Order of the Court (Fifth Chamber) of 27 March 2026.#Criminal proceedings against DK.#Request for a preliminary ruling from the Sofiyski gradski sad.#Reference for a preliminary ruling – Urgent preliminary ruling procedure – Area of freedom, security and justice – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Article 8(1) and (2) – Right to be present at the trial – Express or tacit but unequivocal waiver – National legislation interpreted as allowing a person who is the subject of criminal prosecution to be kept in detention in order for his or her right to be present at the trial to be safeguarded.#Case C-68/26 PPU.

Provisional text

ORDER OF THE COURT (Fifth Chamber)

27 March 2026 (*)

( Reference for a preliminary ruling – Urgent preliminary ruling procedure – Area of freedom, security and justice – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Article 8(1) and (2) – Right to be present at the trial – Express or tacit but unequivocal waiver – National legislation interpreted as allowing a person who is the subject of criminal prosecution to be kept in detention in order for his or her right to be present at the trial to be safeguarded )

In Case C‑68/26 (PPU) [Kilyanov], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sofiyski gradski sad (Sofia City Court, Bulgaria), made by decision of 9 February 2026, received at the Court on the same date, in the criminal proceedings against

DK,

other party:

Sofiyska gradska prokuratura,

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan (Rapporteur), D. Gratsias and B. Smulders, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the referring court’s request of 9 February 2026, received at the Court on the same date, that the reference for a preliminary ruling be dealt with under the urgent procedure pursuant to Article 107 of the Rules of Procedure,

having regard to the decision of 2 March 2026 of the Fifth Chamber to grant that request,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of Article 8(1) and (2) 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), of Article 6 and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of the principle of proportionality.

2        The request has been made in the context of criminal proceedings brought against DK and relates to his continued detention with a view to ensuring that he appears in person at the trial.

 Legal context

 European Union law

3        Recitals 1, 33, 35 and 48 of Directive 2016/343 are worded as follows:

‘(1)      The presumption of innocence and the right to a fair trial are enshrined in Articles 47 and 48 of [the Charter], Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950 (“the ECHR”)], Article 14 of the International Covenant on Civil and Political Rights (the ICCPR) and Article 11 of the Universal Declaration of Human Rights.

…

(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 ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights.’

4        Article 1 of that directive, entitled ‘Subject matter’, provides:

‘This Directive lays down common minimum rules concerning:

(a)      certain aspects of the presumption of innocence in criminal proceedings;

(b)      the right to be present at the trial in criminal proceedings.’

5        Article 7 of that directive, entitled ‘Right to remain silent and right not to incriminate oneself’, provides, in paragraph 1 thereof:

‘Member States shall ensure that suspects and accused persons have the right to remain silent in relation to the criminal offence that they are suspected or accused of having committed.’

6        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.’

7        Article 9 of Directive 2016/343, entitled ‘Right to a new trial’, states:

‘Member States shall ensure that, where suspects or accused persons were not present at their trial and the conditions laid down in Article 8(2) were not met, they have the right to a new trial, or to another legal remedy, which allows 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 that regard, Member States shall ensure that those suspects and accused persons have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise the rights of the defence.’

 Bulgarian law

8        Article 55 of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) (DV No 86 of 28 October 2005), in the version applicable to the main proceedings (‘the NPK’), entitled ‘Rights of the accused person’, provides, in paragraph 1 thereof:

‘The accused person shall have the following rights: … to provide or refuse to provide explanations in relation to the charges; to become acquainted with the case file …; to adduce evidence; to participate in the criminal proceedings; to make requests, observations and objections; to be the last to make statements …’

9        Article 57 of the NPK, entitled ‘Purpose of coercive measures’, provides:

‘Coercive measures shall be taken to prevent the accused person from absconding …’

10      Article 58 of the NPK, entitled ‘Types of coercive measures’, states:

‘…

4.      detention on remand pending trial.’

11      Article 66 of the NPK, entitled ‘Consequences of failure to comply with obligations associated with coercive measures’, provides, in paragraph 1 thereof:

‘An accused person who fails to appear before the relevant authority without a valid reason, who changes residence without having informed that authority or who fails to comply with the measure adopted will be made subject to a coercive measure or the measure adopted shall be replaced with a more severe measure, in accordance with the procedure provided for in this Code.’

12      Article 247c of the NPK, entitled ‘Notifications of the date for the preliminary hearing’, provides, in paragraph 1 thereof:

‘By order of the judge rapporteur, a copy of the indictment shall be served on the defendant. Through service of the indictment, the defendant shall be informed of the date fixed for the preliminary hearing, … of his or her right to appear with a defence counsel … and of the fact that the case may be heard and determined in his or her absence, in accordance with Article 269. …’

13      Under Article 269 of the NPK, entitled ‘Presence of the defendant at the trial’:

‘(1)      In cases where the defendant has been charged with a serious criminal offence, his or her presence at the trial shall be mandatory.

…

(3)      Provided that that does not prevent the objective truth from being established, the case may be heard in the absence of the defendant, if:

…

3.      having been duly summoned, he or she has not given valid reasons for failing to appear and the procedure laid down in Article 247c(1) has been complied with;

…’

 The main proceedings and the question referred for a preliminary ruling

14      On 28 August 2020, the Sofiyska gradska prokuratura (Sofia City Public Prosecutor’s Office, Bulgaria) brought criminal proceedings before the Sofiyski gradski sad (Sofia City Court, Bulgaria), which is the referring court, against various individuals, including DK, for having directed, between June 2017 and August 2019, the activities of an organised crime group that sought to commit offences connected with the distribution of narcotics, the cultivation of narcotic plants and the possession of firearms, and/or for having participated in that group. DK was also charged with the distribution, on 15 January 2019, of a significant quantity of narcotics, in implementation of the decision made by that crime group.

15      However, when the police operation to arrest the suspects was launched in August 2019, DK could not be located, with the result that the pre-trial stage of the proceedings was conducted in his absence. A lawyer was appointed for him by the court but that lawyer was equally unable to establish contact with him. The proceedings before the referring court therefore began in DK’s absence. DK was represented by the court-appointed lawyer during 15 hearings held between 28 August 2020 and 19 May 2021, at which many witnesses were questioned.

16      On 19 May 2021, DK was detained. At the hearing held that same day to rule on a request made by the public prosecutor to remand him in custody, the referring court found that there was no evidence to suggest that he would deliberately abscond. Accordingly, the court refused the request and ordered that DK be released. However, that court expressly informed him of the charges against him and of the fact that, if he failed to appear before the court in future, the case could be tried in his absence and that that would not entitle him to a new trial.

17      On 1 June 2021, DK appeared at the hearing before the referring court, assisted by his lawyer. The court sought to determine whether he wished the witnesses who had been questioned in his absence to be questioned again. However, in view of his behaviour, which was suggestive of mental illness, the court deferred its decision on that question and ordered a psychological and psychiatric report in order to assess his condition. DK failed to attend the appointment for the preparation of that report, and also the subsequent hearings on 27 September 2021 and 3 November 2021.

18      At the hearing on 3 November 2021, the referring court decided to remand DK in custody to enable the psychiatric report to be prepared. However, that measure could not be carried out as DK had absconded and could not be located.

19      On 9 February 2022, DK was detained again.

20      At the hearing of 14 February 2022, DK’s detention was extended to allow an expert report to be prepared to assess his soundness of mind. The expert assessment, carried out on 23 March 2022, found him to be of sound mind, meaning that he could be held criminally liable, and that he was feigning mental illness. The criminal proceedings against him were therefore resumed.

21      On 24 March 2022, the referring court asked DK whether he wished the witnesses who had been questioned in his absence to be questioned again. After consulting his lawyer, DK expressly stated that he did not wish the witnesses to be questioned again in his presence. He was released.

22      Over the course of the next six court hearings, DK appeared regularly, then irregularly, then stopped appearing altogether from 30 March 2023.

23      At the hearing of 25 January 2024, the referring court found that DK had definitively ceased all contact with his lawyer and that it was unable to summon him directly as he did not reside at the addresses he had declared and did not respond on the telephone number he had provided. The court found that, by absconding, DK had left it unable to safeguard his right to participate in person in the trial, as provided for in Article 55 of the NPK, and therefore ordered that he be remanded in custody for the sole purpose of guaranteeing the effective exercise of that right, in order to ensure that he could be informed of the evidence gathered in his absence and be able to state whether he wished the witnesses already questioned to be questioned again. The court also specified that, once detained, DK would be heard and the need for him to remain in custody would be reassessed. Subsequent hearings were nevertheless held in the absence of DK, who was being sought by the authorities in order to be detained.

24      On 21 July 2025, DK was once again detained and remanded in custody.

25      At the hearing of 20 November 2025, the referring court raised of its own motion the question whether DK’s detention on remand should be extended. However, it did not rule on that matter because DK had once again begun to behave in a way suggestive of mental illness. An assessment by an expert carried out on 30 January 2026 nonetheless found that DK did not have a mental illness and was of sound mind, meaning that he could be held criminally liable.

26      At the court hearing of 5 February 2026, after consulting his lawyer, DK stated that he had acquainted himself with the minutes of the hearings that had been held in his absence and that he had no questions to put to the witnesses and experts who had already been questioned. The referring court again examined the question of his continued detention on remand and found that his earlier conduct pointed to a real risk of him absconding if he were to be released. If he were to abscond, the referring court would be unable to inform him of any new evidence gathered or give him the opportunity to submit requests for evidence to be taken, to make arguments on the merits or be the last to make statements. Absconding would lead to an infringement of his right to participate in person in the proceedings. In those circumstances, in view of the proved risk of DK absconding and the fact that he had feigned mental illness, the referring court held that it was necessary to extend his detention indefinitely in order to guarantee that his right under Article 55 of the NPK to be present at trial in person could be effectively exercised.

27      In its order for reference, the referring court emphasises that the only ground for continuing to detain DK is to safeguard that fundamental right and thereby afford him a higher level of protection than that provided for in Article 269(3)(3) of the NPK, which is intended to transpose Article 8(2) of Directive 2016/343 into national law. The other potential grounds warranting his continued detention, such as the need to establish the objective truth through investigative measures with his participation, or the risk of him re-offending or frustrating the enforcement of the conviction, do not apply. Given that DK has absconded on two occasions, remanding him in custody is, according to the referring court, the only efficient means of ensuring his appearance in person and, therefore, the effective exercise of his right to participate in the trial.

28      The referring court recalls that the right to be present at the trial, enshrined in Article 8(1) of Directive 2016/343, is to be understood, according to the judgment of 8 December 2022, HYA and Others (Impossibility of questioning prosecution witnesses) (C‑348/21, EU:C:2022:965, paragraph 44), as a right to participate actively, effectively allowing the relevant person to ask witnesses and experts questions, to make requests to the court having jurisdiction and to carry out other acts in order to defend the position he or she has adopted in the trial. However, in the judgment of 15 September 2022, HN (Trial of an accused person removed from the territory) (C‑420/20, EU:C:2022:679, paragraph 42), the Court of Justice emphasised that what was defined in that provision was a right and not an obligation. According to Article 8(2) and recital 35 of that directive, the person concerned should therefore have the ability to waive that right. In order to be valid, that waiver must be sufficiently clear and unequivocal. In that case, Article 8(2) does not require Member States to provide for the possibility of holding a trial after the defendant has waived the right to take part in it. The provision does not, therefore, confer on the persons concerned a subjective right not to appear.

29      Consequently, the referring court considers that Article 8 of Directive 2016/343 permits Member States to provide that a trial must be held in the presence of the person concerned in order to safeguard his or her right to participate in that trial in person. In such a case, given that the failure by the relevant person to appear at his or her trial would prevent the trial from taking place, national law should allow for the adoption of coercive measures designed to ensure the physical presence of that person at the hearing, in particular to prevent him or her from absconding with the intention of frustrating the criminal prosecution and the enforcement of the conviction.

30      For those reasons, the referring court considers that Article 8 allows the interpretation and application of national legislation in such a way as to allow detaining the person concerned in order to safeguard his or her right to participate in person at the trial. In view of the fact that the harmonisation brought about by that directive is minimal, the question is a matter for national law. However, according to the referring court, it is necessary to ascertain whether EU law limits the ability of Member States to adopt a coercive measure of that kind.

31      In that regard, the referring court notes, in the first place, that, according to recital 48 of Directive 2016/343, in so far as that directive establishes minimum rules, it allows Member States to offer a higher level of protection at national level. They may therefore choose not to transpose Article 8(2) of that directive but equally, if they do transpose it, they may provide for it to be applied more strictly. According to the referring court, participation in person in the trial constitutes a higher level of protection of the right enshrined in Article 8(1) of that directive than a refusal to participate in the trial, regardless of the circumstances in which that refusal is made.

32      In the present case, by adopting Article 269(3)(3) of the NPK, the national legislature intended to transpose Article 8(2) of Directive 2016/343 while departing from it in two respects. First, the legislature laid down an additional ground for an informed decision not to appear, stemming from the fact that, according to the court having jurisdiction, the relevant person’s absence will not prevent the objective truth from being established. Second, the court having jurisdiction may order the detention of that person under Article 66(1) of the NPK if he or she fails to appear, including where he or she has made an informed decision not to appear. It follows that the relevant person’s right to participate in person in the trial, enshrined in Article 8(1) of that directive, is safeguarded at national level with a higher degree of protection than that laid down in the directive.

33      In the second place, the referring court notes that remanding the relevant person in custody may infringe the right to liberty guaranteed by Article 6 of the Charter, which is applicable here because the present case concerns the interpretation of Article 8(1) and (2) of Directive 2016/343. It is therefore necessary to ascertain whether the conditions for limiting the right to liberty, as laid down in Article 52(1) of the Charter, are satisfied. In particular, in the light of those conditions, the question arises whether such a coercive measure is proportionate in the light of the objectives pursued, namely the relevant person’s right to participate in the trial and the establishment of the objective truth.

34      In the third place, the referring court emphasises that the relevant person is entitled to a fair trial for the purposes of the second paragraph of Article 47 of the Charter, which is why it is necessary to ascertain whether the detention of that person, ordered with the purpose of safeguarding his or her right to participate in his trial, is compatible with the right to a fair trial enshrined in that article, taking account of the case-law of the European Court of Human Rights. The concept of a ‘fair trial’ under EU law is the same as that enshrined in Article 6(1) of the ECHR. It is true that the European Court of Human Rights has not yet had to consider the question. However, it has described the presence of the defendant at his or her trial as being ‘of capital importance’ to the fairness of that trial.

35      In the fourth and last place, the referring court points to the right to remain silent, provided for in Article 7(1) of Directive 2016/343. However, it considers that it follows from the case-law of the Court of Justice, in particular from the judgment of 2 February 2021, Consob (C‑481/19, EU:C:2021:84, paragraph 41), that that right cannot justify every failure to cooperate with the competent authorities, such as a refusal to appear at a hearing scheduled by those authorities or delaying tactics designed to postpone it. EU law therefore does not preclude the imposition of penalties in the event of a mere refusal to appear when the obligation to appear rests on an objective justification relating, in particular, to the need to establish the objective truth. A fortiori, a coercive measure to ensure that appearance may be imposed.

36      In those circumstances 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:

‘Do Article 8(1) and (2) and recital 48 of Directive 2016/343, Article 6 and the second paragraph of Article 47 of the Charter, and the principle of proportionality permit the interpretation and application of national legislation to the effect that a defendant, after having made use of the possibility provided for by the national legislation not to appear at the court hearings, on the basis of an informed decision in that regard (that is to say, that defendant made the decision after being informed of the charges against him or her, of the date and place of the court hearing and of the fact that the court’s decision on the substance cannot be appealed on the grounds of his or her absence, and is defended by a lawyer to whom he or she has entrusted his or her defence), may be detained and imprisoned for an indefinite period, where the sole purpose of the detention is to ensure a higher level of protection of that defendant’s right to participate in person, that is to say, for that defendant to be brought from prison for the purpose of participating in the court hearings?’

 The request that the reference be dealt with under the urgent preliminary ruling procedure

37      The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in the first paragraph of Article 23a of the Statute of the Court of Justice of the European Union and Article 107(1) of the Rules of Procedure of the Court of Justice.

38      In support of the present request, the referring court submits that DK is currently deprived of liberty and that his continued detention depends directly on the answer provided by the Court of Justice to the question referred for a preliminary ruling. The referring court points out, in particular, that, should the Court answer the question in the negative, DK’s detention will immediately come to an end and he will be released. Conversely, should the Court answer in the affirmative, DK’s detention will continue until such time as new circumstances arise.

39      In that regard, it should be noted, in the first place, that the present reference for a preliminary ruling concerns, in particular, the interpretation of Article 8(1) and (2) of Directive 2016/343, adopted on the basis of Article 82(2) TFEU, which comes under Title V of Part Three of the FEU Treaty, relating to the area of freedom, security and justice. Consequently, the reference may be dealt with under the urgent preliminary ruling procedure.

40      In the second place, as regards the condition relating to urgency, it follows from settled case-law that that condition is satisfied where the person concerned by the main proceedings is, at the time when the request for a preliminary ruling is made, deprived of liberty and when his or her continued detention turns on the outcome of the dispute in those proceedings, it being specified that the situation of the person concerned must be assessed as it stands at the time when consideration is given to whether the reference for a preliminary ruling should be dealt with under the urgent procedure (see, inter alia, judgment of 12 February 2026, Rastoshev, C‑712/25 PPU, EU:C:2026:101, paragraph 24 and the case-law cited).

41      In the present case, it is apparent from the information provided by the referring court that DK has effectively been deprived of his liberty since 21 July 2025 and that he is in that situation at the time when consideration is given to whether the reference for a preliminary ruling should be dealt with under the urgent preliminary ruling procedure. Furthermore, the question raised by the referring court seeks, in essence, to establish whether the provisions of EU law to which it refers must be interpreted as not precluding national legislation which allows, according to the interpretation given to it by the referring court, the continued detention of the person concerned with the sole aim of safeguarding that person’s right to be present at the trial. The answer provided by the Court to that question is, therefore, in principle, such as to influence the outcome of the case in the main proceedings, on which, moreover, DK’s continued detention depends.

42      In those circumstances, pursuant to Article 108(1) of the Rules of Procedure, it is appropriate to grant the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.

 Consideration of the question referred

43      Pursuant to Article 99 of the Rules of Procedure of the Court of Justice, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

44      It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.

45      By its question, the referring court asks, in essence, whether Article 8(1) and (2) of Directive 2016/343, read in the light of Article 6, the second paragraph of Article 47, and Article 52(1) of the Charter, must be interpreted as precluding national legislation under which, according to the interpretation given to it by that court, a person who is the subject of criminal prosecution may, having made use of the possibility provided for by that legislation not to appear at court hearings, be kept in detention for the sole purpose of ensuring the effective exercise of his or her right to be present at the trial.

46      It must be borne in mind that the aim of Directive 2016/343 is, according to Article 1 thereof, to lay down minimum rules concerning certain aspects of criminal proceedings, namely certain ‘aspects of the presumption of innocence’, governed by Articles 3 to 7 of the directive, and the ‘right to be present at the trial’, which is the subject of Articles 8 and 9 of that directive, in order to enhance the right to a fair trial in those proceedings, so as 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 (see, to that effect, judgment of 16 January 2025, VB II (Information concerning the right to a new trial), C‑400/23, EU:C:2025:14, paragraph 52 and the case-law cited). As is clear from its recital 1, Directive 2016/343 thus aims to ensure respect for the fundamental rights enshrined in Articles 47 and 48 of the Charter.

47      As regards the right to be present at the trial, which is the subject of the present question referred for a preliminary ruling, it should be noted that Article 8(1) of Directive 2016/343 provides that Member States are to ensure that suspects and accused persons have that right.

48      The right to be present at the trial is an essential element of the rights of the defence and, more generally, is of crucial importance in compliance with the right to a fair criminal trial, enshrined in Articles 47 and 48 of the Charter (judgment of 23 March 2023, Minister for Justice and Equality (Lifting of the suspension), C‑514/21 and C‑515/21, EU:C:2023:235, paragraph 60 and the case-law cited), of which, as is clear from recital 33 of that directive, it forms an integral part (judgment of 20 May 2025, Kachev, C‑135/25 PPU, EU:C:2025:366, paragraph 31 and the case-law cited).

49      It is therefore clear from the wording of Article 8(1) that Member States must allow suspects and accused persons to be present at their trial. On the other hand, that provision does not specify whether Member States may make such presence compulsory (judgment of 15 September 2022, HN (Trial of an accused person removed from the territory), C‑420/20, EU:C:2022:679, paragraphs 32 and 33).

50      In addition, Article 8(2) of Directive 2016/343 stipulates that 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 certain conditions are satisfied.

51      As the right to appear in person at the trial is not absolute, the person concerned may waive that right, of his or her own free will, either expressly or tacitly, provided that the waiver is established in an unequivocal manner (see, to that effect, in particular, judgments of 26 February 2013, Melloni, C‑399/11, EU:C:2013:107, paragraph 49, and of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded suspect), C‑569/20, EU:C:2022:401, paragraph 35).

52      However, it is equally clear from the wording of Article 8(2), in particular from the use of the verb ‘may’, that that provision does not require Member States to provide, in their national law, for the possibility of organising a trial in the absence of the person concerned, but gives them the mere option to do so (see, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory), C‑420/20, EU:C:2022:679, paragraphs 34 and 37).

53      It therefore follows from the foregoing considerations that Article 8(1) and (2) 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 (judgment of 15 September 2022, HN (Trial of an accused person removed from the territory), C‑420/20, EU:C:2022:679, paragraph 40).

54      The Court has thus previously held that that directive does not govern the question whether the Member States may require the suspect or accused person to be present at the trial, with the result that such a question, in the light of the limited scope of the harmonisation carried out by that directive, is a matter for national law alone (see, to that effect, judgment of 15 September 2022, HN (Trial of an accused person removed from the territory), C‑420/20, EU:C:2022:679, paragraph 42).

55      That applies a fortiori to the conditions under which a Member State intends, as in the present case, to compel, in certain circumstances, the person concerned to appear in person, in particular through the adoption of coercive measures such as keeping that person in detention before and during the trial.

56      In that regard, it should be emphasised that the aim of Directive 2016/343 is not to determine the conditions under which the persons who are the subjects of criminal prosecution may be deprived of their right to liberty, as enshrined in Article 6 of the Charter, but merely, as is clear from paragraphs 46 and 48 of the present order, to lay down common minimum rules safeguarding those persons’ fundamental rights enshrined in Articles 47 and 48 of the Charter, in particular the right to a fair trial.

57      It follows that the conditions under which a person who is the subject of criminal prosecution may be kept in detention before and during his or her trial are governed solely by national law and not by Article 8(1) and (2) of Directive 2016/343, to which the referring court points in its question referred for a preliminary ruling, or by any other provision of that directive.

58      Furthermore, as regards Article 6, the second paragraph of Article 47 and Article 52(1) of the Charter, relating, respectively, to the right to liberty, the right to a fair trial and the principle of proportionality, to which the referring court also points in its question, it must be recalled that the scope of the Charter is defined in Article 51(1) thereof, according to which its provisions are addressed to the Member States only when they are implementing Union law.

59      In that regard, the concept of ‘implementing Union law’, within the meaning of that provision, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgments of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 34, and of 12 June 2025, Tallinna linn, C‑219/24, EU:C:2025:442, paragraph 50 and the case-law cited).

60      It follows from that, according to settled case-law, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19, and of 12 June 2025, Tallinna linn, C‑219/24, EU:C:2025:442, paragraph 51 and the case-law cited).

61      Thus, the Court has, in particular, held that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to a given situation (judgments of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35, and of 12 June 2025, Tallinna linn, C‑219/24, EU:C:2025:442, paragraph 52 and the case-law cited).

62      In such a case, the national rule enacted by a Member State as regards such a situation falls outside the scope of the Charter and, accordingly, that situation cannot be assessed in the light of the provisions of the Charter (see, to that effect, judgment of 12 June 2025, Tallinna linn, C‑219/24, EU:C:2025:442, paragraph 53 and the case-law cited).

63      It follows from paragraphs 46 to 57 of the present order that national legislation governing the detention, before and during his or her trial, of a person who is the subject of criminal prosecution does not fall within the scope of Directive 2016/343. Such national legislation does not therefore constitute an ‘implementation’ of Union law within the meaning of Article 51(1) of the Charter.

64      It follows that, in the absence of any indication in the order for reference of any other connection to EU law, national legislation such as that at issue in the main proceedings, which, according to the interpretation given to it by the referring court, allows a person who is the subject of criminal prosecution to be kept in detention in order to guarantee that person’s appearance at trial, falls outside the scope of the Charter and cannot, therefore, be assessed in the light of the provisions of the Charter.

65      Consequently, the answer to the question referred is that Article 8(1) and (2) of Directive 2016/343 must be interpreted as not applying to national legislation under which, according to the interpretation given to it by the referring court, a person who is the subject of criminal prosecution may, after having made use of the possibility provided for by that legislation not to appear at the court hearings, be kept in detention for the sole purpose of ensuring the effective exercise of his or her right to be present at the trial.

 Costs

66      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.

On those grounds, the Court (Fifth Chamber) hereby orders:

Article 8(1) and (2) 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 not applying to national legislation under which, according to the interpretation given to it by the Sofiyski gradski sad (Sofia City Court, Bulgaria), a person who is the subject of criminal prosecution may, after having made use of the possibility provided for by that legislation not to appear at the court hearings, be kept in detention for the sole purpose of ensuring the effective exercise of his or her right to be present at the trial.

[Signatures]

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*      Language of the case: Bulgarian.

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i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.