AVVA and Others (Procès par videoconference en l'absence d'une decision d'enquête europeenne) (Judicial cooperation in criminal matters - European Investigation Order - Hearing by videoconference or other audiovisual transmission - Judgment) [2024] EUECJ C-255/23 (06 June 2024)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AVVA and Others (Procès par videoconference en l'absence d'une decision d'enquête europeenne) (Judicial cooperation in criminal matters - European Investigation Order - Hearing by videoconference or other audiovisual transmission - Judgment) [2024] EUECJ C-255/23 (06 June 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C25523.html Cite as: ECLI:EU:C:2024:462, EU:C:2024:462, [2024] EUECJ C-255/23

(References for a preliminary ruling – Judicial cooperation in criminal matters – European Investigation Order – Directive 2014/41/EU – Article 24 – Hearing by videoconference or other audiovisual transmission – Criminal prosecution initiated in a Member State against a person residing in another Member State – Possibility for that person to participate in his or her trial by videoconference in the absence of a European Investigation Order)

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Ekonomisko lietu tiesa (Economic Court, Latvia), made by decisions of 28 March 2023 and 21 April 2023, received at the Court on 19 April 2023 and 3 May 2023, in criminal proceedings against

composed of T. von Danwitz, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, acting as Judge of the Sixth Chamber, and P.G. Xuereb, Judge,

– the Hungarian Government, by M.Z. Fehér and Zs. Biró–Tóth, acting as Agents,

– the European Commission, by L. Baumgart, V. Hitrovs, H. Leupold and M. Wasmeier, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 These requests for a preliminary ruling concern the interpretation of Article 1(1), Article 6(1)(a) and Article 24(1) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1), and 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 (OJ 2016 L 65, p. 1).

2 The requests have been made in criminal proceedings initiated against A, B, C, D, F, E, G, SIA ‘AVVA’ and SIA ‘Liftu alianse’ (C‑255/23) and against A, B, C, Z, F, AS ‘Latgales Invest Holding’, SIA ‘METEOR HOLDING’, METEOR Kettenfabrik GmbH, SIA ‘Tool Industry’ and AS ‘Ditton pievadķēžu rūpnīca’ (C‑285/23) in respect of large-scale fraud as part of an organised gang, money laundering as part of an organised gang, abuse of office and abetting large-scale fraud and large-scale money laundering.

3 Pursuant to the first sentence of recital 8 of Directive 2014/41, ‘the [European Investigation Order] should have a horizontal scope and therefore should apply to all investigative measures aimed at gathering evidence’.

4 Article 1 of that directive, entitled ‘The European Investigation Order and obligation to execute it’, states, in paragraphs 1 and 3 thereof:

‘1. A European Investigation Order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (“the issuing State”) to have one or several specific investigative measure(s) carried out in another Member State (“the executing State”) to obtain evidence in accordance with this Directive.

The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.

3. The issuing of an EIO may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defence rights in conformity with national criminal procedure.’

5 Article 3 of that directive, entitled ‘Scope of the EIO’ is worded as follows:

‘The EIO shall cover any investigative measure with the exception of the setting up of a joint investigation team and the gathering of evidence within such a team as provided in Article 13 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union […] and in Council Framework Decision 2002/465/JHA [of 13 June 2002 on joint investigation teams (OJ 2002 L 162, p. 1)], other than for the purposes of applying, respectively, Article 13(8) of [that c]onvention and Article 1(8) of the Framework Decision.’

6 Article 6 of Directive 2014/41, entitled ‘Conditions for issuing and transmitting an EIO’, provides, in paragraph 1 thereof:

‘The issuing authority may only issue an EIO where the following conditions have been met:

(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and

(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.’

7 Article 24 of that directive, entitled ‘Hearing by videoconference or other audiovisual transmission’, provides, in paragraph 1 thereof:

‘Where a person is in the territory of the executing State and has to be heard as a witness or expert by the competent authorities of the issuing State, the issuing authority may issue an EIO in order to hear the witness or expert by videoconference or other audiovisual transmission in accordance with paragraphs 5 to 7.

The issuing authority may also issue an EIO for the purpose of hearing a suspected or accused person by videoconference or other audiovisual transmission.’

8 According to recital 9 of Directive 2016/343, ‘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’.

9 Article 8 of that directive, entitled ‘Right to be present at the trial’, provides in paragraphs 1 and 2 thereof:

‘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.’

10 Article 140 of the Kriminālprocesa likums (Law on Criminal Procedure) is worded as follows:

‘(1) The person directing the proceedings may perform procedural acts using technical means (teleconference, videoconference) if the interests of the criminal proceedings so require.

(2) During the course of a procedural act using technical means, it shall be ensured that the person directing the proceedings and the persons participating in the procedural act, where they are in different places or buildings, can hear each other during a teleconference and see and hear each other during a videoconference.

(2¹) In the situation referred to in paragraph 2 of this article, the person directing the proceedings shall authorise a person at the second place where the procedural act is taking place to ensure the conduct of the procedural act at that location (“the authorised person”), or shall assign the task of authorising such a person to the head of the institution located in that place.

(5) The authorised person shall verify and certify the identity of any persons who participate in a procedural act but are not located in the same place as the person directing the proceedings.

(7) The authorised person shall draw up a certificate indicating the place, date and time of the procedural act, the position, given name and surname of the authorised person and the identifying particulars and address of each person present at that venue of the procedural act and the warning given to those persons, where the law provides that they are liable for failure to comply with their obligations. Any such warning shall be signed by the persons receiving it. The certificate shall also indicate any interruptions during the procedural act and the time at which the procedural act concluded. The certificate shall be signed by all persons present at that venue of the procedural act and shall be sent to the person directing the proceedings to be incorporated in the record of the procedural act.

(7¹) The provisions of Paragraphs 2¹, 5 and 7 of this article may be disapplied if the person directing the proceedings is able, using technical means, to verify the identity of the persons located in other places or buildings.

‘(1) Participation by the accused person at the trial in criminal proceedings shall be mandatory.

(2) If the accused person does not attend the hearing, the trial shall be adjourned.’

‘(1) In relation to minor offences, less serious crimes and serious crimes punishable by a term of imprisonment not exceeding five years, a court may conduct the criminal trial in the absence of the accused person if that accused person repeatedly fails to attend hearings without showing good cause or has submitted a request to the court for the case to be tried in his or her absence.

(2) A criminal trial may be conducted in the absence of the accused person if that accused person suffers from a serious illness which prevents him or her from being present at the criminal trial.

(3) A criminal trial with more than one accused person may be conducted in the absence of an accused person where the charges examined at the hearing are against other accused persons, if the attendance of that accused person is not necessary at that hearing and that accused person does not wish to participate in the hearing in question and has informed the court of that fact.’

‘The court may conduct a criminal trial in the absence of the accused person (in absentia) in any of the following situations:

(1) the whereabouts of the accused person are unknown, which shall be stated in the information on the outcome of the investigations;

(2) the accused person is abroad and it is not possible to ensure his or her appearance before the court.’

The disputes in the main proceedings and the questions referred for a preliminary ruling

14 The Ekonomisko lietu tiesa (Economic Court, Latvia), which is the referring court, is seised of criminal proceedings against, inter alia, E, who is accused of large-scale money laundering. E is a Lithuanian national who is resident in Lithuania.

15 At the hearing on 22 September 2022, the public prosecution service, having regard to E’s request, made an objection to the remote participation of the latter in the hearings by videoconference, relying on the provisions of Article 140(7¹) of the Law on Criminal Procedure as interpreted by the general assembly of judges of the department of criminal cases of the Augstākā tiesa (Supreme Court, Latvia) in its decision of 4 November 2021.

16 On 16 October 2022, E’s defence lawyer requested the referring court to refer questions for a preliminary ruling to the Court of Justice concerning the interpretation of Directive 2014/41 for the purposes of clarifying the nature of E’s rights to participate in the judicial proceedings remotely by technical means.

17 The referring court states that Article 140(7¹) of the Law on Criminal Procedure extends the opportunities to perform procedural acts remotely and that, by that addition to the law, the national legislature aimed to promote the use of technical means in criminal proceedings, streamlining and simplifying the conduct of those proceedings, in particular in cases where the parties to proceedings are in different cities or different countries.

18 According to the referring court, the interpretation of Article 140(7¹) of the Law on Criminal Procedure made by the general assembly of judges of the department of criminal cases of the Augstākā tiesa (Supreme Court) has the result that, where a party to the proceedings is not within the jurisdiction of the Republic of Latvia, namely the national territory, technical means may only be used to perform a procedural act through recourse to a European Investigation Order or other instrument of judicial cooperation. Thus, an accused person residing in a country other than Latvia could not participate remotely in a hearing using technical means, even if he or she is a passive participant in the conduct of the criminal proceedings.

19 Given that E is resident in Lithuania, his remote participation by technical means in the judicial proceedings in Latvia presupposes that the Latvian Court must ask the Lithuanian court, within the framework of a European Investigation Order, to ensure that that he could participate remotely for a lengthy period. Having regard to the duration and cost of its execution, the referring court takes the view that issuing a European Investigation Order with a view to ensuring the passive participation of the accused person in the hearings is not proportionate within the meaning of Article 6 of Directive 2014/41.

20 Since E is accused of large-scale money laundering, his participation in the hearings would be, having regard to the seriousness of the crime of which he is accused, mandatory during the examination of the evidence in relation to the charges against him, even if he does not wish to participate in the hearings. Having regard to the interpretation provided by the general assembly of judges of the department of criminal cases of the Augstākā tiesa (Supreme Court), E would be required, during the examination of that evidence, to appear in the normal manner for a lengthy period at the court hearings in Latvia or to ask the Lithuanian court, by means of a European Investigation Order, to make it possible for him to participate remotely in the hearing for a lengthy period.

21 Since it is uncertain as to the applicability of Directive 2014/41 to the participation of an accused person at hearings at which he or she will not be heard, the Ekonomisko lietu tiesa (Economic Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do Articles 1(1), 6(1)(a) and 24(1), second subparagraph, of Directive 2014/41 permit legislation of a Member State according to which a person residing in a different Member State may, without a European [I]nvestigation [O]rder being issued, participate by videoconference, as an accused person, in judicial proceedings, where the accused person is not being heard in that phase of the proceedings, that is to say, where no evidence is being gathered, provided the person directing the proceedings in the Member State in which the case is being tried is able, by technical means, to verify the identity of the person in the other Member State and provided that person’s rights of the defence and assistance by an interpreter are ensured?

(2) If the answer to the first question is in the affirmative, could the consent of the person who is to be heard constitute an independent or supplementary criterion or prerequisite for that person to participate by videoconference in the judicial proceedings in question, where no evidence is being gathered in that phase of the proceedings, if the person directing the proceedings in the Member State in which the case is being tried is able, by technical means, to verify the identity of the person who is in the other Member State and provided that person’s rights of the defence and assistance by an interpreter are ensured?’

22 The referring court states that, on the date of the adoption of the order for reference, an estimated 60 depositions unrelated to the charges against E remain to be examined. Were it to stay the proceedings, that stay would present a considerable obstacle to the proceedings in question being heard within a reasonable time. Consequently, the referring court considers that it can continue the judicial proceedings at least until the evidence on which the charges against E are based is examined and while his presence is not mandatory.

23 Since the Court of Justice, on 7 March 2024, sent a request for clarification in that case to the referring court, pursuant to Article 101 of its Rules of Procedure, that court answered by letter lodged with the Registry of the Court of Justice on 21 March 2024, stating that the witnesses named by the public prosecution service and those named by the defence have all been heard. In particular, the various hearings enabled 12 witnesses to be heard, whose testimonies are relevant for the purposes of proving the guilt of the accused person. The accused person participated in those hearings both in person and remotely by videoconference.

24 The Ekonomisko lietu tiesa (Economic Court), which is the referring court, is seised of criminal proceedings in which one of the persons accused, A, is a German national resident in Germany and accused of large-scale fraud as part of an organised gang and large-scale money-laundering as part of an organised gang. Those offences are classified as serious crimes and are punishable by a prison sentence.

25 The offences of which A is accused constitute serious crimes under Latvian law. Having regard to that classification and to the fact that the conditions for trying a criminal case in the absence of the accused person set out in Article 465 of the Law on Criminal Procedure are not satisfied, it follows that, in accordance with Articles 463 and 464 of that law, a trial without the participation of the accused person is not possible and that his presence is mandatory.

26 A and his counsel informed the referring court of circumstances, inter alia linked to A’s age and family and personal situation, preventing him from being present in person at most of the hearings in the present case. It is not his intention to evade justice and he wishes to be present at the trial, albeit by videoconference from Germany.

27 Both the European Investigation Order issued by the referring court and the request for mutual assistance from the Latvian Ministry of Justice have been refused by the competent German authorities. Those authorities stated that executing the European Investigation Order was not possible on the ground that it was not an investigative measure that was sought, but the participation of an accused person in a hearing by videoconference. Furthermore, in connection with a request for mutual assistance, there was no legal basis enabling participation in the proceedings by videoconference. Under German law, the physical presence of the accused person at the trial is mandatory and remote participation by videoconference in the trial is contrary to the fundamental principles of German law.

28 According to the clarification in the decision of the general assembly of judges of the department of criminal cases of the Augstākā tiesa (Supreme Court) dated 4 November 2021, having regard to the territorial scope of the Law on Criminal Procedure, the jurisdiction of the Republic of Latvia is limited to the national territory. The holding of a videoconference in the absence of international mutual judicial assistance is thus possible only if the procedural act is carried out within the jurisdiction of the Republic of Latvia.

29 The referring court has doubts as to whether hearing an accused person by videoconference, as provided for under Article 24(1) of Directive 2014/41, comprises that person’s participation in the criminal trial, including the right to be present at his or her trial and to follow it. The referring court also raises the issue of whether Article 8(1) of Directive 2016/343 enshrines a right of the accused person to participate by videoconference in the criminal trial from his or her Member State of residence.

30 In those circumstances, the Ekonomisko lietu tiesa (Economic Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 24(1) of Directive [2014/41] be interpreted as meaning that the hearing of an accused person by videoconference includes the situation where the accused person participates in the trial in a criminal case in a different Member State by videoconference from that person’s Member State of residence?

(2) Must Article 8(1) of Directive [2016/343] be interpreted as meaning that the right of accused persons to attend the oral procedure may also be ensured by an accused person participating in the trial in a criminal case taking place in a different Member State by videoconference from that person’s Member State of residence?

(3) Does participation by an accused person in the trial in a case that takes place in a different Member State by videoconference from the Member State of residence equate to that person’s physical presence at the hearing before the court in the Member State which is hearing the case?

(4) Where the reply to the first and/or second questions is in the affirmative, may the videoconference be arranged only via the competent authorities of the Member State?

(5) Where the reply to the fourth question is in the negative, may the court in the Member State which is hearing the case enter into contact directly with an accused person who is in a different Member State and send that person the link in order to join the videoconference?

(6) Is it compatible with maintenance of the single area of freedom, security and justice of the [European] Union to arrange such a videoconference otherwise than via the competent authorities of the Member State?’

31 The referring court takes the view that, since the issue to be resolved under EU law concerns only the form of participation of the accused person, namely in person or by videoconference, it is possible for it, pending a preliminary ruling, to continue dealing with the case as it has done to date, in A’s physical presence. Thus, in the criminal case in the main proceedings, the right of the accused persons to be tried within a reasonable time, in accordance with the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, would not be infringed. Consequently, the proceedings in the present case have not been stayed.

32 By decision of 14 June 2023, Cases C‑255/23 and C‑285/23 were joined for the purposes of the written and oral procedure and the judgment.

33 Having regard to the nature of the questions referred, the President of the Court, by decision of 14 June 2023, granted priority treatment to Cases C‑255/23 and C‑285/23 pursuant to Article 53(3) of the Rules of Procedure.

34 On the other hand, the referring court having requested, in Case C‑285/23, on the basis of Article 105(1) of the Rules of Procedure, that the case be determined pursuant to an expedited procedure, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, rejected that request by decision of 21 July 2023.

35 In accordance with settled case-law, Article 267 TFEU sets up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, which has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (judgment of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraph 26 and the case-law cited).

36 Thus, a judgment delivered in the context of that procedure is binding on the national court as regards the interpretation of EU law for the purposes of resolving the dispute before it (judgment of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraph 27).

37 The preservation of the effectiveness of that procedure is not made impossible in practice or excessively difficult by a national rule which makes it possible, between the date on which a request for a preliminary ruling is made to the Court and the date of the order or judgment by which the Court answers that request, to continue the main proceedings in order to carry out procedural steps, which the referring court considers necessary and which concern aspects unrelated to the questions referred for a preliminary ruling, namely procedural steps which are not such as to prevent the referring court from complying, in the main proceedings, with that judgment (judgment of 17 May 2023, BK and ZhP (Partial stay of the main proceedings), C‑176/22, EU:C:2023:416, paragraph 28).

38 In the present case, the referring court stated, in Case C‑255/23, that it had not, notwithstanding the submission of its request for a preliminary ruling, stayed the proceedings and that it had continued the hearings in which E had participated both in person and remotely by videoconference. With regard to Case C‑285/23, the referring court stated that it had not stayed the proceedings either and that it intended to continue the hearings in A’s physical presence. Such procedural steps, including, in particular, the examination of the evidence on which the charges against the accused persons are based, are liable to render the questions referred for a preliminary ruling concerning the possibility for the accused persons to participate in the proceedings by videoconference devoid of purpose and of relevance to the main proceedings, and are therefore liable to prevent the referring court from complying, in the context of the main proceedings in both cases, with the decisions by which the Court would reply to the references for a preliminary ruling.

39 In that regard, it must be borne in mind that the Court does not have jurisdiction to provide, in preliminary ruling proceedings, answers which are purely advisory (judgment of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 12).

40 Moreover, the first paragraph of Article 23 of the Statute of the Court of Justice of the European Union provides that the request for a preliminary ruling is to suspend the national proceedings. While admittedly the Court has accepted, in particular circumstances, exceptions to that effect, it should be noted that, as is apparent from the case-law cited in paragraph 37 of the present judgment, that is subject to the condition that such exceptions do not undermine the effectiveness of the cooperation mechanism provided for in Article 267 TFEU. However, in the present case, the effectiveness of that mechanism would be undermined if the questions referred in Cases C‑255/23 and C‑285/23 were declared admissible, since the referring court, after the date on which the requests for a preliminary ruling were made, continued the main proceedings to carry out procedural acts which concerned aspects linked to the questions referred.

41 In the light of the foregoing considerations, there is no need to answer the questions referred for a preliminary ruling in Cases C‑255/23 and C‑285/23.

42 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

There is no need to rule on the requests for a preliminary ruling submitted by the Ekonomisko lietu tiesa (Economic Court, Latvia), by decisions of 28 March 2023 and 21 April 2023.

Court of Justice of the European Communities (including Court of First Instance Decisions)