OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 7 August 2018 ( 1 )

Case C‑310/18 PPU

Spetsializirana prokuratura

v

Еmil Milev

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Directive (EU) 2016/343 — Articles 3, 4 and 10 — Presumption of innocence — Public references to guilt — Articles 6, 47 and 48 of the Charter of Fundamental Rights of the European Union — Right to liberty — Right to an effective remedy and to a fair trial — Presumption of innocence and right of defence — Procedure for reviewing the lawfulness of pre-trial detention)

I. Introduction

1. This request for a preliminary ruling, lodged at the Court Registry on 11 May 2018 by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), concerns the interpretation of Article 3, Article 4(1) and Article 10 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 ( 2 ) and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. The request has been made in proceedings brought by Mr Emil Milev, who has been prosecuted for an armed robbery in a shop, in order to withdraw the coercive measure of pre-trial detention imposed on him.

II. Legal framework

A. International law

1. Convention for the Protection of Human Rights and Fundamental Freedoms

3. Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), headed ‘Right to liberty and security’, provides: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; … 3. 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. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. …’

4. Article 6 ECHR, headed ‘Right to a fair trial’, provides: ‘1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. … 2. Everyone who has been charged shall be presumed innocent until proved guilty according to law. …’

B. EU law

1. The Treaty on the Functioning of the European Union

5. Article 82(2) TFEU provides: ‘To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council [of the European Union] may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: … (b) the rights of individuals in criminal procedure; …’

2. The Charter

6. Article 6 of the Charter provides that ‘everyone has the right to liberty and security of person’.

7. Under Article 47 of the Charter, headed ‘Right to an effective remedy and to a fair trial’: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. …’

8. Article 48 of the Charter, headed ‘Presumption of innocence and right of defence’, is worded as follows: ‘1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’

9. Article 51(1) of the Charter, that article being headed ‘Field of application’, provides: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

10. Article 52(3) of the Charter, that article being headed ‘Scope and interpretation of rights and principles’, provides: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

3. Directive 2016/343

11. Recital 16 of Directive 2016/343 states: ‘The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. This should be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, such as the indictment, and without prejudice to judicial decisions as a result of which a suspended sentence takes effect, provided that the rights of the defence are respected. This should also be without prejudice to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and are based on suspicion or on elements of incriminating evidence, such as decisions on pre-trial detention, provided that such decisions do not refer to the suspect or accused person as being guilty. Before taking a preliminary decision of a procedural nature the competent authority might first have to verify that there are sufficient elements of incriminating evidence against the suspect or accused person to justify the decision concerned, and the decision could contain reference to those elements.’

12. Recital 48 of Directive 2016/343 states: ‘As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights [“the ECtHR”].’

13. Article 2 of Directive 2016/343, headed ‘Scope’, provides: ‘This Directive applies to natural persons who are suspects or accused persons in criminal proceedings. It applies at all stages of the criminal proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive.’

14. Article 3 of Directive 2016/343, headed ‘Presumption of innocence’, provides: ‘Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law.’

15. Article 4 of Directive 2016/343, headed ‘Public references to guilt’, provides: ‘1. Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, and to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and which are based on suspicion or incriminating evidence. 2. Member States shall ensure that appropriate measures are available in the event of a breach of the obligation laid down in paragraph 1 of this Article not to refer to suspects or accused persons as being guilty, in accordance with this Directive and, in particular, with Article 10. …’

16. Article 10 of Directive 2016/343, headed ‘Remedies’, provides: ‘1. Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached. 2. Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, the rights of the defence and the fairness of the proceedings are respected.’

C. Bulgarian law

17. In accordance with Article 56(1) of the Nakasatelno protsesualen kodeks (Code of Criminal Procedure, the ‘NPK’), ‘a coercive measure may be taken against the accused person … where the evidence in the file gives reasonable grounds to suspect that he has committed the offence and where one of the justifications referred to in Article 57 is present’.

18. In accordance with Article 57 of the NPK, ‘coercive measures are to be adopted in order to prevent the accused from absconding, committing a criminal offence or preventing enforcement of the final criminal conviction’.

19. Article 58 of the NPK mentions pre-trial detention among those coercive measures.

20. In accordance with Article 63 of the NPK, ‘a measure for pre-trial detention is applied where there are reasonable grounds to suspect that the accused person has committed a criminal offence punishable by a custodial sentence or another more severe penalty and where it is clear from the evidence in the case that there is a real danger that the accused person will abscond or commit a criminal offence’.

21. Under Article 65(4) of the NPK, at any time during the pre-trial procedure, the accused person may request to have the coercive measure of pre-trial detention re-examined and ‘the court shall assess all the circumstances concerning the lawfulness of the custody …’.

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

22. Mr Milev was suspected of an armed robbery which took place on 30 December 2008 in a shop of the ‘Billa’ supermarket chain in Sofia, Bulgaria. However, as the investigation did not gather any evidence against him, he was not prosecuted. On 31 July 2009 that investigation was suspended, no suspect having been identified and no-one having been prosecuted.

23. In the meantime, two other criminal cases ( 3 ) were brought against Mr Milev. In the first of those cases, a Bulgarian court refused to remand Mr Milev in custody pending trial, taking the view that the statements of the main witness, BP, were not credible. A judicial decision as to the substance has not yet been given in that case.

24. In the second case, Mr Milev was held in custody from 24 November 2013 to 9 January 2018, when he was acquitted of all the charges against him. The court concerned based that acquittal on, inter alia, the finding that the statements of the witness BP were not credible. ( 4 )

25. In both cases in question, the witness BP made numerous statements concerning various criminal offences in which Mr Milev was alleged to have taken part. In none of those statements did he refer to the armed robbery in a shop on 30 December 2008.

26. On 11 January 2018 the case concerning that armed robbery in 2008 was reopened.

27. On the same day, the witness BP was questioned. He stated that he had planned the robbery in question with Mr Milev and third parties, but Mr Milev did not turn up on the agreed date. Subsequently, BP said that he had learned from the media that the armed robbery had been committed and that Mr Milev told him that he had committed the robbery with others. BP stated that he had given evidence after such a long period because he was afraid of Mr Milev, but that when he learned that Mr Milev was to be released following the acquittal decision in an earlier case, he was concerned and therefore decided to make that statement. A video recording of the armed robbery was shown to BP, who categorically stated that he recognised Mr Milev among the assailants.

28. The same day, 11 January 2018, Mr Milev was prosecuted for the armed robbery in question ( 5 ) and was arrested in order to be brought before the court responsible for deciding whether he should be remanded in custody pending trial.

29. At first instance, the prosecutor’s request that Mr Milev be remanded in custody pending trial was upheld on the ground that, ‘prima facie’, the statements of the witness BP were credible. At second instance, the pre-trial detention was confirmed on the basis of the detailed statements made by witness BP and on the ground that he could be held criminally liable for perjury.

30. In its request for a preliminary ruling, the referring court states that the two judicial bodies examined the statements of the witness BP separately, and did not compare them with other evidence that was exculpatory of Mr Milev. The arguments put forward by Mr Milev’s lawyer in that regard did not receive a response.

31. The referring court notes that, in the context of the subsequent review of the detention, the court at first instance considered that a detailed analysis of the evidence was not required and examined only BP’s statements. The court at first instance also took the view that incriminating evidence with lower probative force was sufficient to continue the detention.

32. The court at second instance confirmed that conclusion, again on the basis of the statements of the witness BP. It stated, in its decision, that it had ‘examined, very generally, the statements of those witnesses’ and that the evidence, ‘albeit summary, … supports the argument that [the accused] should be charged …; since it is not refuted by other evidence, the appellate court cannot disregard it’.

33. The decision delivered in the context of the second review of the pre-trial detention is to the same effect. The court at second instance considered that, ‘… after 5 November 2017, the date on which the NPK was amended, the reasonable grounds required for that procedure exist. The court is to rule on the existence of a suspicion after a very general examination of the evidence in the file. In no case, following the abovementioned amendment of the NPK, is it necessary to analyse in detail the evidence in the file … In the context of that very general examination of the witness statements and the evidence …, it is appropriate to find a general likelihood and a suspicion of possible involvement …’.

34. The referring court states that the arguments put forward by Mr Milev’s lawyer concerning the bias and the lack of credibility of BP’s statements were not discussed by the court and that the arguments that he had expressly raised had received no response.

35. Mr Milev considers that the criterion, provided for in Bulgarian law, of ‘reasonable grounds’ as a precondition of his pre-trial detention, must be interpreted as defined in the judgment of the ECtHR of 30 August 1990, Fox, Campbell and Hartley v. the United Kingdom (CE:ECHR:1990:0830JUD001224486), that is to say, that that criterion presupposes the existence of objective information which would satisfy an objective observer that the person concerned probably committed the offence in question. Mr Milev has also put forward specific arguments concerning the lack of credibility of the witness BP and his lawyer has submitted numerous requests that evidence be gathered in order to determine the credibility of the statements of the witness BP.

36. It is clear from the request for a preliminary ruling that, before the NPK was amended on 5 November 2017, the court confirmed the detention of the accused person only after it was satisfied that there were ‘reasonable grounds’ to suspect that the person concerned had committed the offence. The court ruled on the existence of reasonable grounds after ‘examining in detail all the evidence in the file and after commenting freely on the credibility of the incriminating and exculpatory evidence, providing a specific and clear answer to the arguments raised by the accused’s lawyer’.

37. Moreover, it was strictly prohibited under Article 29(1)(1)(d) of the NPK ( 6 ) for a court which had ruled on the adoption or confirmation of the measure of pre-trial detention to rule on the charge in the trial stage and to deliver a criminal judgment on that charge. That prohibition was based on the fact that, in finding the presence or absence of ‘reasonable grounds’ and in discussing the credibility of the evidence, the court had already formed an opinion on the case.

38. Following a series of judgments by the ECtHR, the NPK was amended on 5 November 2017. In the context of that amendment, the formal prohibition laid down in Article 29(1)(1)(d) of the NPK was abolished. The referring court states that, ‘therefore, the national courts must henceforth examine the reasonable grounds, including during the pre-trial stage, and at the same time retain their impartiality’.

39. According to the referring court, the abolition of Article 29(1)(1)(d) of the NPK resulted in a new wave of case-law on whether there are ‘reasonable grounds to suspect’ that the accused person committed the offence. In that regard, a court must have only ‘prima facie’ and non-detailed knowledge of the evidence. It follows that a court ‘can only list the items of evidence and cannot compare it or comment on it and state which evidence it considers credible and why; it can only state, in a general and non-specific manner, that it is possible that the accused committed the offence in question, describing a “state of suspicion”, but it cannot express a clear conviction that the evidence permits the conclusion that there is a sufficiently convincing likelihood that the accused committed that offence; last, the court cannot give a clear and specific reply to the arguments put forward by the accused’s lawyer that would require it to express a more categorical opinion on the commission of the offence in question and to discuss an alleged contradiction between the various pieces of evidence or their credibility or lack of credibility’.

40. In other words, there is a twofold restriction, namely, from the viewpoint of substantive law, the court may not state in its decision that it is satisfied that the offence was committed by the accused person and, from a procedural viewpoint, it is prohibited from discussing the evidence and from stating which evidence is credible and why.

41. The referring court states that, although the objective of the new case-law is to protect the impartiality of the court when it rules on the existence of reasonable grounds, in practice this reduces the degree of protection of the rights of accused persons as regards pre-trial detention.

42. The referring court adds that that new case-law does not have unanimous support. A significant proportion of national judges consider that, in order to continue to remand the accused person in custody pending trial, the presumption of innocence makes it necessary to establish a higher and stronger likelihood that that person committed the offence. National judges consider that the rights of the defence necessitate a more detailed discussion of the evidence and a specific answer to the objections raised by the accused’s lawyer.

43. It was in those circumstances that the national court decided to refer the following questions to the Court for a preliminary ruling: ‘(1) Is national case-law according to which the continuation of a coercive measure of “remand in custody” (four months after the accused’s arrest) is subject to the existence of “reasonable grounds”, understood as a mere “prima facie” finding that the accused may have committed the criminal offence in question, compatible with Article 3, the second sentence of Article 4(1), Article 10, the fourth and fifth sentences of recital 16 and recital 48 of Directive 2016/343 and with Articles 47 and 48 of the [Charter]? Or, if it is not, is national case-law according to which the term “reasonable suspicion” means a strong likelihood that the accused committed the criminal offence in question compatible with the abovementioned provisions? (2) Is national case-law according to which the court determining an application to vary a coercive measure of “remand in custody” that has already been adopted is required to state the reasons for its decision without comparing the incriminating and exculpatory evidence, even if the accused’s lawyer has submitted arguments to that effect — the only reason for that restriction being that the judge must preserve his impartiality in case that case should be assigned to him for the purposes of the substantive examination —, compatible with the second sentence of Article 4(1), Article 10, the fourth and fifth sentences of recital 16 and recital 48 of Directive 2016/343 and with Article 47 of the [Charter]? Or, if it is not, is national case-law according to which the court is to carry out a more detailed and specific examination of the evidence and to give a clear answer to the arguments put forward by the accused’s lawyer, even if it thus takes the risk that it will be unable to examine the case or deliver a final decision on guilt if the case is assigned to it for the purposes of the substantive examination, — which implies that another judge will examine the substance of the case — compatible with the abovementioned provisions?’

IV. The urgent procedure and the procedure before the Court

44. The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court.

45. In support of that request, the referring court states that Mr Milev is in custody pending trial. It considers that the present request for a preliminary ruling, which concerns the interpretation of Directive 2016/343, is necessary in order to take a decision on whether the pre-trial detention of Mr Milev is lawful. The referring court states, inter alia, that Mr Milev will remain in custody pending trial until the Court rules on the request for a preliminary ruling.

46. On 5 June 2018 the First Chamber of the Court, acting on a proposal from the Judge-Rapporteur and after hearing my view, decided to grant the referring court’s request that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure.

47. Written observations were submitted by Mr Milev and the European Commission. The Bulgarian Government did not submit any written observations. The Netherlands Government and the Commission presented oral argument at the hearing on 11 July 2018.

V. Analysis

48. By its questions, which, in my view, should be dealt with together, the referring court asks, in essence, whether Article 3, the second sentence of Article 4(1) and Article 10 of Directive 2016/343 and Articles 47 and 48 of the Charter must be interpreted as meaning that, in order to continue to remand an accused person in custody pending trial, the mere finding by a judge examining an appeal against that detention that, ‘prima facie’, ( 7 ) the accused person may have committed the offence in question is sufficient, or, whether, on the contrary, that judge must find that there is ‘a strong likelihood’ ( 8 ) that that person committed that offence.

49. The referring court also seeks guidance on the reasons for a decision regarding pre-trial detention and the evidence which must be taken into account by a court in order to comply with the right to a fair trial enshrined in Article 47 of the Charter and the presumption of innocence enshrined in Article 48 of the Charter and Articles 3 and 4 of Directive 2016/343.

A. The application of Articles 6, 47 and 48 of the Charter and Directive 2016/343 to decisions on pre-trial detention

50. It is clear from the request for a preliminary ruling and the questions referred by the national court that the national court asks the Court about the presumption of innocence, ( 9 ) the right to liberty ( 10 ) and the impartiality of the court. ( 11 )

51. According to Article 1 of Directive 2016/343, the subject matter of that directive is, inter alia, the laying down of common minimum rules concerning certain aspects of the presumption of innocence in criminal proceedings with a view to strengthening the trust of Member States in each other’s criminal justice systems and thus facilitating mutual recognition of decisions in criminal matters. ( 12 )

52. The pre-trial detention of Mr Milev, a person who has been prosecuted in criminal proceedings which are still ongoing, falls within the scope of Directive 2016/343, as defined in Article 2 thereof, ( 13 ) which ‘ applies at all stages of the criminal proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive’. ( 14 )

53. In that regard, it is clear from recital 16 of Directive 2016/343 that the presumption of innocence applies to decisions on pre-trial detention and that it would be violated, inter alia, if those decisions referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law.

54. The Commission considers that, in the absence of harmonisation measures in EU law concerning the offence at issue, the proceedings in question cannot be regarded as implementation of EU law. According to the Commission, it follows that the Charter is not applicable, as such, to those proceedings.

55. The Commission also asserted, in support of its argument that the Charter does not apply, that Directive 2016/343 contains no substantive, positive rules regarding pre-trial detention.

56. I do not share that view.

57. I consider that Directive 2016/343 concerns not the offence at issue, but criminal proceedings in general and that the rules that it lays down regarding the presumption of innocence are as restrictive as positive requirements. Moreover, having regard to the fact that that directive applies to the criminal proceedings at issue, the application of its rules and in particular Articles 3 and 4 constitutes implementation of EU law for the purposes of Article 51(1) of the Charter. The referring court must therefore ensure that the fundamental rights guaranteed by the Charter to the accused persons in the main proceedings are respected. The obligation to respect the presumption of innocence entails the obligation to respect those rights. ( 15 )

58. Moreover, it should be noted that Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by that convention. That provision of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and of the Court of Justice of the European Union. ( 16 )

59. I note that the ‘right to liberty’ enshrined in Article 6 of the Charter corresponds to the same concept laid down in Article 5(1) ECHR, ( 17 ) that the right to a fair trial enshrined in Article 47 of the Charter corresponds to Article 6(1) ECHR and that the principle of the presumption of innocence, enshrined in Article 48(1) of the Charter, corresponds to Article 6(2) and (3) ECHR. ( 18 ) Moreover, it is clear from recital 48 of Directive 2016/343 that ‘the level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice and by the European Court of Human Rights’.

B. Article 5 ECHR and pre-trial detention

60. It is clear from the case-law of the ECtHR on Article 5 ECHR, which must be taken into account to interpret Article 6 of the Charter, that that provision protects the physical security of the individual and, as such, its importance is paramount. ( 19 ) This includes the objective of protecting the individual against unjustified or arbitrary deprivation of liberty. ( 20 )

61. According to the settled case-law of the ECtHR, the presumption under Article 5 ECHR is in favour of release. Until conviction, the accused person must be presumed innocent, and the purpose of Article 5(3) and (4) ECHR is essentially to require his release if the detention is not lawful or if the judgment is not given within a reasonable time. ( 21 ) In paragraph 84 of its judgment of 26 July 2001, Ilijkov v. Bulgaria, CE:ECHR:2001:0726JUD003397796, the ECtHR held that detention could be justified only if there were specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.

62. In my view, it should be noted that there is a direct link in the case-law of the ECtHR between the right to liberty and the presumption of innocence. They are inseparable.

63. The list of exceptions to the right to liberty laid down in Article 5(1) ECHR is an exhaustive one. ( 22 ) In accordance with Article 5(1)(c) ECHR, a person may be detained only in the course of criminal proceedings, for the purpose of bringing him before the competent legal authority, inter alia because he is suspected of having committed an offence. ( 23 )

64. The same provision requires, inter alia, ( 24 ) the existence of ‘reasonable’ ( 25 ) suspicion that the person arrested and detained has committed an offence. That provision presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. However, what may be regarded as ‘reasonable’ will depend upon all the circumstances of the case. ( 26 )

65. It is important to point out that ‘the facts which raise a [reasonable] suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge’. ( 27 )

66. Paragraph 61 of the judgment of the ECtHR of 25 March 1999, Nikolova v. Bulgaria, CE:ECHR:1999:0325JUD003119596, states that, while ‘[Article 5(4) ECHR] does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant’s submissions, its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, concrete facts invoked by the detainee and capable of putting in doubt the existence of the conditions essential for the “lawfulness”, in the sense of the [ECHR], of the deprivation of liberty’. It follows that where an applicant submits such concrete facts, which do not appear implausible or frivolous, judicial review by a court would not satisfy the requirements of Article 5(4) ECHR if that court failed to take those arguments into consideration.

67. Moreover, in the case of the continued detention of a person, ( 28 ) the persistence of a reasonable suspicion that that person has committed an offence is a condition sine qua non for the validity of his continued detention. ( 29 )

C. Article 6(1) ECHR and the impartiality of the court

68. For the purposes of Article 6(1) ECHR, the impartiality of the court must be assessed on the basis of both a subjective test, seeking to determine the personal conviction and behaviour of a particular judge in a given case ( 30 ) and an objective test, that is ascertaining whether the judge offers guarantees sufficient to exclude any legitimate doubt in this respect. ( 31 )

69. According to the ECtHR, under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. ( 32 ) Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. ( 33 )

70. It is clear from the second question referred that the national court is asking the Court about the objective impartiality of the courts.

71. In the judgment of the ECtHR of 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, § 49, the ECtHR held that the fact that judges who eventually took part in deciding the case on appeal had already had to deal with the case at an earlier stage of the proceedings and had given various decisions with regard to the applicant at the pre-trial stage, inter alia, decisions regarding his pre-trial detention, may occasion misgivings on the part of the accused as to the impartiality of the judge. However, according to the ECtHR, the applicant’s misgivings as to the impartiality of the judge cannot be treated ‘as objectively justified. Whether they should be so treated depends on the circumstances of each particular case’.

72. According to the ECtHR, ‘suspicion and a formal finding of guilt are not to be treated as being the same [and] the mere fact that a trial judge or an appeal judge, …, has also made pre-trial decisions in the case, including those concerning detention on remand, cannot be held as in itself justifying fears as to his impartiality. … Nevertheless, special circumstances may in a given case be such as to warrant a different conclusion’. ( 34 )

73. In that regard, the ECtHR held that, where a judge ruling on pre-trial detention must be satisfied that there is a ‘particularly confirmed suspicion’ that a suspect has committed an offence, Article 6(1) ECHR is infringed if the judge must decide whether or not the suspect is guilty. The ECtHR held that the difference between the existence of a ‘particularly confirmed suspicion’ and the issue to be settled when giving judgment at the trial ( 35 ) was tenuous. ( 36 )

D. Article 6(2) ECHR and the presumption of innocence

74. The presumption of innocence, enshrined in Article 6(2) ECHR, requires, inter alia, that, in performing their duties, the members of the court do not start with the preconception that the accused person committed the offence; the burden of proof is on the prosecution and any doubt should benefit the accused. ( 37 ) That presumption of innocence is one of the elements of a fair criminal trial that is required by Article 6(1) ECHR. ( 38 ) It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. ( 39 ) According to the case-law of the ECtHR, ‘a distinction must be made between statements which reflect the opinion that the person concerned is guilty and statements which merely describe a state of suspicion. The former infringe the presumption of innocence, while the latter have been found to be in conformity with the spirit of Article 6 [ECHR]’. ( 40 )

E. Application to the present case

75. I note first of all that the Member States are bound by all provisions of the Charter when they are implementing Directive 2016/343 and that they must reconcile the requirements imposed by those provisions, even though the obligation to comply with all provisions of the Charter may, in certain circumstances, as in the case in the main proceedings, require some sensitivity in order to strike the right balance between the rights in question. ( 41 )

76. Given that the pre-trial detention ( 42 ) of an accused person in criminal proceedings, such as Mr Milev, falls within the scope of that directive, ( 43 ) it is clear from Articles 3 and 4 of Directive 2016/343 and from recital 16 thereof that, where a national court adopts a decision regarding his pre-trial detention, the presumption of innocence must be observed. It follows that, for as long as he has not been proved guilty according to law, that court must not refer to the accused person as being guilty. ( 44 )

77. However, Article 4(1) of Directive 2016/343 does not preclude preliminary decisions of a procedural nature, such as decisions on pre-trial detention, ( 45 ) which are taken by judicial authorities and which are based on suspicion or on elements of incriminating evidence. Moreover, Article 4(2) of Directive 2016/343 specifies that Member States must provide for appropriate measures in the event of a breach of the obligation laid down in paragraph 1 of that article. ( 46 )

78. I consider that the finding by a judge examining an appeal against pre-trial detention that there is a ‘strong likelihood’ ( 47 ) that an accused person committed an offence gives the clear impression that that person is guilty of that offence, although he has not been proved guilty according to law. That finding does not merely ‘describe a state of suspicion’. ( 48 )

79. While such an approach may ensure enhanced protection of the right to liberty enshrined in Article 6 of the Charter, ( 49 ) it infringes the presumption of innocence enshrined in Article 48 of the Charter and Articles 3 and 4 of Directive 2016/343.

80. However, although the mere finding by a judge examining an appeal against pre-trial detention that, ‘prima facie’, ( 50 ) the accused person may have committed the offence in question, that is to say, without weighing up the incriminating and exculpatory evidence submitted, does not conflict, at least directly, ( 51 ) with the presumption of innocence, it infringes the right to liberty enshrined in Article 6 of the Charter because the judge does not determine whether there are reasonable suspicions that that person committed the offence. ( 52 )

81. Article 5(1)(c) ECHR and the settled case-law of the ECtHR on that provision require that a person cannot be detained unless there are reasonable suspicions that he committed an offence. ( 53 )

82. It is clear from the judgment of the ECtHR of 25 March 1999, Nikolova v. Bulgaria, CE:ECHR:1999:0325JUD003119596, § 61, that a judge examining an appeal against detention must take into account the concrete facts invoked by the detainee that are capable of putting into doubt the lawfulness of the deprivation of liberty. It follows that, where an accused person submits such concrete facts, which do not appear implausible or frivolous, a judge must when examining an appeal against that person’s detention, take those facts into account.

83. More specifically, where, in an appeal against his pre-trial detention, an accused person submits exculpatory evidence which does not appear implausible or frivolous, it is for the judge hearing that appeal to take that evidence into account together with the incriminating evidence in order to assess whether there are reasonable suspicions that that person committed an offence. ( 54 ) In so doing, the judge in question does not infringe the right to liberty enshrined in Article 6 of the Charter or the presumption of innocence enshrined in Article 48 of the Charter and Articles 3 and 4 of Directive 2016/343.

84. Moreover, it follows from the case-law of the ECtHR that the mere fact that a judge has ruled on the pre-trial detention of an accused person does not necessarily mean that his impartiality is called into question and he may even, in certain very specific circumstances, rule subsequently on whether or not that person is guilty. What matters is, on the basis of the reasons for the decision regarding the pre-trial detention, whether or not the judge has a preconception that the person accused is guilty. ( 55 )

85. If it is clear from the reasons for a decision regarding the pre-trial detention of an accused person that the judge has formed an opinion on the guilt of that person, that judge cannot rule on the substance of the case as this would infringe the second paragraph of Article 47 of the Charter, which concerns the right to a fair trial.

86. Moreover, if a statement of reasons were to refer to the accused person as guilty, although he had not been proved guilty according to law, this would infringe Article 48 of the Charter and Articles 3 and 4 of Directive 2016/343, irrespective of whether the judge in question rules subsequently on whether or not the person in question is guilty.

87. However, if the judge ruling on the pre-trial detention of an accused person confines himself to verifying whether there are reasonable suspicions that that person committed the offence at issue, that judge may take part in the judgment on the substance of the case and, consequently, the judgment on the guilt of that person. As is clear from point 83 of this Opinion, where an accused person submits exculpatory evidence which does not appear implausible or frivolous, it is for the judge examining an appeal against his pre-trial detention to take that evidence into account together with the incriminating evidence in order to assess whether there are reasonable suspicions that that person committed an offence.

VI. Conclusion

88. In the light of all the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria): (1) Articles 6 and 48 of the Charter of Fundamental Rights of the European Union and Articles 3 and 4 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 must be interpreted as meaning that where an accused person submits exculpatory evidence which does not appear implausible or frivolous, it is for the judge examining an appeal against his pre-trial detention to take that evidence into account together with the incriminating evidence in order to assess whether there are reasonable suspicions that that person committed the offence at issue. (2) If it is clear from the reasons for a decision regarding the pre-trial detention of an accused person that the judge has formed an opinion on the guilt of that person, that judge cannot rule on the substance of the case, as this would infringe the second paragraph of Article 47 of the Charter of Fundamental Rights. If a statement of reasons were to refer to the accused person as guilty, although he had not been proved guilty according to law, this would also infringe Article 48 of the Charter of Fundamental Rights and Articles 3 and 4 of Directive 2016/343, irrespective of whether the judge in question rules subsequently on whether or not the accused person is guilty. (3) If the judge ruling on the pre-trial detention of an accused person confines himself to verifying whether there are reasonable suspicions that that person committed the offence at issue, that judge may take part in the judgment on the substance of the case and, consequently, the judgment on the guilt of the accused person.

( 1 ) Original language: French.

( 2 ) OJ 2016 L 65, p. 1.

( 3 ) One case ‘concerning participation in a bank raid’ and the other case ‘concerning the control of a criminal organisation formed with the aim of committing robberies and concerning a series of robberies’.

( 4 ) In the context of those criminal proceedings, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided by decision of 28 July 2016, received at the Court on 5 August 2016, to stay the proceedings and to refer a question to the Court for a preliminary ruling. The request for a preliminary ruling was registered as Case C‑439/16 PPU, Milev. By its question for a preliminary ruling, the Spetsializiran nakazatelen sad (Specialised Criminal Court) asked, in essence, whether Articles 3 and 6 of Directive 2016/343 should be interpreted as precluding the opinion delivered on 7 April 2016 by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), thus at the beginning of the transposition period of that directive conferring on the national courts having jurisdiction to hear an action brought against a custody decision, the ability to decide whether, during the trial phase of the criminal proceedings, the continued custody of an accused must be subject to a review by the court of whether there are reasonable grounds to suspect that he committed the offence with which he is charged (see judgment of 27 October 2016, Milev, C‑439/16 PPU, EU:C:2016:818, paragraph 28). The Court held that the opinion delivered on 7 April 2016 by the Varhoven kasatsionen sad (Supreme Court of Cassation) was not likely seriously to compromise, after the expiry of the period prescribed for transposition of Directive 2016/343, the attainment of the objectives prescribed by that directive (see judgment of 27 October 2016, Milev, C‑439/16 PPU, EU:C:2016:818, paragraph 36).

( 5 ) That robbery constitutes a criminal offence under Article 199(2)(3) of the Nakazatelen kodeks (Criminal Code, ‘the NK’), punishable by a custodial sentence of 15 to 20 years, life imprisonment or life imprisonment without the possibility of commutation.

( 6 ) Thus, before the 2017 amendment, Article 29(1)(1)(d) of the NPK provided:

‘No judge … may participate in a trial bench … if he formed part of the bench that delivered … an order imposing, confirming, amending or annulling a coercive measure of pre-trial detention during the pre-trial stage.’

( 7 ) See, inter alia, point 39 of this Opinion.

( 8 ) See, inter alia, point 43 of this Opinion.

( 9 ) See, inter alia, Article 48 of the Charter and Directive 2016/343.

( 10 ) See Article 6 of the Charter.

( 11 ) See, inter alia, Article 47 of the Charter.

( 12 ) See recital 10 of Directive 2016/343. According to the Commission, ‘Directive [2016/343] lays down minimum rules concerning certain procedural safeguards for suspects or accused persons in criminal proceedings. It deals with certain aspects of the presumption of innocence … It follows that the directive is not a complete or an exhaustive instrument as far as protecting the fundamental rights of a suspect who is remanded in custody pending trial is concerned’ (paragraph 11 of the Commission’s observations). In paragraph 26 of its observations, the Commission submits that Article 4 of Directive 2016/343 contains only a negative requirement regarding the lawfulness of the custody decision, namely that, when a custody decision is taken, the suspect must not be referred to as being guilty.

( 13 ) See, to that effect, Opinion of Advocate General Bobek in Milev (C‑439/16 PPU, EU:C:2016:760, points 59 to 63).

( 14 ) See also, recital 12 of Directive 2016/343.

( 15 ) See, by analogy, judgment of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, paragraph 68 and the case-law cited). See, also, by analogy, Opinion of Advocate General Bobek in Milev (C‑439/16 PPU, EU:C:2016:760, points 69 to 76), who bases his analysis on the simultaneous application of a number of provisions of the ECHR to criminal proceedings.

( 16 ) See judgment of 28 July 2016, JZ (C‑294/16 PPU, EU:C:2016:610, paragraphs 48 to 50).

( 17 ) See judgment of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraph 37).

( 18 ) See judgment of 10 July 2014, Nikolaou v Court of Auditors (C‑220/13 P, EU:C:2014:2057, paragraph 35). In my view, only Article 6(2) ECHR is specifically concerned with the presumption of innocence.

( 19 ) See judgment of the ECtHR of 5 July 2016, Buzadji. v. the Republic of Moldova, CE:ECHR:2016:0705JUD002375507, § 84. According to the ECtHR, ‘Article 5 [ECHR] is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual …, and as such its importance is paramount’.

( 20 ) See, inter alia, the remedies provided for in Article 5(3) and (4) ECHR.

( 21 ) See, to that effect, judgment of the ECtHR of 10 March 2009, Bykov v. Russia, CE:ECHR:2009:0310JUD000437802, § 61. Article 5(3) ECHR provides persons arrested or detained on suspicion of having committed a criminal offence with a guarantee against any arbitrary or unjustified deprivation of liberty (see judgment of the ECtHR of 29 April 1999, Aquilina v. Malta, CE:ECHR:1999:0429JUD002564294, § 47). Article 5(4) ECHR guarantees to arrested or detained persons a right to institute proceedings and also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see judgment of the ECtHR of 9 July 2009, Mooren v. Germany, CE:ECHR:2009:0709JUD001136403, § 106).

( 22 ) According to the case-law of the ECtHR, only a strict interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see judgment of the ECtHR of 6 April 2000, Labita v. Italy, CE:ECHR:2000:0406JUD002677295, § 170). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see judgment of the ECtHR of 22 May 2012, Idalov v. Russia, CE:ECHR:2012:0522JUD000582603, § 140).

( 23 ) See judgments of the ECtHR of 1 July 1961, Lawless v. Ireland, CE:ECHR:1961:0701JUD000033257, pp. 51 to 53, § 14, and of 22 February 1989, Ciulla v. Italy, CE:ECHR:1989:0222JUD001115284, pp. 16 to 18, §§ 38 to 41.

( 24 ) Even though Article 5(1)(c) ECHR requires reasonable suspicion that the person in question ‘committed an offence’or (emphasis added) ‘when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so’, I take the view that that wording in the alternative has been converted into cumulative requirements by the recent case-law of the ECtHR. In its judgment of 5 July 2016, Buzadji. v. the Republic of Moldova, CE:ECHR:2016:0705JUD002375507, the ECtHR (sitting as the Grand Chamber) held that there was a need to develop its case-law on Article 5 ECHR. In paragraphs 92 to 102 of that judgment, the ECtHR held that the existence of reasonable suspicion that the arrested person has committed an offence cannot on its own justify pre-trial detention and must be supported by additional grounds. Those other grounds include the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee. It is important to note that, in paragraph 102 of the same judgment, the ECtHR stated that ‘the requirement on the [judge] to give relevant and sufficient reasons for the detention — in addition to the persistence of reasonable suspicion — applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest’. Moreover, those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see judgment of the ECtHR, 28 November 2017, Merabishvili v. Georgia, CE:ECHR:2017:1128JUD007250813, § 222). I note that the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee do not appear to be at issue in the case in the main proceedings. It should be pointed out that that case-law of the ECtHR significantly strengthens the right to liberty and, by implication, the presumption of innocence.

( 25 ) The ECtHR has held that ‘[if there is not] a reasonable suspicion that the arrested person has committed an offence, in other words, that detention [does not fall] within the permitted exception set out in Article 5(1)(c) [ECHR] … the detention … is unlawful [and] the [judge] must then have the power to release’ (see judgment of the ECtHR, 3 October 2006, McKay. v. the United Kingdom, CE:ECHR:2006:1003JUD000054403, § 40).

( 26 ) See judgment of the ECtHR of 30 August 1990, Fox, Campbell and Hartley v. the United Kingdom, CE:ECHR:1990:0830JUD001224486, § 32.

( 27 ) See judgment of the ECtHR of 28 November 2017, Merabishvili v. Georgia, CE:ECHR:2017:1128JUD007250813, § 184.

( 28 ) At the date of the hearing, on 11 July 2018, Mr Milev had already been detained for six months.

( 29 ) See judgment of the ECtHR of 28 November 2017, Merabishvili v. Georgia, CE:ECHR:2017:1128JUD007250813, § 222.

( 30 ) The personal impartiality of a judge is presumed until there is proof to the contrary. In the judgment of the ECtHR of 15 December 2005, Kyprianou v. Cyprus, CE:ECHR:2005:1215JUD0007379701, § 119, the ECtHR recognised the difficulty of establishing a breach of Article 6 ECHR on account of subjective partiality.

( 31 ) See judgment of the ECtHR of 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, § 46.

( 32 ) The term ‘prévenu’, used in the French version of the ECtHR judgments, is equivalent to ‘personne poursuivie’, used in Directive 2016/343. They are rendered as ‘accused’ and ‘accused person’ respectively in the English versions.

( 33 ) See judgment of the ECtHR of 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, § 48.

( 34 ) Emphasis added. See judgment of the ECtHR of 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, §§ 50 and 51. See, also, judgments of the ECtHR of 27 February 2007, Nestak v. Slovakia, CE:ECHR:2007:0227JUD006555901, § 100 and of 22 April 2010, Chesne v. France, CE:ECHR:2010:0422JUD002980806, §§ 36 to 39. In the latter judgment, the ECtHR held that a court’s reasoning confirming that the applicant would be detained and would remain in detention constituted a preconception that he was guilty rather than merely describing a state of suspicion. As a result, the fact that the same judges had been members of the chamber adjudicating on the substance of the case may thus have appeared questionable and, therefore, constituted an infringement of Article 6(1) ECHR. The ECtHR noted that the judges did not confine themselves to a summary assessment of the alleged facts in order to justify the relevance of keeping a person in detention pending trial, but, on the contrary, they ruled on the existence of incriminating evidence of the applicant’s guilt.

( 35 ) Namely, the decision as to guilt when ruling on the substance of a case.

( 36 ) See judgment of the ECtHR of 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, § 52.

( 37 ) See, also, Article 6 of Directive 2016/343.

( 38 ) See judgment of the ECtHR of 28 November 2012, Lavents v. Latvia, CE:ECHR:2012:1128JUD005844200, § 125.

( 39 ) See ECtHR, 10 February 1995, Allenet de Ribemont v. France, CE:ECHR:1995:0210JUD00151789, § 35.

( 40 ) ECtHR, 31 March 2016, Petrov and Ivanova v. Bulgaria, CE:ECHR:2016:0331JUD004577310, § 44.

( 41 ) The case in the main proceedings illustrates the fact that, in certain circumstances, there is ‘tension’ between some of the rights enshrined in the Charter and even within the presumption of innocence. As there is no hierarchy between those rights, it is for national courts and EU Courts to strike the right balance between those rights, which are sometimes competing.

( 42 ) There can be no doubt that a decision regarding the pre-trial detention of an accused person does not constitute a judicial decision on his guilt.

( 43 ) See point 52 of this Opinion.

( 44 ) It is clear from the request for a preliminary ruling that Mr Milev has not been proved guilty according to law of the armed robbery in a shop on 30 December 2008 and that the criminal proceedings against him in respect of that offence are still ongoing.

( 45 ) See recital 16 of Directive 2016/343.

( 46 ) Article 10(1) of Directive 2016/343 provides that Member States must make provision for suspects and accused persons to have an effective remedy if, inter alia, the presumption of innocence guaranteed by that directive is infringed.

( 47 ) See, inter alia, point 43 of this Opinion.

( 48 ) See point 74 of this Opinion.

( 49 ) In that the requirement of a ‘strong likelihood’ makes it more difficult to justify the use of pre-trial detention.

( 50 ) See points 29 and 39 of this Opinion.

( 51 ) See point 62 of this Opinion.

( 52 ) See points 63 and 64 of this Opinion. While such an approach may ensure compliance with the presumption of innocence enshrined in Article 48 of the Charter and Articles 3 and 4 of Directive 2016/343, it is contrary to Article 6 of the Charter.

( 53 ) See points 63 and 64 of this Opinion.

( 54 ) However, subject to verification by the referring court, it would appear that, following the amendments to the NPK, some of the Bulgarian case-law prohibits the judge examining the lawfulness of pre-trial detention from comparing evidence and from stating which evidence is credible and why. See point 39 of this Opinion. However, as the Commission has pointed out, ‘the case-law is divided in this regard’.

( 55 ) See, to that effect, judgment of the ECtHR, 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, §§ 50 and 51.