Automaticism of the fiction of service and the rights of a citizen residing abroad

The Ombudsman filed a cassation in favour of the Convicted in the proceedings concerning the issuing of a combined judgement against the Convicted resident abroad. The convict himself initiated the procedure by making an application to the territory Court. The court collected the essential materials, but failed to supply the Convicted Instruction on the consequences of Article 138 of the NCP governing a circumstantial service government for persons residing outside the European Union. In accordance with that provision, ‘The organization and a non-party whose rights have been infringed, not in a country or in another associate State of the European Union, shall be required to identify the addressee for service in a country or in another associate State of the European Union; in the event of failure to do so, the letter sent to the last known address in a country or in another associate State of the European Union or, if no address exists, annexed to the file shall be deemed to have been served’.

The court applied the fiction of service, despite the deficiency of instruction, leaving announcement of the date of the proceeding in the case file with effect of service. The convict failed to appear at the trial, and the combined conviction was passed in the first instance against the failure to bring an appeal.

It appears from the file that the Court of First Instance tried to contact the Convicted by e-mail, but correspondence did not include the required instructions and the effectiveness of service was not verified. In addition, the IT strategy generated a message: ‘the mark server did not send any transportation notification’.

The RPO pointed out that the case-law established the view that the application of Article 138 of the NCP is only admissible after prior, clear and effective instruction of the party. The absence of specified instruction excludes the anticipation of imposing the negative effects of service fiction.

Rights of defence and duality of proceedings

In the cassation brought in favour of the Convicted, the deputy of the RPO alleged gross and having a crucial impact on the content of the judgement in breach of Article 16(2) of the NCP, in conjunction with Article 138 of the NCP, in conjunction with Article 6 of the NCP, by not granting the Convicted instruction on the content and consequences of the application of Article 138 of the NCP, which consequently deprived the sentenced individual of the real anticipation of exercising his procedural powers.

The absence of an effective announcement of the date of the proceeding prevented the participation in the hearing, the request for a written message of reasons and the appeal. As a result, the cumulative judgment, ruling on a long word conviction of imprisonment, was finalized without instantial control. The case file says so. that if the Convicted knew of the date of the trial and the cumulative sentence, he would have appealed due to the fact that he opposed the judgment.

The RPO stressed that even the Convicted Declaration on Non-Profession at Trials did not exempt the Court of First Instance from its work to effectively notify it of the date of the first hearing. Participation in the proceeding is simply a right and cognition of its date is simply a condition for the exercise of the rights of defence.

The Court of Justice of the European Union and the Court of Justice of the European Union

In the interests of the effectiveness of the future decision, the RPO pointed out the request to decently form the cassorising composition in the light of the caselaw of the TEU, in peculiar concerning the independency of the judgement of 4.9.2025, C-225/22, Legalis, and of judgement of 21.12.2023, C-718/21, Legalis. These judgments give emergence to the work to examine the circumstances of the appointment of the ultimate Court Judges and, in the event of infringements, to consider the judgement to be unfounded if essential to guarantee the primacy of Union law.

The relevance of the case to criminal practice

The above case points out that Article 138 of the NCP, as an exception to the rule of actual service, requires strict compliance with procedural guarantees, in peculiar the work to instruct the organization in a fair manner.

For judicial and defence practice, this is simply a clear signal that failure to service persons abroad may lead to a violation of the rights of defence and the actual deprivation of the right to a two-instance hearing.