particular, see Alexandre Au-Yong Oliveira, “As Diretivas de Garantias Processuais da União Europeia, em especial a Diretiva (UE) 2016/343 do Parlamento Europeu e do Conselho de 9 de março de 2016, relativa ao reforço de certos aspetos da presunção de inocência e do direito de comparecer em julgamento em processo penal” (2019) (1) Revista de Estudios Europeos 144 <
> accessed 25 December 2020.
7.
8.
Barbara Churro, Julgamento na Ausência - Contributo para uma revisão do regime do Código de Processo Penal à luz da Directiva (UE) 2016/343 (Almedina 2020) 115-117. See also, Ramos VC, Churro B (2019) Report on Portugal. In: Quattrocolo S, Ruggeri S (eds) Personal Participation in Criminal Proceedings Legal Studies in International, European and Comparative Criminal Law, vol 2 Springer, Cham <> accessed 3 January 2021.
9.
Case C-108/16 PPU, Openbaar Ministerie v Paweł Dworzecki [2016] ECLI:EU:C:2016:346, paras 25–32.
10.
On the concept of the “trial resulting in the decision,” within the meaning of Article 4a(1) of the Framework Decision, see Case C-270/17 PPU, Tadas Tupikas [2017], ECLI:EU:C:2017:628, para 81.
11.
Case C-108/16 PPU (n 9), para 47.
12.
ibid paras 48–49.
13.
ibid paras 50–51.
14.
For a reiteration of this conclusion, see Case C-416/20 PPU, TR v Generalstaatsanwaltschaft Hamburg [2020] ECLI:EU:C:2020:1042, paras 51–53. In this recent judgement, after highlighting the circumstance where the accused, convicted in absentia, had avoided by absconding (from Romania to Germany), the personal summonings for the proceedings and thereby an official notice of the summons had been left at his last known address, the CJEU stated that the circumstance where the accused avoids all contact with lawyers appointed ex officio by the Court of Appeal, may also indicate that his rights of defence had not been breached. The CJEU further noted that the submission of an appeal by lawyers chosen by the accused and who had represented him in the first instance proceedings was also an important circumstance for evaluating if the rights of defence had or not been breached.
15.
Case C-108/16 PPU (n 9) para 44.
16.
Proposal for a Directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings [27 November 2013], COM(2013) 821.
17.
Emphasis added.
18.
Council document 6655/14, 19 February 2014.
19.
Council document 12955/14, 9 September 2014, para 4. Also underlining these different aims, Case C-416/20 PPU [2020], ECLI:EU:C:2020:1020, Opinion of AG Tanchev, paras 62–63.
20.
ibid para 10.
21.
Council document 13304/14, 22 September 2014, para 9.
22.
ibid.
23.
ibid para 10.
24.
Council document 15325/14, 18 November 2014.
25.
Council document 12955/14 (n 19) para 10.
26.
If the address provided is located in another country, the described rules do not apply, and to summon the accused person, international cooperation tools will be needed.
27.
It is mandatory for the suspect to be assisted by a lawyer in the trial phase, be the lawyer chosen by the accused or appointed by the court (Articles 313(1c), 119(c), 64(1) (c) (g), CPP).
28.
Acórdão do Tribunal da Relação de Coimbra (judgement of the court of appeal of the Coimbra district) de 14 May 2014, processo no 346/10.0GBLSA.C1; Acórdão do Tribunal da Relação de Lisboa (judgement of the court of appeal of the Lisbon district) de 4 June 2015, processo no 3/03.3IELSB.L1-9 (both judgements can be accessed at: ).
29.
The previous notification of the indictment also occurs in this exact manner and is repeated through the summoning for the trial.
30.
The closest term to contumácia we know in English is contumacy. Contumacy means the refusal to obey the order of an ecclesiastical court. See P G Osborn, A Concise Law Dictionary (5th Edn, Sweet & Maxwell 1964) 88.
31.
The defence lawyer should also be notified of the sentence (Article 113(10), CPP).
32.
33.
Lei Constitucional no 1/97, Diário da República, I Série, no 218, 20 de setembro 1997.
34.
Lei no 59/98 de 25 de agosto, Diário da República no 195/1998, Série I-A de 25 August 1998.
35.
Decreto-lei no 320-C/2000, de 15 de dezembro, Diário da República no 288/2000, 2º Suplemento, Série I-A, 15-12-2005.
36.
37.
See Commission Notice, Handbook on how to issue and execute a European Arrest Warrant [2017] OJ C335/1 14–15.
38.
Sustaining the incompatibility of the Portuguese system with the Directive on both counts, first on the methods of summoning (but not in favor of the total revocation of the described system of summoning’s based on the “Statement of Identity and Residence” and instead suggesting its improvement) and then on the absence of a retrial, Churro (n 8) 123–132. See also, Ramos and Churro (n 8).
39.
TR v Generalstaatsanwaltschaft Hamburg (n 13).
40.
ibid para 55.
41.
See, in that effect, Case C-592/15 British Film Institute [2017], EU:C:2017:117, para 13 and Case C-384/17 Link Logistik N&N [2018], EU:C:2018:810, para 47.