Information;Order — ECLI:EU:C:2020:411
Date: 2020-05-28
Language of the case: Slovak
Court formation: Seventh Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Slovakia

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Translation C-709/18 — 1 
Case C-709/18 
Request for a preliminary ruling 
Date lodged: 
14 November 2018 
Referring court: 
Špecializovaný trestný súd (Slovakia) 
Date of the decision to refer: 
17 September 2018 
Parties to the proceedings:  
UL 
VM 
Úrad špeciálnej prokuratúry Generálnej prokuratúry Slovenskej 
republiky 
      
[...] 
ORDER 
The Špecializovaný trestný súd (Special Criminal Court) ... [composition of the 
court] in the criminal proceedings against the defendants UL and VM, accused of 
the particularly serious offence of ‘falsification, counterfeiting and unauthorised 
production of money and securities’ under Article 270 of the Criminal Code, 
deliberating in chambers on 17 September 2018 in Pezinok 
has decided as follows: 
[…] [references to the legislation of the Slovak Republic and of the European 
Union on the basis of which national proceedings are stayed and questions are 
referred to the Court of Justice for a preliminary ruling], the court requests the 
EN 
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Court of Justice of the European Union for interpretation and to give a preliminary 
ruling on the following questions: 
1. Is the rule of the presumption of innocence — enshrined in Articles 3 
and 4, read in conjunction with recital 16, 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 — 
observed where a co-defendant in joint criminal proceedings, on the 
basis of the indictment and after the commencement of the main 
hearing, denies participation in the act or acts alleged against him, 
declaring himself to be innocent, and, subsequently, the court, by 
means of an order which contains no description of the act or its legal 
qualification or any assessment on the court’s part, decides to accept 
the declaration of another co-defendant that he is guilty of committing 
one or more of the acts described in the indictment, thus waiving his 
right to the taking of evidence regarding his guilt, and, subsequently, 
after the taking of evidence at the main hearing, the court reaches its 
decision on the indictment in a joint judgment? 
1.1 Where the decision of a court to accept the declaration of guilt of 
one co-defendant denotes another co-defendant — who has 
denied guilt — as being guilty, before evidence is taken which 
proves him to be guilty, is that manner of proceeding in 
accordance with Article 48 of the Charter of Fundamental Rights 
of the European Union? 
2. Is it consistent with Article 47 of the Charter of Fundamental Rights of 
the European Union — which enshrines the right to a fair trial and the 
right of every person to have his case dealt with fairly by an 
independent and impartial tribunal — where, in joint proceedings on a 
common indictment against several defendants, the lawful judge 
decides at the beginning of the proceedings, by means of an order 
which contains no description of the act or its legal qualification or any 
assessment on the court’s part, to accept the declaration of guilt of 
certain defendants, who thus waive their right to the taking of evidence 
regarding their guilt, and, subsequently, after the taking of evidence at 
the main hearing, on the basis of the indictment, then decides the cases 
of all the defendants? 
2.1 Where a decision to accept the declaration of guilt of a co-
defendant gives rise to a well-founded doubt regarding the 
impartiality of the court which accepted that declaration, is the 
possible disqualification of that court from dealing with the case 
an appropriate measure to safeguard the rule of the presumption 
of innocence as required by Article 4(2) Directive 2016/343? 
[Or. 2] 
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3. Are the values of equality and of the rule of law enshrined in Article 2 
[of the Treaty on European Union], the principle of the equality of 
citizens before judicial authorities under Article 9 [of the Treaty on 
European Union] and the general EU-law principle which establishes 
the right of every person to have his case heard fairly, pursuant to 
Article 6(3) of the Treaty on European Union, signed in Maastricht on 
7 February 1992, as amended by the Treaty of Lisbon, signed in 
Lisbon on 13 December 2007, safeguarded in a situation in which a 
national court against whose decisions there is no right of appeal 
adopts a decision in a manner inconsistent with an opinion on 
unification [of the interpretation of the law] of a national court which 
has been adopted by that court on the basis of the mandate conferred 
on it by national legislation to unify the interpretation of the law and 
other normative acts of general application where that is necessary in 
order to resolve inconsistencies in case-law or where one chamber of 
the Supreme Court has departed from a legal opinion contained in a 
decision of another chamber of the Supreme Court? 
[…] [references to the legislation of the Slovak Republic and of the European 
Union on the basis of which the criminal proceedings are stayed] the court stays 
the present criminal proceedings. 
Grounds 
1. The Špecializovaný trestný súd (Special Criminal Court, hereinafter ‘the Special 
Criminal Court’) requests a preliminary ruling […] [reference to the law which 
established the Special Criminal Court]. 
2. The Special Criminal Court is part of the system of ordinary courts [...] 
[description of the territorial and substantive jurisdiction of the Special Criminal 
Court].  
3. The Special Criminal Court is a court of first instance and conducts criminal 
proceedings in accordance with the Trestný poriadok, zákon č. 301/2005 Z.z (Law 
No 301/2005, ‘the Code of Criminal Procedure’). […] [description of the 
composition of the chambers of the Special Criminal Court]. The Najvyšší súd 
Slovenskej republiky (Supreme Court of the Slovak Republic) hears appeals 
against decisions of the Special Criminal Court. 
I 
The subject matter of the national proceedings and the relevant facts 
4. On the basis of the indictment issued by the Public Prosecutor of the Krajská 
prokuratúra v Nitre (Regional Prosecutor’s Office, Nitra, Slovakia, hereinafter 
‘the Regional Prosecutor’s Office’) of 19 August 2014, criminal proceedings have 
been brought before the Special Criminal Court against the accused, UL and VM, 
for the particularly serious offence of ‘fraud’ pursuant to Article 221(1)(4)(a) of 
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the Criminal Code, both accused being charged jointly in accordance with Article 
20 of the Criminal Code, and for the particularly serious offence of ‘falsification, 
counterfeiting and unauthorised [Or. 3] production of money and securities’, UL 
being charged in accordance with Article 270(1) and (4)(b) of the Criminal Code 
and VM being charged in accordance with Article 270(2) and (4)(b) of the 
Criminal Code. 
5. The alleged offences relate to the period from mid-2009 to 1 October 2013. UL, a 
bank employee, is alleged to have unlawfully taken moneys totalling 
EUR 314 157.04, which he transferred to VM. In order to conceal the cash deficit 
in the register, UL, through prior agreement with VM, made fictitious deposits 
into various accounts from which VM subsequently made cash withdrawals at 
another branch of the bank. Similarly, in order to conceal the cash deficit in the 
register, VM provided UL with counterfeit euro banknotes of a total value of 
EUR 184 700. 
6. Pursuant to technical measures approved by the Ministerstvo spravodlivosti 
Slovenskej republiky (Ministry of Justice of the Slovak Republic), the present 
criminal case was assigned, by random selection, for trial and judgment to 
Chamber 1T […] [names of the judges]. 
7. [...] [case number information] 
8. On 10 December 2014, the court of first instance fixed the main hearing. At the 
main hearing held on 22 January 2015, following the reading of the indictment by 
the Public Prosecutor of the Úrad špeciálnej prokuratúry Generálnej prokuratúry 
Slovenskej republiky (Office of the Special Prosecutor in the Office of the Public 
Prosecutor of the Slovak Republic), and following the instruction of the accused 
as to their right to make a declaration of guilt, in accordance with Article 257(1) 
of the Code of Criminal Procedure, UL declared that he was guilty and VM 
declared that he was not guilty. 
9. Following UL’s declaration of guilt, the court of first instance asked the accused, 
UL, pursuant to Article 333(3)(c), (d), (f), (g) and (h) of the Code of Criminal 
Procedure, whether he understood what facts formed the basis of the charge 
against him, whether he had been informed of his rights, whether he understood 
the precise legal characterisation of the acts as criminal offences, whether he had 
been informed of the penalties laid down by law for the offences with which he 
was charged and whether he had voluntarily admitted to being guilty of the facts 
alleged. UL answered those questions in the affirmative. 
10. Following that, by order of 22 January 2015 pursuant to Article 257(7) of the 
Code of Criminal Procedure, the court of first instance decided to accept UL’s 
declaration that he was guilty of both of the charges in the indictment. At the same 
time, in accordance with Article 257(8) of the Code of Criminal Procedure, the 
court stated that it had not proceeded with the taking of evidence because UL had 
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admitted the facts and confirmed that he had been given information relating to 
penalties, damages and safeguard measures. 
11. The decision of the court of first instance to accept UL’s guilty plea was taken in 
the context of a single set of proceedings involving also the accused VM. 
However, UL’s confession extended solely to the acts for which, according to the 
indictment, he was responsible and the acts in which he had played a contributory 
part. [Or. 4] 
12. The subject of the adversarial investigation which then ensued at the main hearing 
was whether or not, and to what extent and in what form, the accused VM, who 
had pleaded innocent, was also involved in the crimes. In the course of that 
investigation the court heard both of the accused, as well as witnesses and experts, 
and read the expert opinions and the documentary evidence. The taking of 
evidence thus carried out related, in so far as the accused VM was concerned, to 
the court’s finding as to guilt and to sentencing and, with regard to the accused 
UL, to sentencing, damages and the safeguard measure. 
13. Following the taking of evidence at the main hearing, by judgment of 26 October 
2015, the court of first instance stated that it accepted the guilty plea of the 
accused UL and, in the first and second paragraphs of the judgment, declared him 
guilty of the continuous and particularly serious offence of ‘fraud’ under Article 
221(1) and (4)(a) of the Criminal Code and the particular serious offence of 
‘falsification, counterfeiting and unauthorised production of money and securities’ 
under Article 270(2) and (4)(b) of the Criminal Code, read in conjunction with 
Article 20 of the Criminal Code. In the first paragraph of the judgment it also 
declared VM guilty of the continuous offence of ‘fraud’ under Article 221(1) and 
(3)(a) of the Criminal Code and the particularly serious offence of ‘falsification, 
counterfeiting and unauthorised production of money and securities’ under Article 
270(2) and (4)(b) of the Criminal Code, read in conjunction with Article 20 of the 
Criminal Code. 
14. For those crimes, the court sentenced UL to a term of imprisonment of 14 years 
and VM to a term of imprisonment of 14 years and 8 months. The court also 
imposed on the two defendants the penalty of prohibition of certain activities and 
a protective measure of three years’ duration. The court also imposed a further 
safeguard measure consisting of the seisure of 999 counterfeit banknotes and an 
HP Officejet Pro 8500 A multifunction device. 
15. The court of first instance’s decision on guilt, penalties, safeguard measures and 
compensation in respect of the damage caused is contained in a single judgment. 
On the basis of the indictment and its taking of evidence, the court regarded as 
proven VM’s complicity in the fraudulent conduct to the extent of EUR 100 000. 
As result, it changed the legal characterisation from the continuous and 
particularly serious offence of ‘fraud’ to the continuous offence of ‘fraud’. 
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16. Both of the defendants lodged an appeal against the judgment of the first instance 
court, VM against the operative part of the judgment relating to guilt, penalties, 
the safeguard measure and compensation in respect of damage caused and UL 
against the operative part of the judgment relating to penalties. The defendants 
instructed counsel separately. 
17. The appeal was brought before the Najvyšší súd Slovenskej republiky (Supreme 
Court of the Slovak Republic, ‘the Supreme Court’) … [composition of the 
chamber, roll number]. On 4 July 2017 it received notification from the lawyer 
Mag. Mgr. Marek Paru that he was acting for the defendant VM. In the grounds of 
the appeal, the defendant’s counsel pointed out that the declaration of guilt was a 
new and special institution in the legal order of the Slovak Republic. A fair trial, it 
was submitted, could not be ensured if the court stated, on the one hand, that, after 
receiving the declaration of guilt of the accused UL, it was possible to investigate 
the complicity in the act of the accused VM, while, on the other hand, its 
acceptance of the declaration of guilt already established in fact and in law VM’s 
participation in the alleged act as an accomplice of the accused UL. [Or. 5] 
18. By order of 28 September 2017 (‘the order of the Supreme Court’), the Supreme 
Court set aside the judgment of the court of first instance in its entirety and 
referred the case back to that court for re-hearing and a fresh adjudication. It also 
ordered that a different chamber of the court of first instance should hear and 
decide the case. 
19. It is apparent from the grounds of the order of the Supreme Court that the court of 
first instance […] [composition of the chamber of the court of first instance], by 
accepting UL’s declaration that he was guilty of the acts described in the first and 
second paragraphs of the indictment, did not formally infringe the provisions of 
Article 257(1)(b) and (7) of the Code of Civil Procedure. However, by repeatedly 
stating the name and surname of the accused VM in its factual assertion of the 
matters set out in the first paragraph, the court had prejudiced the question of 
VM’s guilt before he was lawfully convicted. The Supreme Court held that the 
court had given cause for serious doubts about its impartiality and its observance 
of the presumption of innocence with regard to the accused VM, in that it had 
suggested, by its manner of proceeding, that VM was guilty even before ruling on 
the question of his guilt. 
20. The Supreme Court stated that the procedure referred to in Article 257(1)(b) and 
(7) of the Code of Criminal Procedure, under which the declaration of one or more 
of the defendants may be accepted (possibly the declaration of just one of them) 
generally produces the serious legal consequences just mentioned for defendants 
who do not choose the procedure referred to in the provisions of the Criminal 
Procedure Code just cited, and rightly justifies the conviction of the defendant the 
question of whose guilt is prejudiced before the court before evidence is taken, 
inasmuch as it is only on the basis of that taking of evidence that the court may 
found its finding of innocence or guilt. 
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21. The order of the Supreme Court, against which there is no right of appeal, legally 
obliges the judges of the new three-member chamber to begin anew the taking of 
all the evidence on the basis of the indictment filed against the accused VM. 
22. On 23 October 2017, the President of the Special Criminal Court decided to assign 
the case for hearing and judgment to the judges of Chamber 2T, which was first in 
rank according to the timetable of work, to replace Chamber 1T. 
23. At the public hearing on 24 July 2018, the judges of Chamber 2T […] proposed 
making a request for a preliminary ruling on the ground that there were doubts as 
to the lawful judge. After discussion, the Prosecutor from the Office of the Special 
Prosecutor in the Office of the Public Prosecutor of the Slovak Republic and Mag. 
Mgr. Para agreed to the proposal. On 9 August 2018 the court accepted the 
proposal made by counsel for the defence setting out his formulation of the 
questions to be referred for a preliminary ruling. 
II 
National law 
24. Under Article 48(1) of the Constitution of the Slovak Republic, no one may be 
removed from the jurisdiction of his lawfully assigned judge. [Or. 6] 
25. Under Article 31(1) of the Code of Criminal Procedure, a judge is disqualified 
from dealing with a criminal case where there are reasonable grounds to doubt his 
impartiality in relation to the case under consideration or with regard to the 
persons directly involved in the proceedings, defence counsel, proxies or legal 
representatives or any another authority acting in the proceedings. 
26. Under Article 31(4) of the Code of Criminal Procedure, such a judge must recuse 
himself without delay, as soon as he becomes aware of the grounds for so doing. 
27. Under Article 32(1) of the Code of Criminal Procedure, where, for the reasons set 
out in Article 31(1) a judge recuses himself, the decision on his disqualification is 
taken by a panel of judges of a higher court. 
28. Under Article 32(3) of the Code of Criminal Procedure, in the event of recusion 
for the reasons set out in Article 31, on the basis of an objection raised by one of 
the parties in cases other than those referred to in paragraph 2, the authority to 
which these grounds relate shall decide. The decision whether to disqualify a 
judge who forms part of a chamber shall be taken by that chamber. Under Article 
32(4) of the Code of Criminal Procedure, such a decision is amenable to appeal. 
29. Under Article 18(1) of the Code of Criminal Procedure, all criminal offences 
alleged against the same accused and all defendants accused of inter-related 
criminal offences may to be tried in joint proceedings, provided that that will not 
clearly prevent the case from being concluded within a reasonable time. 
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30. Under Article 2(4) of the Code of Criminal Procedure, any person against whom 
criminal proceedings are conducted is presumed innocent until such time as the 
court declares him guilty by a judgment having the force of res judicata. 
31. Under Article 255(1) of the Code of Criminal Procedure, the main hearing is 
commenced by the President of the chamber by announcing the case to be tried. 
Under Article 257(1) of the Code of Criminal Procedure, after the indictment has 
been read, the President of the chamber informs the accused of his right to make a 
statement to the effect that: 
(a) he is innocent; or 
(b) he is guilty of one or more of the acts listed in the indictment; or 
(c) he does not deny the commission of one or more of the acts listed in the 
indictment. 
32. Under Article 257(3) of the Code of Criminal Procedure, if the defendant has 
instructed legal counsel he may confer with his counsel before making one or 
other of the statements listed in Article 257(1). 
33. Under Article 257(5) of the Code of Criminal Procedure, if at the main hearing the 
defendant declares that he is guilty of committing one or more of any of the acts 
listed in the indictment, the court proceeds accordingly pursuant to Article 333(3) 
(c), (d), (f), (g) and (h) of the Code of Criminal Procedure (that is, the President of 
the chamber ascertains whether the accused understands what constitutes the act 
of which he is accused, whether he has been informed of his rights, in particular 
his right to legal representation, whether he has been given the opportunity freely 
to choose a legal representative and whether he has been able to consult with his 
legal representative about his defence, whether he understands the legal 
characterisation of the act as a criminal offence, whether he is aware of the 
penalties laid down by law for the offences with which he is charged and whether 
he has voluntarily declared and admitted that he is guilty of committing the act 
that is characterised in the indictment as a [Or. 7] criminal offence). The President 
also informs the defendant that, once accepted by the court, a declaration of guilt 
or of non-denial of the commission of the acts listed in the indictment is 
irrevocable and, as such, cannot be challenged by appeal to the Supreme Court 
under Article 371(1)(c) of the Code of Criminal Procedure (except where the 
rights of the defence have been substantially infringed). 
34. Under Article 257(6) of the Code of Criminal Procedure, prior to deciding to 
accept a declaration by a defendant that he is guilty of committing one or more of 
the acts listed in the indictment, the court must seek the opinion of the Public 
Prosecutor and of the injured parties and the persons involved if they are present 
at the main hearing. 
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35. Under Article 257(7) of the Code of Criminal Procedure, where a defendant has 
made a declaration in accordance with Article 257(5), the court decides by order 
whether or not to accept the defendant’s declaration. 
36. Under Article 257(8) of the Code of Criminal Procedure, where the court decides 
to accept the defendant’s declaration in accordance with Article 257(5), it declares 
that it will not take evidence to the extent that the defendant has acknowledged the 
commission of the act and that it will take evidence relating to any act which has 
not been admitted and in relation to penalties, the compensation of damages and 
safeguard measures. This does not rule out the option of questioning the defendant 
about the involvement of other persons in the criminal act which is the subject of 
the charge. 
37. Under Article 325(1) of the Code of Criminal Procedure, if a court of appeal 
decides that the case is to be referred back to the court of first instance for re-
hearing and a fresh judgment, it may at the same time order that the case be tried 
and adjudicated by a different formation of the court. 
38. Under Article 327(1) of the Code of Criminal Procedure, the court to which a case 
has been referred back for re-hearing and a fresh judgment is bound by the legal 
opinion expressed by the court of appeal in its decision and is obliged to take any 
measures ordered by the court of appeal and to take evidence as so ordered. 
39. Under Article 22(1)(b) of zákon č. 757/2004 Z.z o súdoch (Law No 757/2004 on 
the courts), in order to ensure the uniform interpretation and application of the law 
and of other generally applicable normative acts, the Supreme Court publishes 
judgments of fundamental importance and also adopts opinions on unifying 
interpretations of laws and other generally applicable normative acts. To that end, 
the plenum of the Supreme Court or the competent chamber of the Supreme Court 
adopts opinions on unifying interpretations of laws and other generally binding 
legal regulations where that is necessary in order to resolve inconsistencies in 
case-law or where a chamber of the Supreme Court has departed from a legal 
opinion contained in a decision of another chamber of the Supreme Court. 
40. Pursuant to Article 23(1)(a) of the same law, in the interests of ensuring the 
uniform interpretation and application of the law and of other generally applicable 
normative acts, the Supreme Court issues, in the criminal-law field, a 
compendium of Supreme Court opinions and decisions of the courts of the Slovak 
Republic. In that compendium it publishes the Supreme Court opinions on 
unifying interpretations of the law and of other generally binding normative acts 
adopted by the plenum of the Supreme Court or by an ad hoc formation of the 
Supreme Court. [Or. 8] 
III 
Relevant national case-law 
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41. According to Opinion No 15 of 5 April 2017 of the Criminal Division of the 
Supreme Court […] [link to the published text] 
– the presumption of innocence relates to the person accused in the criminal 
proceedings which are pending and it is not infringed if, in an earlier decision 
of the court convicting another person, or in the reasoning given for that 
decision, the accused person’s involvement in the criminal activity with which 
he is charged is mentioned; 
– the court may, in accordance with Article 257(5) and (7) of the Code of 
Criminal Procedure, approve an agreement relating to guilt and penalties 
without taking evidence; such a decision produces legal effects only in relation 
to the accused; this also applies mutatis mutandis to the acceptance of a 
declaration by the accused that he is guilty of one or more of the acts listed in 
the indictment or that he does not deny the commission of one or more of the 
acts listed in the indictment; 
– a judge who has participated in a decision relating to an agreement concerning 
guilt and penalties does not infringe the presumption of innocence with regard 
to other persons; such a judge is not disqualified, under Article 31(1) of the 
Code of Criminal Procedure, from subsequent proceedings relating to the 
indictment of ‘other persons’ involved (who may be co-defendants in the same 
proceedings); the rule mentioned in the previous sentence also applies to judges 
who have participated in a decision to accept a declaration by the accused in 
accordance with Article 257(5) and (7) of the Code of Criminal Procedure. 
42. According to the judgment of the Supreme Court of 7 February 2012, reference 
2TO/5/2011 … [link to the published text] acknowledgement of guilt, by its very 
nature, precludes re-examination of the facts as recorded in the indictment and of 
the specific legal characterisation of the alleged facts, once a declaration by the 
defendant pursuant to Article 257(1)(b) of the Code of Criminal Procedure or 
pursuant to Article 257(1)(c) and (4) of the Code of Criminal Procedure has been 
accepted. By his responses to the questions set out in Article 333(3)(c), (d), (f), (g) 
and (h) of the Code of Criminal Procedure, a defendant expresses his willingness 
unreservedly to acknowledge his guilt of the act stated in the indictment and to 
accept its legal characterisation, as well as the agreement on guilt and penalties. If 
the court accepts such a declaration, it no longer has room, in procedural terms, 
for the taking of evidence, which could trigger a change in the factual findings in 
the indictment, or for altering the legal characterisation set out in the indictment. 
If the court has doubts of a factual or legal nature concerning the outcome of the 
preparatory phase of the proceedings, in relation to the act of which the defendant 
is accused, it has a procedural opportunity to express those doubts when it comes 
to decide whether or not to accept the defendant’s statement. 
IV 
Provisions of EU law 
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43. The referring court seeks interpretation of the following provisions of EU law: 
– Article 3 and Article 4(1) of Directive […] 2016/343 [...] [title of the directive], 
read together with recital 16 thereof and Article 48 of the Charter of 
Fundamental Rights of the European Union; [Or. 9] 
– Article 4(2) of Directive [...] 2016/343 [...] [title of the directive] together with 
Article 47 of the Charter of Fundamental Rights of the European Union; 
– Article 2, Article 6(3) and Article 9 of the Treaty on European Union ... 
together with Article 20 of the Charter of Fundamental Rights of the European 
Union; 
– Article 325(1) of the Treaty on the Functioning of the European Union […]; 
– Recitals 3 and 21 of Directive 2014/62/EU of the European Parliament and of 
the Council of 15 May 2014 on the protection of the euro and other currencies 
against counterfeiting by criminal law; 
– Recital 18 of Council Regulation (EC) No 974/98 of 3 May 1998 on the 
introduction of the euro. 
44. Relevant provisions of the Convention for the Protection of Human Rights and 
Fundamental Freedoms, signed in Rome on 4 September 1950, as amended by 
Protocols Nos 1 to 14: 
– Article 6(1) governing the right to a fair and public hearing within a reasonable 
time by an independent and impartial tribunal established by law; 
– Article 6(2) governing the right to observance of the presumption of innocence; 
– Article 6(3)(a) governing the right of accused persons to a detailed explanation 
of the nature and cause of the accusation against them. 
V 
Grounds for the request for a preliminary ruling 
45. In the interests of legal clarity and certainty, the Special Criminal Court has 
assessed the relevance of the questions referred and the need for a preliminary 
ruling in order for it to give judgment on the indictment presented, inasmuch as it 
has doubts as to whether the judges of Chamber 2T are lawful judges for the 
purposes of hearing and deciding the criminal case under consideration, and thus 
whether they are entitled, on the basis of the charges made, to fix the main 
hearing, to conduct the main hearing and to give judgment. 
46. According to recital 16 of Directive 2016/343, the indictment is the act aimed at 
proving the guilt of the accused person. 
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47. In the criminal case in relation to which these questions are raised, the parties to 
the proceedings have not raised any objection of bias against the judges who first 
decided to accept the declaration of the guilt of one of the defendants and then, on 
the basis of the indictment, proceeded with the case and gave judgment on the 
guilt of the other defendant and the penalties and the safeguard measure relating to 
him. 
48. A decision on the disqualification of a judge of the court of first instance is given 
immediately either after notification of the circumstances by the judge himself 
(Article 32(1) of the Code of Criminal Procedure) or on the basis of an objection 
of bias raised by one of the parties (Article 31(4) of the Code of Criminal 
Procedure). [Or. 10] 
49. The disqualification of the judges of Chamber 1T from hearing and giving 
judgment in these criminal proceedings was not the result of any judicial decision 
on an objection of bias. The higher court’s examination of the question of bias 
was not preceded by any first-instance decision on an objection, that is to say, 
there was no decision on the part of the court which gave judgment in the case at 
first instance (Article 32(3) of the Code of Criminal Procedure). 
50. The right to have the case heard by a lawful judge is a right of the accused. The 
possibility of that judge being replaced in accordance with clear, pre-established 
rules is a guarantee of the observance of that right. The need for an answer from 
the Court of Justice of the European Union to the questions raised in points 1, 1.1, 
2 and 2.1 above arises from the doubts which exist as to whether, at the stage of 
the criminal proceedings, the rights of the defendants UL and VM to have their 
case heard by a lawful judge were observed. 
51. The order of the Supreme Court requiring that the case be re-heard and 
adjudicated by a different chamber, which criticises the judges of Chamber T1 for 
infringing the principle of the impartiality of judicial power both in the course of 
the proceedings and in reaching its decision on the guilt of the accused VM, raises 
a question of whether the accuseds’ right to judicial protection was observed. That 
order, however, is not consistent with the uniform interpretation of national law 
contained in the relevant national jurisprudence and case-law referred to in section 
III above. 
52. The order of the Supreme Court requiring that the case be re-heard and 
adjudicated by a different chamber does not state the reasons for which the 
Supreme Court departed from the uniform interpretation of the law in making that 
decision. 
53. The judges of the national courts are bound, under the conditions laid down in the 
Code of Criminal Procedure, by legal opinions expressed by higher courts in their 
decisions. The fact that the decisions of appellate court of the highest instance are 
binding is a basic principle of criminal proceedings. 
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54. The referring court therefore raises these questions for a preliminary ruling in 
order to be able to verify the compatibility with the principles of European Union 
law of such national case-law, adopted in the interests of the unification and 
uniform application of the law, according to which a judge who has participated in 
a decision to accept a declaration of guilt made by an accused person does not 
infringe the presumption of innocence with regard to another person to whom the 
subsequent prosecution relates and such a judge is not disqualified from further 
involvement in the criminal proceedings. 
55. The option of acknowledging guilt and the option of reaching an agreement on 
guilt and penalties, which were introduced into the legal system of the Slovak 
Republic in 2006, have increased the efficiency and substantially increased the 
speed of criminal proceedings, without undermining the rights of accused persons. 
56. A declaration by the accused that he guilty of, or does not deny the commission 
of, one or more of the acts listed in the indictment solely relates to the acts which, 
according to the indictment, the accused is alleged to have committed and to the 
fact that he has acted in complicity with another person. The question of the extent 
to which a co-defendant who has declared himself innocent was involved in those 
acts, and the nature of any such involvement, will be the subject on which 
evidence is subsequently taken at the main hearing. 
57. The description of the act and its legal characterisation as a criminal offence, as 
set out in the indictment, or possibly in an agreement on guilt and penalties, is 
solely a matter for the criminal prosecution authorities and does not constitute a 
value judgment on the part of a court which subsequently accepts a defendant’s 
declaration of guilt or approves, if it deems it reasonable and fair, an agreement on 
guilt and penalties. [Or. 11] 
58. In the case of offences committed by an organised group, it is the duty of the 
criminal prosecution authorities to describe, in their factual assertions, the 
structure of the criminal group, the interrelationships, the criminal activity 
undertaken and the position of the accused within the structure, so that the alleged 
offences are defined definitively and unequivocally. 
59. The jurisdiction of the Special Criminal Court covers particularly serious 
offences. In so far as concerns crimes committed by criminal groups in particular, 
the option of acknowledging guilt and the option of reaching an agreement on 
guilt and penalties have, where there is a large number of defendants, made a 
significant contribution to the proper identification of criminal offences and the 
equitable punishment of perpetrators. 
60. The Court of First Instance takes this opportunity of referring questions to the 
Court of Justice in order to clarify how it must proceed and how it must adjudicate 
in criminal cases in which the option of acknowledging guilt or the option of 
reaching an agreement on guilt and penalties is exercised, in situations in which a 
REQUEST FOR A PRELIMINARY RULING OF 17. 9. 2018 — CASE C-709/18 
 
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Anonymised version 
decision of the Supreme Court judges marks a departure from the uniform 
interpretation of the law and in which the parties have no right of appeal. 
61. Under national law, a request for a preliminary ruling is the only legal mechanism 
for determining whether the court of first instance’s conduct of the proceedings 
and its decisions, in which it is bound by the legal opinion of a higher instance 
court, infringe the defendant’s right to have his case heard by a lawful judge and, 
ultimately, deny him his right to justice. 
62. Under EU law and national legislation, everyone is entitled to have his or her 
affairs dealt with fairly and within a reasonable time and by an independent and 
impartial tribunal. In so far as concerns the usefulness of the answer to the 
question set out in point 3 above, it is responsive to strengthening the principle of 
legal certainty and the predictability of judicial decision-making. 
63. Chamber 2T has also been encouraged to raise the questions referred for a 
preliminary ruling by the question referred by the Spetsializiran nakazatelen sad 
(Specialised Criminal Court, Bulgaria) in Case C-377/18. In accordance with 
Article 54 of the Rules of Procedure, the referring court leaves it to the discretion 
of the Court of Justice of the European Union whether to join the two cases. 
64. Article 267 of the Treaty on the Functioning of the European Union confers on the 
national authorities the right to refer questions to the Court of Justice. That right 
cannot be limited by national provisions. 
65. Thus, the Special Criminal Court, acting within its jurisdiction, has assessed the 
relevance of the questions referred for a preliminary ruling and the need for a 
preliminary ruling on those questions in order for it to give judgment in the 
criminal proceedings under consideration. It therefore makes a request for a 
preliminary ruling. 
66. [...] [reason for staying the proceedings before the national court and information 
regarding means of redress] 
Pezinok, 17 September 2018 
[…] 
... 
[names of the President and judges of the chamber]