OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 7 July 2022 ( 1 )

Case C‑348/21

HYA,

IP,

DD,

ZI,

SS

other party to the proceedings:

Spetsializirana prokuratura

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

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Article 6(1) and Article 8(1) – Burden of proof – Right to be present at the trial – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 and Article 48(2) – Right to a fair trial and rights of the defence – Testimony given by a witness before a judge at the pre-trial stage of criminal proceedings in the absence of the accused persons or their representatives – Impossibility for the accused persons and their representatives to examine witnesses for the prosecution at the trial stage of criminal proceedings)

I. Introduction

1. Does the right of an accused person to attend at his or her trial encompass the right to be a participant or the right to be a spectator? The Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) asks the Court to determine that question in the second of five references for preliminary ruling that it has made in the context of the same criminal proceedings. ( 2 )

II. Legal framework

A. European Union law

2. In accordance with Article 1 thereof, 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 ) lays down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial.

3. Recitals 9 to 11, 22, 33 to 35, 47 and 48 of Directive 2016/343 read as follows: ‘(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. (10) By establishing common minimum rules on the protection of procedural rights of suspects and accused persons, this Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules may also remove obstacles to the free movement of citizens throughout the territory of the Member States. (11) This Directive should apply only to criminal proceedings as interpreted by the Court …, without prejudice to the case-law of the European Court of Human Rights. … … (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. … … (33) The right to a fair trial is one of the basic principles in a democratic society. The right of suspects and accused persons to be present at the trial is based on that right and should be ensured throughout the Union. (34) If, for reasons beyond their control, suspects or accused persons are unable to be present at the trial, they should have the possibility to request a new date for the trial within the time frame provided for in national law. (35) The right of suspects and accused persons to be present at the trial is not absolute. Under certain conditions, suspects and accused persons should be able, expressly or tacitly, but unequivocally, to waive that right. … (47) This Directive upholds the fundamental rights and principles recognised by the Charter [of Fundamental Rights of the European Union (“the Charter”)] and by [the Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”)] including … the right to an effective remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. Regard should be had, in particular, to Article 6 of the Treaty on European Union (TEU), according to which the Union recognises the rights, freedoms and principles set out in the Charter, and according to which fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of Union law. (48) 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.’

4. Article 6(1) of Directive 2016/343, that article being entitled ‘Burden of proof’, states that: ‘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.’

5. Article 8 of Directive 2016/343, entitled ‘Right to be present at the trial’, provides in paragraphs 1 and 2 thereof: ‘1. Member States shall ensure that suspects and accused persons have the right to be present at their trial. 2. Member States may provide that a trial which can result in a decision on the guilt or innocence of a suspect or accused person can be held in his or her absence, provided that: (a) the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.’

6. Article 13 of Directive 2016/343, entitled ‘Non-regression’, reads as follows: ‘Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State which provides a higher level of protection.’

B. Bulgarian law

7. Under Article 12 of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’) ( 4 ) judicial proceedings are inter partes and the defence has the same rights as the prosecution.

8. It is apparent from Article 46(2)(1) and Article 52 of the NPK that the pre-trial stage of criminal proceedings is conducted by the investigating authorities under the direction and supervision of the public prosecutor.

9. Under Article 117 of the NPK: ‘All facts which were witnessed and which may help to establish the objective truth may be established on the basis of witness testimony.’

10. The order for reference, referring to Article 107(1) and Articles 139 and 224 of the NPK, states that the witness is examined at the pre-trial stage of criminal proceedings, with a view to gathering evidence, usually without the defence being present. Referring to Article 280(2) of the NPK, read in conjunction with Article 253 thereof, it also states that the witness is examined again at the hearing, in the presence of the defence, which then has the opportunity to put its own questions to him or her.

11. Article 223 of the NPK, entitled ‘Witness examination before a judge’, provides, in paragraphs 1 and 2 thereof: ‘(1) Where there is a risk that the witness will be unable to appear before the court on account of a serious illness, a prolonged period of absence from the country or other reasons that make his or her appearance at trial impossible, and also where it is necessary to perpetuate witness testimony that is of particular importance for the establishment of the objective truth, the examination shall be carried out before a judge of the relevant court of first instance or of the court of first instance in whose district the activity takes place. In those circumstances, the file is not submitted to the judge. (2) The authority responsible for the pre-trial proceedings shall ensure the attendance of the witness and the possibility for the accused person and his or her defence counsel, if any, to take part in the conduct of the examination.’

12. Article 281 of the NPK, entitled ‘Reading of witness testimony’, states, in paragraphs 1 and 3 thereof: ‘(1) Witness testimony given in the same case before a judge in the pre-trial proceedings or before a different composition of the court shall be read, where: … 3. the witness, duly summoned, cannot appear before the court for a prolonged or indefinite period of time and need not or cannot be examined by delegation of powers; 4. the witness cannot be found in order to be summoned, or has passed away; … (3) Under the conditions set out in Article 281(1)(1) to (6), witness testimony given before an authority responsible for the pre-trial proceedings shall be read where the accused person and his or her defence counsel, if such counsel was authorised or appointed, took part in the examination. If there are several defendants, the reading of the witness testimonies which shall relate to the charges brought against them shall require the consent of those defendants who were not summoned for the examination or who provided duly justified reasons for their failure to appear.’

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

13. The Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) brought criminal proceedings against several persons for their alleged participation in an organised criminal group, the purpose of which was to smuggle third-country nationals across Bulgarian borders, to assist them to enter Bulgarian territory illegally, and to receive or give bribes in connection with those activities.

14. At the pre-trial stage of the criminal proceedings the investigating authorities assisting the public prosecutor examined five third-country nationals, namely MM, RB, KH, HN and PR (together, ‘the witnesses’), the unlawful entry into Bulgaria whom five persons, namely IP, DD, ZI, SS and HYA (together, ‘the accused persons’) had allegedly facilitated. The first three of the accused persons were agents of the Sofia (Bulgaria) airport border police.

15. In accordance with Article 223 of the NPK the witnesses were examined before a judge: MM, RB and PR appeared on 30 March and 12 April 2017, HN appeared on 30 March 2017 and KH appeared on 26 May 2017. ( 5 ) These examinations took place before the accused persons had been formally indicted and had been afforded access to a lawyer. IP, DD, SS and HYA were arrested on the evening of 25 May 2017 and were indicted on the following day, ( 6 ) while ZI was arrested and indicted on 31 May 2017. Thereafter the accused persons were placed in provisional detention and were afforded the assistance of counsel.

16. After the accused persons had been indicted, the public prosecutor did not consider it necessary to examine the witnesses in the presence of the accused persons or their representatives, notwithstanding that he was aware that deportation orders had been issued against four of them, thus making it unlikely that those witnesses could attend the trial of the accused persons.

17. On 21 July 2017, the public prosecutor examined witnesses MM and RB for a second time. MM was re-examined on 22 November 2017. Those examinations were not conducted before a judge and the accused persons and their representatives were absent.

18. On 18 January 2018, SS, and on 30 April 2018, DD, expressly sought permission to examine MM. The public prosecutor did not respond to those requests. ( 7 )

19. Consequent upon their illegal presence in Bulgaria and in parallel with the criminal proceedings, witnesses MM, RB, HN and PR became the subject of administrative proceedings and were detained in a shelter for migrants. Prior to their release from custody, deportation orders were served upon them. KH, who had entered the country on 25 May 2017, left it on 29 May 2017 without administrative proceedings having been commenced against him.

20. On 19 June 2020, the Specialised Public Prosecutor’s Office filed with the referring court a bill of indictment in respect of the accused persons. The referring court’s attempts to locate and summon the witnesses with a view to examining them in the presence of the accused persons or their representatives proved unsuccessful either because their place of residence was unknown (as in the case of RB, HN and PR), or because they had been expelled from Bulgaria (as in the case of MM), or because they had voluntarily left the country (as in the case of KH). The referring court thus concluded that there was no possibility to examine the witnesses in person, in the presence of the accused persons or their representatives, and for the latter to put questions to those witnesses.

21. At the hearing of 9 April 2021, the public prosecutor applied, pursuant to Article 281(1) of the NPK, to have read at the trial of the accused persons the statements the witnesses had made before the judge at the pre-trial stage of the criminal proceedings. ( 8 ) By that means, the statements would become part of the evidence on the basis of which the court would rule on the charges laid against the accused persons. The accused persons opposed that application on the ground that it would deprive them of their right to a fair trial within the meaning of Article 6 ECHR.

22. The referring court explains that the evidence of those witnesses provides the basis for the indictments and is crucial to the assessment of the guilt of the accused persons. However, it has doubts as to the compatibility with EU law of the procedure laid down by Article 281(1) of the NPK, read in conjunction with Article 223 thereof, whereby, in the absence of a witness at the trial of an accused person, testimony that he or she gave before a judge at the pre-trial stage of criminal proceedings in the absence of the accused person or his or her representatives can be read at trial without the latter having had any opportunity to question that witness.

23. The referring court observes that, at the trial of an offence, a criminal court may rely upon witness statements made in the presence of an accused person or of his or her representatives. Pursuant to Article 281(1) and (3) of the NPK, when the trial court reads statements made by a witness at the pre-trial stage, those statements become part of the evidence in the case file and have the same evidential value as if the witness had been present at the trial and had answered questions from the parties. The referring court explains that, where there is a risk that a witness will be unable to appear before the trial court, he or she may be examined at the pre-trial stage before a judge, whose role is to direct the examination by ensuring its formal legality. Once a suspect has been formally indicted, he or she must be informed of that examination and offered the opportunity to participate in it. In order to circumvent that legal obligation, however, investigating authorities often examine witnesses in the 24 hour period between the suspect’s arrest and his or her formal indictment. ( 9 ) That was the case here. ( 10 )

24. In the view of the referring court, the right of the accused person to be present at his or her trial in Article 8(1) of Directive 2016/343 implies the exercise of all of his or her legal rights in the context of that trial for the purpose of his or her defence, including the right to question prosecution witnesses. The trial judge may thus rely only on evidence received in the presence of the accused persons or of their representatives. Here, although the accused persons are present at their trial, in reality they attend the reading of statements made by witnesses for the prosecution, without having any opportunity to question those witnesses. By reference to the second paragraph of Article 47 of the Charter, the referring court considers that the accused persons are in the same position as if the public prosecutor had examined those witnesses at the hearing in the absence of the accused persons or their representatives.

25. The referring court further observes that, when the public prosecutor gathers evidence in the course of an interlocutory procedure, such as that provided for by Article 223 of the NPK, without the participation of the defence, and uses that evidence to establish the guilt of accused persons at their trial, he or she proves the case in a manner that precludes any possibility for the accused persons or their representatives to put questions to those witnesses. The referring court asks whether the obligation imposed on the public prosecutor by Article 6(1) of Directive 2016/343 to prove the guilt of the accused person is discharged correctly in such circumstances. It also asks whether the right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter requires that accused persons are provided with effective legal means to defend themselves against inculpatory evidence adduced by the prosecution, in particular the opportunity to question prosecution witnesses. The referring court thus seeks to ascertain if Article 6(1) of Directive 2016/343 is to be interpreted in conjunction with Article 8(1) thereof.

26. The referring court does not consider that the reading, at trial of the accused persons, of testimony given by a witness at the pre-trial stage of the proceedings without the accused persons having had an opportunity to put their own questions to that witness is incompatible with EU law in all circumstances. Whilst that procedure infringes the right of the accused person to be present at the trial, it may be necessary where it is objectively impossible to ensure the presence of a witness at trial, the public prosecutor acts in good faith and there are counterbalancing measures in place.

27. Here the prosecution knew that the witnesses would be removed from Bulgaria and that it would therefore be difficult, if not impossible, for them to attend the trial. It thus knew that the testimony given by the witnesses before a judge at the pre-trial stage, in response to the public prosecutor’s questions and in the absence of the accused persons and their representatives, would be read at the trial and that it would have the same evidential value as if the accused persons or their representatives had been present at that pre-trial examination. ( 11 ) Moreover, national law does not provide any remedy against inaction on the part of or a refusal by the public prosecutor to afford accused persons an opportunity to question witnesses upon whose evidence it intends to rely.

28. In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is a national law which provides that the right of an accused person to be present in proceedings is safeguarded and the public prosecutor’s office properly discharges its obligation to prove the guilt of the accused person compatible with Article 8(1) and Article 6(1) of Directive 2016/343, read in conjunction with recitals 33 and 34 thereof and the second paragraph of Article 47 of the Charter, if the testimony given at the pre-trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre-trial stage, but did not do so?’

29. DD, IP and the European Commission submitted written observations.

IV. Legal assessment

A. Relevance of Article 6 ECHR and Articles 47 and 48 of the Charter

30. The referring court is of the view that the situation which raises doubts in the present case might be consistent with EU law if certain requirements laid down in the case-law of the European Court of Human Rights (‘the ECtHR’) are met. ( 12 ) In particular it points to the judgment of the ECtHR in Gani v. Spain, ( 13 ) where that court examined, by reference to Article 6(1) and (3)(d) ECHR, the possibility for a court to admit into evidence statements the sole prosecution witness had made during the pre-trial stage of the proceedings, in circumstances where the accused person and his defence counsel could not examine her at his trial due to her suffering from post-traumatic stress.

31. I have two observations to make in that regard.

32. First, the referring court is correct to draw upon the case-law of the ECtHR in order to interpret Directive 2016/343. ( 14 )

33. Recital 47 of Directive 2016/343 states that it upholds the fundamental rights and principles recognised by the Charter and by the ECHR, including the right to a fair trial, the presumption of innocence and the rights of the defence. It follows from recital 48 of Directive 2016/343 that the level of protection for which the Member States must provide should never fall below the standards contained in the Charter and the ECHR, as interpreted by the Court and by the ECtHR. The requirement to uphold minimum standards is closely linked to the aims of strengthening the Member States’ trust in each other’s criminal justice systems and of facilitating mutual recognition of decisions in criminal matters. ( 15 )

34. Recital 33 of Directive 2016/343 declares that the right of accused persons to be present at their trial is based on the right to a fair trial, enshrined in Article 6 ECHR, in the second and third paragraphs of Article 47, and in Article 48 of the Charter. According to the Explanations relating to the Charter, ( 16 ) the second paragraph of Article 47 of the Charter corresponds to Article 6(1) ECHR and Article 48 of the Charter is the same as Article 6(2) and (3) ECHR. ( 17 ) It follows that the right of everyone charged with a criminal offence to examine, or to have examined on their behalf, witnesses called to give evidence against them, enshrined in Article 6(3)(d) ECHR, is part of the rights of the defence guaranteed by Article 48(2) of the Charter. These require that the individual concerned must be given the opportunity effectively to make known his or her views on the charges brought against him or her, ( 18 ) and are, more generally, a specific aspect of the right to a fair trial guaranteed in the second paragraph of Article 47 of the Charter. ( 19 )

35. Second, these observations lead me to conclude that, in addition to the second paragraph of Article 47 of the Charter, to which the referring court makes a direct reference, account must also be taken of Article 48(2) of the Charter in order to provide a useful answer to the question asked by the referring court. ( 20 )

B. The question referred

36. The main proceedings fall within the scope of Directive 2016/343, since, as is clear from the order for reference, they concern accused persons who are prosecuted in the context of criminal proceedings for having allegedly committed criminal offences where a final decision as to their guilt has not yet been arrived at. ( 21 )

37. In its written observations, the Commission seeks to redefine the ambit of the reference by submitting that the question from the referring court in substance raises an issue about the admissibility of evidence. There is an obligation on Member States to ensure, 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, respect for the rights of the defence and the fairness of the proceedings. That obligation is, nevertheless, expressed to be ‘without prejudice to national rules and systems on the admissibility of evidence’. ( 22 )

38. This request for a preliminary ruling, at least in so far as it seeks the interpretation of Article 8(1) of Directive 2016/343, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter, does not raise an issue as to the admissibility of evidence. It instead expressly engages the right of accused persons to be present at their trial, in a context where the referring court wishes to know the precise scope and content of that right and the consequences that may flow therefrom for the conduct of the accused persons’ trial. In particular, it wishes to know whether that right is afforded full effect in circumstances where accused persons may attend their trial to hear statements, made by witnesses for the prosecution at the pre-trial phase of the procedure in their absence and that of their representatives, being read into the record, without being permitted to put questions to those witnesses due to the latter’s absence. In other words, does the right to attend trial, as guaranteed by the above provisions, necessarily include the right of the accused person or his or her representatives to participate at that trial through questioning prosecution witnesses?

39. In the alternative, the Commission contends that Article 8(1) of Directive 2016/343 does not apply in circumstances such as those disclosed in the order for reference.

40. The Commission first submits that Article 8(1) of Directive 2016/343 applies to the trial stage of criminal proceedings only. It therefore does not govern the gathering of evidence at the pre-trial stage, including any issue as to whether accused persons and/or their representatives have the right to be present during the examination of a witness at that stage.

41. I am unpersuaded by that argument. As the order for reference emphasises, the referring court seeks guidance about the legality of the application of Article 281(1) of the NPK at the trial of the accused persons, not about the conduct of the criminal proceedings at the pre-trial stage.

42. Second, the Commission argues that Article 8(1) of Directive 2016/343 consists of the right of an accused person to be present at his or her trial. It does not encompass the right of accused persons or their representatives to ask questions to witnesses.

43. Although neither Article 8(1) of Directive 2016/343 nor any other provision of that directive mentions the right of an accused person to examine prosecution witnesses, the Commission’s interpretation of the right of accused persons to be present at their trial is to reduce their role to that of mere spectators. That interpretation deprives Article 8(1) of Directive 2016/343 of any substance and renders the right of accused persons to attend their trial ineffective, if not meaningless. The referring court correctly considers that, were this interpretation to prevail, the accused persons would be in the same position as if the public prosecutor had examined those witnesses at the trial in the absence of the accused persons or their representatives.

44. In any event, it is clear from the case-law of both the Court and the ECtHR that the right of accused persons to question witnesses called by the prosecution during a trial on criminal charges is part of the essence of the right of a person to be present at his or her trial.

45. Referring to the case-law of the ECtHR in a judgment in which it interpreted Article 8(1) and (2) of Directive 2016/343, the Court held that ‘a public hearing constitutes a fundamental principle enshrined in Article 6 of the ECHR [, which] is particularly important in criminal cases, … where an individual is entitled to have his case “heard”, with the opportunity, inter alia, to give evidence in his defence, hear the evidence against him, and examine and cross-examine witnesses’. ( 23 )

46. Similarly, in a case that involved the application of the principle of the immediacy of criminal proceedings, whereby a court is required to have a direct and immediate knowledge of the case before it, ( 24 ) the Court held that persons who exercise the responsibility to decide upon the guilt or innocence of an accused person ought, in principle, to be able to hear witnesses in person and to assess their credibility, that the assessment of the credibility of a witness is a complex task that usually cannot be achieved by a mere reading of his or her recorded words, and that ‘an important aspect of fair criminal proceedings is the ability for the accused to be confronted with the witnesses in the presence of the judge who ultimately decides the case’. ( 25 )

47. On several occasions the ECtHR has had the opportunity to interpret the right of persons charged with a criminal offence to examine, or to have examined on their behalf, witnesses called to give evidence against them, as enshrined in Article 6(3)(d) ECHR, which is a specific aspect of the right to a fair trial recognised in Article 6(1) ECHR. ( 26 ) By reference to these provisions, the ECtHR examines whether criminal proceedings, when examined in the round, including the manner in which the evidence is taken, are fair. ( 27 )

48. According to the ECtHR, Article 6(1) and (3)(d) ECHR normally require that, before persons accused of a criminal offence may be convicted, all of the evidence against them must be produced in their presence at a public hearing for the purpose of facilitating adversarial argument. The use as evidence of statements obtained at the investigation stage is not in itself inconsistent with those provisions, provided always that the rights of the defence, which, as a rule, require that an accused person is afforded an adequate and proper opportunity to challenge and to question a witness against him or her, are respected. ( 28 )

49. The ECtHR assesses the compatibility with Article 6(1) and (3)(d) ECHR of criminal proceedings in the course of which statements made by a witness who had not been present and questioned at the trial are used as evidence by reference to a three step test. ( 29 )

50. First, there must be a good reason for the non-appearance of the prosecution witness at the trial, such as death, state of health, fear of testifying or an impossibility to locate him or her. ( 30 )

51. Second, a conviction that is exclusively, or to a decisive degree, based on statements made by a person whom the accused person has had no opportunity to examine or to have examined on his or her behalf, whether in the course of the investigation or at trial, restricts the rights of the defence to such an extent so as to render that trial incompatible with the guarantees provided for by Article 6 ECHR. ( 31 )

52. Third, the ECtHR determines whether there were sufficient counterbalancing factors, including strong procedural safeguards, to compensate for the handicaps caused to the defence as a result of the admission of the untested statements of an absent witness and to ensure that the trial, judged as a whole, is fair. ( 32 ) The ECtHR examines the following elements in that context: the trial court’s approach to the untested evidence of the absent witness, ( 33 ) the availability and strength of corroborative evidence at the trial, ( 34 ) and the procedural measures taken to compensate for the lack of an opportunity to cross-examine the witness directly at the trial. ( 35 )

53. It is in the light of these considerations that the question referred falls to be answered as regards the interpretation of Article 8(1) of Directive 2016/343.

54. As the referring court explains, Article 281(1) of the NPK, read in conjunction with Article 223 thereof, allows a court hearing criminal charges, where a witness is, for good reason, unable to be present at the trial, to take into account, in order to determine the guilt or innocence of an accused person, statements made by that witness before a judge on examination by the prosecution at the pre-trial stage of the proceedings, on the understanding that if the accused person has not been formally charged at the time that examination takes place he or she cannot participate in it.

55. To the extent that, in practice, these provisions preclude accused persons or their counsel from questioning prosecution witness at trial, they may infringe those persons’ right to be present at their trial as guaranteed by Article 8(1) of Directive 2016/343 as well as the right to a fair trial and the rights of the defence enshrined in the second paragraph of Article 47 and Article 48(2) of the Charter, respectively.

56. Whilst the Court is not bound to follow the three part test designed by the ECtHR, it furnishes a useful conceptual framework by reference to which the compatibility of procedures, such as those described in the order for reference, can be assessed in the light of Article 8(1) of Directive 2016/343 and the rights enshrined in the second paragraph of Article 47 and Article 48(2) of the Charter.

57. The national legislation to which the referring court refers appears to meet the requirement of the first leg of that test, since the evidence of the prosecution witness is to be admitted only where there is a good reason for his or her absence from the trial. Whether the prosecution can demonstrate good reason for the absence of the witnesses in the circumstances of the proceedings pending before the referring court is a matter for the latter to decide.

58. The application of the second leg of the test laid down by the ECtHR is also a matter for the referring court to decide in the light of the facts placed before it. Should it find that the evidence of the absent witnesses is decisive in order to determine the guilt of the accused persons, it follows that the national legislation to which it refers restricts the right of those persons to defend themselves to an extent incompatible with the guarantees provided for by Article 6 ECHR.

59. As for the third leg of that test, the information before the Court tends to disclose that there are insufficient counterbalancing factors in place to compensate for the handicaps caused to the accused persons by reason of the admission of the untested witness evidence such as could ensure that the trial, judged as a whole, is fair. According to the referring court, the witnesses’ statements made before a judge under Article 223 of the NPK and read under Article 281(1) of the NPK have the same evidential value as if the witnesses were present at the trial and had answered questions from both the prosecution and the defence. In particular, there is no obligation on the prosecution, after it has examined a witness before a judge under Article 223 of the NPK without the participation of the defence, to examine that witness again, in the presence of the defence, at the pre-trial stage. ( 36 ) Nor does the defence have any possibility to challenge a prosecution refusal to grant a request to question witnesses pre-trial or to require it to respond to a request for that purpose.

60. As regards the interpretation of Article 6(1) of Directive 2016/343, to which the question for preliminary ruling also refers, that provision is one of five articles contained in Chapter 2 thereof, which addresses the presumption of innocence. As recital 22 of the directive makes clear, that provision requires Member States to ensure that the burden of proof to establish the guilt of suspects and accused persons is on the prosecution.

61. Article 6(1) of Directive 2016/343 thus serves to allocate the burden of proof in criminal trials. Contrary to what the referring court suggests, that provision does not contain a requirement that, in order to establish the guilt of the accused persons, the prosecution may put forward only such evidence as it may have obtained in compliance with law, including Article 8(1) of Directive 2016/343. The subject matter of Directive 2016/343, as defined by Article 1 thereof, does not purport to govern matters of this kind in any way.

62. I am therefore of the view that the interpretation of Article 6(1) of Directive 2016/343 is not relevant to the facts of this case and that there is accordingly no need to reply to the referring court’s request to interpret that provision.

V. Conclusion

63. In the light of the foregoing I propose that the Court answer the question referred for a preliminary ruling by the Spetsializiran nakazatele sad (Specialised Criminal Court, Bulgaria) as follows: A national law which provides that the right of an accused person to be present in proceedings is safeguarded is incompatible with Article 8(1) 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, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, if the testimony given at the pre-trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre-trial stage, but did not do so.

( 1 ) Original language: English.

( 2 ) See Order of 25 March 2022, IP and Others (Establishment of the accuracy of the facts in the main proceedings) (C‑609/21, not published, EU:C:2022:232); Case C‑347/21, DD (Re-examination of a witness) (OJ 2021 C 338, p. 12); Case C‑349/21, HYA and Others (Reasoning of authorisations to tap telephones) (OJ 2021 C 338, p. 13); and Case C‑269/22, I.P. and Others.

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

( 4 ) DV No 86 of 28 October 2005.

( 5 ) From 3.05 p.m. to 3.50 p.m.

( 6 ) Between 5.40 p.m. and 8.20 p.m.

( 7 ) In his observations, DD submits that he sought permission from the public prosecutor to examine MM and RB and that those requests were refused expressly.

( 8 ) See point 15 of the present Opinion.

( 9 ) Pursuant to Article 72(1) of the Zakon za Ministerstvoto na vatreshnite raboti (Law on the Ministry of the Interior) (DV No 53 of 27 June 2014), read in conjunction with Article 73 thereof, a person suspected of having committed an offence may be detained for a maximum of 24 hours. It is usually at the end of that period that a suspect is formally indicted.

( 10 ) See the case of KH, point 15 of the present Opinion.

( 11 ) The referring court observes that, under national law, the testimony of a witness who has been examined – whether or not before a judge – with the participation of the prosecution and of the defence, and the testimony of a witness who has been examined with the participation of the prosecution only but before a judge, have the same evidential value.

( 12 ) See point 26 of the present Opinion.

( 13 ) ECtHR, 19 February 2013 (CE:ECHR:2013:0219JUD006180008, §§ 39 and 41). The order for reference expressly cites Article 6(3)(d) ECHR and judgments of the ECtHR interpreting that provision.

( 14 ) See, in the same vein, Opinion of Advocate General Richard de la Tour in Sofiyska rayonna prokuratura and Others (Trial of an accused person expelled from the territory) (C‑420/20, EU:C:2022:157, point 51). Similarly, in his Opinion in Prokuratura Rejonowa Łódź-Bałuty (C‑338/20, EU:C:2021:683, point 82), Advocate General Bobek observed that ‘the Court has not yet had the opportunity to produce a body of case-law on the right to a fair trial as extensive and as detailed as that developed by the ECtHR’ and that, ‘however, in its decisions delivered to date, the Court has frequently and expressly cited the ECtHR’s judgments regarding Article 6(3) ECHR and has “incorporated” into the EU legal order the principles flowing therefrom’.

( 15 ) Recital 10 of Directive 2016/343.

( 16 ) OJ 2007 C 303, p. 17.

( 17 ) Moreover, Article 52(3) of the Charter states that, in so far as the Charter contains rights that correspond to those guaranteed by the ECHR, the meaning and the scope of those rights are the same as those laid down by the ECHR. The explanations relating to that provision indicate that the meaning and scope of the rights so guaranteed are determined by the ECHR and the case-law of the ECtHR interpreting same (see also judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41).

( 18 ) Opinion of Advocate General Richard de la Tour in Sofiyska rayonna prokuratura and Others (Trial of an accused person expelled from the territory) (C‑420/20, EU:C:2022:157, point 54).

( 19 ) Thus, in its judgment of 19 February 2013 in Gani v. Spain, the ECtHR held that ‘Article 6(3)(d) of the [ECHR] is a specific aspect of the right to a fair hearing guaranteed by Article 6(1) which must be taken into account in any assessment of the fairness of the proceedings’ (CE:ECHR:2013:0219JUD006180008, § 36). See also Opinion of Advocate General Bot in Gambino and Hyka (C‑38/18, EU:C:2019:208, point 92).

( 20 ) According to settled case-law, in the procedure laid down by Article 267 TFEU, which provides for cooperation between national courts and the Court, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it, such that the Court may find it necessary to consider provisions of EU law to which the national court has not referred (judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 30). The Commission’s written observations submit that the right of an accused person to participate in the examination of a witness is, in principle, protected by the second paragraph of Article 47 and Article 48(2) of the Charter.

( 21 ) Article 2 of Directive 2016/343 provides that it applies to natural persons who are suspects or accused persons in criminal proceedings, at all stages of those proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the final determination as to whether that person committed that criminal offence has become definitive.

( 22 ) Article 10(2) of Directive 2016/343.

( 23 ) Judgment of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94, paragraph 36).

( 24 ) Opinion of Advocate General Bot in Gambino and Hyka (C‑38/18, EU:C:2019:208, point 44).

( 25 ) Judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628, paragraphs 42 and 43).

( 26 ) See footnote 19 of the present Opinion.

( 27 ) ECtHR, 19 February 2013, Gani v. Spain (CE:ECHR:2013:0219JUD006180008, § 37 and the case-law cited), and 15 December 2015, Schatschaschwili v. Germany (CE:ECHR:2015:1215JUD000915410, §§ 100 and 101, and the case-law cited).

( 28 ) ECtHR, 19 February 2013, Gani v. Spain (CE:ECHR:2013:0219JUD006180008, § 38 and the case-law cited), and 15 December 2015, Schatschaschwili v. Germany (CE:ECHR:2015:1215JUD000915410, § 105 and the case-law cited).

( 29 ) ECtHR, 15 December 2015, Schatschaschwili v. Germany (CE:ECHR:2015:1215JUD000915410, § 107). In the same vein, the Court, in its judgment in Gambino and Hyka, held that ‘in order to determine whether it is possible to use the written record of a victim’s statement in evidence, Member States should examine whether hearing the testimony of the victim is likely to be decisive for purposes of the defendant’s trial and to ensure by means of strong procedural safeguards that the taking of evidence in the context of criminal proceedings does not prejudice the fairness of those proceedings for the purposes of the second paragraph of Article 47 of the Charter or the rights of the defence for the purposes of Article 48(2) of the Charter’ (Judgment of 29 July 2019, C‑38/18, EU:C:2019:628, paragraph 55).

( 30 ) ECtHR, 15 December 2011, Al-Khawaja and Tahery v. United Kingdom (CE:ECHR:2011:1215JUD002676605, § 119 and 120), and 15 December 2015, Schatschaschwili v. Germany (CE:ECHR:2015:1215JUD000915410, § 119 and the case-law cited).

( 31 ) ECtHR, 19 February 2013, Gani v. Spain (CE:ECHR:2013:0219JUD006180008, § 38 and the case-law cited).

( 32 ) Ibid., §§ 41 and 42, and the case-law cited.

( 33 ) The ECtHR examines, inter alia, whether the trial court approached the untested evidence of the absent witness with caution, whether it showed an awareness that the statements of the absent witness carried less weight, and whether it provided detailed reasoning as to why it considered that evidence credible, having regard to the other evidence available (ECtHR, 15 December 2015, Schatschaschwili v. Germany, CE:ECHR:2015:1215JUD000915410, § 126).

( 34 ) Ibid., § 128.

( 35 ) According to the ECtHR, an important safeguard is to have given accused persons or their counsel an opportunity to question the witness during the investigation stage. It held in that respect that ‘where the investigating authorities [have] already taken the view at the investigation stage that a witness would not be heard at the trial, it [is] essential to give the defence an opportunity to have questions put to the victim during the preliminary investigation’ (ECtHR, 15 December 2015, Schatschaschwili v. Germany, CE:ECHR:2015:1215JUD000915410, § 130).

( 36 ) Save where the re-examination takes place before a judge under Article 223 of the NPK at a time when the suspect has been formally indicted. There appears to be no obligation to conduct such a re-examination.