Emil Milev

According to the Bulgarian Code of Criminal Procedure (NPK), the court assessing a pretrial detention measure may not, in the litigation stage of criminal proceedings, examine whether there are reasonable grounds to assume that a criminal offence has been committed. The Supreme Court of Cassation opined, 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. 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. This case concerns the conformity of the Opinion of the Supreme Court of Cassation with Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. 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. Ms Milev is still in detention, therefore, this case is examined under the PPU procedure.

Advocate General Bobek held that such Opinion delivered in the course of the period for transposition 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.

The Court stated that the Opinion of the Bulgarian Supreme Court of Cassation, delivered at the beginning of the transposition period of Directive 2016/343/EU 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, which confers on the national courts having jurisdiction to hear an action brought against a custody decision the ability to decide whether, during the trial stage of the criminal proceedings, the continued custody of an accused must be subject to a review by the court of whether, in addition, there are reasonable grounds to suspect that he committed the offence with which he is charged is not likely seriously to compromise, after the expiry of the period prescribed for transposition of the directive, the attainment of the objectives prescribed by that directive.