Opinion of the Advocate General — ECLI:EU:C:2023:23
Date: 2023-01-12
Language of the case: Bulgarian
Subject matter: Justice and home affairs;Approximation of laws;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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:  
29 September 2021 
Referring court:  
Sofiyski rayonen sad (District Court, Sofia, Bulgaria) 
Date of the decision to refer:  
17 September 2021 
Applicant:  
XN 
Defendant:  
Police officer at 2 RU SDVR 
  
Subject matter of the main proceedings 
The subject of the review is the formal and substantive legality of a police order 
by which a police officer at the 02 Rayonno upravlenie na Stolichna direktsiya na 
vatreshnite raboti (02 District Police Office of the Sofia Metropolitan Directorate 
of Interior; ‘02 RU SDVR’) issued, in accordance with Article 72 of the Zakon za 
MVR (Law on the Ministry of Interior; ‘the ZMVR’), a coercive administrative 
measure in the form of the de facto detention of the applicant, XN, for a period of 
up to 24 hours on suspicion of having committed a criminal offence. 
Subject matter and legal basis of the request 
Permissibility of national legislation and case-law on the basis of which the 
grounds for arresting a suspect need not be stated in the written detention order 
and the extent to which the arrested person is to be informed of the criminal 
offence of which he or she is suspected 
Second paragraph of Article 267 of the Treaty on the Functioning of the European 
Union 
EN 
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Questions referred for a preliminary ruling 
1. Is Article 8(1) of Directive 2012/13/EU of the European Parliament and of 
the Council of 22 May 2012 on the right to information in criminal 
proceedings (OJ 2012 L 142, p. 1), read in conjunction with Article 6(2) 
thereof, to be interpreted as precluding national legislation which is applied 
in a corrective manner on the basis of settled case-law in the EU Member 
State concerned and under which it is permissible that information 
concerning the grounds for detaining a suspect, including information 
concerning the criminal offence of which he or she is suspected, is not 
contained in the written detention order, but in other accompanying 
documents (originating before or after that order) which are not provided to 
him or her immediately and of which the person can subsequently be 
informed in the event that he or she challenges the legality of the detention 
before the courts? 
2. Is Article 6(2) of Directive 2012/13/EU of the European Parliament and of 
the Council of 22 May 2012 on the right to information in criminal 
proceedings (OJ 2012 L 142, p. 1) to be interpreted as meaning that, in order 
to ensure the effective exercise of the rights of the defence, the information 
concerning the criminal offence of which an arrested person is suspected 
must contain details regarding the time, place and manner of the commission 
of the offence, that person’s specific involvement in it and the consequent 
criminal nature of the offence? 
Provisions of European Union law and case-law relied on 
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 
2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1) 
Articles 6(2) and 8(1) [reproduction of the texts] 
Provisions of national law relied on 
Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry of 
Interior) (Darzhaven vestnik [State Gazette; ‘DV’] No 53 of 27 June 2014) 
Article 72(1) The police authorities may detain a person: 
1. in respect of whom there is evidence that he or she has committed a criminal 
offence; 
2. who knowingly obstructs the police in the performance of their duties after 
having been duly forewarned; 
POLICE OFFICER AT 02 RU SDVR 
 
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3. who shows serious psychological impairment and, by his or her behaviour, 
disturbs public order or puts his or her life or the lives of other persons in obvious 
danger; 
4. where it is not possible to establish his or her identity in the cases and in the 
ways specified in Article 70; 
5. [escaped prisoner]; 
6. in respect of whom a wanted persons alert has been issued for the purpose of 
detention, including at the request of another State in connection with extradition 
or the execution of a European arrest warrant; 
7. in other cases determined by law. 
[…] 
(4) The detained person has the right to challenge the legality of the detention 
before the district court in whose judicial district the authority has its seat. The 
court shall rule on the challenge without delay, and its ruling shall be subject to an 
appeal in cassation before the competent administrative court in accordance with 
the Code of Administrative Procedure. 
(5) From the moment of his or her detention, the person shall have the right to 
defence counsel, and the detained person must also be informed of his or her right 
to waive that right to defence counsel and of the consequences thereof, as well as 
of his or her right to remain silent where the detention takes place on the basis of 
point 1 of paragraph 1. 
(6) The competent authority is obliged immediately to inform a person 
designated by the detained person of the detention. 
(7) The police authorities are obliged to release the person immediately if the 
reason for his or her detention has ceased to exist. 
Article 73 A person detained under the conditions of points 1 to 4 of Article 72(1) 
may not be subjected to any restrictions other than those imposed on the right to 
freedom of movement. The duration of his or her detention must not exceed 
24 hours in such cases. 
Article 74(1) A written detention order shall be issued in respect of the persons 
referred to in Article 72(1). 
(2) The detention order under paragraph 1 shall specify: 
1. the name, function and place of employment of the police officer issuing the 
order; 
2. the factual and the legal grounds for the detention; 
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3. data necessary for identifying the detained person; 
4. the date and time of the detention; 
5. the restriction of the person’s rights under Article 73; 
6. his or her right to: 
(a) challenge the legality of the detention before the courts; 
(b) defence counsel from the moment of detention; 
(c) medical care; 
(d) a telephone call to inform someone of his or her detention; 
(e) and f) [rights of a person who is not a Bulgarian citizen]. 
(3) The detained person shall complete a declaration stating that he or she is 
aware of his or her rights and that he or she intends to exercise or not exercise his 
or her rights under items b) to f) of point 6 of paragraph 2. The detention order 
shall be signed by the police officer and the detained person. 
(4) The refusal or inability of the detained person to sign the detention order 
shall be confirmed by the signature of a witness. 
[…] 
(6) A copy of the detention order shall be provided to the detained person with 
signed confirmation of receipt. 
Zakon za administrativnite narusheniya i nakazaniya (Law on administrative 
offences and penalties) (DV No 92 of 28 November 1968) 
Article 22 Coercive administrative measures may be applied to prevent and bring 
an end to administrative offences and to prevent and eliminate their harmful 
effects. 
Article 23 The cases in which coercive administrative measures may be applied, 
their nature, the authorities applying them and the manner in which they are 
applied, as well as the procedure for challenging them, shall be regulated in the 
relevant law or in a decree. 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure) 
(DV No 30 of 11 April 2006, in force since 12 July 2006) 
Article 21(1) An individual administrative act is an express declaration of will, or 
a declaration of will expressed by an act or omission, of an administrative 
authority or other authority or organisation empowered to do so by law, of persons 
POLICE OFFICER AT 02 RU SDVR 
 
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exercising public functions and of organisations providing public services, which 
creates rights or obligations or directly affects the rights, freedoms or legitimate 
interests of individual citizens or organisations, as well as the refusal to issue such 
an act. 
Article 145(1) The legality of administrative acts may be challenged before the 
courts. 
(2) The following are open to challenge: 
1. the original individual administrative act, including the refusal to issue such 
an act; 
2. the decision of the next highest authority by which the administrative act 
under point 1 was amended or annulled and a decision was taken on the merits of 
the matter; 
3. decisions on requests for the issuance of documents relevant to the 
recognition, exercise or extinguishment of rights or obligations. 
(3) Administrative acts may be challenged as a whole or in their individual 
parts. 
Article 146 The grounds for challenging administrative acts shall be: 
1. lack of competence; 
2. failure to comply with the prescribed form; 
3. substantial breach of rules of administrative procedure; 
4. conflict with provisions of substantive law; 
5. incompatibility with the objective of the law. 
Article 168(1) The court shall not be confined to examining the grounds stated by 
the applicant, but shall examine the legality of the contested administrative act 
with regard to all the grounds set out in Article 146 on the basis of the evidence 
adduced by the parties. 
Article 169 In the case of a challenge to an administrative act issued in the 
exercise of discretion, the court shall examine whether the administrative 
authority had a margin of discretion and whether it complied with the legality 
requirements for administrative acts. 
Ukaz Nr. 904 ot 28.12.1963 za borba s drebnoto huliganstvo (Decree No 904 
of 28 December 1963 on combating minor hooliganism) (DV No 102 of 
31 December 1963) 
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Article 1(1) (amended – DV No 38 of 1998, No 27 of 2009, No 93 of 2011) The 
following administrative penalties shall be imposed for minor hooliganism where 
the person who committed the act has reached the age of 16: 
1. detention for up to 15 days in a sub-unit of the Ministry of Interior; 
2. fine of between 100 and 500 leva (BGN). 
(2) (amended – DV No 38 of 1998) Minor hooliganism within the meaning of 
this Decree is improper conduct that manifests itself in the use of expletives, 
verbal abuse or other inappropriate utterances in a public place in the presence of 
a large number of people, with an offensive attitude and engaging in offensive 
behaviour towards citizens, the authorities or the public, or in a quarrel, brawl or 
other similar acts which disturb public order and the peace but which, on account 
of the low degree of danger posed to the public, do not constitute a criminal 
offence under Article 325 of the Criminal Code. 
Article 4 The judge at the district court shall examine the case file submitted by 
the authorities of the Ministry of Interior as a single judge and in open court 
without delay or at the latest within 24 hours of receiving it. 
Article 5(1) The case file shall be examined in the presence of the offender, with 
witnesses being summoned or produced if necessary. 
(2) The judge at the district court shall notify the public prosecutor of the 
examination of the case file. 
(3) (amended – DV No 38 of 1998) The offender shall have the right to defence 
counsel. 
Article 6(1) On the basis of the evidence gathered, the judge at the district court 
shall issue a decision in accordance with Article 1 of this Decree, by which: 
(a) an appropriate administrative penalty is imposed; 
(b) (amended – DV No 38 of 1998) the examination of the case file is concluded 
and the case file is transmitted to the competent commission for combating anti-
social behaviour of minors; or 
(c) the person is acquitted. 
(2) If the constituent elements of a criminal offence are established at the trial, 
the case file shall be transmitted to the competent public prosecutor. 
Succinct presentation of the facts and procedure in the main proceedings 
1 By detention order of 2 September 2020, issued by RK in his capacity as a police 
officer at 02 RU SDVR, de facto detention of the applicant, XN, was ordered for a 
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period of up to 24 hours, starting from 11:20 a.m. on 2 September 2020, as a 
coercive administrative measure on suspicion of having committed a criminal 
offence. 
2 The detention order specifies ‘point 1 of Article 72(1) of the Law on the Ministry 
of Interior’ (ZMVR) and ‘disturbance of public order’ as the legal and factual 
basis for the detention of the person. The detention order was signed by the police 
officer, RK, but the detained person refused to affix his signature, and that 
circumstance was confirmed by the signature of a witness. On the reverse side of 
the detention order, it was stated that the applicant, XN, was released at 11:10 
a.m. on 3 September 2020, as confirmed by his signature. Immediately after he 
was detained, he was subjected to a search of his person, which was recorded in a 
report, and he was also given a statement informing him of his rights under 
Articles 72, 73 and 74. 
3 On 3 September 2020, the Sofiyski rayonen sad (Regional Court, Sofia; ‘the 
SRS’) received a complaint from XN via his legal representative, challenging the 
legality of the detention order issued. The present proceedings were instituted on 
the basis of that complaint. 
4 Reports drawn up by police officers, dated 2, 3 and 4 September 2020, were 
submitted in the proceedings, alleging that, at approximately 11:20 a.m. on 
2 September 2020, the applicant, XN, as a participant in protests in front of the 
Narodno sabranie building (the Bulgarian Parliament) in the territory of the city of 
Sofia, attempted to break through the police cordon that had been formed, by 
beating the shields of the police officers with his hands and feet and making 
cynical remarks to them, as a result of which it was necessary to detain him. 
5 It is not apparent from the case file that the police officers’ reports of 2 and 
3 September 2020 were provided to the applicant XN for information purposes 
during his detention. 
6 In his written statement of 2 September 2020, XN claims that he was present at 
the protests and, when tensions escalated, he was pushed towards the police 
cordon by the crowd and then detained by the police officers of the Ministerstvo 
na Vatreshnite Raboti (Ministry of Interior; MVR), who allegedly inflicted 
physical violence on him. He denies having disturbed public order. 
7 Medical documents dated 2 September 2020 were submitted in the proceedings, 
showing that an examination conducted by a medical specialist found that XN had 
an open wound on his eyelid and in the orbital region of his eye. There is no 
evidence that the country’s prosecuting authorities have conducted investigations 
into the alleged police violence. 
8 On 8 September 2020, following an order issued by a public prosecutor of the 
Sofiyska rayonna prokuratura (District Public Prosecutor’s Office, Sofia), a police 
officer of 02 RU SDVR drew up, in respect of the applicant, XN, a legal act 
establishing minor hooliganism, which was subsequently submitted to the SRS for 
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review, and in which it was stated that, at approximately 11:20 a.m. on 
2 September 2020, the applicant, XN, as a participant in protests in front of the 
Narodno sabranie building (the Bulgarian Parliament) in the territory of the city of 
Sofia, attempted to break through the police cordon that had been formed, by 
beating the shields of the police officers with his hands and feet and making 
cynical remarks to them – an administrative offence under Article 1(2) of the 
Ukaz za borba s drebnoto huliganstvo (Decree on combating minor hooliganism; 
‘the UBDH’). 
9 By decision of 8 September 2020 of the SRS, XN was found not guilty and was 
acquitted, because the alleged administrative offence could not be proven. That 
judicial decision is final. 
Essential arguments of the parties in the main proceedings 
10 The applicant, XN, did not submit observations on the draft questions submitted in 
the request for a preliminary ruling. 
11 The lawyer Rossen Rashkov submitted a written opinion expressing his agreement 
with the need to refer the case to the Court of Justice of the European Union. A 
request to clarify the first question and to ask additional questions to be included 
in the request for a preliminary ruling was refused by order of the court of 
16 September 2021. 
12 The defendant, RK, did not avail himself of the period for submitting observations 
granted to him. 
13 Legal counsel Hristo Hristov has submitted a written opinion in which he declares 
his disagreement with the questions formulated. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The term ‘suspect’ is foreign to the applicable law in the Republic of Bulgaria. In 
accordance with the national legislation, where there is evidence that citizens have 
committed a criminal offence, their detention by a police officer of the MVR on 
the basis of point 1 of Article 72(1) of the ZMVR constitutes a coercive 
administrative measure within the meaning of Article 22 of the Law on 
administrative offences and penalties (DV No 92 of 28 November 1969), which 
has the character of an individual administrative act intended to prevent the person 
from evading prosecution or committing a criminal offence. The case-law in the 
Republic of Bulgaria proceeds on the assumption that, for the purposes of 
applying such a coercive measure, it is not necessary to collect conclusive 
evidence which definitively and unequivocally establishes that the person 
committed, and is guilty of, a criminal offence within the meaning of the 
nakazatelen kodeks (the Criminal Code; ‘the NK’), because those elements are to 
be proven in criminal proceedings and not in administrative proceedings. In 
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accordance with that case-law, the requirement is that there is ‘evidence’ of the 
commission of a criminal offence – which may be written or oral (see, to that 
effect, order No 11905 of 8 October 2014 of the Varhoven administrativen sad 
[Supreme Administrative Court; ‘the VAS’], amongst others) – justifying the 
assumption that the person is likely to have been involved in the offence, and this 
is entirely sufficient for the administrative authority, within the scope of its 
discretion, to impose the measure. 
15 In order to uphold the legality of the contested order, the cumulative requirements 
for the legality of the administrative act must be met, namely: it must have been 
issued by the competent authority in the prescribed form and in compliance with 
the rules of administrative procedure, it must not conflict with substantive law and 
it must be in line with the purpose of the law. The existence of one of the grounds 
referred to in Article 146 of the Code of Administrative Procedure leads to the 
invalidity of the administrative act and justifies its annulment by the court on the 
ground of its illegality. 
16 According to point 2 of Article 74(2) of the ZMVR, the main elements of the 
police order are the factual and legal grounds for detention. The majority of the 
national case-law, consisting in that handed down by the VAS, interprets the 
abovementioned provision in a corrective manner and holds that it is permissible 
for that information not to be included in the written detention order, but, rather, 
in other accompanying documents (originating before or after that order), even if 
they are not provided to the person while his or her right to freedom of movement 
is being restricted. The position taken is based on the decision in Interpretative 
Decision No 16 of 31 March 1975 of the Obshtoto sabranie na Grazhdanskata 
kolegiya na Varhovniya sad (General Assembly of the Civil Chamber [‘the 
OSGK’] of the Supreme Court [‘the VS’]), in which the following is stated: ‘The 
grounds for the administrative act or the decision refusing to issue an 
administrative act may also be set out separately from the administrative act itself, 
at the latest by the time the appeal against the administrative act is transmitted to 
the next highest authority, whereby they may be set out in the communication to 
the parties under Article 28(1) of the ZAP (no longer in force), in the transmittal 
letter or in any other document attached to the file transmitted, if they originate 
from the same administrative authority that issued the administrative act’. It 
should be noted that that interpretative decision was originally adopted when the 
Zakon za ustroystvoto na sadilishtata (Law on the organisation of the courts; ‘the 
ZUS’) (DV No 92 of 1952, no longer in force) was in force, and is not binding on 
the judicial authorities, but merely contains guidelines for the application of the 
law (as follows from Article 17(2) of the ZUS, repealed by the Zakon za 
ustroystvo na sadilishtata [Law on the organisation of the courts], DV No 23 of 
19 March 1976). 
17 In that sense, it is stated in, for example, Decision No 8432 of the VAS of 5 June 
2019 that ‘in accordance with Interpretative Decision No 16 of 31 March 1975 of 
the OSGK of the VS of the Republic of Bulgaria, the adjudicating chamber was 
entitled in the present case to take account of the fact that the grounds for issuing 
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the order were separately set out in the report prepared before the appeal was 
lodged, with the result that the administrative act is provided with a statement of 
reasons’, and Decision No 6922 of the VAS of 28 May 2018 that ‘the court … 
expressly stated that the mere reference to Article 354a of the NK in the order 
does not satisfy the requirement that an administrative act must be provided with a 
statement of reasons, but the latter may be set out separately therefrom in another 
document in the file, as took place in this case, and it must therefore be assumed, 
in accordance with the guidance established in Interpretative Decision No 16 of 
31 March 1975 of the OSGK of the VS, that the contested order is provided with a 
factual and legal statement of reasons’. 
18 This has extended even further in the case of some judicial acts, to the extent that 
the supreme judges take the view that the statement of reasons for detaining a 
person can be derived from the case files of criminal proceedings that may be 
instituted subsequently (that is to say, it is not necessary that the statement of 
reasons originates from the authority that issued the administrative act), or even 
the view that detention orders do not require a detailed statement of reasons at all: 
the following is emphasised in Decision No 5019 of the VAS of 4 March 2019: 
‘The contested detention order specifies ‘Article 354a of the NK – possession of 
narcotics’ as the factual basis. It is apparent from the material on the file admitted 
as evidence in criminal proceedings No 11353/2017 of the SRS that the expedited 
proceedings No 1894/2017 were instituted against the respondent in cassation in 
respect of offences under point 2 of Article 354a(3) and under Article 343b(3) of 
the NK. Consequently, if there is evidence that a criminal offence has been 
committed, the detention order contains a statement of reasons. The argument that 
the detention order does not contain any factual grounds for its issuance is 
rebutted by the information concerning the initiation of the preliminary 
investigation in respect of an offence that is the subject of prosecution by the 
public prosecutor, for which the evidence was sufficient. Information concerning 
the objective participation of the detained person in the commission of an offence 
under Article 354a of the NK is also contained in the grounds for the judicial 
decisions relevant to the measure involving deprivation of liberty under the Code 
of Criminal Procedure’, and judgment No 14113 of the VAS of 19 November 
2018 states: ‘In the case-law, the view has been consistently taken that it is not 
necessary for orders such as those at issue in the present case to set out in detail 
the factual circumstances surrounding the offence committed. They are usually 
reproduced in the accompanying reports, as in the present case. This is because 
the factual grounds for the order must link the detained person to the existence of 
evidence of his or her alleged involvement in a specific offence, and not to the 
categorical criminal implication of that person in the commission of such an 
offence.’ 
19 The referring Chamber takes the view that the abovementioned case-law of the 
highest instance in administrative cases, which is also followed by the lower 
courts, runs counter to Article 5(1)(c) of the European Convention on Human 
Rights (ECHR) and Article 8(1) of Directive 2012/13/EU of the European 
Parliament and of the Council of 22 May 2012 on the right to information in 
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criminal proceedings (OJ 2012 L 142, p. 1), read in conjunction with Article 6(2) 
thereof. It continues to apply today, even though the Republic of Bulgaria has 
already been condemned by the European Court of Human Rights in Strasbourg, 
in a similar case in its judgment in Petkov and Profirov v. Bulgaria of 24 June 
2014, in which paragraphs 46 and 47 explicitly state that: ‘Article 5 § 1 (c) 
requires that a person is detained on “reasonable suspicion” of having committed 
an offence. Such suspicion cannot be general and abstract … this means that there 
must be facts or information which would satisfy an objective observer that the 
person concerned may have committed a specific offence. It is noteworthy that no 
such facts and information were mentioned in the orders for the applicants’ 
detention in the present cases, which merely referred to the applicable legal 
provisions and not to any specific circumstances or acts … This alone could be a 
sufficient ground for the Court to conclude that the applicants’ deprivation of 
liberty was incompatible with the principle of protection from arbitrariness (see 
paragraph 42 above)’. 
20 It must be concluded from the analysis of the abovementioned case-law in the 
Republic of Bulgaria that, in the present case, the grounds for the arrest or 
detention of suspects, including the offence of which they are suspected, do not 
have to be contained in the written detention order, but, rather, it is sufficient if 
they can be derived from the materials of the case. However, that approach does 
not take into account the fact that the right of suspects to access the materials of 
the case under Article 7 of Directive 2012/13/EU of the European Parliament and 
of the Council of 22 May 2012 is not guaranteed at national level, as that part of 
that act of secondary EU law has not been transposed. Such access is granted only 
to accused persons and is regulated in the Code of Criminal Procedure. If the 
detained person has not been specifically informed of the factual and legal 
grounds for his or her detention or granted access to the materials of the case 
which incriminate him or her, the person suspected of having committed a 
criminal offence is deprived of the opportunity adequately and fully to exercise his 
or her right to defence and to challenge the legality of the written detention order 
before the courts. 
21 In the light of the foregoing, it is necessary for the Court of Justice of the 
European Union to determine whether Article 8(1) of Directive 2012/13/EU of the 
European Parliament and of the Council of 22 May 2012 on the right to 
information in criminal proceedings (OJ 2012 L 142, p. 1), read in conjunction 
with Article 6(2) thereof, is to be interpreted as precluding national legislation 
which is applied in a corrective manner on the basis of settled case-law in the EU 
Member State concerned and under which it is permissible that information 
concerning the grounds for the detention of a suspect, including information 
concerning the criminal offence of which he or she is suspected, is not contained 
in the written detention order, but in other accompanying documents (originating 
before or after that order) which are not provided to him or her immediately and 
of which the person can subsequently be informed in the event that he or she 
challenges to the legality of the detention before the courts. 
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22 In the detention order issued in respect of the applicant, XN, and challenged by 
him, ‘point 1 of Article 72(1) of the ZMVR’ and ‘disturbance of public order’ are 
specified as the legal and factual grounds for the detention of the person. The 
referring Chamber takes the view that that scanty information does not meet the 
requirements for informing the suspect of the grounds for his or her detention and 
of the criminal offence of which he or she is suspected, as it is devoid of any 
specificity whatsoever. Furthermore, XN was not subsequently accused of a 
criminal offence within the meaning of the Criminal Code, but was charged with 
an administrative offence of which he was acquitted by the court due to the lack of 
evidence. Therefore, if the Court of Justice of the European Union answers the 
first question in the affirmative and rejects the case-law of the national courts in 
the Republic of Bulgaria, it would have to be clarified whether Article 6(2) of 
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 
2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1) is 
to be interpreted as meaning that, in order to ensure the effective exercise of the 
rights of the defence, the information concerning the criminal offence of which 
the arrested person is suspected must contain details regarding the time, place and 
manner of the commission of the offence, that person’s specific involvement in it 
and the consequent criminal nature of the offence.