Opinion of the Advocate General — ECLI:EU:C:2026:422
Date: 2026-05-21
Language of the case: Bulgarian

Summary C-230/25 – 1 
Case C-230/25 [Stakov] i 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
25 March 2025 
Referring court: 
Аpelativen sad Sofia (Bulgaria) 
Date of the decision to refer: 
24 February 2025 
Appellant and defendant: 
NE 
Representative of the charging authority: 
Sofiyska apelativna prokuratura 
  
Subject matter of the main proceedings 
Criminal appeal proceedings concerning an offence subject to prosecution by the 
public prosecutor – Hearing of the case by an impartial and independent tribunal – 
Express and unequivocal waiver by the defendant of the right to be present at the 
trial – Repayment of the costs of proceedings for mandatory legal aid – Right of 
the accused person or defendant to have the lawyer assigned to him or her for the 
provision of legal aid replaced 
Subject matter and legal basis of the request 
The request for a preliminary ruling is made in accordance with point (b) of the 
first paragraph of Article 267 TFEU. 
 
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. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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Questions referred for a preliminary ruling 
1. Is it compatible with the second subparagraph of Article 19(1) of the Treaty 
on European Union and with the second paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union, and would it infringe the right to a 
fair trial in its aspect that the case must be heard by an impartial and independent 
tribunal, if the court which has ruled or is to rule in a criminal case is at the same 
time the defendant in a civil action which the defendant in the criminal case has 
brought in respect of an infringement committed in the same criminal case by a 
court of which the court making the ruling is the legal successor and where the 
court making the ruling will be liable to pay compensation if the civil action is 
upheld? 
2. Does it follow from Article 8(1) and (2) and recitals 34 and 35 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 that a defendant’s written 
statements to the effect that he or she wishes to take part in the trial in person but 
will not appear and will abscond in order to avoid being detained in respect of 
other proceedings constitute an express and unequivocal waiver by the defendant 
of his or her right to be present at the trial, or must they be seen as a reason 
beyond the defendant’s control, on account of which he or she is unable to be 
present at the trial? 
3. If the answer to the second question is that the situation described constitutes 
a reason beyond the defendant’s control, on account of which he or she was 
unable to be present at the trial, must that person’s request for repetition with his 
or her participation of the questioning of all witnesses and experts in the judicial 
proceedings initiated by virtue of his or her appeal against the judgment be 
granted, where, prior to the proceedings conducted in absentia, in which the 
judgment under appeal was delivered, the same charges were already examined in 
court twice, the defendant took part in the trials in person and put his or her 
questions to the witnesses and experts, and there is no difference between the 
statements and conclusions of the expert reports in the two previous sets of 
proceedings examining the charges and those in the proceedings conducted in 
absentia? 
4. Must Article 2(1)(a) and (b) and Article 4(1) and (4) of Directive (EU) 
2016/1919 of the European Parliament and of the Council of 26 October 2016 on 
legal aid for suspects and accused persons in criminal proceedings and for 
requested persons in European arrest warrant proceedings, read in conjunction 
with recitals 8 and 17 of that directive, be interpreted as meaning that accused 
persons and defendants who are deprived of liberty, irrespective of whether they 
have sufficient resources to pay for the assistance of a lawyer, are to be treated in 
the same way as suspects and accused persons who lack such resources and to 
whom legal aid is granted because the interests of justice so require? 
STAKOV 
 
3 
5. If the fourth question is answered in the affirmative, is national legislation 
pursuant to which, where legal aid is granted on the basis of a law which provides 
for mandatory representation by a lawyer, as is the case where the accused person 
or defendant is deprived of liberty, that person must repay the costs of the legal 
aid granted, without a test being applied as to whether he or she had sufficient 
means to pay for the assistance of a lawyer, compatible with recital 8 of Directive 
(EU) 2016/1919 of the European Parliament and of the Council of 26 October 
2016 on legal aid for suspects and accused persons in criminal proceedings and 
for requested persons in European arrest warrant proceedings? 
6. Must Article 7(1)(b) and Article 7(4) of Directive (EU) 2016/1919 of the 
European Parliament and of the Council of 26 October 2016 on legal aid for 
suspects and accused persons in criminal proceedings and for requested persons in 
European arrest warrant proceedings, read in conjunction with recital 25 of that 
directive, be interpreted as allowing the court to refuse the accused person’s or 
defendant’s request for the lawyer providing legal aid services assigned to him or 
her to be replaced where it finds that the defendant is deliberately avoiding contact 
with the lawyer representing him or her, in order to allege that he or she is not 
being provided with legal aid that would guarantee him or her a fair trial, and the 
request for a replacement is intended to delay the proceedings? 
Provisions of European Union law and case-law relied on 
Treaty on European Union – second subparagraph of Article 19(1) 
Charter of Fundamental Rights of the European Union (‘the Charter’) – second 
and third paragraphs of Article 47 
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 
(‘Directive 2016/343’) – recitals 34 and 35; Article 8(1) and (2) 
Directive (EU) 2016/1919 of the European Parliament and of the Council of 
26 October 2016 on legal aid for suspects and accused persons in criminal 
proceedings and for requested persons in European arrest warrant proceedings 
(‘Directive 2016/1919’) – recitals 8, 17 and 25; Article 2(1)(a) and (b), 
Article 4(1), (2) and (4), and Article 7(1)(a) and (b) and Article 7(4) 
Request for a preliminary ruling from the Spetsializiran nakazatelen sad 
(Bulgaria) of 9 June 2022 – criminal proceedings against NE and order of the 
President of the Court of Justice of 17 November 2022, C-373/22 
Judgment of 19 December 2024, Vivacom Bulgaria (C-369/23, EU:C:2024:1043, 
paragraphs 30 to 33 and 37) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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Convention for the Protection of Human Rights and Fundamental Freedoms 
and case-law of the European Court of Human Rights 
Convention for the Protection of Human Rights and Fundamental Freedoms (‘the 
ECHR’) – Article 6(1) 
Judgment of the European Court of Human Rights (‘the ECtHR’) of 15 December 
2005, Kyprianou v. Cyprus (CE:ECHR:2002:0507DEC007379701), judgment of 
the ECtHR of 10 July 2008, Mihalkov v. Bulgaria 
(CE:ECHR:2008:0410JUD006771901), judgment of the ECtHR of 18 June 2013, 
Valcheva and Abrashev v. Bulgaria (CE:ECHR:2013:0618DEC000619411), and 
judgment of the ECtHR of 10 September 2018, Boyan Gospodinov v. Bulgaria 
(CE:ECHR:2018:0405JUD002841707) 
Provisions of national law relied on 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) – Article 29, 
Articles 93(1) and 94(1) to (5), Article 189, Article 247c(1), Articles 269, 313 to 
316 and 334, Article 335(2), Articles 348(1)(2) and 348(3) and (4) 
Zakon za pravnata pomosht (Law on legal aid) – Articles 1 and 2, Articles 6(1) to 
(3), 8(1), (3) to (6), (10) and (11), 18(1) to (3) and (5) to (7), 21(2) and (4), 23(1) 
and (2), and 25(1) 
Zakon za sadebnata vlast (Law on the Judiciary) – Articles 9(1) and 30(1), 
Articles 30(2)(1) and 30(2)(10), and Articles 65 and 218 
Grazhdanski protsesualen kodeks (Code of Civil Procedure) – Article 519 
Succinct presentation of the facts and procedure in the main proceedings 
1 The referring court is examining NE’s appeal against the judgment of the Sofiyski 
gradski sad (Sofia City Court, Bulgaria) of 13 September 2023, by which NE was 
found guilty of committing two offences in front of the Sofia Court House in Sofia 
on 29 May 2018, namely denigration of the national flag of the Republic of 
Bulgaria and hooliganism evincing particular audacity and particular cynicism. 
For the first of those offences, NE was sentenced to one year and 6 months in 
prison; for the second, he was sentenced to one year and 10 months in prison. The 
Sofia City Court imposed a total term of imprisonment for both offences of one 
year and 10 months, deducting the period from 4 June 2018 to 14 March 2019, 
during which NE had been remanded in custody pending trial. The sentence was 
suspended subject to a four-year probation period. NE was ordered to reimburse 
the State for the costs of the proceedings, which included the costs of the court-
appointed legal representation provided to him during the proceedings. 
STAKOV 
 
5 
2 Before the main proceedings were initiated, the charges against NE were 
examined in two sets of proceedings at first instance, two sets of proceedings 
examining appeals on the merits, and one set of proceedings examining an appeal 
on a point of law. 
3 The charges were initially examined by the Spetsializiran nakazatelen sad 
(Specialised Criminal Court, Bulgaria). NE took part in the proceedings in person 
and with the assistance of a court-appointed legal representative. He put questions 
to the witnesses, made requests for measures of inquiry and had the opportunity to 
put questions to the experts who produced the conclusions of the expert reports 
commissioned. Those proceedings at first instance culminated in a conviction 
against which both the court-appointed legal representative and NE lodged 
appeals. 
4 The judgment of the Specialised Criminal Court was set aside by the Apelativen 
spetsializiran nakazatelen sad (Specialised Criminal Court of Appeal, Bulgaria) on 
the ground of an absolute procedural defect regarding the composition of the 
panel: the proceedings had been heard by a panel comprising three judges rather 
than by one judge. Under Bulgarian law, that procedural defect precludes a 
decision on the merits by the appeal court. The proceedings were therefore 
referred back to the Specialised Criminal Court to be reopened and heard by a 
different panel (that being the second set of proceedings at first instance). 
5 The Specialised Criminal Court released from his obligations the court-appointed 
legal representative who had provided NE with legal aid in the pre-trial 
proceedings, in the first set of proceedings before the Specialised Criminal Court 
and in the proceedings before the Specialised Criminal Court of Appeal. That was 
done at the request of both the court-appointed legal representative and NE. The 
legal representative stated that the main lines of defence proposed by NE would 
be inconsistent with his statutory obligation to provide legal aid and to help 
illuminate all factual and legal issues to the benefit of the accused person, guided 
by internal conviction rooted in the evidence in the case and in the law. Moreover, 
he declared, NE had refused to engage in any communication in the courtroom 
immediately before the trial. NE stated that the legal representative had sought no 
contact with him between the trials. The Specialised Criminal Court appointed a 
new legal representative for NE, as he remained in custody. 
6 On 14 March 2019, NE was released from custody and the proceedings were 
conducted before the Specialised Criminal Court, with NE and his new court-
appointed legal representative taking part in person. NE put questions to the same 
witnesses who were examined during the first set of proceedings before the 
Specialised Criminal Court. He also participated in the hearing of the experts who 
had produced the conclusions of the expert reports commissioned in the pre-trial 
proceedings, gave his opinion as to whether the conclusions should be admitted in 
the case and made requests for measures of inquiry. On the last day of hearing the 
case on the merits, on which the last witness was to be examined, NE appeared 
but was issued with a fine for improper conduct in the courtroom (he made 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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obscene remarks to the public prosecutor and the court) and left the courtroom. 
The witness was examined with the involvement of the court-appointed legal 
representative, whereupon the Specialised Criminal Court delivered a renewed 
conviction in the presence of the court-appointed legal representative. 
7 The second set of appeal proceedings before the Specialised Criminal Court of 
Appeal were initiated by appeals on the merits brought by the court-appointed 
legal representative and by NE. In those proceedings, NE requested the 
disqualification of the panel of the court, relying on the judgment of the ECtHR in 
Boyan Gospodinov v. Bulgaria. NE attached to his request a copy of an 
application which he had lodged with the Sofia City Court against the Public 
Prosecutor’s Office of the Republic of Bulgaria, the Specialised Criminal Court of 
Appeal and the Specialised Criminal Court, on the basis of which civil 
proceedings were being initiated. In that application, NE claims that the 
defendants are jointly and severally liable for non-material damage amounting to 
500 000 leva (BGN) as a consequence of the period during which he was 
unlawfully remanded in custody pending trial from 3 June 2018 to 14 March 
2019, the stress caused to him, the mental and physical violence, the poor living 
conditions in custody and in prison, beatings, the inadequate healthcare and the 
moderate bodily harm inflicted on him. In addition, NE requested that the court-
appointed legal representative who had defended him in the second trial at first 
instance before the Specialised Criminal Court, having been appointed because 
NE was in custody, be appointed again, albeit on a different legal basis, namely to 
provide him with legal aid free of charge as NE lacked sufficient income. The 
Specialised Criminal Court of Appeal refused the request on the ground that NE 
already had a court-appointed legal representative and had not waived his right to 
being defended by that lawyer. Thereupon NE waived his right to legal aid 
provided by the court-appointed legal representative who had been defending him 
up to that point, and the appeal proceedings continued with NE taking part in 
person. The Specialised Criminal Court of Appeal took no new evidence and the 
proceedings concluded with a decision amending the judgment of the Specialised 
Criminal Court to the effect that NE was acquitted of two of the offences with 
which he had been charged, while the judgment at first instance was upheld in 
respect of the charges relating to the other two offences and in respect of the costs 
(which the court of first instance had ordered NE to bear). 
8 NE lodged an appeal on a point of law against the judgment of the Specialised 
Criminal Court of Appeal with the Varhoven kasatsionen sad (Supreme Court of 
Cassation, Bulgaria). At NE’s request, in which he claimed that he could not 
afford the defence of a lawyer but that the interests of justice required it, the 
Supreme Court of Cassation appointed a new legal representative to him. Before 
the hearing, however, NE declared in writing that he was waiving his right to that 
court-appointed legal representative, as he was not performing his duties properly, 
and requested the appointment of a different legal representative. As the 
participation of the defendant is not mandatory in an appeal on a point of law, the 
Supreme Court of Cassation conducted the proceedings in NE’s absence with the 
involvement of the appointed legal representative. Before the Supreme Court of 
STAKOV 
 
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Cassation, the court-appointed legal representative asserted that the appeal on a 
point of law should be upheld, that the judgment in the appeal on the merits 
should be set aside on the ground of substantial procedural defects and that the 
proceedings should be referred back to a different panel of the Specialised 
Criminal Court of Appeal to be reopened. However, the Supreme Court of 
Cassation set aside both the judgment in the appeal on the merits and the judgment 
at first instance and referred the case back to the Specialised Criminal Court with 
instructions to order a complex forensic, psychiatric and psychological 
investigation to serve as the basis for carefully examining whether or not the 
conditions are met for the court to appoint legal representation because the 
accused person has physical or mental deficiencies which impede him from 
conducting his own defence. 
9 After the case had been referred back to the court of first instance, the Specialised 
Criminal Court discontinued the judicial proceedings and referred the case back to 
the Public Prosecutor’s Office for it to conduct the investigation ordered by the 
Supreme Court of Cassation, as it found that the ground for setting aside the 
judgments also applied in respect of the pre-trial proceedings. After the forensic 
psychiatric investigation had been carried out and a new bill of indictment was 
filed concerning only two of the offences for which charges had originally been 
brought, proceedings were initiated before the Specialised Criminal Court. After 
NE requested that the judge responsible for the proceedings and all judges at the 
Specialised Criminal Court be disqualified on the grounds that the Specialised 
Criminal Court was the defendant in the civil proceedings initiated at the Sofia 
City Court and that the legislature had in any event provided for all specialised 
courts, including the Specialised Criminal Court, to be abolished (and that NE 
moreover considered that circumstance to cast doubt on the impartiality of the 
judges at those courts), the Specialised Criminal Court stayed the proceedings and 
made a request for a preliminary ruling to the Court of Justice, whereupon the 
proceedings in Case C-373/22 were initiated. In the meantime, the Specialised 
Criminal Court was abolished by means of legislation with effect from 27 July 
2022, and the case was transferred to the Sofia City Court as the legal successor to 
the abolished Specialised Criminal Court. 
10 In view of the ex lege legal succession between the Specialised Criminal Court 
and the Sofia City Court, the civil proceedings which NE had brought before the 
Sofia City Court were discontinued on 15 November 2022 and that case was 
referred to the Sofiyski okrazhen sad (Sofia Provincial Court, Bulgaria). No 
decision has yet been delivered in that case. 
11 In the criminal case against NE, the Sofia City Court resumed the proceedings and 
withdrew the request for a preliminary ruling made by the Specialised Criminal 
Court. In consequence, Case C-373/22 was removed from the register of the Court 
of Justice by order of the President of the Court on 17 November 2022. On the 
basis of the judgment of the ECtHR in Boyan Gospodinov v. Bulgaria, NE 
requested the disqualification both of the panel of the Sofia City Court which was 
seised of the case and of all judges at that court. He expressly waived his right to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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his new court-appointed legal representative, previously appointed to him by the 
Specialised Criminal Court, on the ground that the legal representative had failed 
to inform him of the start of the judicial proceedings, and requested a new court-
appointed legal representative. Until 3 February 2023, the Sofia City Court was 
unable to continue the proceedings because NE, though he knew the hearing dates, 
repeatedly failed to appear and waived his right to defence from two other lawyers 
successively appointed to him by the Sofia City Court on the ground that he 
considered them ‘inadequate’. At the hearing on 3 February 2023, the Sofia City 
Court appointed a new legal representative for NE on the ground that the case 
would be heard in the absence of the accused person, found that there were no 
grounds for its disqualification and examined the case in the absence of NE (who 
is alleged to have been informed of the date of the hearing in person) and with the 
participation of the court-appointed legal representative. 
12 Before the resumption of and during the proceedings, NE made written requests 
on 13 January 2023, 31 January 2023 and 4 April 2023 for the hearings before the 
Sofia City Court to be held by videoconference so that he could personally take 
part. The reason given for his non-appearance at the scheduled hearing dates is 
that he was wanted for arrest in other criminal proceedings pending before the 
Sofiyski rayonen sad (Sofia District Court). In those requests, NE expressly stated 
that he would not attend the hearings as long as he remained wanted for arrest. 
The Sofia City Court refused the request because the law provides that a 
defendant may be examined by videoconference only if he or she is out of the 
country. In the proceedings conducted in NE’s absence and attended by the court-
appointed legal representative, the Sofia City Court re-examined the witnesses and 
experts in the case. NE appeared at the last hearing and requested that the 
preliminary hearing in the case and all examinations of witnesses and experts be 
repeated in his presence. After the court refused his request, NE left the 
courtroom, and the judgment was delivered in his absence and in the presence of 
the court-appointed legal representative. 
13 In the appeal brought against that judgment before the referring court, NE’s court-
appointed legal representative claims that he should be released from further 
participation because NE has repeatedly stated in writing that he does not wish to 
be represented by him. In addition, the court-appointed legal representative 
submits that he repeatedly attempted to reach NE using the mobile phone number 
given in the file but that the mobile phone was switched off. He states that NE had 
also not contacted him, though he also had electronic access to the file, which 
contained the notification letter from the Sofia Bar Association with the name and 
telephone number of the court-appointed legal representative. He submits 
moreover that, at their first meeting prior to the last hearing before the Sofia City 
Court, NE refused to speak to him and discuss the line of defence and left the 
courtroom. NE disputes the court-appointed legal representative’s statements and 
declares that he will assert civil claims against him. 
14 The referring court released the court-appointed legal representative from further 
participation in the proceedings and invited the Sofia Bar Association four times 
STAKOV 
 
9 
in succession to name a lawyer who would defend NE in the appeal proceedings. 
Three of the lawyers refused on various grounds to take on the role of NE’s court-
appointed lawyer – for health reasons and on the basis of differences with NE 
regarding the line of defence. NE rejected the fourth lawyer as his court-appointed 
legal representative because he had brought a civil action against the lawyer 
seeking compensation for non-material damage which NE had suffered as a result 
of the other’s participation as a court-appointed legal representative in the 
proceedings before the Sofia District Court in which NE had been wanted for 
arrest, that being the reason why NE had not appeared before the Sofia City Court. 
In support of his rejection of the court-appointed legal representative, NE submits 
a copy of the application initiating the civil action. The content of the application 
makes it clear that he is claiming compensation for damages because the court-
appointed legal representative appeared at the hearing despite NE’s waiver of his 
right to be represented by him and thereby thwarted NE’s intention to have no 
legal representative at the hearing at which NE himself did not appear. The Sofia 
District Court examined the case attended by the legal representative, convicted 
NE and ordered his detention. 
15 At the time of submitting the request for a preliminary ruling, the referring court 
has appointed a new, fifth court-appointed legal representative for NE, as the 
defendant claims he is unable to pay a lawyer’s fees but wishes to have a legal 
representative and that the interests of justice so require. 
The essential arguments of the parties in the main proceedings 
16 NE submits that the judge at the Sofia City Court who delivered the judgment was 
not impartial and that the judgment was therefore delivered by an illegitimate 
court. He explains that with the argument that the Sofia City Court, at the time 
when the judgment was delivered, was also a defendant in the civil proceedings 
NE had brought. As the referring court is also a defendant in those civil 
proceedings, he argues, all the judges at that court are likewise not impartial and 
should recuse themselves from hearing NE’s appeal, while the case should be 
referred to the Apelativen sad Plovdiv (Court of Appeal, Plovdiv) or the 
Apelativen sad Veliko Tarnovo (Court of Appeal, Veliko Tarnovo). NE relies in 
his claims about the lack of impartiality of the Sofia City Court and the referring 
court on the case-law of the ECtHR, in particular on the judgments in Boyan 
Gospodinov v. Bulgaria and Mihalkov v. Bulgaria. 
17 The new court-appointed legal representative appointed by the referring court 
submits that NE’s request for disqualification should be granted. 
18 The public prosecutor of the Sofiyska apelativna prokuratura (Public Prosecutor’s 
office at the Court of Appeal, Sofia, Bulgaria) who attended the hearing considers 
the request unfounded, as NE has brought no proceedings against individual 
members of the panel of the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
19 The panel of judges of the referring court was composed randomly by means of an 
authorised information system, in accordance with the relevant statutory 
provisions. The grounds for disqualification provided for in Bulgarian law apply 
to none of the judges on that panel. The referring court has doubts as to whether to 
accept the grounds for disqualification put forward by NE. Those doubts are 
caused, first, by the consideration that the facts of the present case are very 
different from those which gave rise to the judgments of the ECtHR in Boyan 
Gospodinov v. Bulgaria and Mihalkov v. Bulgaria, to which NE refers. In both of 
those cases, the ECtHR found that the principle of impartiality had been infringed 
where the court of which the ruling judge was a member was a defendant in a civil 
action seeking compensation for damages for an alleged infringement committed 
in proceedings before the same court, where the institution would be liable to pay 
compensation if the action was upheld. In Boyan Gospodinov v. Bulgaria, 
however, the decision as to whether and in what amount compensation should be 
granted for excessively long detention before the judgment became final caused 
by time spent in custody pending trial depended on whether the defendant in the 
action seeking compensation for damages, namely the Okrazhen sad Stara Zagora 
(Provincial Court, Stara Zagora), would convict the applicant in other criminal 
proceedings concerning a different offence and what sentence it would impose. 
Therefore, the civil proceedings were stayed pending the final outcome of the 
second set of criminal proceedings, albeit at the request of another defendant and 
not the Provincial Court, Stara Zagora. The action was dismissed on that basis. 
The ECtHR found that the panel seised of the second criminal case was not 
impartial, as whether the Provincial Court to which it belonged was ordered as a 
defendant to pay compensation for damages depended on that panel’s decision. In 
Mihalkov v. Bulgaria, the ECtHR found that Article 6(1) of the ECHR had been 
infringed because the court had ruled in civil proceedings concerning an action 
brought against the court. By contrast, the proceedings before the referring court 
are concerned with reviewing the correctness of a conviction by the Sofia City 
Court, and there is clearly no connection with the civil proceedings before the 
Sofia Provincial Court in which compensation may be granted. The two cases, 
neither of which has yet been concluded, concern different issues. It is for the 
referring court to ascertain whether NE’s appeal against the judgment ruling on 
his guilt and liability in respect of the charge brought against him is well founded. 
The possible unlawfulness of NE’s period in custody pending trial does not fall 
within the scope of reviewing the lawfulness of the judgment delivered. The 
matter is immaterial with regard to establishing whether the acts of which NE is 
accused constitute an offence and to the level of the penalty imposed on him by 
the court of first instance. It is for the Sofia Provincial Court, for its part, to assess 
whether and in what amount the State, represented by the Sofia City Court and the 
Apelativen sad Sofia (Court of Appeal, Sofia, Bulgaria) as the legal successors of 
the Specialised Criminal Court and the Specialised Criminal Court of Appeal, 
owes compensation for non-material damage suffered by NE while he was in 
custody pending trial in the proceedings from 3 June 2018 to 14 March 2019. 
STAKOV 
 
11 
20 In so far as NE bases his allegation of bias on the part of the judges on the 
possibility that the court may be ordered to pay compensation for damages as a 
result of the civil action he has brought, the referring court also takes into account 
the judgment of the ECtHR in Valcheva and Abrashev v. Bulgaria. In that case, 
the ECtHR was satisfied that, where the sums to be paid out as compensation by 
the State would come from a distinct line item in the budget of each court, that 
factor would not call into question the impartiality of the courts hearing such 
claims or the effectiveness of the remedy. 
21 The referring court has difficulties answering for itself the main question which 
arose, even taking into account the judgment of the Court of Justice of 
19 December 2024, Vivacom Bulgaria (C-369/23, EU:C:2024:1043, 
paragraphs 30 to 33 and 37), namely whether provisions enacted by the legislature 
regarding the civil liability of the courts as legal persons for damage caused by the 
activities of the judges, and the fact that the judges were in no way involved in the 
adoption of the legislative acts from which NE derives his legal grounds for 
holding the Sofia City Court and the Court of Appeal, Sofia (as legal successors to 
the Specialised Criminal Court and the Specialised Criminal Court of Appeal) 
liable under civil law, constitute sufficient necessary measures which objectively 
dispel NE’s doubts as to the independence and impartiality of the Sofia City Court 
and the Court of Appeal, Sofia. The procedural situation in the present criminal 
proceedings is fundamentally different from that in the abovementioned Vivacom 
Bulgaria case. Unlike the Supreme Administrative Court, the referring court is not 
a court of cassation, and there are four other courts of the same level in the 
Bulgarian judicial system. In Vivacom Bulgaria, the Supreme Administrative 
Court was both the court called upon to rule on the case and a defendant in the 
same case, in which compensation is claimed for an earlier infringement of EU 
law by that court. The referring court is a defendant in a civil action for 
compensation for damage suffered by NE as a result of his detention, which has, 
however, been brought before a different court, and it is simultaneously the court 
called upon to rule on the criminal case in which it is required to review the 
lawfulness of the judgment challenged by NE. Were one to accept NE’s assertion 
that the need for judicial impartiality requires that judges at criminal courts must 
always recuse themselves from the criminal cases before them where the court to 
which they belong is a defendant in an action seeking compensation for an 
infringement perpetrated in the course of the activities of that institution or of a 
court to which it is the legal successor, that would in practice result in the parties 
being able to choose not only a court but sometimes even the panel to examine 
their case. NE himself has stated in writing and verbally before the referring court 
that he wants his appeal against the judgment of the Sofia City Court to be heard 
before the Court of Appeal, Plovdiv, or the Court of Appeal, Veliko Tarnovo, 
whereas it could also be heard before the Apelativen sad Varna (Court of Appeal, 
Varna, Bulgaria) or the Apelativen sad Burgas (Court of Appeal, Burgas, 
Bulgaria). That could be taken as an indication that NE is choosing a court to 
examine his case. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
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22 The arguments on which the request for disqualification of the judges of the 
referring court relies will, if those judges are not disqualified, generate legal 
uncertainty regarding the decisions to be taken in the case. That legal uncertainty 
arises from the fact that it is impossible to know in advance whether the next court 
of higher instance, namely the Supreme Court of Cassation, will also take the 
view that the considerations put forward by NE do not constitute grounds for 
disqualification of the panel or whether it will hold that the panel should have 
recused itself and that, because it did not do so, the judgment was delivered by a 
court which was not independent and impartial. 
23 For the referring court, the answer to the question whether, in not disqualifying 
itself and in examining NE’s appeal against his conviction on the basis of the facts 
presented in the case, it would infringe NE’s right to a fair trial in its aspect that 
the case must be heard by an impartial and independent tribunal, as required by 
the second paragraph of Article 47 of the Charter and Article 6(1) of the ECHR, is 
necessary for the appeal proceedings pending before it to be resumed. The answer 
to that question is also crucial for assessing whether the judgment under appeal 
was delivered by such a tribunal, as the judge at the Sofia City Court likewise and 
on the same grounds did not disqualify himself. 
24 Under national law, a court of appeal – such as the referring court – is required to 
review in full the lawfulness of the judgment under appeal independently of the 
statements in the appeal; it can gather evidence, establish new facts and remedy 
infringements of procedural rules. The proceedings before the Sofia City Court 
were conducted in the absence of NE, who was notified of the hearing dates and 
informed that the case would be examined in his absence if he did not appear 
without a valid reason. As the offences in question are not serious intentional 
offences carrying a custodial sentence of more than five years, the defendant’s 
participation in the hearing before the courts of first and second instance is in 
principle not mandatory, unless the court considers that his or her presence is 
required for the purpose of establishing the objective truth. If the defendant does 
not appear even if ordered to do so by the court, the hearing may only take place 
in the presence of a legal representative authorised by the defendant or appointed 
by the court. NE stated three times in writing that he would not appear in the case 
before the Sofia City Court as long as he remained wanted under an arrest warrant 
issued by another court for him to be remanded in custody pending trial in another 
case. The proceedings before the Sofia City Court were conducted with the 
participation of a court-appointed legal representative. At the last hearing in those 
proceedings, NE appeared and requested that the examination of all witnesses and 
experts be repeated, which the court refused. NE left the courtroom and the court 
concluded the hearing by delivering the judgment in the presence of the court-
appointed legal representative and in the absence of the defendant. In the light of 
those facts, the referring court has doubts as to how to proceed with the review of 
NE’s appeal against the judgment of the Sofia City Court. If it holds that NE’s 
written statements constitute an express and unequivocal waiver of his right to be 
present at the trial within the meaning of recital 35 of Directive 2016/343, the 
court’s refusal to repeat the examination of witnesses and experts would constitute 
STAKOV 
 
13 
no limitation of NE’s right to be present at the trial and to exercise his procedural 
right to conduct his own defence, including involvement in the examination of 
witnesses and experts (which NE had already done twice in the course of the 
previous examinations of the case by the Specialised Criminal Court). At the same 
time, NE clearly stated the reason for his non-appearance, namely that he wanted 
to avoid being remanded in custody again pending trial in another criminal case. 
That circumstance confronts the referring court with the question whether the 
reason NE gave can be considered a reason beyond his control within the meaning 
of recital 34 of Directive 2016/343 (since it is obvious and logical that his 
appearance would mean voluntarily depriving himself of his right to freedom of 
movement, as he would inevitably be detained after the hearing by the authorities 
tasked with searching for him) or whether NE must be considered to have put 
himself in the position of being unable to exercise his right to attend the hearing in 
person, as the problem is detention in another criminal case, with the result that a 
tacit but unequivocal waiver of the right to be present at the trial is in place, as set 
out in recital 35 of Directive 2016/343. The answer to the question whether NE’s 
non-appearance in the situation described is due to a reason beyond his control or 
constitutes an unequivocal waiver of his right to be present at the trial is relevant 
to how the referring court will proceed. In the event that NE’s non-appearance 
must be seen as owing to a reason beyond his control, the referring court would 
have to consider two possible solutions. The first would be to set aside the 
judgment under appeal and refer the case back to a different panel of the Sofia 
City Court to be reopened, to enable NE to take part in the gathering and 
examination of evidence at two instances. That, however, would further delay the 
final resolution of the questions regarding NE’s guilt and liability and would be 
contrary to the requirement set out in the second paragraph of Article 47 of the 
Charter and in Article 6(1) of the ECHR to examine the case within a reasonable 
time. The second possibility is that the referring court takes into account that NE 
had already taken part twice in person in the gathering and examination of 
evidence in the previous examinations of the charges at first instance before the 
Specialised Criminal Court and holds that his right to attend the trial and to 
conduct his own defence will not be undermined if the examination of witnesses 
and experts is repeated in his presence in the appeal proceedings. 
25 The referring court moreover has doubts in relation to the grounds and the costs of 
the legal aid provided to NE. If the accused person/defendant is in custody 
pending trial, national law provides for the court to appoint legal representation. 
The same applies where the criminal proceedings are conducted in absentia, in the 
absence of the accused person or defendant. Under procedural law, it is irrelevant 
whether the defendant has sufficient resources to instruct a legal representative 
(which is therefore not checked in either of those sets of circumstances). The 
status under procedural law of the accused person/defendant as a prisoner and the 
in absentia nature of the proceedings entail the mandatory involvement of a legal 
representative, because the interests of justice so require. In a third set of 
circumstances, where the accused person/defendant lacks sufficient resources but 
wishes to have legal representation and the interests of justice require that it be 
granted, it is provided by a lawyer appointed by the court or the investigating 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-230/25 
 
14  
authorities. Unlike in the first two sets of circumstances, where the law does not 
take the wishes of the accused person/defendant into account, in that third set of 
circumstances, the initiative for the provision of legal aid comes from the accused 
person or defendant. In those circumstances, the accused person/defendant does 
not have to repay the costs of the legal aid provided, while in all other instances of 
court-appointed legal representation the defendant must repay the legal aid in full 
if he or she is convicted. 
26 The referring court has difficulties in determining the amount of legal aid to be 
repaid by NE; its assessment should cover all the decisions setting the 
remuneration of his numerous court-appointed legal representatives during the 
pre-trial and judicial phases of the criminal proceedings up to the present time. 
That question would not arise in the event of acquittal, as all the costs of the 
proceedings would then be for the State to bear. It is not in doubt that NE, while 
he was in custody pending trial and, afterwards, when the proceedings before the 
Sofia City Court were conducted in his absence, claimed legal aid which falls 
within the scope of Article 2(1)(a) and (b) of Directive 2016/1919, as it concerned 
assistance from a lawyer which is provided for in both European Union and 
national law. At the same time, it was established in the present proceedings that 
NE lacked sufficient resources to instruct a lawyer to assist him, for which reason 
the Supreme Court of Cassation and now the referring court, where he is no longer 
in custody pending trial, at his request granted him legal aid and appointed a legal 
representative to him. The referring court needs an interpretation of Article 2(1)(a) 
and (b) and Article 4(1) and (4) of Directive 2016/1919, read in conjunction with 
recitals 8 and 17 of that directive, to decide on the legal aid for NE. The referring 
court seeks to ascertain whether Article 4(1) and (4) of Directive 2016/1919, read 
in conjunction with recital 17 of that directive, is to be interpreted as meaning that, 
in the interests of justice, suspects and accused persons who are in custody 
pending trial or in arrest warrant proceedings are treated the same, irrespective of 
their actual financial situation, as suspects or accused persons who lack sufficient 
resources to pay for the assistance of a lawyer (with the merits test in any event 
deemed to have been met within the meaning of Article 4(4) of that directive 
where a suspect or an accused person is brought before a competent court or judge 
in order to decide on detention at any stage of the proceedings within the scope of 
that directive and during detention), while the second criterion laid down in 
Article 4(2) of that directive – the extent of the suspect’s or accused person’s 
need – seems to be inapplicable in its entirety. In addition, the referring court has 
doubts as to whether the national provisions regarding costs are compatible with 
recital 8 of Directive 2016/1919, which states that, when granting legal aid, the 
competent authorities of the Member States should be able to require that 
suspects, accused persons or requested persons bear part of the costs of their 
defence themselves, depending on their financial resources. National law exempts 
from bearing the costs those accused persons or defendants to whom legal aid is 
granted because they wish to be assisted by a lawyer but lack the resources to pay 
for the assistance of a lawyer and the interests of justice require them to have it, 
while in all other instances of court-appointed legal representation, including 
those instances where the accused person/defendant is in custody pending trial or 
STAKOV 
 
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the criminal proceedings are conducted in his or her absence, the accused 
person/defendant bears not only part but all of the costs associated with the legal 
aid provided, irrespective of whether he or she has sufficient resources to pay for 
the assistance that has been provided by a lawyer. 
27 The next question which is difficult for the referring court to answer is connected 
first to the Member States’ obligation under Article 7(1)(a) of Directive 
2016/1919, read in conjunction with recital 25 of that directive, to take necessary 
measures to ensure that there is an effective legal aid system that is of an adequate 
quality, including facilitating continuity of legal representation throughout the 
criminal proceedings, and second, to the Member States’ obligation to take the 
necessary measures to ensure that suspects and accused persons have the right to 
have the lawyer providing legal aid services assigned to them replaced, where the 
specific circumstances so justify. Careful review of the criminal proceedings in 
their entirety shows that the participating court-appointed legal representatives 
strictly discharged their duty to help illuminate all questions of fact and law to 
NE’s benefit, were guided by internal conviction rooted in the evidence and in the 
law, and took into account NE’s line of defence in so far as that was compatible 
with the law. On the other hand, NE’s conduct in the proceedings shows that he 
was dissatisfied with the legal aid provided to him and requested the replacement 
of many of his court-appointed legal representatives, primarily because they 
allegedly did not visit him regularly while he was in custody pending trial and did 
not contact him after he was released. However, it is apparent from the 
information in the file that NE was granted remote access to the electronic file by 
the presiding judge of the panel of the Sofia City Court and therefore had the 
opportunity to find out the name of the court-appointed legal representative, the 
address of his firm and his telephone number without having to visit the court 
registry. There are also indications that the lawyer himself made repeated attempts 
to contact NE, which were unsuccessful, and that NE refused any communication 
with him, including any discussion of the key lines of defence, which is the duty 
of a lawyer under national law, when the two met prior to the last hearing at the 
Sofia City Court and in the courtroom. At the appeal stage, NE is represented by a 
fifth court-appointed legal representative. The referring court has concerns that the 
line pursued by NE for his own defence, aiming to delay the judicial proceedings 
by repeatedly requesting the replacement of the court-appointed legal 
representative on the ground that there is no communication between them and he 
is therefore not receiving the assistance of a lawyer, will be maintained. It is 
therefore necessary to ascertain whether a situation such as that described falls 
within the scope of Article 7(4) of Directive 2016/1919 and constitutes a 
circumstance entitling NE to request the replacement of the court-appointed legal 
representative.