OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 11 October 2016 ( 1 )

Case C‑439/16 PPU

Emil Milev(Request for a preliminary ruling

from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

‛Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in criminal matters — Directive (EU) 2016/343 — Strengthening of certain aspects of the presumption of innocence — Articles 3 and 6 — Temporal application — National legislation prohibiting, during the judicial stage of the proceedings, an examination whether there are reasonable grounds to suspect that the accused has committed a criminal offence — ‘Opinion’ of a supreme court finding a conflict between the national legislation and Article 5(1)(c) and (4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms — Discretion granted to national courts and tribunals to decide whether or not to apply that Convention’

I – Introduction

1. Under the Nakazatelno-protsesualen kodeks (Bulgarian Code of Criminal Procedure, the ‘NPK’), the court assessing a pretrial detention measure may not, in the litigation stage of criminal proceedings, examine whether there are reasonable grounds to suspect that a criminal offence has been committed. That legislation has given rise to a number of adverse judgments from the European Court of Human Rights. According to the settled case-law of the European Court of Human Rights, Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, ‘requires courts deciding on an application for release, inter alia, to examine whether there are reasonable grounds to suspect that the detained person has committed a criminal offence’. ( 2 )

2. The Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) found, after the matter was brought before it by the referring court, the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), that there is a conflict between that national procedural legislation and Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof (‘the Opinion of the Supreme Court’). However, it allowed national courts the option to apply either the case-law of the European Court of Human Rights or the national legislation, pending action by the legislature.

3. The present request for a preliminary ruling concerns the conformity of the Opinion of the Varhoven kasatsionen sad (Supreme Court of Cassation) with 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. ( 3 ) A particular feature of this case is the fact that the request for a preliminary ruling, made in the context of criminal proceedings brought against Mr Emil Milev and his pretrial detention, was received by the Court a few months after the entry into force of Directive 2016/343 and well before the expiry of its period for transposition.

II – Legislative framework

A – EU law

1. The Charter

4. Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides that ‘everyone has the right to liberty and security of person’.

5. Under Article 47 of the Charter, entitled ‘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. ...’

6. Article 48 of the Charter, entitled ‘Presumption of innocence and right of defence’, reads 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.’

2. Directive 2016/343

7. According to recitals 16 and 22 of Directive 2016/343: ‘(16) 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 pretrial 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. … (22) The burden of proof for establishing the guilt of suspects and accused persons is on the prosecution, and any doubt should benefit the suspect or accused person. The presumption of innocence would be infringed if the burden of proof were shifted from the prosecution to the defence, without prejudice to any ex officio fact-finding powers of the court, to the independence of the judiciary when assessing the guilt of the suspect or accused person, and to the use of presumptions of fact or law concerning the criminal liability of a suspect or accused person. Such presumptions should be confined within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed should be reasonably proportionate to the legitimate aim pursued. Such presumptions should be rebuttable and in any event, should be used only where the rights of the defence are respected.’

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

9. Article 4(1) and (2) of Directive 2016/343, entitled ‘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.’

10. Article 6 of Directive 2016/343, entitled ‘Burden of proof’, reads as follows: ‘1. Member States shall ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution. This shall be without prejudice to any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law. 2. Member States shall ensure that any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted.’

11. Under Article 10 of Directive 2016/343, entitled ‘Remedies’: ‘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.’

12. In accordance with its Article 15, Directive 2016/343, which was published on 11 March 2016, entered into force on the 20th day following that of its publication in the Official Journal of the European Union. Article 14(1) of that directive provides that Member States must bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 1 April 2018.

B – Bulgarian law

13. Under Article 56(1) of the NPK, the accused may be subject to a coercive measure where ‘the evidence in the file gives reasonable grounds to suspect that he has committed the criminal offence and where one of the justifications referred to in Article 57 is present’. Article 57 of the NPK provides that such coercive measures are adopted in order to prevent the accused from absconding, committing a criminal offence or preventing enforcement of the final criminal conviction. Article 58(4) of the NPK mentions pretrial detention among those coercive measures.

14. In accordance with Article 63(1) of the NPK, pretrial detention is applied where there ‘are reasonable grounds to suspect that the accused 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 will abscond or commit a criminal offence’. Article 64(4) of the NPK, which concerns the pre-litigation stage, provides that ‘the court shall adopt the coercive measure of pretrial detention where the conditions set out in Article 63(1) are met and, if that is not the case, the court may decide not to adopt a coercive measure or to adopt a more lenient measure’.

15. Under Article 256(1)(2) of the NPK, for the purposes of the preparation of the hearing, the judge-rapporteur must decide on the coercive measure without assessing whether there are reasonable grounds to suspect that a criminal offence has been committed. Article 256(3) of the NPK provides that this limitation also applies in the case of an application relating to the coercive measure of pretrial detention where the court examines whether the conditions for the commutation or annulment of the coercive measure are met.

16. Article 270(1) of the NPK stipulates that the question of the commutation of the coercive measure may be raised at any time during the litigation stage. Under Article 270(2) of the NPK, the court must rule by an order in a public hearing without assessing whether there are reasonable grounds to suspect that a criminal offence has been committed.

III – Factual background and the question referred for a preliminary ruling

17. According to the order for reference, Mr Milev is being prosecuted for eight offences, including leading an organised and armed criminal group, kidnapping, stealing and burning a car, attempted murder of a police officer, and robbing a bank and two petrol stations. Those offences are punishable by custodial sentences, the lowest being three years’ imprisonment and the highest being a life sentence without commutation.

18. Mr Milev has been in detention since 24 November 2013. In the pretrial phase, the court having jurisdiction took the view that there continued to be reasonable grounds to suspect that Mr Milev had committed the offences in question.

19. Since the case entered into the litigation stage, on 8 June 2015, the referring court (the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria)) has, at the request of the accused, ruled several times on his release from pretrial detention, without, however, examining whether or not there are reasonable grounds to suspect that Mr Milev had committed the criminal offences in question, as Article 270(2) of the NPK, read in conjunction with the second sentence of Article 256(3) of the NPK prohibits the court, at this stage of the proceedings, from examining the reasonable grounds to suspect that a person has committed a criminal offence.

20. The referring court found that there is a conflict between the abovementioned national rule and Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, which permits an individual to be held in detention only ‘on reasonable suspicion of having committed an offence’. Because it was impossible to guarantee standards of lawfulness with regard to detention in accordance with the ECHR, the Spetsializiran nakazatelen sad (Specialised Criminal Court) annulled the pretrial detention measures several times. Those decisions annulling the measures were, however, set aside on appeal.

21. Against this background, the referring court requested the Varhoven kasatsionen sad (Supreme Court of Cassation) to rule on this question. At the hearing held on 7 April 2016, the Criminal Division of the Varhoven kasatsionen sad (Supreme Court of Cassation), sitting in plenary session, confirmed the existence of a conflict between Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, and the national provisions prohibiting the court from ruling on the reasonable grounds to suspect that the accused has committed the criminal offence. According to the minutes of the hearing, doubts were expressed by the judges as to whether it was possible in practice to ensure compliance both with Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, and with Article 6(1) of the ECHR on the requirement for an impartial tribunal. The appointment of a separate court formation, which would rule solely on the reasons for continued detention, was considered problematical. According to the judges, such a measure could impair the proper functioning of courts, which have only a limited number of serving judges.

22. The Varhoven kasatsionen sad (Supreme Court of Cassation) therefore reached the following conclusion, namely ‘it is obvious that we are not in a position to propose any solution to the problem. We take the firm view that each court formation must assess whether it gives precedence to the ECHR or to national law and whether it is in a position to adjudicate in that context’. The President of the Criminal Division of the Varhoven kasatsionen sad (Supreme Court of Cassation), sitting in plenary session, ordered that a copy of the minutes be sent to the referring court and to the Ministry of Justice with a view to initiating a change in the law.

23. According to the referring court, the Opinion of the Supreme Court has the same value as an interpretative decision. It is therefore binding on any judicial body, including on the separate court formations of the Varhoven kasatsionen sad (Supreme Court of Cassation).

24. When a fresh application was made by Mr Milev for the commutation of pretrial detention to a more lenient measure, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay its proceedings and to refer the following question to the Court for a preliminary ruling: ‘Is a domestic precedent — in particular a binding Opinion of the Varhoven kasatsionen sad (Supreme Court of Cassation) (delivered after the adoption of Directive 2016/343 …, but before the time limit for its transposition has passed), pursuant to which the Varhoven kasatsionen sad (Supreme Court of Cassation), after having established that there is a conflict between Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, and national legislation (Article 270(2) of the NPK) relating to the issue of whether to take into consideration the reasonable grounds for suspecting that an offence was committed (within the context of a procedure for reviewing the extension of a coercive measure of “remand in custody” during the litigation stage of criminal proceedings), grants to the courts dealing with the substance of the case the power to decide whether to comply with the ECHR — consistent with Article 3 of Directive 2016/343 and Article 6 thereof (relating to the presumption of innocence and the burden of proof within the context of criminal proceedings)?’

25. As Mr Milev is still in detention, the referring court asked the Court to apply the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

26. By decision of the Fourth Chamber of the Court of 17 August 2016, that request was granted.

27. Mr Milev and the European Commission submitted written observations. Only the Commission took part in the hearing which was held on 22 September 2016.

IV – Analysis

A – Preliminary remarks

28. The present reference for a preliminary ruling concerns the conformity with Directive 2016/343 of the Opinion of the Supreme Court, as reproduced in the minutes of 7 April 2016. The referring court has doubts over this question in so far as, after finding that there is a conflict between the national legislation and Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, the Opinion of the Supreme Court granted lower courts the freedom to decide whether to comply with the ECHR or to apply the national provisions to the contrary.

29. This question is problematical in two respects. First, the period for transposition of Directive 2016/343 had not yet expired on the date when the order for reference was made. Second, it does not seem entirely clear that the content of the Opinion of the Supreme Court falls within the scope ratione materiae of that directive.

30. As regards the first point, the referring court justified the admissibility of its own request for a preliminary ruling by stating that, in accordance with the Court’s case-law, national authorities must refrain from taking any measures liable seriously to compromise the result prescribed by directives during the period for transposition. According to the referring court, that is the case with the Opinion of the Supreme Court, as it was delivered after the entry into force of Directive 2016/343.

31. In the light of these considerations, the present reference for a preliminary ruling cannot, in my view, be inadmissible. That is also the view taken by the Commission.

32. In the first place, because they concern the interpretation of EU law, questions referred by national courts seised of a genuine dispute enjoy a presumption of relevance. ( 4 )

33. In the second place, the Opinion of the Supreme Court was delivered on 7 April 2016, after the entry into force of Directive 2016/343 on 31 March 2016, pursuant to Article 15 thereof. In accordance with the Court’s case-law, in so far as a directive had already entered into force at the time of the facts in the main proceedings, the interpretation of its provisions may be useful to the referring court for the purpose of enabling it to rule while taking into consideration the obligation to refrain from taking any measures liable seriously to compromise the result prescribed by that directive. ( 5 )

34. In these circumstances, I consider that the question referred should be answered focusing on the Opinion of the Supreme Court and the abovementioned obligation to refrain. The present Opinion will conduct this analysis in Section B.

35. However, the question concerning the obligation not to compromise seriously the result prescribed by Directive 2016/343 during the period for transposition is distinct from the underlying question of the compatibility of the Opinion of the Supreme Court (and thus of the national legislation) with that directive.

36. For the reasons set out below, the present case should not, in my view, give rise to such an analysis. Nevertheless, with a view to assisting the Court fully, a brief assessment of this question is outlined in Section C.

B – Does the Opinion of the Supreme Court seriously compromise the objectives of Directive 2016/343?

1. The legal effects of directives before the expiry of the period for transposition

37. In the context of a question referred for a preliminary ruling well before the period for transposition of a directive has expired, Member States cannot be reproached for not having yet adopted measures implementing it. ( 6 ) It is nevertheless settled case-law that a directive produces legal effects for a Member State to which it is addressed following its publication or from the date of its notification. ( 7 ) It is well established that, on the basis of Article 4(3) TEU, read in conjunction with Article 288 TFEU, the Member States are under an obligation to refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by a directive. ( 8 ) That obligation to refrain applies to all general or specific measures. ( 9 ) It is binding on all the authorities of the Member States, including national courts. ( 10 )

2. The Opinion of the Supreme Court

38. The question has been referred for a preliminary ruling by the Spetsializiran nakazatelen sad (Specialised Criminal Court) with the aim of examining whether the Opinion of the Supreme Court infringes the abovementioned obligation to refrain. In this context, it must be determined whether the Opinion of the Supreme Court is liable seriously to compromise the attainment of the result prescribed by Directive 2016/343.

39. The order for reference emphasises that the Varhoven kasatsionen sad (Supreme Court of Cassation) would have reached a very different decision if it had applied the principle that national law should be interpreted in conformity with Directive 2016/343, as it was already in force when the Opinion was delivered.

40. It must be stated at the outset that the obligation to interpret domestic law in conformity with a directive is binding on national courts only once the period for its transposition has expired. ( 11 ) The obligations, as set out by the judgment in Adeneler and Others (C‑212/04, EU:C:2006:443) in line with the ruling in Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628), which are incumbent on national courts during the period for transposition are more nuanced. Thus, national courts are required to ‘refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive’. ( 12 )

41. It should therefore be borne in mind in particular that the abovementioned obligation to refrain does not mean that Directive 2016/343 is applied or that national law is interpreted in accordance with that directive. On the contrary, the obligation to refrain applies only to measures which could seriously threaten the objectives pursued by a directive. It thus prohibits Member States from adopting measures which seriously threaten those objectives and whose legal effects continue after the expiry of the period for transposition. ( 13 )

42. As regards the objectives of Directive 2016/343, according to Article 1(a) thereof, the directive lays down common minimum rules concerning certain aspects of the presumption of innocence in criminal proceedings. In doing so, Directive 2016/343 aims to strengthen the trust of Member States in each other’s systems and thus to facilitate mutual recognition of decisions in criminal matters. ( 14 )

43. From a substantive point of view, it cannot be ruled out that, in the examination of a pretrial detention measure, the absence of judicial consideration of ‘reasonable grounds’ may compromise the effective protection of the presumption of innocence, compliance with which is guaranteed by Directive 2016/343. ( 15 ) However, in my view, the attainment of the objectives of that directive cannot be compromised by a national measure such as the Opinion of the Supreme Court.

44. It cannot be ruled out, in general terms, that a judicial decision may seriously compromise the attainment of the result prescribed after the expiry of that period. ( 16 )

45. However, three factors show that this is not so in the present case. In the first place, the Opinion of the Supreme Court — which was delivered shortly after the entry into force of Directive 2016/343 — cannot be regarded as a measure transposing the directive. Nor can it be regarded as an interpretation of measures transposing the directive. Article 270 of the NPK constitutes neither a measure intended to transpose Directive 2016/343 nor a measure capable of ensuring that national law is consistent with it.

46. In the second place, the Opinion of the Supreme Court offers national courts a margin of discretion by giving them the option to disapply the national legislation. The fact that the Opinion can be seen as containing binding instructions ( 17 ) is immaterial. The Opinion of the Supreme Court does not bring about any change in the previous situation such that it precludes the attainment of the results prescribed by Directive 2016/343.

47. In the third place, the Opinion of the Supreme Court does not prejudice in any way the choice to be made by the legislature when it transposes Directive 2016/343.

48. From a substantive point of view, the Opinion adopts a position on a conflict between national law and the ECHR. It affirms that the conflict exists between the national legislation and Article 5 of the ECHR and considers that action must be taken by the national legislature in order to ensure compliance with Articles 5 and 6 of the ECHR. In this regard, the fact that the Opinion of the Supreme Court was sent to the Ministry of Justice with a view to bringing about a change in the law confirms that, far from seriously compromising the objectives of Directive 2016/343, the Opinion in fact urges that they be attained.

49. Consequently, it cannot be claimed that the Opinion of the Supreme Court compromises the results prescribed by Directive 2016/343 in so far as it puts forward solutions likely to contribute to the attainment of the objectives of the directive. It follows, a fortiori, that the Opinion of the Supreme Court is not liable seriously to compromise the attainment of the results prescribed by the directive.

3. General principles of EU law and fundamental rights

50. The reference by the national court to the judgment in Mangold ( 18 ) does not affect this conclusion.

51. It is true that, according to case-law, general principles of law — and the Charter — are applicable within the scope of EU law. ( 19 ) To that end, both the national provisions specifically intended to transpose a directive and also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within the scope of that directive. ( 20 )

52. However, in the present case, the Opinion of the Supreme Court is neither a measure implementing the directive nor a measure capable of ensuring that national law is consistent with it. In these circumstances, a mere reference by the national court to a directive whose period for transposition has not yet expired and whose objectives have not been seriously compromised is not capable of bringing the situation at issue in the main proceedings within the scope of EU law. ( 21 )

4. Conclusion

53. In these circumstances, I propose that the Court answer the question referred by the Spetsializiran nakazatelen sad (Specialised Criminal Court) to the effect that an Opinion of the Supreme Court delivered in the course of the period for transposition of Directive 2016/343 is not liable seriously to compromise the objectives prescribed by that directive if it grants courts the freedom to decide between the application of Article 5(4) of the ECHR, read in conjunction with Article 5(1)(c) thereof, and the application of national legislation contrary to those provisions.

C – Interpretation of Directive 2016/343

1. Preliminary remarks

54. If the Court decided to follow the proposal made in the preceding point, there would be no need to examine the underlying considerations relating to the interpretation of the provisions of Directive 2016/343.

55. The referring court stated that it was possible to interpret national law in conformity with Directive 2016/343. In this context, the Commission proposed, after concluding that the Opinion of the Supreme Court did not seriously compromise the results prescribed by that directive, that the question referred be reformulated. In particular it suggested that the directive be interpreted and its compatibility with national legislation such as that which is the subject of the Opinion of the Supreme Court be examined.

56. At the hearing, the Commission stated that this question is admissible in so far as it cannot be ruled out that some national systems recognise an internal obligation to interpret national law in conformity with a directive even before the expiry of the period for transposition.

57. In the present case, there is nothing in the documents before the Court to indicate that this is the case in Bulgaria. In the absence of clear information from the referring court, adopting such an approach would, in my view, run counter to case-law which has established limits for the admissibility of purely hypothetical questions referred for a preliminary ruling. ( 22 )

58. Notwithstanding these hesitations, the considerations hereinafter are based on the interpretation of provisions of Directive 2016/343 with a view to assisting the Court fully should it wish to adopt the approach proposed by the Commission — which I advise against. In any event, these considerations are relevant only if the national system provides for national law to be interpreted in conformity with a directive before the expiry of the period for transposition. They cannot under any circumstances be understood as extending the Member States’ obligations during the period for transposition of Directive 2016/343.

2. The interpretation of Directive 2016/343

59. The Commission has asserted that Mr Milev’s situation falls within the scope of Directive 2016/343 in so far as he is being prosecuted in the litigation stage of criminal proceedings.

60. I concur with the view taken by the Commission in this regard.

61. Although pretrial detention is not the subject of specific EU legislation, judicial decisions on pretrial detention are covered by the protection of the presumption of innocence, as guaranteed by Directive 2016/343.

62. As the Commission has stated, this is clear from Article 2 and recital 12 of Directive 2016/343, according to which the directive applies to natural persons who are suspects or accused persons, at all stages of the criminal proceedings, from the moment when a person is suspected of having committed a criminal offence. Furthermore, decisions on pretrial detention are mentioned by way of illustration in recital 16 of that directive among the measures covered by Article 4 of the directive as ‘preliminary decisions of a procedural nature’.

63. Consequently, the presumption of innocence may be applied to judicial decisions on pretrial detention.

64. Judicial decisions on pretrial detention may, in specific cases, entail an infringement of the fundamental right to the presumption of innocence, as set out in Article 48(1) of the Charter. The meaning and scope of that provision are the same as those of Article 6(2) of the ECHR, as is clear from Article 52(3) of the Charter and the Explanations relating to the Charter.

65. In this respect, the European Court of Human Rights has ruled, in connection with continued pretrial detention, that suspicion and formal finding of guilt are not to be treated as being the same. ( 23 ) The European Court of Human Rights makes a distinction between statements ‘which reflect the opinion that the person concerned is guilty and statements which merely describe a state of suspicion’, concluding that ‘the former infringe the presumption of innocence, while the latter have been found to be in conformity with the spirit of Article 6 of the [ECHR]’. ( 24 )

66. Thus, on the basis of an interpretation of Article 3 of Directive 2016/343, read in the light of Article 48 of the Charter, it can be stated, in accordance with the view taken by the Commission, that the Bulgarian system, under which the court, at the litigation stage of criminal proceedings is precluded from ruling on ‘reasonable grounds’ cannot be justified either from the point of view of the impartiality of the tribunal or from the point of view of the presumption of innocence. ( 25 )

67. However, judicial decisions on pretrial detention may, in certain circumstances, infringe the principle of the impartiality of the tribunal and respect for the presumption of innocence — which is closely linked to that principle. This is the case, for example, where the judge bases pretrial detention on ‘particularly confirmed suspicion that the accused has committed the crimes’ ( 26 ) or where a decision on detention contains statements not limited to describing a state of suspicion. ( 27 )

68. The question arising in the present case concerns completely the reverse scenario, however: an absence of judicial consideration of reasonable grounds to suspect that the accused has committed the criminal offence.

69. In this regard, the Commission asserts that the court’s obligation to examine whether there are reasonable grounds to suspect that the accused has committed a criminal offence stems neither from the general principle of respect for the presumption of innocence nor from the provisions of the directive. That requirement stems solely, in the light of the case-law of the European Court of Human Rights, from Article 5 of the ECHR as a procedural safeguard for the fundamental right to liberty. According to the Commission, Directive 2016/343 does not contain any provisions establishing requirements governing initial or continued pretrial detention. As this issue is not governed either by the directive or by any other instrument of EU law, it does not therefore fall within the scope of EU law.

70. I cannot concur with this interpretation.

71. In the context of the ECHR, which constitutes a complete system for the protection of human rights, Article 5 of the ECHR represents a specific provision relating to measures entailing a deprivation of liberty. Accordingly, the European Court of Human Rights examines the existence of ‘reasonable grounds’ in the context of pretrial detention in the light of Article 5 of the ECHR. This latter provision includes a specific rule in paragraph 4, read in conjunction with Article 5(1)(c), that tribunals hearing an application for release must examine whether there are reasonable grounds to suspect that the detained person has committed a criminal offence. It is not surprising, therefore, that applications brought against the Republic of Bulgaria in this regard have been based on Article 5 of the ECHR, ( 28 ) as this rule can be regarded as a lex specialis ( 29 ) in relation to the presumption of innocence.

72. Nevertheless, the fact that, in the case-law of the European Court of Human Rights, the obligation to examine ‘reasonable grounds’ is systematically based on Article 5 of the ECHR does not mean that such an obligation cannot also follow from requirements in connection with the presumption of innocence.

73. In the context of EU law, under Article 52(3) of the Charter, the meaning and scope of the rights guaranteed by the Charter are the same for corresponding rights as those laid down by the Convention. However, this does not mean that specific standards developed in the case-law of the European Court of Human Rights in connection with a certain fundamental right cannot constitute, in EU law, elements which are part of the content protected by other fundamental rights.

74. In particular, such a limitation cannot be applied in connection with the interpretation, in the light of fundamental rights, of an act of secondary legislation which follows a different internal logic. The system of the European Court of Human Rights permits the relevant complaints to be examined with reference to more specific provisions, whilst the system of protection of fundamental rights under the Charter differs in that it relates solely to areas within the scope of EU law.

75. Consequently, in interpreting Directive 2016/343 concerning certain aspects of the presumption of innocence, the content and meaning of the safeguards under Article 3 of the directive and under Article 48(1) of the Charter cannot be construed restrictively for the reasons put forward by the Commission. It should be noted in this regard that Article 52(3) of the Charter does not prevent Union law from providing more extensive protection than that offered by the ECHR.

76. In this context, the logical link between the ‘reasonable grounds’ test at the pretrial detention stage and the presumption of innocence as guaranteed by Article 3 of Directive 2016/343 and Article 48(1) of the Charter is undeniable. As the referring court states, the presumption of innocence entails, in practice, not being authorised to take any repressive measures, with regard to a person who is accused of having committed an offence, before proving at least that there are reasonable grounds for suspecting that that person is the perpetrator. Every detention without a conviction is undoubtedly a ‘serious departure from the rules of respect for individual liberty and of the presumption of innocence’. ( 30 ) Therefore, the existence of ‘reasonable grounds’ is, within the framework of the ECHR, one of the criteria permitting a person to be deprived of his liberty before any conviction, notwithstanding the presumption of innocence. ( 31 ) Thus, in the specific context of pretrial detention, the requirement relating to ‘reasonable grounds’ is linked to the guarantee of the presumption of innocence.

77. In my view, the absence of any judicial consideration of reasonable grounds to suspect that the accused has committed the criminal offence is likely to breach the presumption of innocence.

78. This approach to the presumption of innocence is also supported by a systematic examination of the provisions of Directive 2016/343 concerning certain aspects of the presumption of innocence.

79. Accordingly, the link between the need to demonstrate a reasonable minimum amount of suspicion and the presumption of innocence can be seen in Article 4 of Directive 2016/343, read in the light of recital 16 thereof.

80. Under Article 4 of the directive, the obligation to ensure that judicial decisions other than those on guilt do not refer to a suspect as being guilty before he has not been proved guilty is ‘without prejudice to … preliminary decisions of a procedural nature … which are based on suspicion or incriminating evidence’. Among those decisions, recital 16 mentions, in particular, decisions on pretrial detention. It also states explicitly that, before taking such a decision, 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’. That decision ‘could contain reference to those elements’.

81. Article 4 of Directive 2016/343 thus preserves the Member States’ discretion whilst at the same time reflecting the obligation to base preliminary decisions of a procedural nature, such as pretrial detention, on sufficient justifying elements. On the one hand, the EU legislature wished to make clear that such decisions do not in themselves constitute an infringement of the presumption of innocence, even if they make reference to the existence of suspicion. On the other hand, the legislature expressly envisaged that courts may be required to base those decisions on sufficient evidence. The directive thus reflects the requirement of an examination of possible justifications for preliminary decisions based on suspicion, such as pretrial detention. The Member States must therefore respect the safeguards provided by the Charter when they avail themselves of the abovementioned possibility for ‘procedural decisions’.

82. The guarantees of the presumption of innocence contained in Article 4 of Directive 2016/343 would therefore seem to be applicable in the case of both ‘positive’ action by the court (for example a decision containing statements of guilt) and a ‘negative’ omission, in the form of the complete absence of judicial consideration of suspicion forming the basis for a pretrial detention measure during the litigation stage of criminal proceedings.

83. It must also be stated that Article 4(2) of Directive 2016/343 requires Member States to adopt appropriate measures in the event of a breach of the obligation not to refer to suspects or accused persons as being guilty, in accordance with Article 10 of that directive. Under Article 10, suspects or accused persons must have an effective remedy. However, in the absence of any judicial consideration of ‘reasonable grounds’, such a remedy cannot be effective.

84. For these reasons, the continued detention of a person without any judicial consideration of ‘reasonable grounds’ is, in my view, likely to infringe the principle of the presumption of innocence under Article 3 of Directive 2016/343 and the safeguards offered by Articles 4 and 10 of that directive.

V – Conclusion

85. In the light of the above considerations, I propose that the Court give the following answer to the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria): An Opinion of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) delivered in the course of the period for transposition 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 is not liable seriously to compromise the objectives prescribed by that directive if it grants courts the freedom to decide between the application of Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, read in conjunction with Article 5(1)(c) thereof, and the application of national legislation contrary to those provisions.

( 1 ) Original language: French.

( 2 ) See, for example, ECtHR, 27 March 2012, Nikolay Gerdjikov v. Bulgaria, CE:ECHR:2012:0327JUD002706104, § 26 and the case-law cited.

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

( 4 ) Judgment of 5 April 2011, Société fiduciaire nationale d’expertise comptable (C‑119/09, EU:C:2011:208, paragraph 21 and the case-law cited).

( 5 ) See, to that effect, judgments of 23 April 2009, VTB-VAB and Galatea (C‑261/07 and C‑299/07, EU:C:2009:244, paragraphs 35 to 41), and of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura (C‑2/10, EU:C:2011:502, paragraph 69).

( 6 ) See, for example, judgments of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 43); of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 114), and of 15 October 2009, Hochtief and Linde-Kca-Dresden (C‑138/08, EU:C:2009:627, paragraph 25).

( 7 ) See, inter alia, judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 119).

( 8 ) See, for example, judgments of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628, paragraph 45); of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 121); and of 13 March 2014, Jetair and BTWE Travel4you (C‑599/12, EU:C:2014:144, paragraph 35).

( 9 ) See, for example, judgment of 4 May 2016, Commission v Austria (C‑346/14, EU:C:2016:322, paragraph 50 and the case-law cited).

( 10 ) See, for example, judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 122).

( 11 ) Judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 115).

( 12 ) Judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 123).

( 13 ) See, to that effect, Opinion of Advocate General Kokott in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (C‑43/10, EU:C:2011:651, point 108).

( 14 ) See recitals 9 and 10 of the directive.

( 15 ) See point 59 et seq. of this Opinion.

( 16 ) This could be the case, in particular, with a decision concerning measures transposing a directive which were adopted during the period for transposition. See, to that effect, View of Advocate General Mazák in Kadzoev (C‑357/09 PPU, EU:C:2009:691, paragraph 35).

( 17 ) It is apparent from the documents before the Court that the Opinion was delivered following a special procedure. In its order of 9 March 2016, the Spetsializiran nakazatelen sad (Specialised Criminal Court), which requested the Opinion of the Supreme Court at issue, acknowledges that its request for interpretation has no legal basis. However, the order for reference states that the Opinion at issue is binding. Against this background, I will simply state that the national court must define the regulatory and factual framework for which it is responsible. It is not for the Court to review whether it is correct.

( 18 ) Judgment 22 November 2005, Mangold (C‑144/04, EU:C:2005:709).

( 19 ) See, to that effect, judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 21).

( 20 ) See, to that effect, judgments of 7 September 2006, Cordero Alonso (C‑81/05, EU:C:2006:529, paragraph 29), and of 21 July 2011, Azienda Agro-Zootecnica Franchini and Eolica di Altamura (C‑2/10, EU:C:2011:502, paragraph 70).

( 21 ) See, to that effect, judgment of 23 September 2008, Bartsch (C‑427/06, EU:C:2008:517, paragraph 15 et seq.).

( 22 ) A parallel can be drawn in this respect with the line of case-law beginning with the judgment of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360). The Court has held that it has jurisdiction to give preliminary rulings on questions relating to EU law where the facts of the cases being considered by the national courts are outside its scope, but where the provisions of EU law were rendered applicable by domestic law due to a reference made. However, ‘although the Court may, in such circumstances, make the requested interpretation, it is not for the Court to take such an initiative if it is not apparent from the order for reference that the national court is actually under such an obligation’. See order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, paragraph 28). See also order of 30 January 2014, C. (C‑122/13, EU:C:2014:59, paragraph 15).

( 23 ) See, for example, ECtHR, 20 December 2005, Jasiński v. Poland, CE:ECHR:2005:1220JUD003086596, § 55; 22 April 2010, Chesne v. France, CE:ECHR:2010:0422JUD002980806, § 36; and 13 June 2013, Romenskiy v. Russia, CE:ECHR:2013:0613JUD002287502, § 27.

( 24 ) See, for example, ECtHR, 31 March 2016, Petrov and Ivanova v. Bulgaria, CE:ECHR:2016:0331JUD004577310, § 44 and the case-law cited.

( 25 ) To that effect, the European Court of Human Rights has held, with regard to Bulgarian legislation prohibiting courts from examining the reasonable grounds to suspect that the person concerned has committed a criminal offence, that ‘the aim of guaranteeing the impartiality of the criminal court cannot justify such a limitation of the scope of the review exercised by courts of the lawfulness of pretrial detention’. See, for example, ECtHR, 26 July 2001, Ilijkov v. Bulgaria, CE:ECHR:2001:0726JUD003397796, § 97, and 27 March 2012, Gerdjikov v. Bulgaria, CE:ECHR:2012:0327JUD002706104, § 28.

( 26 ) With regard to Article 6(1) of the ECHR (impartiality of tribunals), see ECtHR, 24 May 1989, Hauschildt v. Denmark, CE:ECHR:1989:0524JUD001048683, § 52. In certain cases, the European Court of Human Rights has first examined such complaints on the basis of Article 6(1) of the ECHR. It has then considered that there was no need to conduct an examination in the light of Article 6(2) of the ECHR. See ECtHR, 13 June 2013, Romenskiy v. Russia, CE:ECHR:2013:0613JUD002287502, § 31.

( 27 ) See, to that effect, with regard to Article 6(2) of the ECHR, ECtHR, 27 February 2007, Nešťák v. Slovakia, CE:ECHR:2007:0227JUD006555901, §§ 88-91; 20 November 2011, Fedorenko v. Russia, CE:ECHR:2011:0920JUD003960205, §§ 88-93; and 10 November 2015, Slavov and Others v. Bulgaria, CE:ECHR:2015:1110JUD005850010, § 130.

( 28 ) See, for example, the judgments cited by the referring court, ECtHR, 25 March 1999, Nikolova v. Bulgaria [GC] CE:ECHR:1999:0325JUD003119596, §§ 61-66; 26 July 2001, Ilijkov v. Bulgaria, CE:ECHR:2001:0726JUD003397796, §§ 95-97; 21 July 2003, Hristov v. Bulgaria, CE:ECHR:2003:0731JUD003543697, §§ 116-120; 9 June 2005, I.I. v. Bulgaria, CE:ECHR:2005:0609JUD004408298, §§ 103-106; 21 December 2006, Vassilev v. Bulgaria, CE:ECHR:2006:1221JUD006254400, §§ 33-39; 13 November 2008, Bochev v. Bulgaria, CE:ECHR:2008:1113JUD007348101, §§ 64-66 and 71; 21 April 2009, Rangelov v. Bulgaria, CE:ECHR:2009:0423JUD001438703, §§ 44-47; 22 October 2009, Dimitrov v. Bulgaria, CE:ECHR:2009:1022JUD003627502, §§ 86-90; 26 November 2009, Koriyski v. Bulgaria, CE:ECHR:2009:1126JUD001925703, §§ 44-46; and 27 March 2012, Gerdjikov v. Bulgaria, CE:ECHR:2012:0327JUD002706104.

( 29 ) See, to that effect, Trechsel, S., Human Rights in Criminal Proceedings, OUP 2005, p. 180. For example, in Erdem v. Germany, the applicant had submitted that the length of his pretrial detention infringed Articles 5(3) and 6(2) of the ECHR. Having found that the detention had infringed Article 5(3) of the ECHR, the European Court of Human Rights did not consider it necessary to conduct a separate examination of the applicant’s complaint on the basis of Article 6(2) of the ECHR. ECtHR, 5 July 2001, Erdem v. Germany, CE:ECHR:2001:0705JUD003832197, § 49.

( 30 ) ECtHR, 10 November 1969, Stögmüller v. Austria, CE:ECHR:1969:1110JUD000160262, § 4.

( 31 ) In ruling on Article 5(3) of the ECHR (concerning the length of detention in accordance with the provisions of Article 5(1)(c) of the ECHR), the European Court of Human Rights has stated that ‘continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the [ECHR]’. See, for example, ECtHR, 26 October 2000, Kudla v. Poland, CE:ECHR:2000:1026JUD003021096, § 110.