Opinion of the Advocate General — ECLI:EU:C:2019:983
Date: 2019-11-19
Language of the case: Bulgarian
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Bulgaria

Summary 48. It therefore follows from the foregoing that Directive 2016/343 was not intended to put into effect the right to liberty, as enshrined in Article 6 of the Charter and Article 5 of the ECHR, but only to harmonise certain aspects of the presumption of innocence. (70) Article 6 of Directive 2016/343 thus concerns the burden of proof for establishing the guilt of the accused person. Since the determination of the burden of proof for challenging a decision on continued pre-trial detention is a distinct question, it is not governed by Article 6 of Directive 2016/343. V. Conclusion 49. On the basis of all the above considerations, I propose that the Court answer the question referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) as follows: Article 6 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 does not govern the burden of proof in relation to decisions on continued pre-trial detention. 1 Original language: French. 2 See, for a comparative study, A.M. van Kalmthout, M.M. Knapen and C. Morgenstern (eds.), Pre-trial Detention in the European Union, Wolf Legal Publishers 2009, p. 994. 3 OJ 2016 L 65, p. 1. 4 To borrow the expression used by the European Parliament in paragraph 5 of its resolution of 27 February 2014 with recommendations to the Commission on the review of the European Arrest Warrant (P7_TA(2014)0174). 5 ECLI:CE:ECHR:2019:0827JUD003263109. 6 Nonetheless, as the Commission pointed out at the hearing, the wording of Article 270 of the Bulgarian Code of Criminal Procedure in itself does not define the respective roles of the defence and the prosecution, the required standard of proof or the circumstances which can be considered ‘new’ within the meaning of that provision, which, in my view, could give the national courts a margin of discretion when they are required to apply that provision, unless this is precluded by other items of national law that were not presented to the Court. 7 Particularly as I readily acknowledge that this choice is naturally also dictated by considerations relating to the protection of public security and safety. 8 If I may borrow this from Georges Vedel. 9 Article 2 of Directive 2016/343. 10 See Article 2 of Directive 2016/343. 11 See, by analogy, judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 40). 12 See, for example, Articles 8 and 9 of Directive 2016/343, which establish, respectively, the right to be present at the trial and the right to a new trial. 13 See Article 3 of Directive 2016/343. 14 See Article 4(1) of Directive 2016/343. 15 Article 4(1) of Directive 2016/343. Emphasis added. 16 Recital 16 of Directive 2016/343. Emphasis added. 17 Article 6(1) of Directive 2016/343. 18 Article 6(2) of Directive 2016/343. 19 Recital 22 of Directive 2016/343. The very articulated wording of this recital contrasts with the more concise formulation of Article 6 of Directive 2016/343, which makes no mention of the presumptions envisaged in the preamble. 20 As is shown by recital 16 of Directive 2016/343. 21 The wording of recitals 36 and 37 seems to confirm that, in the mind of the legislature, ‘a decision on the guilt or innocence of a suspect or accused person’ is in principle delivered at the end of the trial. 22 The scope of Article 4 of Directive 2016/343 thus clearly differs from the scope of Article 6 of the directive. Article 4 of Directive 2016/343 applies to public statements made by public authorities and judicial decisions, other than those on guilt but including preliminary decisions of a procedural nature, such as decisions on pre-trial detention. By contrast, Article 6 of the directive is applicable, in my view, only to substantive decisions on guilt. For a further illustration of this distinction, see judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraphs 34 and 35). 23 It would then be mainly cases of flagrante delicto or irrefutable confessions, if such confessions exist. The ECHR makes the mere existence of ‘reasonable suspicion of having committed an offence’ — and not certainties — one of the conditions for the application of the exception to the right to liberty and security; see Article 5(1)(c) of the ECHR. 24 COM(2013) 821 final. 25 Thus, to my knowledge, no specific action was taken in response to the Green Paper of 14 June 2011 ‘Strengthening mutual trust in the European judicial area — A Green Paper on the application of EU criminal justice legislation in the field of detention’ (COM(2011) 327 final). The Commission also referred, in paragraph 16 of the Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (COM(2013) 821 final), to Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ 2009 L 294, p. 20). The objective of that framework decision is, as its title suggests, to promote the mutual recognition of alternatives to provisional detention. It does not therefore seek to regulate provisional detention itself. In addition, it recognises that the right to the use, in the course of criminal proceedings, of a non-custodial measure as an alternative to custody ‘is a matter governed by the law and procedures of the Member State where the criminal proceedings are taking place’ (Article 2(2) of Framework Decision 2009/829). 26 See Amendment 41 of the Report on the proposal for a directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (doc. A8-0133/2015). 27 See recitals 2 and 4 of Directive 2016/343. 28 Namely Article 82 TFEU, the second paragraph of which provides for the adoption of minimum rules where this is necessary ‘to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension’. Those minimum rules must, moreover, take into account the differences between the legal traditions and systems of the Member States and are without prejudice to the possibility of maintaining or introducing a higher level of protection. 29 See recitals 4 and 9 and Article 1 of Directive 2016/343. 30 Judgment of 27 October 2016 (C‑439/16 PPU, EU:C:2016:818). 31 See paragraphs 29 to 32 of the judgment of 27 October 2016, Milev (C‑439/16 PPU, EU:C:2016:818). 32 In the words used in point 35 of the Opinion of Advocate General Bobek in Milev (C‑439/16 PPU, EU:C:2016:760). 33 Judgment of 19 September 2018 (C‑310/18 PPU, EU:C:2018:732). 34 See judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 38). 35 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 45). 36 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 46). 37 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 47). 38 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 49). 39 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 48). Emphasis added. 40 Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 49). 41 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110). 42 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 49). 43 Compared with the judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732). 44 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 52). 45 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 57). 46 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 59). 47 Order of 12 February 2019, RH (C‑8/19 PPU, EU:C:2019:110, paragraph 60). Emphasis added. 48 The fact that the Court made that order pursuant to Article 99 of its Rules of Procedure and referred to its judgment in Milev (19 September 2018 (C‑310/18 PPU, EU:C:2018:732)), which raised a similar issue, in the text of the order supports this interpretation. 49 It may seem strange, on the face of it, to supplement the interpretation given of Article 4 of Directive 2016/343 — which relates only to judicial decisions other than those on guilt — with a reference to Article 6 of that directive, which covers decisions establishing the guilt of suspects and accused persons. 50 See recital 1 of Directive 2016/343. 51 See judgment of 16 July 2009, Rubach (C‑344/08, EU:C:2009:482, paragraph 31 and the case-law cited). 52 Article 13 of Directive 2016/343. 53 Under which ‘everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial’. Article 5 of the ECHR corresponds to Article 6 of the Charter (see the Explanation on Article 6 of the Charter. For an appraisal by the Court of matters relating to pre-trial detention from the perspective of Article 6 of the Charter, see judgment of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 54 et seq.)). 54 ECtHR, 27 August 2019 (ECLI:CE:ECHR:2019:0827JUD003263109). 55 ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 86). However, the ECtHR has not set a fixed maximum duration for pre-trial detention; see the report drafted by Pedro Agramunt for the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe entitled ‘Abuse of pretrial detention in States Parties to the [ECHR]’ (doc. 13863 of 7 September 2015, paragraph 22). See also ECtHR, 3 October 2006, McKay v. The United Kingdom (ECLI:CE:ECHR:2006:1003JUD000054303, § 45), in which the ECtHR justifies the absence of a fixed time frame for the maximum period of pre-trial detention by the importance ascribed, in its review, to the special features in each case. 56 See, inter alia, ECtHR, 17 March 2016, Rasul Jafarov v. Azerbaijan (ECLI:CE:ECHR:2016:0317JUD006998114, § 119 and the case-law cited). 57 See ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 87). 58 See ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 87). 59 See ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 87). 60 See ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 88). 61 ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 89 and 90). 62 ECtHR, 5 July 2016, Buzadji v. Republic of Moldova (ECLI:CE:ECHR:2016:0705JUD002375507, § 91). 63 ECtHR, 27 August 2019 (ECLI:CE:ECHR:2019:0827JUD003263109). 64 ECtHR, 27 August 2019, Magnitskiy and Others v. Russia (ECLI:CE:ECHR:2019:0827JUD003263109, § 222). 65 See, inter alia, ECtHR, 24 March 2016, Zherebin v. Russia (ECLI:CE:ECHR:2016:0324JUD005144509, § 51, 60 and 62). 66 The ECtHR thus did not compromise when it stated that ‘the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence’ (ECtHR, 31 March 2009, Natunen v. Finland, (ECLI:CE:ECHR:2009:0331JUD002102204, § 53)), which moves away from the idea that such a shift does not in itself give rise to an infringement of Article 5(3) of the ECHR. 67 See ECtHR, 6 December 1988, Barberà, Messegué and Jabardo v. Spain (ECLI:CE:ECHR:1988:1206JUD001059083, § 76). 68 See ECtHR, 26 July 2001, Ilijkov v. Bulgaria (ECLI:CE:ECHR:2001:0726JUD003397796 § 86 and 87), and of 19 March 2014, Pastukhov and Yelagin v. Russia (ECLI:CE:ECHR:2013:1219JUD005529907, § 40). In its judgment of 10 March 2009, Bykov v. Russia (ECLI:CE:ECHR:2009:0310JUD000437802, § 64 and 65), after recalling its basic position regarding the reversal of the burden of proof in establishing the condition for release, the ECtHR found a violation of Article 5(3) of the ECHR on the ground that 10 applications for release had been refused for a single suspect and each of the 10 refusal decisions had not gone any further than listing the legal grounds for continued detention, omitting to substantiate them with relevant and sufficient reasons and failing to reflect the developing situation (see § 64 and 65 of that judgment). 69 See, for a presumption considered to be compatible with Article 5(3) of the ECHR, ECtHR, 24 August 1998, Contrada v. Italy (ECLI:CE:ECHR:1998:0824JUD002714395, § 58); see, in the opposite case, ECtHR, 26 July 2001, Ilijkov v. Bulgaria (ECLI:CE:ECHR:2001:0726JUD003397796 § 84 et seq.). In the latter judgment, the ECtHR stresses the deficiency of the grounds of the decision (see, in particular, § 86 of the judgment). 70 The executive summary of the impact assessment stresses that the overall objective of the directive is to ensure the right to a fair trial and that there is no such fair trial where the presumption of innocence is not respected (see paragraph 1 of the executive summary of the impact assessment accompanying the document ‘Proposal for measures on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings’, doc. SWD(2013) 479 final of 27 November 2013). The question of the right to liberty therefore seems to fall outside the scope of Directive 2016/343.