Opinion of the Advocate General — ECLI:EU:C:2022:539
Date: 2022-07-07
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-348/21 – 1 
Case C-348/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
4 June 2021  
Referring court:  
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer:  
3 June 2021 
Accused persons:  
SS 
HYA 
IA 
DD 
ZI 
Other party:  
Spetsializirana prokuratura (Bulgaria) 
  
Subject matter of the main proceedings 
Assessment of whether national legislation which provides for a procedure in 
which witnesses material to the outcome of the case are de facto examined in the 
absence of the defence is compatible with EU law. 
Subject matter and legal basis of the request for a preliminary ruling 
The request is made in accordance with point (b) of the first paragraph of 
Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-348/21 
 
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Question referred for a preliminary ruling 
Is a national law which provides that the right of an accused person to be 
present in proceedings is safeguarded and the public prosecutor’s office 
properly discharges its obligation to prove the guilt of the accused person 
compatible with Articles 8(1) and 6(1) of Directive 2016/343, read in 
conjunction with recitals 33 and 34 thereof, and the second paragraph of 
Article 47 of the Charter if the testimony given at the pre-trial stage of the 
proceedings by witnesses who cannot be examined for objective reasons is 
introduced at the trial stage of the criminal proceedings, whereby those 
witnesses were examined solely by the prosecution and without the 
participation of the defence, but before a judge, and the prosecution could 
have provided the defence with the opportunity to participate in that 
examination at the pre-trial stage, but did not do so? 
EU legislation and case-law relied on 
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) (‘the Directive’) 
Charter of Fundamental Rights of the European Union (OJ 2016 C 202, p. 389) 
(‘the Charter’) 
Provisions of national law relied on 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure) 
Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry of Interior) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Spetsializirana prokuratura (Specialist Public Prosecutor’s Office, Bulgaria) 
brought charges against five persons for participation in a criminal organisation, 
the purpose of which was to enrich itself through the unlawful smuggling of 
nationals of third countries (Bangladesh and Iraq) into Bulgaria, the unlawful 
facilitation of entry into the territory, and the acceptance and payment of bribes in 
connection therewith, whereby public officials participated in that organisation – 
an offence punishable under point 2 of Article 321(3) of the Nakazatelen kodeks 
(Criminal Code; ‘the NK’), read in conjunction with Article 321(2) thereof. The 
prosecution alleged that some of the accused persons had facilitated the unlawful 
entry of specific persons into the territory in order to gain an economic advantage, 
an offence punishable under Article 281(2) of the NK. 
HYA AND OTHERS 
 
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2 At the pre-trial stage of the criminal proceedings, certain persons – third-country 
nationals who were alleged by the public prosecutor’s office to have been 
unlawfully admitted into the country by the accused persons – were investigated 
and examined. Those examinations were conducted by the investigating 
authorities. Some of the examinations were conducted before a judge. 
3 All of the examinations were conducted by the prosecution, during which time 
there was still no defence. The public prosecutor’s office did not consider it 
necessary to re-examine the witnesses – who were migrants – in the presence of 
the defence. At that time, the public prosecutor’s office was aware that removal 
orders had been issued against those witnesses, with the result that the likelihood 
that the witnesses would be available in the court proceedings was low. 
4 At the pre-trial stage of the proceedings, both an accused person and a defence 
counsel requested that they participate in the examination of a particular witness, 
but the public prosecutor’s office did not give consideration to those requests. 
5 The witnesses, who were migrants, have left the country. Some have been 
removed on the basis of an administrative act, others have left the territory, still 
others are of unknown whereabouts. 
6 After the bill of indictment was filed with the court on 19 June 2020, the court 
attempted, without success, to locate and summon those witnesses with a view to 
examining them in the presence of the defence. 
7 At the hearing of 9 April 2021, the public prosecutor requested a reading of the 
testimony given by those witnesses before a judge at the pre-trial stage of the 
proceedings. In this way, the testimony would become part of the evidence on the 
basis of which the court is to rule on the merits. 
8 The defence opposes such a reading. It stresses that this would deprive it of its 
right to a fair trial under Article 6 of the European Convention for the Protection 
of Human Rights and Fundamental Freedoms. It submits that the witnesses were 
deliberately examined before the judge in such a way as to deprive the defence of 
the opportunity to participate in that examination and emphasises the public 
prosecutor’s office’s refusal to conduct a further examination in the presence of 
the defence. 
9 That testimony is of crucial importance for the determination of the guilt of the 
accused persons. It forms the basis of the indictment. The final verdict – whether 
conviction or acquittal – will depend to the greatest extent on if and to what extent 
the court accepts the information from the witness testimonies. 
10 For that reason, the referring court takes the view that those testimonies should be 
read out. There is a valid legal basis for doing so. On the other hand, the defence 
has also put forward compelling arguments against such a reading. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-348/21 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
Admissibility of the questions 
11 The request for a preliminary ruling seeks an interpretation of Articles 6 and 8 of 
Directive 2016/343, which relate to the trial stage of criminal proceedings. It is 
true that the examination of the witnesses in the absence of the defence took place 
at the pre-trial stage of the proceedings. The examination of those witness cannot 
take place at the trial stage as they are not available. However, it is specifically in 
the court proceedings that the question arises, because, in accordance with the 
national law, the court is required to read out the witness testimonies at the trial 
stage of the proceedings. Also in accordance with the national law, it is required to 
treat those testimonies from the pre-trial stage, which was given in the absence of 
the defence, as if it had been given at the trial in the presence of the defence. 
Under those conditions, can the court preserve the right of the accused person 
actually to participate in the trial (Article 8 of the Directive) and the duty of the 
public prosecutor’s office to prove the charges (Article 6 of the Directive), 
considered in the light of a fair trial (Article 47 of the Charter)? 
Article 8(1) of the Directive 
12 Under Article 8(1) of the Directive, the accused person has the right to be present 
at his or her trial. That ‘presence’ entails the exercise of all the rights of defence 
conferred on him or her by law during the trial. One of the most important rights 
is the right to question the prosecution witnesses. More specifically, with a view 
to guaranteeing a fair trial, the verdict may be based only on evidence – including 
the testimonies of prosecution witnesses – which has been taken in the presence of 
the defence. The prosecution must not prevent the defence from questioning those 
witnesses. 
13 Under those circumstances, the question arises as to whether the right to be 
present in person under Article 8(1) of the Directive is safeguarded if the accused 
person was not present during preparatory court proceedings in which the 
prosecution examined key witnesses. The prosecution had the opportunity to 
allow him to ask questions, but did not do so. In the main proceedings before the 
adjudicating court, the accused person is now present at the trial, but the witnesses 
can no longer be examined, for objective reasons. The defence therefore cannot 
ask its questions. Once the testimony from the preparatory court proceedings is 
read and introduced, if that does indeed take place, it becomes part of the evidence 
on the basis of which the court delivers its judgment. That testimony then has the 
same evidentiary value as testimony given in the presence of the accused person. 
14 In formal terms, that approach complies with the law: the accused person is 
present at the trial. However, he or she is present only when the testimony is read, 
and does not have the opportunity to put his or her questions to the witnesses. 
Thus, the accused person is in fact in the same position as he or she would have 
been in had those witnesses been examined solely by the public prosecutor’s 
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office and in his or her absence during the court proceedings. In practice, this has 
the effect of depriving the accused person of his or her right to be present. In the 
main proceedings, not only did the defence not have the opportunity to put 
questions to the witnesses, but the adjudicating court also did not have the 
opportunity to take the testimony of those witnesses in person. 
15 The question therefore arises as to whether a national law which treats testimonies 
from the pre-trial stage that were given before a judge but in the absence of the 
defence as testimonies given in the trial and in the presence of the defence 
complies with Article 8 of Directive 2016/343, in so far as it was still possible at 
the pre-trial stage for those witnesses to also be examined in the presence of the 
defence. 
Article 6(1) of the Directive 
16 In accordance with the first sentence of Article 6(1) of the Directive, the 
prosecution bears the burden of proving the guilt of the accused person. In the 
present case, the prosecution seeks to use as evidence the testimonies of witnesses 
who were examined at its instigation before a judge in preparatory proceedings. 
There is no question that those testimonies are essential for proving the charges. 
Therefore, by requesting that the testimonies be read out, the prosecution seeks to 
prove the guilt of the accused person within the meaning of that provision. It is for 
the referring court to determine whether that takes place in accordance with EU 
law. 
17 The question arises as to whether the first sentence of Article 6(1) of the Directive 
must be read in the light of the second paragraph of Article 47 of the Charter, 
concerning a fair trial. Is that fairness guaranteed precisely by the right of the 
defence to participate in the proceedings in person, including by countering the 
prosecution’s attempts to prove the guilt of the accused person? Does that mean 
that, in parallel to the process by which the prosecution produces proof of the guilt 
of the accused person, the defence must be provided with a genuine opportunity to 
counter that proof? 
18 Does the fairness of the proceedings, including in relation to the prosecution’s 
proof of the charges, require that the accused person be guaranteed effective legal 
means of defending himself or herself against that proof? In the same way that the 
prosecution’s proof is produced by means of questions put to witnesses, the 
defence against that proof is also established by means of questions put to 
witnesses (by the defence). 
19 The referring court seeks an answer to the question as to whether Article 6(1) of 
the Directive must necessarily be applied in conjunction with Article 8(1). If the 
prosecution proves the guilt of the accused person through witness testimony, 
must the defence be given the opportunity to participate in the examination of the 
witnesses by putting its questions to them? More specifically, must the exercise of 
the prosecution’s power to prove the guilt of the accused person be conditional 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-348/21 
 
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upon the possibility for the defence to participate in the hearing at which the 
prosecution presents its inculpatory evidence? Is the fairness of the proceedings 
guaranteed only if the two provisions are applied in conjunction with one another? 
20 Has the public prosecutor’s office properly discharged its obligation to prove the 
charges in accordance with Article 6(1) of the Directive if it takes its evidence 
(witness testimony) in an interlocutory procedure without the participation of the 
defence, and that inculpatory evidence is subsequently used at the main trial for 
the purposes of arriving at a judgment, in so far as the charge is proved in such a 
way as to preclude any opportunity for the defence to put questions to the 
witnesses? Under those circumstances, would the fairness of the proceedings 
under Article 47 of the Charter be safeguarded if the court took that testimony into 
account when arriving at its judgment? 
Second paragraph of Article 47 of the Charter 
21 The question arises as to whether the second paragraph of Article 47 of the 
Charter precludes Article 6(1) of Directive 2016/343 from being transposed into 
national law in such a way that it is for the prosecution to prove the guilt of the 
accused person, but provision is made for a procedure for taking evidence that 
precludes the accused person from being able to defend himself or herself 
effectively, namely because it is not possible for the defence to be present during 
the examination of the witnesses. 
22 The question also arises as to whether the second paragraph of Article 47 of the 
Charter precludes a national rule which concerns the right of the accused person to 
be present in person at the trial under Article 8(1) of the Directive and which – 
through the mechanisms of ‘examination of a witness before a judge’ and the 
‘reading of witness testimony’ – leads in practice to an outcome in which the 
accused person is placed in the same position as if he or she had not been present. 
23 The question that arises is whether the right of the accused person to be present in 
person is guaranteed in a fair manner and whether the prosecution fairly bears the 
burden of proof for establishing the guilt of the accused person. More specifically, 
does it satisfy the requirement of a fair trial if the court, in reaching a verdict on 
the merits, takes the testimonies of witnesses (who are migrants) given before a 
judge at the pre-trial stage of the proceedings into account in the same way as if 
they had been given in court proceedings in the presence of the defence, which 
had the opportunity to ask its questions? 
Additional explanations 
24 The referring court does not consider that a reading of witness testimonies from 
the pre-trial stage, where the defence did not have the opportunity to question the 
witness, is in any event contrary to EU law. The referring court takes the view 
that, although such an approach infringes the right of the defence to participate in 
the trial, it is necessary in some cases if the appearance of the witness at the trial 
in person is objectively not possible. However, this is permissible only if the 
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public prosecutor’s office acts in good faith and compensatory measures are 
available. 
25 In the main proceedings, it is established that those witness testimonies are of 
particular importance. In the present case, however, the objective obstacle to the 
examination of the witnesses arose during the trial stage of the proceedings. It did 
not exist at the pre-trial stage, when the witnesses were available. At the pre-trial 
stage, the public prosecutor’s office did not take any steps to conduct the 
examination in the presence of the accused persons and their defence counsel. 
26 It is also established that national law equates witness testimonies given before a 
judge in the absence of the defence with those given with the participation of the 
defence. In particular, no provision is made for any compensatory mechanisms, 
including against the lack of initiative of the public prosecutor’s office in giving, 
of its own accord, the defence the opportunity to put questions to witnesses, or in 
cases where the public prosecutor’s office refuses requests to do so.