Judgment;Summary — ECLI:EU:C:2025:595
Date: 2025-08-01
Language of the case: Bulgarian
Court formation: Third Chamber
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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Translation C-404/24 – 1 
Case C-404/24 [Dimnev] i 
Request for a preliminary ruling 
Date lodged: 
10 June 2024 
Referring court: 
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer: 
10 June 2024 
Prosecutor in the criminal proceedings: 
Sofiyska gradska prokuratura  
Accused person: 
KP 
  
O R D E R 
[…] 
Sofia, 10 June 2024 
SOFIYSKI GRADSKI SAD (Sofia City Court), […] 
[…]: 
[…] 
in the presence of the public prosecutor […] 
 
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 
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at the hearing […] of public prosecution proceedings No 20231100207288 on the 
list for the year 2023 
These proceedings are governed by the second paragraph of Article 267 TFEU. 
1 The referring court finds itself in a situation in which the public prosecutor states 
that he does not support the charge in part (in relation to certain factual 
circumstances and the associated legal assessment), but national law, Article 293 
of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’), 
requires the court to continue to examine the charge – including in relation to the 
aforementioned circumstances. This also leads to the need for the accused person 
to be convicted in respect of one of those circumstances because the referring 
court is of the view that that circumstance is present. 
2 The question arises as to whether, as a result, the court bears the burden of 
proving the charge and takes over the task of the public prosecutor. Since that 
question is directly related to European Union law, only the Court of Justice of the 
European Union, which has sole jurisdiction to give an appropriate interpretation, 
is able to provide a useful answer to it.  
3 […]. 
Facts 
4 The Sofiyska gradska prokuratura (Sofia City Public Prosecutor’s Office) brought 
three charges against a certain person, all for acts committed in Sofia on 21 May 
2022: first, that [that person] sold a package containing 0.67 grammes of 
marijuana to another person; secondly, that, in the garage run by [him], [that 
person] possessed another package containing 1.61 grammes of marijuana, for the 
purposes of distribution; thirdly, that, in [his] flat, [that person] possessed a further 
0.5 grammes of marijuana, also for the purposes of distribution. 
5 In law, those acts were classified as offences under Article 354a(1) of the 
Nakazatelen kodeks (Criminal Code, ‘the NK’), namely as the distribution of a 
highly dangerous narcotic (the first act) and as possession of a highly dangerous 
narcotic for the purposes of distribution, without the requisite authorisation (the 
second and third acts). Those three criminal acts were combined into one 
continuous offence, in accordance with Article 26(1) of the NK.  
That offence is punishable by a term of ‘imprisonment’ of two to eight years and a 
‘fine’ of 5 000 leva (BGN) to BGN 20 000 (approximately EUR 2 556 to EUR 
[1]0 225). 
6 The court conducted an investigation in the course of which it questioned several 
individuals: the accused person, the person the public prosecutor’s office claimed 
had purchased the first package containing 0.6 grammes of marijuana from the 
accused person, the police officers who made the arrest, and third parties. The 
accused person stated that he had had the narcotics in his possession for his 
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personal use, and that he had not sold the narcotics to the other person, the two of 
them having simply smoked together marijuana which had been bought with joint 
money. The other person stated that he had bought the marijuana but later changed 
his statement to say that he had not bought anything. The police officers who had 
made the arrest stated that, at the time of the arrest, the other person had thrown 
the package containing the marijuana to the ground. 
7 The procedure for taking evidence was concluded. This was followed by a hearing 
on the merits, during which the parties each stated what they each consider to 
have been established and what form of order they sought from the court. 
8 The public prosecutor stated with regard to the first act that it had not actually 
been proved that the accused person […] sold the marijuana to the other person. In 
his view, the accused person alone had possessed the package of marijuana, for 
his own use. The accused person alone had also possessed the other two quantities 
of marijuana, for his own use. The public prosecutor stated that, as a result, he did 
not [now] support the charge in relation to the following alleged elements and was 
dropping these: with regard to the first act – that the sachet of marijuana had been 
sold to another person; with regard to the second and third acts – that those 
[packages] had been possessed for the purposes of distribution. 
The public prosecutor requests that the accused be acquitted in relation to those 
elements only. 
In the absence of those factual circumstances, the public prosecutor seeks a 
conviction under the conditions laid down in Article 345a(3) of the NK, namely 
only for possession of narcotics without the requisite authorisation. 
That offence is punishable by a term of ‘imprisonment’ of one to six years and a 
‘fine’ of BGN 2 000 to 10 000 (approximately EUR 1 022 to 5 113). 
9 The defence submits that significant procedural errors were committed during the 
taking of evidence at the pre-judicial stage. It contends that all of the inculpatory 
evidence should be excluded. Next, it contends that the statements given by the 
accused person (in which the accused person admits that he had the narcotics in 
his possession for personal use) should also be excluded, since those statements 
are not supported by the other evidence (which has already been excluded at the 
defence’s request). Consequently [and] finally, it seeks an acquittal on all counts 
for lack of evidence. 
10 The accused person concurs with his lawyer, while explaining that he is a drug 
addict […] but only smokes marijuana and does not pass it on to anyone. 
11 After its own examination of the evidence gathered, the referring court proceeds 
on the assumption that the accused person did indeed hand over to the other 
person the package of marijuana which he had by prior agreement bought with 
joint money. The defining characteristic of ‘distribution’ required under 
Article 354a(1) of the NK is therefore fulfilled. With regard to the other two 
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packages of marijuana, on the other hand, the court concurs with the prosecutor 
that the accused person had these in his possession for personal use. 
12 In the light of the foregoing, the referring court proceeds on the assumption – with 
regard in particular to the first act – that it must convict [the accused person] on 
the basis of the factual and legal charge set out in the indictment, namely for the 
distribution of a narcotic as provided for in Article 354a(1) of the NK.  
13 Under national law, the public prosecutor’s statement that he does not support this 
part of the factual and legal charge, and his request that an acquittal be granted, do 
not constitute an obstacle in this regard. This follows from Article 293 of the NPK 
(paragraphs 27 to 31 below). 
14 However, the referring court accepts that Article 6(1) of Directive 2016/343 and 
the second paragraph of Article 47 of the Charter might be interpreted as 
precluding a provision such as Article 293 of the NPK, since it follows from that 
provision that it is the judge himself who bears the burden of proof. 
National legislation 
The tasks of the court and the public prosecutor 
15 The task of the public prosecutor is of paramount importance. He brings and 
pursues the prosecution (Article 46(1) of the NPK) and participates in the court 
proceedings as the State prosecutor (Article 46(2), point 3, of the NPK. 
The provisions are as follows: 
‘Article 46 (1) The public prosecutor shall bring and pursue prosecutions 
for criminal offences liable to public prosecution. 
(2) In fulfilment of the tasks provided for in paragraph 1: 
… 
3. [the public prosecutor] shall participate in court proceedings as the State 
prosecutor;’ 
16 The public prosecutor brings the prosecution by way of an indictment in which he 
sets out the charge in factual and legal terms (Article 246 of the NPK): 
‘Article 246(1) The public prosecutor shall draw up an indictment if he is 
satisfied that the necessary evidence exists … to bring a prosecution before the 
court …. 
(2) The factual part of the indictment shall contain: the criminal act which the 
accused person has committed … 
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(3) The final part of the indictment shall contain: … the legal classification of 
the act …’. 
17 Criminal judicial proceedings are instituted on the basis of the indictment 
(Article 247(1), point 1, of the NPK. 
‘Article 247(1) The proceedings at first instance shall begin with: 
1. the indictment …’. 
18 The indictment sets out the factual and legal framework of the charge. The court 
may not give a decision of conviction or acquittal in respect of factual 
circumstances which are not contained in the indictment. Neither may the court 
place those factual circumstances under a legal classification which is not 
contained in the indictment (with one exception which is not present in the main 
proceedings, namely the application of a law for the same act, an act of the same 
nature or an act punishable by a lesser penalty in the absence of any substantial 
change in the facts on which the indictment is based). 
19 The task of the court is therefore to decide on the well-foundedness of the 
indictment within the factual and legal framework formulated by the public 
prosecutor. The court is bound by and may not depart from that [framework]. On 
the other hand, the court is obliged to give a comprehensive decision on all of the 
factual circumstances that constitute the alleged criminal act and on the legal 
classification made by the public prosecutor. 
20 That legal position is undisputed in case-law and the legal basis for it is formed by 
the provisions of Article 27(1) of the NPK (concerning the leading role of the 
court), Article 301(1), points 1 and 2, of the NPK (concerning the questions to be 
examined in the judgment) and Article 55 of the NPK (concerning the right of the 
accused person to a defence). 
‘Article 27(1) After the public prosecutor has submitted the indictment, … the 
court shall conduct the proceedings and decide on all questions relating to the 
case.’ 
‘Art. 301(1) When giving judgment, the court shall examine and rule on the 
following questions: 
1. Has an act been committed, was it committed by the accused person and was 
it committed culpably[?] 
2. Does that act constitute a criminal offence and how is it to be classified in 
law[?]’ 
‘Article 55(1) The accused person shall have the following rights: to be informed 
of the offence for which he is being prosecuted in his capacity as such …’. 
Thereafter, the various defences available against the charge are defined.  
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21 Essential to the request for a preliminary ruling are the following principles 
applicable under the law of criminal procedure: adversarial proceedings 
(Article 12 of the NPK); the determination of objective truth (Article 13 of the 
NPK), from which the principle of ex officio investigation derives; and decisions 
based on personal conviction (Article 14 of the NPK). 
‘Art. 12 (1) Court proceedings shall be adversarial.’ 
‘Art. 13 (1) The court … shall take all measures within the framework of its 
jurisdiction to determine the objective truth’. 
‘Art. 14 (1) The court … shall decide on the basis of its personal conviction …’. 
22 Those principles are linked to each other as follows: The prosecution is brought 
exclusively by the public prosecutor (Article 47 of the NPK), the court granting 
the public prosecutor and the defence an equal opportunity to pursue or counter 
that prosecution (adversarial proceedings); the court takes of its own motion all 
measures to investigate the facts on the basis of the factual charge formulated by 
the court (principle of ex officio investigation); the court reaches its own 
conclusion with respect to the facts and the law, and is not bound in this regard by 
the arguments of the parties to the proceedings (personal conviction). 
23 The principle of ex officio investigation does not, however, provide a basis for the 
court to formulate a charge which has not been stated by the public prosecutor. 
More specifically, the court would in that event be regarded as divesting the 
public prosecutor of the power to formulate the charge. Consequently, the court 
decides only within the factual framework set out by the public prosecutor in the 
indictment. 
24 Conclusion: The public prosecutor formulates the factual and legal charge and the 
court has full discretion to make its assessment within the framework of that 
charge. The court may not, however, formulate the charge in place of the public 
prosecutor. 
Delivery of the judgment 
25 The court proceedings (after the preliminary hearing has been held) follow the 
following course. The first step is the judicial investigation, during which the 
charge is announced and evidence is taken (Articles 276 to 286 of the NPK). Next 
comes the judicial hearing of the substance of the matter, in which the parties to 
the proceedings – the public prosecutor and the defence – make their cases 
(Articles 291 to 296 of the NPK). Finally, the accused person has the right to have 
the last word (Articles 297 to 299 of the NPK). The court then delivers its 
judgment (Articles 300 to 305 of the NPK). 
26 The role of the public prosecutor at the judicial hearing is to pursue the charge. He 
must argue that the charge is confirmed by the evidence gathered; that the charge 
constitutes the offence alleged; that a certain penalty must be imposed. This 
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follows from the principal function of the public prosecutor not only to bring the 
prosecution but also to pursue it before the court (Article 46(1) of the NPK). 
27 It is, however, entirely possible that the public prosecutor may form the view, on 
the basis of newly gathered evidence, that the charge cannot be pursued. In that 
event, he can state that he considers the charge to be unproven and that an 
acquittal should be granted. He may do this either in relation to the charge as a 
whole or in relation to part of it.  
That statement does not, however, release the court from its duty to decide on the 
well-foundedness of that charge (Article 293 of the NPK). 
Article 293 of the NPK reads: 
‘Article 293. The statement by the public prosecutor that the criminal 
proceedings are to be terminated or that a judgment of acquittal is to be 
given does not release the court from its obligation to decide on the basis of 
its personal conviction’. 
28 This means that, even though the public prosecutor has stated that he does not 
support the charge and that an acquittal should be granted, the court may hand 
down a conviction if it is satisfied that the charge is proven by the evidence 
gathered and that the act constitutes an offence. 
29 Article 293 of the NPK is linked to Article 27(1) of the NPK. After all, the 
submission of the indictment to the court by the public prosecutor (the bringing of 
the prosecution) is crucially important. Once the indictment has been submitted, 
the court must give a decision on it, even if the public prosecutor subsequently 
ceases to support the charge (Article 293 of the NPK). 
30 There is no legal possibility for the public prosecutor to withdraw the indictment 
in full or in part. Once the indictment has been laid, the court has an obligation to 
give a decision on it, irrespective of the intentions of the public prosecutor. 
In other words, notwithstanding the public prosecutor’s view that the charge is not 
proven, that he does not support it [and] that an acquittal should be granted, the 
court is fully empowered to hand down a conviction.  
31 In fact, the public prosecutor’s statement that he does not support the charge and 
that an acquittal should be granted is of no legal effect. [In such a case,] the 
court’s powers remain the same as in the case where the public prosecutor states 
that he supports the charge and that a conviction must be handed down. 
32 Article 293 of the NPK is a remnant of the old legislation that applied until 2000 
and under which the court had the power to advise the public prosecutor on which 
charge to bring from a factual and legal point of view. Although the court now no 
longer has that power, Article 293 of the NPK has remained unchanged. 
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33 Article 293 of the NPK is the only exception to the permanently established 
delimitation of the powers of the court and the public prosecutor respectively. If 
the public prosecutor decides at the pre-judicial stage to terminate the criminal 
proceedings in full or in part, the court can intervene only if it receives a 
complaint from the injured party or the accused person (the accused person must 
not be adversely affected in such circumstances). If the public prosecutor decides 
to take the case to court on the ground that very specific facts constitute a criminal 
offence, the court does not have the power to advise the public prosecutor that 
other facts omitted by him also constitute a criminal offence. If the public 
prosecutor does not change the charge in the course of the judicial proceedings on 
account of newly gathered evidence, the court does not have the power either to 
instruct the public prosecutor to change the charge or to change the charge itself. 
If the public prosecutor lodges an appeal, the court of next instance is strictly 
bound by the appeal submission and cannot intervene in relation to any of the 
other parts of the judgment under appeal. And should the appeal brought by the 
public prosecutor’s office be withdrawn, the court may no longer rule on it. 
34 Only the provision contained in Article 293 of the NPK allows the court, in the 
absence of [current] inculpatory allegations, to decide on a charge which is no 
longer supported and has been withdrawn. It follows from this – for the court of 
first instance alone – that, once the charge has been formulated, the court no 
longer needs it to be supported by the public prosecutor in order to be able to 
decide on it, including by handing down a conviction. 
European Union law 
35 Article 6(1) and recitals 22 and 23 of Directive (EU) 2016/343 […]. 
Article 47(2) of the Charter of Fundamental Rights of the European Union […]. 
Reasons for the request for a preliminary ruling 
Directive 2016/343 
36 In accordance with the first sentence of Article 6(1) of the abovementioned 
directive, the burden of proof for establishing the guilt of the accused person is on 
the prosecution. Also [worded] to this effect is recital 22, which states that the 
burden of proof for establishing guilt is on the public prosecutor. 
37 The second sentence of Article 6(1) of the aforementioned directive states that the 
court may gather new evidence even in the absence of any activity on the part of 
the public prosecutor. The same message is also conveyed by the second sentence 
of recital 22, which confers on the court the power to establish the facts of its own 
motion and to conduct its own assessment of guilt. The same message is further 
conveyed by recital 23, which also allows the court to gather even inculpatory 
evidence.  
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38 It follows that the first sentence of Article 6(1) and the first sentence of recital 22 
prescribe the adversarial procedure by imposing on the public prosecutor and not 
the court the obligation to prove the charge. The second sentence of Article 6(1) 
and the second sentence of recital 23, on the other hand, permit the principle of ex 
officio investigation, albeit only in relation to the investigation of new evidence 
which the public prosecutor has not furnished. 
39 The second sentence of recital 23 supports the inference that the principle of ex 
officio investigation precludes adversarial proceedings and is permissible only in 
the case where the national legal system complies with the aforementioned 
directive and the other provisions of EU law and international law.  
40 However, the facts in the main proceedings do not concern the principle of ex 
officio investigation as the power of the court to gather evidence independently 
and on its own initiative. They concern a situation in which, after the evidence has 
already been gathered, the public prosecutor changes his position and forms the 
view that some factual elements are not present. This leads to a substantial change 
in the legal classification of the other factual elements. 
41 In those circumstances, the question arises as to how the first sentence of 
Article 6(1) of the aforementioned directive, according to which ‘the burden of 
proof for establishing … guilt … is on the prosecution’, is to be interpreted.  
42 It is possible to interpret that provision not only as an obligation on the public 
prosecutor to furnish evidence to support his position and to participate in the 
taking of that evidence (as happened in the main proceedings), but also as an 
obligation on him, at the later stage of the hearing on the substance of the case, to 
assess the evidence taken and indicate how that evidence confirms the charge he 
has brought (which – so far as concerns only some facts – did not happen in the 
main proceedings, since the public prosecutor stated that, in his view, those facts 
are not present). 
43 On that interpretation of Article 6(1) of the aforementioned directive, the 
expression that ‘the burden of proof for establishing … guilt … is on the 
prosecution’ would also include the obligation on the public prosecutor to 
substantiate the charge brought by him for the purposes of a judicial decision on 
the substance of the case at the hearing. Either that or [that interpretation] would 
require the public prosecutor, as a mandatory minimum, at least to assert – 
randomly and without any justification for his assertion – that guilt has been 
proven. 
44 In the case in the main proceedings, the public prosecutor made it clear that he 
opposed certain elements of the factual and legal charge which he had himself 
brought, since the newly gathered evidence had led him to reconsider his original 
position which had formed the basis of the indictment. Consequently, he did not 
wish – in relation specifically to those elements – to prove guilt in any way, in the 
sense of making a submission (reasoned or otherwise), at the time of delivery of 
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the judgment at the hearing, that guilt has been proven. On the contrary, he 
submits that guilt has not been proven in relation to those elements.  
45 In those circumstances, the question arises as to whether the court, 
notwithstanding the position so taken by the public prosecutor, may hand down a 
conviction if it considers that one of the elements which the public prosecutor has 
dropped is nonetheless proven by the evidence gathered. 
46 That question concerns the scope of the principle of ex officio investigation, which 
is provided for as a legal possibility in the second sentence of Article 6[(1)] and in 
recitals 22 and 23 of the aforementioned directive. 
47 The first possibility is that the court supports the public prosecutor. This means 
that the court can investigate new evidence of the charge on its own initiative only 
in conjunction with and at the same time as the public prosecutor, and supports the 
latter in proving the charge. This presupposes that the public prosecutor actually 
states that he supports the charge brought against the accused person. 
48 The second possibility is that the court opposes the public prosecutor and takes the 
place of the latter in pursuing the charge. This means that the court, 
notwithstanding the public prosecutor’s clear statement that he does not support 
certain elements of the charge and considers that an acquittal should be granted in 
respect of these, can take the view that the factual charge already withdrawn is 
proven and convict the accused person accordingly. 
49 The question therefore arises as to how Article 6(1) of the aforementioned 
directive, in so far as it refers to the ‘[obligation] on the … court to seek … 
inculpatory … evidence’, and recital 23 thereof, in so far as it states that ‘courts 
are charged with seeking … inculpatory … evidence’, are to be interpreted. More 
specifically, do those provisions allow the court to gather only new evidence on its 
own initiative? Or do they allow the court, at the time of giving judgment, even 
though the public prosecutor has stated that he does not support certain factual and 
legal aspects of the charge and seeks an acquittal [in relation to these], to hand 
down a conviction in respect of those aspects too? 
50 The further question arises as to how the second sentence of recital 22 of the 
aforementioned directive, in particular the phrase ‘without prejudice to any ex 
officio fact-finding powers of the court, to the independence of the judiciary when 
assessing … guilt’, is to be interpreted. 
51 Does the possibility of such ‘ex officio fact-finding’ presuppose the existence of a 
current charge supported by the public prosecutor in relation to those facts? For 
example, does this mean that, where the public prosecutor has stated that he does 
not support the charge he has brought in relation to specific facts, the court has or 
no longer has the power to establish those facts? 
52 Furthermore, is ‘independence of the judiciary when assessing … guilt’ to be 
interpreted as referring to its independence from the public prosecutor, at least at 
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the time of delivering judgment? More specifically, is the court independent from 
the public prosecutor’s changed position by then, to the effect that he no longer 
supports certain elements of the charge, and can it hand down a conviction? 
53 It is to be noted once again here that it was not until the end of the judicial 
proceedings, during the hearing of the substance of the case, that the public 
prosecutor stated that he did not support certain elements of the charge. Prior to 
this, the proceedings had taken place in compliance with the adversarial principle 
and with full respect for the rights of the defence, which was informed of the 
factual and legal aspects of the charge and was able to defend itself against that 
charge. 
54 This does not call into question the right of the accused person to defend himself 
against the charge, since that right was fully asserted, both before and after the 
public prosecutor’s statement that that he did not support certain factual elements 
of the charge he had brought. The question is whether, following the public 
prosecutor’s statement, those elements are still amenable to evidence gathering for 
the purposes of the first sentence of Article 6(1) of the aforementioned directive? 
In accordance with the rule laid down in the second sentence [of that provision], 
evidence can be gathered by the court only if the public prosecutor has refrained 
from proving the elements in question because he is of the view that they are not 
present. 
Second paragraph of Article 47 of the Charter 
55 In accordance with the second sentence of recital [23] of Directive 2016/343, a 
derogation from the adversarial procedure is permissible only where it complies 
with EU law, that is to say with the second sentence of Article 47 of the Charter 
too, which calls for an ‘impartial tribunal’. 
56 The Charter is relevant for another reason too, that is to say in the light of the 
applicability of Framework Decision 2004/757/JHA […] to the main proceedings. 
At the heart of that decision are the definitions of the crimes [concerned] and the 
determination of the penalties [for them] (Articles 2 to 4), the task of the referring 
court (paragraphs 5, 8, 11 and 12 above) being to consider which particular 
narcotics offence the accused person has committed (whether or not it includes 
distribution) and to determine the corresponding penalty (which differs depending 
on whether the criminal act consists of distribution or possession for personal 
use). Any judgment on the substance of the case would thus be given in 
implementation of EU law. This, in accordance with Article 51(1) of the Charter, 
means that the Charter applies [to the present case]. This means in turn that the 
court’s examination of the substance of the case must meet the requirements of an 
‘impartial tribunal’ laid down in the second paragraph of Article 47 of the Charter. 
57 In those circumstances, the question arises as to whether that court is impartial if, 
in relation to certain factual and legal elements, it proves the guilt of the accused 
person itself (‘proving’, in this context, referring not to gathering evidence but to 
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hearing the evidence and coming to a particular definitive factual conclusion). 
This question is particularly important given that the court accepts that proof, 
contrary to the identical views expressed by the public prosecutor and the defence 
to the effect that those elements are not present. 
58 Does a court remain impartial if, in response to the public prosecutor’s statement 
(in relation to only some elements of the charge) that the evidence does not 
support a finding as to the guilt of the accused person, carries out its own 
assessment of the evidence and concludes that the accused person is guilty (in 
relation to one of those elements)? 
59 The Court of Justice of the European Union has already defined impartiality as 
‘neutrality with respect to the interests before [the court or tribunal in question]’ 
(paragraph 196 of the judgment of 18 May 2021, Asociaţia ‘Forumul 
Judecătorilor din România’, С-83/19, EU:C:2021:393). In so far as the referring 
court is familiar with the case-law of the Court of Justice, that expression is used 
only in the context of protecting courts against external interference. In that 
connection, the expressions ‘principle of the separation of powers’ and 
‘imperviousness … to external factors’ (paragraphs 53 and 54 of the judgment of 
20 April 2021, Repubblika, C-896/19, EU:C:2021:311) are used. 
60 The case in the main proceedings is fundamentally different. It is concerned, 
rather, with the limits within which the court may interfere with the prosecutor’s 
prosecutorial function or even assume that function in relation to some elements 
of the charge. If the public prosecutor states that he considers certain factual 
elements not to be proven, but the court hands down a conviction in respect of one 
of those elements, this, in the view of the referring court, means that that the court 
has pursued the charge in relation to that element. 
61 In those circumstances, the question arises as to whether the requirement of 
impartiality enshrined in the second paragraph of Article 47 of the Charter allows 
the court, when faced with an identical position on the part of the prosecution and 
the defence to the effect that certain elements of guilt not proven, to oppose that 
position nonetheless and consider those elements to be proven. 
Judgment of 9 November 2023, С-175/22, EU:C:2023:844 
62 In the abovementioned judgment, the Court of Justice was faced with a similar 
situation of national legislation which gives the national court the power to 
reassess the charge in law even if no such reassessment has been requested by the 
public prosecutor. The Court of Justice stated in paragraphs 55 to 57 of that 
judgment that that circumstance does not cause the court to lose its impartiality. 
63 The situation in the present case is different. First, the public prosecutor clearly 
stated that he did not support certain elements of the charge and that an acquittal 
should be granted in this regard, whereas the public prosecutor in the main 
proceedings in Case C-175/22 did not make any comment on the reassessment. 
Secondly, the main proceedings in the present case concern facts which are no 
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longer supported by the public prosecutor, and the legal classification of which is 
a logical consequence of their establishment, whereas the main proceedings in 
Case C-175/2[2] concern only a reassessment, with no changes to the facts. 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (ECHR) 
64 The second sentence of recital 23 of Directive 2016/343 refers to ‘international 
law’. This is a reference to, inter alia, the ECHR. That reference is also contained 
in Article 52(3) of the Charter in connection with the rights conferred in that 
convention.  
At the same time, Article 6(1) ECHR requires that cases be heard by an ‘impartial 
tribunal’. It follows that the case-law of the European Court of Human Rights 
(ECtHR) is applicable. 
65 In some cases, the ECtHR considers that the physical absence of a public 
prosecutor during closing arguments debating new evidence not previously known 
to the public prosecutor is an indication that the judge is not objectively impartial: 
ECtHR, judgments in Korneyeva v. Russia of 8 October 2019, no. 72051/17, § 42, 
and Karelin v. Russia of 20 September 2016, no. 926/08, § 76. 
66 The ECtHR further considers that, in the case where the court hands down a 
conviction notwithstanding the absence of the public prosecutor, the court itself 
bears the burden of proving the charge: Karelin v. Russia of 20 September 2016, 
no. 926/08, § 73; and Mikhaylova v. Ukraine of 6 March 2018, no. 10644/08, §§ 
63 and 64. 
See also, to similar effect, Krivoshapkin v. Russia of 27 January 2011, no. 
42224/02, § 44; and Ozerov v. Russia of 18 May 2010, no. 64962/01, § 52. 
67 However, the ECtHR has never adjudicated on a factual situation in which the 
public prosecutor is physically present but states that he does not support the 
charge, and the court nonetheless hears the substance of the case and hand downs 
a conviction. 
68 In that regard, it would certainly be true to say that the court assumes the public 
prosecutor’s function of pursuing the charge. 
69 The ECtHR takes the view that, where the public prosecutor is absent and does 
not therefore comment on the newly gathered evidence and the arguments put 
forward by the defence, the court assumes the public prosecutor’s function of 
pursuing the charge. If that view is correct, it would probably be particularly 
appropriate in the main proceedings in this case too, where the public prosecutor 
is present but expressly drops certain elements of the charge. 
[…] 
REQUEST FOR A PRELIMINARY RULING OF 10. 6. 2024 – CASE C-404/24 
 
14  
Anonymised version 
[THE FOLLOWING] O R D E R [IS MADE]: 
[…]  
THE COURT REFERS the following question to the Court of Justice of the 
European Union for a preliminary ruling: 
Does Article 6(1), read in conjunction with recitals 22 and 23, of Directive 
(EU) 2016/343, read in conjunction with the second paragraph of Article 47 
of the Charter, preclude a national law whereby a statement by the public 
prosecutor that he does not support the charge does not release the court 
from the duty to give judgment on the substance of the case, with the result 
that it hands down a conviction in respect of part of the unsupported charge? 
[…]