Order;Summary — ECLI:EU:C:2019:776
Date: 2019-09-24
Language of the case: Bulgarian
Court formation: Second Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Preliminary reference - urgent procedure
Origin: Bulgaria

Translation C-467/19 (PPU) - 1 
Case C-467/19 (PPU) 
Request for a preliminary ruling 
Date lodged: 
19 June 2019 
Referring court: 
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer: 
19 June 2019 
Applicant: 
Spetsializirana prokuratura 
Defendant: 
QR 
      
ORDER 
Date: 19 June 2019       City: Sofia 
Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) 
… 
An agreement on the imposition of a negotiated penalty, concluded in the judicial 
phase of criminal proceedings between the Spetsializirana prokuratura 
(Specialised Prosecuting Authority) and the lawyers of the person charged, QR, 
with the consent of that person, has been brought before the referring court. 
The other persons charged and their lawyers did not consent to QR’s conclusion 
of that agreement on the imposition of a negotiated penalty, and one of them 
expressly opposed it. 
Since case-law is not unanimous on whether the consent of the other persons 
charged is necessary, the referring court requires an interpretation of the provision 
contained in Article 7(4) of Directive 2016/343, in order to ensure that it will not 
infringe EU law if it refuses to examine the agreement between the prosecution 
EN 
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and the defence on the imposition of a negotiated penalty, on the ground that the 
other persons charged and their lawyers have not given their consent. 
On those grounds, a request for a preliminary ruling must be made. 
In the light of the foregoing, the referring court hereby 
ORDERS: 
The present proceedings are STAYED; 
The following request for a preliminary ruling is MADE to the Court of Justice of 
the European Union: 
1. Facts 
1.1 The Spetsializirana prokuratura (Specialised Prosecuting Authority) has 
brought criminal charges against four people, QR, ZK, YM and [Or. 2] HD. An 
indictment has been laid and the proceedings are in their judicial phase. 
QR is charged with having led an organised criminal group with the objective of 
committing the criminal offences referred to in Article 252 (usury) and 
Article 213a (extortion) of the Nakazatelen kodeks (Bulgarian Criminal Code, ‘the 
NK’); the other three people are charged with having participated in that organised 
criminal group. 
QR is also charged with having committed four different cases of extortion; the 
first was committed together with HD, the second together with HD and ZK, the 
third on his own, and the fourth together with ZK and YM. It has been claimed, in 
relation to the four cases, that the extortion was committed on behalf of the 
organised criminal group in question, since the full names and the personal 
identification numbers of the four persons charged are stated. 
1.2 QR has admitted his guilt in respect of all those charges. His lawyer and the 
prosecutor have concluded a written agreement under which a lesser penalty is 
imposed on him than that provided for by law; QR consented to that agreement. 
The prosecutor, the lawyer and QR signed it and submitted it to the referring court 
for approval. 
1.3 YM and his lawyer, Ms Trayanova, do not consent to and oppose the 
conclusion of that agreement on the imposition of a negotiated penalty. 
ZK and his lawyer, Ms Naydenova, consider that there is no point in making a 
statement (giving or refusing consent), since YM’s opposition prevents the 
conclusion of the agreement in question. 
HD and his lawyer, Mr Popov, have not made a statement. 
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1.4 It is for the referring court to assess whether the lack of consent of the other 
persons charged and their lawyers can justify the refusal to give a substantive 
ruling regarding the agreement in question. 
2. EU law 
Article 7(3) 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 [Or. 3] to be present at the trial in 
criminal proceedings (OJ 2016 L 65, p. 1); Article 47 and Article 52 of the 
Charter; principles of effectiveness and equality. 
3-8 National law 
Nakazatelno-protsesualen kodeks (Bulgarian Code of Criminal Procedure, ‘the 
NPK’), published in Bulgarian Official Journal No 86/05, last amendment 
published in Bulgarian Official Journal No 16/19, extract annexed hereto. 
3. The agreement on the imposition of a negotiated penalty: Articles 381 to 
384a of the NPK 
3.1 In criminal proceedings, the agreement on the imposition of a negotiated 
penalty is a written agreement concluded between the prosecutor and the 
representative (lawyer of the person charged), with the consent of the person 
charged. By such an agreement, the person charged pleads guilty, waives the right 
to ordinary criminal proceedings and consents to a specific penalty being imposed 
on him. The special feature of such proceedings is that the penalty in question is 
imposed with the consent of the three people, namely the prosecutor, the lawyer 
and the person charged; thereafter, the court must still give its approval. 
3.2 The penalty thus imposed is always a lesser penalty than that to which the 
person charged would have been sentenced at the end of ordinary proceedings. 
The penalty in question is often lower than the minimum laid down by law for the 
type of offence at issue (Article 381(4) of the NPK, in conjunction with 
Article 55(1)(1) of the NK). 
The reason for the imposition of such a lesser penalty is the consent of the person 
charged to plead guilty and to conclude an agreement on the imposition of a 
negotiated penalty, which implies his repentance and entails the immediate 
closure of the proceedings (solely in relation to the charges laid against him and 
referred to in the agreement in question). 
3.3 The agreement on the imposition of a negotiated penalty may be concluded 
both during the preliminary phase of the criminal proceedings and during the 
judicial phase, once the prosecutor has filed his final submission (the indictment) 
before the court so that the latter can conduct its substantive examination. 
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3.4 Following the conclusion of the agreement on the imposition of a negotiated 
penalty, that agreement is submitted to the court for approval. Only after that 
approval does the agreement on the imposition of a negotiated penalty become 
final and acquire the force of res judicata. The criminal proceedings are then 
closed and the penalty enforced immediately. 
3.5 In order to assess whether it is required to give a ruling on the agreement on 
the imposition of a negotiated penalty, the court examines whether certain 
circumstances exist. The examination of the agreement on the imposition of a 
negotiated penalty is subject to different rules according to whether other persons 
are also charged and when the agreement was concluded. [Or. 4] 
Where just one person is charged, only the consent of the parties to the agreement 
on the imposition of a negotiated penalty (the prosecutor, the lawyer and the 
person charged) is required. 
Where other persons are also charged: 
(1) during the preliminary phase of the proceedings, the consent of the other 
persons charged and their lawyers is not required; in such cases, the court does not 
even inform them of the existence of such an agreement. 
(2) during the judicial phase of the proceedings, national law requires the court 
to verify whether ‘all the parties consent’ to the conclusion of the agreement on 
the imposition of a negotiated penalty (Article 384(3) of the NPK); according to 
some case-law, this also includes the consent of the other persons charged and 
their lawyers. 
4. The parties to the criminal proceedings (Article 253 of the NPK). 
The word ‘parties’ means the persons participating in the criminal proceedings 
(but only during their judicial phase) who are afforded procedural powers by law 
with a view to defending themselves against the obligations imposed on them by 
the State or defending their personal interests. 
The following persons are parties: 
(1) the prosecutor, who lays and submits the indictment (Article 46 of the 
NPK); 
(2) the accused person, 1 against whom the indictment is laid (Article 54 of the 
NPK); 
(3) the latter’s lawyer (Article 91 of the NPK); 
 
1 In practice, the terms ‘accused person’ (podsadim) and ‘person charged’ (obvinyaem) are 
synonyms, but the term ‘accused person’ (podsadim) refers to the ‘person charged’ (obvinyaem) 
in the judicial phase of the proceedings, before the court of first instance. 
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(4) the private prosecutor, who is the party injured by the offence and seeking 
the imposition of the penalty for that offence (Article 76 of the NPK); 
(5) the civil party, who applies for a sum of money as compensation for the 
harm suffered as a result of the offence (Article 84 of the NPK). 
5. The provisions of Article 384(3), in conjunction with Article 384(1), of the 
NPK. 
Those provisions state: 
(1) ‘… the court may approve an agreement on the imposition of a negotiated 
penalty after the judicial proceedings have been opened …’ [Or. 5]. 
(3) ‘In such cases, the agreement on the imposition of a negotiated penalty is 
approved only once the consent of all the parties has been obtained’. 
6. The differing national interpretations. The concept of ‘all the parties’ within 
the meaning of Article 384(3) of the NPK is interpreted in different ways, bearing 
in mind that there is a literal interpretation (that is to say, the parties to the 
proceedings within the meaning of Article 253 of the NPK) and a logical 
interpretation (that is to say, the parties to the agreement on the imposition of a 
negotiated penalty). 
6.1 The literal interpretation leads to the conclusion that, in order to approve the 
agreement on the imposition of a negotiated penalty, it is necessary to obtain the 
consent of all the participants in the criminal proceedings who have the status of a 
‘party’, namely all the persons charged (and not just the person covered by the 
agreement in question) and all the lawyers (and not just the lawyer of the person 
charged who has concluded that agreement). 
Thus, in the absence of the consent of one party to the proceedings, including that 
of the other persons charged and their lawyers (as is the case in the main 
proceedings), that agreement on the imposition of a negotiated penalty cannot be 
concluded. Some case-law of the Varhoven kasatsionen sad (Supreme Court of 
Cassation, Bulgaria) reflects this view (judgment No 293 of 16 July 2009, given in 
criminal case No 267/2009; judgment No 140 of 27 March 2012, given in criminal 
case No 361/12; judgment No 168 of 14 May 2012, given in criminal case 
No 293/12; judgment No 323 of 2 October 2014, given in criminal case 
No 1048/14; and judgment No 309 of 12 November 2015, given in criminal case 
No 888/15). 
6.2 For its part, a logical interpretation takes account of the nature of the judicial 
agreement on the imposition of a negotiated penalty. By such an agreement, a 
specific matter is settled with final effect, and the consent of the parties whose 
interests are affected by that matter is thus required. If the agreement at issue does 
not settle a matter which is of personal concern to them, parties have no interest in 
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putting forth any opinion whatsoever, nor in giving their consent to the conclusion 
of the agreement on the imposition of a negotiated penalty. 
It is for that reason that, for the purposes of the approval of the agreement on the 
imposition of a negotiated penalty, the court requires the consent of the private 
prosecutor and of the people who have sued for damages as civil parties in 
criminal proceedings with the specific aim of defending their rights which were 
adversely affected by the act forming the subject matter of the agreement in 
question. 
Therefore, more specifically, the consent of the other persons charged and their 
lawyers is not required. Some case-law of the Varhoven kasatsionen sad (Supreme 
Court of Cassation, Bulgaria) reflects this view (judgment No 87 of 4 March 
2009, given in criminal case No 22/09, and judgment No 409 of 1 October 2008, 
given in criminal case No 439/08). 
6.3 There is also a third ‘middle-ground’ opinion, pursuant to which it is 
necessary to obtain the consent solely of the other persons charged who appear 
before the court in the proceedings and, conversely, there is no need to obtain the 
consent of the other persons charged in whose absence the proceedings are 
conducted, where [Or. 6] their lawyers have given their consent. Some case-law 
of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) reflects 
this view (judgment No 213, given on 9 October 2008, in criminal case No 165/08 
and judgment No 545, given on 28 December 2012, in criminal case No 1860/12). 
7. The possibilities offered by national law to one person charged of 
intervening in the legal sphere of another person charged. 
No such possibilities exist in principle. More specifically, a person charged cannot 
give his view on the conduct that should be adopted by another person charged 
with regard to the proceedings; a person charged cannot consent to or oppose 
another person charged making any statement whatsoever, including a guilty or 
not guilty plea by the latter; a person charged cannot challenge judicial acts 
relating to another person charged. 
Any statement made by a person charged is approved solely by his own lawyer. 
The purpose of such a statement is to defend the interests of the specific person 
charged. In any event, its legality (its admissibility and its merits) cannot be 
dependent on the will of other persons charged. 
There are only two exceptions to that principle – the requirement of the consent of 
the other persons charged in order to conclude an agreement on the imposition of 
a negotiated penalty (Article 384(3) of the NPK), which is the case in these 
proceedings; and the requirement of a joint and full admission of the facts 
identified by the prosecution, which is made at the same time by all the persons 
charged, with a view to the imposition of a system of reduced penalties 
(Article 370(3) of the NPK). 
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8. The interest of the other persons charged in giving or refusing their consent. 
In a significant number of cases, the conclusion by a person charged of an 
agreement on the imposition of a negotiated penalty affects the interests of the 
other persons charged, in respect of whom the proceedings continue to follow 
their normal course. Where a person charged gives his consent to the conclusion, 
by another, of an agreement on the imposition of a negotiated penalty, this usually 
leads to such an agreement being concluded, and this significantly increases the 
likelihood of the proceedings in relation to the first person culminating in a guilty 
verdict (judgment of the Varhoven kasatsionen sad (Supreme Court of Cassation, 
Bulgaria) No 168 of 14 May 2012, given in criminal case No 293/12). 
In the first place, the conclusion of an agreement on the application of a 
negotiated penalty by a person charged makes that person a witness in the 
proceedings. As a witness, he is required to make statements and tell the truth; 
accordingly, it is possible that he will make statements which are prejudicial to the 
other persons charged. [Or. 7] 
In the second place, the same is true in the light of the provision contained in 
Article 413 of the NPK (binding effect of the agreement on the imposition of a 
negotiated penalty) – provided that the name and the personal identification 
number of the other persons charged are identified in the text of the agreement at 
issue (this question forms the subject matter of Case C-377/18); in addition, the 
agreement on the imposition of a negotiated penalty is a judicial act in which a 
final decision on the substance of the case is given. In accordance with one line of 
national case-law, this means that that judicial act must be adopted as against the 
other persons charged, who cannot contradict the agreement on the imposition of a 
negotiated penalty which has already been concluded. In practice, this amounts to 
adopting a judicial act which also declares those other persons charged to be 
guilty. 
9. The question referred for a preliminary ruling 
Is case-law such as that at issue, which concerns the national law regarding 
the approval by the court of an agreement on the imposition of a negotiated 
penalty concluded between the prosecution and the defence, which provides 
for the consent of the other persons charged as a condition for the approval 
of such an agreement, and that that consent is required only during the 
judicial stage of the proceedings, consistent with Article 7(4) of Directive 
2016/343, with Article 47 and Article 52 of the Charter, and with the 
principles of effectiveness and equality? 
10. Clarifications concerning the question. 
10.1 Article 7(4) of Directive 2016/343 affords the Member States the possibility 
of linking the cooperation of the person charged (including his confession) to a 
reduction in his sentence. This is a possibility and not an obligation. Despite that 
fact, once the Member State has decided to adopt such a legal system, to the 
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extent that that system falls within the scope of Article 7(4) of the Directive, the 
system in question must comply with the requirements of EU law, which include 
inter alia the Charter and general principles (judgments of 9 March 2017, Milkova, 
C-406/15, EU:C:2017:198, paragraphs 51 and 52 to 54; of 20 June 2002, Mulligan 
and Others, C-313/99, EU:C:2002:386, paragraph 46; of 21 December 2011, N. S. 
and Others, C-411/10 and C-493/10, EU:C:2011:865, paragraphs 65, 68 and 69; 
of 6 October 2015, East Sussex County Council, C-71/14, EU:C:2015:656, 
paragraphs 28, 52 and 55 to 59; of 9 January 2015, Bradbrooke, C-498/14 PPU, 
EU:C:2015:3, paragraphs 41 and 50; of 27 June 2013, Agrokonsulting-04, 
C-93/12, EU:C:2013:432, paragraphs 35 to 38; and of 9 November 2017, Dimos 
Zagoriou, C-217/16, EU:C:2017:841, paragraph 16). 
The provisions of the first paragraph of Article 47 of the Charter concerning the 
right to an effective remedy before a tribunal, the provisions of the second 
paragraph of Article 47 of the Charter on access to justice and the fairness of the 
proceedings, the principles of equality and effectiveness and the exceptions 
provided for in Article 52 of the Charter are relevant. [Or. 8] 
10.2 Does a national legal situation in which a person charged has the right to 
plead guilty, conclude an agreement on the imposition of a negotiated penalty and 
be sentenced to a lesser penalty constitute ‘an effective remedy before a tribunal’ 
within the meaning of the second paragraph of Article 47 of the Charter (judgment 
of 27 September 2017, Puškár, C-73/16, EU:C:2017:725, paragraph 59)? Does the 
agreement on the imposition of a negotiated penalty, which is recognised by law, 
constitute a remedy against prosecution? If so, is that principle infringed where 
the right to conclude such an agreement is recognised in the national legal system 
but the exercise of that right is then restricted where other persons are also 
charged in the same case? More specifically, the exercise of the right in question 
is conditional on the prior consent of the other persons charged, with that consent 
required only in relation to the judicial phase of the proceedings. In those 
circumstances, does the remedy in question lose its effectiveness? 
10.3 Is it contrary to the requirement of access to justice (‘everyone is entitled to 
a … hearing … by [a] … tribunal’) within the meaning of the second paragraph of 
Article 47 of the Charter that the prior consent of the other persons charged and of 
their lawyers is established as condition in order for the court to examine the 
substance of the agreement on the imposition of a negotiated penalty lodged by 
the prosecution and the defence? Does such a lack of consent constitute a 
procedural obstacle to the court giving a ruling on the agreement in question 
(whether it approves it, proposes amendments or refuses to approve it)? Is the 
case-law of the European Court of Human Rights (‘the ECtHR’) on cases in 
which rights are conferred on persons and then, de facto, taken from them, by 
prohibiting the exercise of those rights independently before a court, relevant 
(judgment of 9 December 1994, The Holy Monasteries v. Greece 
(CE:ECHR:1994:1209JUD00130987), § 83, and – with regard to the permissible 
restrictions on access to a court – judgment of 28 May 1985, Ashingdane v. the 
United Kingdom (CE:ECHR:1985:0528JUD000822578))? 
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10.4 Does the requirement of ‘fairness’ for the purposes of the second paragraph 
of Article 48 of the Charter apply in the light of the national system described 
above? If so, are criminal proceedings in which the exercise of a defence strategy 
(namely, admission of guilt and sentencing to a lesser penalty) is dependent on the 
consent of the other persons charged fair, bearing in mind that this is required 
solely during the judicial phase of the proceedings? More specifically, is the 
requirement of fairness infringed where the fate, in criminal terms, of one person 
charged who admits his guilt is made conditional on the consent of another person 
charged? Or does that other person charged have a legitimate interest in opposing 
the conclusion of an agreement on the imposition of a negotiated penalty in 
respect of third parties, with that interest existing only in the judicial phase of the 
proceedings? [Or. 9] 
10.5 The principle of effectiveness requires that provisions of EU law are applied 
nationally so as not to render excessively difficult or impossible the exercise of 
the rights conferred by the EU legal order (judgment of 15 March 2017, Aquino, 
C-3/16, EU:C:2017:209, paragraphs 52 and 53). 
When Article 7(4) of Directive 2016/343 is applied at the national level, is that 
principle observed where the specified objective (granting the possibility of a 
reduced sentence in exchange for the cooperation of the person charged) cannot be 
achieved if this is opposed by a third party, in the present case by the other 
persons charged? 
10.6 Does the principle of equal treatment apply, bearing in mind that different 
treatment is not being applied in the light of the criteria laid down in Articles 21 to 
26 of the Charter? At the same time, the Court refers to those principle in relation 
to the award of legal services contracts (judgment of 6 June 2019, P. M. and 
Others, C-264/18, EU:C:2019:472, paragraph 28), emission allowance trading 
(judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, 
C-127/07, EU:C:2008:728, paragraphs 23 to 48), State aid (judgment of 15 May 
2014, Szatmári Malom, C-135/13,EU:C:2014:327, paragraph 65), repayment 
guarantee schemes (judgment of 21 December 2016, Vervloet and Others, 
C-76/15, EU:C:2016:975, paragraphs 74 to 76) and the confidentiality of lawyers’ 
communications and legal advice (judgment of 14 September 2010, Akzo Nobel 
Chemicals and Akcros Chemicals v Commission, C-550/07 P, EU:C:2010:512, 
paragraphs 54 to 58). 
In the present case, it is clear that this is not a case of equal treatment in two 
respects. A person’s treatment differs according to whether that person is the only 
person charged or whether other persons are also charged (a person who is 
charged on his own is free to conclude an agreement on the imposition of a 
negotiated penalty, without having to obtain the consent of other persons). A 
person’s treatment also differs according to whether the case is in its preliminary 
phase or its judicial phase (where other persons are also charged, the consent in 
question is required only in the judicial phase of the proceedings). 
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10.7 Is there a legal justification, for the purposes of Article 52 of the Charter, for 
the limitation of the rights conferred by Article 47 of the Charter and of the 
principles of equality and effectiveness where, in order for a person charged to 
conclude an agreement on the imposition of a negotiated penalty, the consent of 
other persons charged is required (with that consent required only in the judicial 
phase of the proceedings)? Are those limitations justified by reasons of public 
interest, in particular the need to defend the rights of those other persons charged? 
Is the national distinguishing criterion, namely whether the proceedings are in 
their preliminary phase or judicial phase, relevant? 
…