Judgment of the Court (First Chamber) of 28 November 2019
Criminal proceedings against Spetsializirana prokuratura
Request for a preliminary ruling from the Spetsializiran nakazatelen sad
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 and of the right to be present at the trial in criminal proceedings — Article 6 — Burden of proof — Continuation of the detention on remand pending trial of an accused person
Case C-653/19 PPU (2019)
Language: English

At a hearing before the Spetsializiran nakazatelen sad (Specialised Criminal Court) on 4 September 2019, DK made a new application to be released.
The referring court states that it is apparent from the Bulgarian law that, after a person held in detention on remand pending trial is referred to a court, that court must first review the merits of that detention. If that court rules that that detention is lawful, the detention continues for an indefinite period and is not subsequently re-examined of the court’s own motion. The release of the person held in detention cannot be granted unless that person makes an application to that end and proves the existence of new circumstances justifying his release.
The Spetsializiran nakazatelen sad (Specialised Criminal Court) considers that, in the light of the requirements of the Bulgarian law as interpreted by national case-law, it is unlikely that DK will succeed in furnishing such evidence and thus in establishing that there has been a change of circumstances such as to justify his release.
However, that court doubts whether the Bulgarian law is compatible with Article 6 and recital 22 of Directive 2016/343, in so far as those provisions could be interpreted as placing the burden of proof as regards the merits of the continuation of the accused person’s detention on remand pending trial on the prosecution and as not allowing presumptions in favour of those merits unless those presumptions are reasonably proportionate to the aim pursued and take into consideration the rights of the defence.
Moreover, according to the referring court, the rights guaranteed in Articles 6 and 47 of the Charter must be taken into account. As regards, in particular, Article 6, which corresponds to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, it follows in particular from the judgment of the European Court of Human Rights of 27 August 2019, Magnitskiy and Others v. Russia (CE:ECHR:2019:0827JUD003263109) that establishing a presumption in favour of the lawfulness of keeping an accused person in detention is contrary to Article 5(3) of that convention.
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 that, during the trial stage of criminal proceedings, requires a change in circumstances as a condition for granting the defence’s application for the release of the accused person from detention, consistent with Article 6 and recital 22 of Directive 2016/343 and with Articles 6 and 47 of the [Charter]?’

Legal relationship diagram (Graphviz):
digraph {
    rankdir=LR;
    node [shape=box];
    
   "DK"[shape=doubleoctagon];
   "The Spetsializiran nakazatalen sad (Specialised Criminal Court, Bulgaria)"[shape=doubleoctagon];
   "The Court of Justice"[shape=doubleoctagon];
    
   "DK"->"The Spetsializiran nakazatalen sad (Specialised Criminal Court, Bulgaria)"[label="A new application to be released 04/09/2019"];
   "The Spetsializiran nakazatalen sad (Specialised Criminal Court, Bulgaria)"->"Question";
   "Question"->"The Court of Justice";
   "Question"->"The criminal proceedings initiated and remanded in custody 11/06/2016"[dir=none];
}