AH and Others (Présomption d’innocence)

On 5 September 2019, the Second Chamber of the Court of Justice delivered its judgment in the case of AH and Others, where it deals with the interpretation of Directive (EU) 2016/343 on the presumption of innocence and the right to be present at the trial.

In the framework of Bulgarian criminal proceedings concerning organised crime, MH, one of the six co-defendants accused to be part of a criminal organisation, expressed his wish to enter into an agreement with the prosecutor, in which he admitted his guilt in exchange for a reduced sentence. The other five accused persons gave their ‘procedural consent’ to the conclusion of such an agreement, while specifically indicating that that did not mean that they were guilty and that they did not waive their right to plead not guilty. They were nonetheless mentioned in the text of the agreement between MH and the prosecutor and identified by their first name, patronymic, surname and national identity number. This may raise some problems of compatibility with Article 4(1) of the Directive, which expressly requires the Member States to ‘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’. It is on this point that the Court of Justice is required to provide clarification.

After explaining that the Directive is applicable ratione temporis, materiae, and personae, the Court argues that the right to the presumption of innocence shall be interpreted in the light of the case of the ECtHR on the equivalent right enshrined in the ECHR. According to the Strasbourg Court, there is a violation of the presumption of innocence if a judicial decision contains a clear declaration, in the absence of a final conviction, that the person concerned has committed the crime in question. The choice of words by the judicial authorities and the particular circumstances in which this choice was are very important in this context. True, adds the Court, the ECtHR itself has recognised that ‘in complex criminal proceedings involving several persons who cannot be tried together, references by the national court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial. […] however, […] if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it’ (para. 44).

This overview of the ECtHR’s case law is the premiss for the conclusion reached by the Court of Justice, which thus contends that an agreement such that of the main proceedings may include references to the alleged accomplices of the defendant without violating their presumption of innocence, yet two conditions shall be met. First, those references shall be necessary to establish the criminal liability of the person who enters into an agreement with the prosecutor. This was the case of MH, since the crime of which he was accused is participation in a criminal organisation and such an organisation, according to Bulgarian law, requires at least the participation of three persons. Second, references to other persons shall also specify that they are prosecuted in the context of separate criminal proceedings and that their guilt has not been legally established. Such specification does not seem to be clearly spelled out in the agreement in question in the main proceedings yet the referring court seems to be in a position to amend the terms of that agreement.

Therefore, the conclusion of the Court is that ‘Article 4(1) of Directive 2016/343 must be interpreted as meaning that it does not preclude that an agreement in which the accused person recognises his guilt in exchange for a reduction in sentencing, which must be approved by a national court, expressly mentions as joint perpetrators of the criminal offence in question not only that person, but also other accused persons, who have not recognised their guilt and are being prosecuted in separate criminal proceedings, on the condition that, first, that reference is necessary for the categorisation of the legal liability of the person who entered into the agreement and, second, that that same agreement makes it clear that those other persons are being prosecuted in separate criminal proceedings and that their guilt has not been legally established’ (para. 50).