HYA and Others (Impossibilité d’interroger les témoins à charge)

In this case, the preliminary ruling concerned the Directive (EU)2016/343 regarding the presumption of innocence and the right of be present during the trial. This case is connected to the one concerning DD (Case C-347/21). It regards a police border officer who is accused in a proceeding concerning irregular migration. In this case, the accused requested to examine several witnesses, however, lots of them where third countries nationals without a residence and as consequence they were under administrative procedures regarding irregular migrants. During the preliminary ruling, the accused requested for the examination of some witnesses, but the court did not accept that. However, during the pre-trial phase of the criminal proceedings the witnesses answered to the Prosecutor, without the present of the defendant and of his lawyer. Then, the Specialised Criminal Court of Bulgaria tried to call for the witnesses to examinate them, but either because it was not possible to determine their place of residence or because they had been removed from Bulgarian territory or had left it voluntarily. Thus, according to the said court, there is no possibility that the witnesses concerned could be interviewed in person during the judicial phase of the proceedings.At the hearing before the referring court on 9 April 2021, the prosecutor's office requested that the statements made by the witnesses during the pre-trial phase of the criminal proceedings be read out in accordance with Article 281(1) of the bulgarian procedural penal Code, so that these statements would form part of the evidence on the basis of which the court would rule on the merits. The question arises the possible infringement of the right to a fair trial, since the accused did not have the possibility to examine the witnesses. The referring judge asked if it is consistent with article 8(1) and Article 6(1), read in conjunction with recitals 33 and 34, of Directive 2016/343 and Article 47(2) of the Charter that the statements made by the witnesses are admitted into the case file because there are objective reasons those witnesses cannot be examined during the trial. Such witnesses were examined only by the prosecution and without the participation of the defence, but before a judge, and the prosecution was able to guarantee the defence the possibility of participating in such examination already in the preliminary phase but the defence did not do so. The Court affirmed that the articles preclude the court to base its decision on the guilt or the innocence of the person prosecuted on the evidence of that witness obtained during a hearing before a judge in the preliminary phase of those proceedings, but without the participation of the prosecuted person or his or her lawyer, unless there is a serious reason for the non-appearance of the witness in the judicial phase of the criminal proceedings, the testimony of that witness is not the sole or decisive basis for the conviction of the prosecuted person and there are sufficient countervailing factors to offset the difficulties caused to the prosecuted person and his or her lawyer by taking into account that testimony.