Judgment;Summary — ECLI:EU:C:2020:92
Date: 2020-02-12
Language of the case: Bulgarian
Court formation: Fifth Chamber
Subject matter: Justice and home affairs;Approximation of laws;Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Anonymised version 
Translation C-704/18 - 1 
Case C-704/18 
Request for a preliminary ruling 
Date lodged: 
12 November 2018 
Referring court: 
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer: 
30 October 2018 
Accused persons: 
LD 
ME 
NF 
OG 
PH 
RI  
      
ORDER 
[...] 
Proceedings pursuant to Article 485 et seq. of the Nakazatelno protsesualen 
kodeks (Code of Criminal Procedure; ‘NPK’) and the second paragraph of Article 
267 TFEU. 
1 By its judgment of 5 June 2018 in Case C-612/1, the Court gave specific guidance 
to the referring national court, necessary for the resolution of the main 
proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 30. 10. 2018 — CASE C-704/18 
 
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2 By order of 13 June 2018, the referring court applied point 3 of the operative part 
of that preliminary ruling concerning Article 3(1) of Directive of 2013/48/EU [of 
the European Parliament and of the Council of 22 October 2013 on the right of 
access to a lawyer in criminal proceedings and in European arrest warrant 
proceedings, and on the right to have a third party informed upon deprivation of 
liberty and to communicate with third persons and with consular authorities while 
deprived of liberty (OJ 2013 L 294, p. 1)]; 
By order of 14 September 2018, the referring court applied point 1 of the 
operative part of that preliminary ruling concerning Article 325 TFEU. 
No problems arose with regard to those two points of the operative part of the 
preliminary ruling. 
3 At the hearing of 14 September 2019, concerning the application of point 2 of the 
operative part of the preliminary ruling, an issue was raised concerning the 
existence of a procedural obstacle in national law which prevents that point from 
being applied. 
That procedural obstacle relates to the fact that the court proceedings had already 
been closed by a final decision (see paragraphs 34 to 36 of the preliminary ruling). 
The closure of the court proceedings entails the return of the case to the prosecutor 
to remedy the defects, that it to say by properly disclosing all the case material to 
the accused persons, LD and ME, and drawing up new charges (see paragraphs 30 
to 31 of the judgment). 
[Or. 2] Consequently, since the court proceedings have been closed, the referring 
court cannot take any further action. On the contrary, it must refer the case back to 
the prosecutor to remedy the defects. This means that point 2 of the operative part 
of the preliminary ruling, concerning Directive 2012/13, will not be applied. 
That procedural obstacle means that the procedural conditions enabling the 
Court’s guidance on interpreting Directive 2012/13 in the main proceedings are 
not satisfied. 
4 That matter was raised for discussion by the parties. 
The prosecutor maintained that the Court’s instructions should apply in the main 
proceedings, while the defence contended that they should not. 
The referring court, which is responsible for implementing the instructions 
received in the main proceedings, considered that, in the light of the wording of 
the preliminary ruling, the Court clearly expressed its intention that its 
interpretation of the Directive should apply in the main proceedings; it examined 
the wording of paragraphs 67 and 74 of the preliminary ruling and considered that 
the national law should be interpreted in such a way that the abovementioned 
procedural obstacle does not impede the application of European law. 
SPETSIALIZIRANA PROKURATURA 
 
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In particular, the referring court also took into account the fact that the matter 
relates to a definitive act of procedural significance (namely, referral of the case 
back to the prosecutor for the purpose of taking specific procedural steps), from 
which the accused persons derive no substantive rights. On the contrary, the only 
advantage for them relates rather to facts (namely further delay of the case) and to 
the very nature of the act, in so far as it leads to infringement of the principle of 
examining criminal charges within a reasonable time (paragraphs 70 to 74), and 
cannot be endorsed. Finally, the referring court considered that, during the trial 
phase of the proceedings, it would be possible to give effect to all the procedural 
rights which the accused persons derive from the directive, in reliance on the 
interpretation given by the Court of the relevant provisions of the directive. 
Accordingly, the referring court also expressly decided, by order of 14 September 
2018, to disapply the national law which does not allow modification of a judicial 
decision by virtue of Article 249 NPK (that is to say, closure of court proceedings 
and referral of the case back to the prosecutor to remedy the procedural defects 
relating to [Or. 3] informing the accused person of the charge against him and 
providing access to the case-file. 
5 On the basis of complaints made by two of the accused persons, the second-
instance court set aside that order and held that the preliminary ruling was not 
applicable to national court proceedings that had already been closed, and, in 
reliance on paragraph 46 of the preliminary ruling, it also held that the Court had 
not established that Article 249 NPK was incompatible with Article 325 TFEU. 
Accordingly, the decision of the first-instance court was set aside and the case 
returned with binding instructions to close the court proceedings and to refer the 
case back to the prosecutor. 
Accordingly, the appeal court expressly prohibited the referring court from 
applying point 2 of the operative part of the preliminary ruling, concerning 
Directive 2012/13, in the main proceedings. 
6 The referring court has doubts as to whether the second-instance court interpreted 
the preliminary ruling in accordance with its actual meaning. 
Those doubts are based on the fact that the second-instance court, relied in support 
of its conclusion on facts that were known to the Court (points 34 to 36), which 
were mentioned in the context of the questions referred and with regard to which 
the Court expressly considered the specific possibility of application of its 
preliminary ruling: ‘ or again whether, provided that the prosecutor has, in the 
particular case, submitted an indictment before the court within those time limits, 
the court must open the trial stage of the proceedings and itself cure those 
irregularities’ (paragraph 67, second sentence). 
7 The referring court therefore submitted a request for interpretation on 25 October 
2018. 
REQUEST FOR A PRELIMINARY RULING OF 30. 10. 2018 — CASE C-704/18 
 
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An objection was lodged against that request by Ms Nedeva, the representative of 
the accused person ME, in reliance on Article 104 of the Rules of Procedure of the 
Court of Justice. 
That objection is justified, since instead of a request for interpretation, it is 
necessary to refer a further question to the Court for a preliminary ruling. 
8 [Or. 4] In these circumstances, the referring court considers that, before carrying 
out the binding instructions of the second-instance court and referring the case  
back to the prosecutor, without applying point 2 of the operative part of the 
preliminary ruling, it is necessary to establish whether that is in accordance with 
Article 267 TFEU. 
In view of the foregoing, the court 
ORDERS: 
The request for interpretation concerning Case С-612/15 is withdrawn. 
The following question is referred to the Court of Justice for a preliminary 
ruling: 
Must Article 267 TFEU be interpreted as authorising a national court not to 
apply a preliminary ruling in the main proceedings, with regard to which 
that ruling was issued, in reliance on the factual circumstances taken into 
account by the Court when it gave the preliminary ruling? 
[...]