Spetsializirana prokuratura

On 28 November 2019, the First Chamber of the Court of Justice delivered its judgment in case C-653/19 PPU, which originates from a request for a preliminary ruling lodged by a Bulgarian court and concerns the interpretation of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016. Suspected of some serious crimes, DK was remanded in custody in June 2016 in the context of criminal proceedings initiated against him for those crimes and then referred to the Specialised Criminal Court of Bulgaria to stand trial. His applications to this court to be released were all rejected. According to Bulgarian law, indeed, once a person held in detention on remand is referred to a court, the latter shall first review the merits of that detention. If the outcome of the review is positive, the release of the person cannot be granted unless that person makes an application to that end and proves the existence of new circumstances justifying his release. The Bulgarian court has thus doubts over the compliance of such legislation with EU law, and more precisely Article 6 (‘Member States shall ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution. […]’) and recital 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 […]’) of Directive 2016/343.

The Court argues that the Directive is clear in making a distinction between ‘decisions on guilt’ and other ‘decisions’ to be taken in the framework of criminal proceedings. As for the former, they are subject to the above-mentioned rule of Article 6 of the Directive, which however does not apply to the latter. All the other procedural decisions do not fall within the remit of Article 6, and this holds true for decisions on pre-trial detention such as those of the main proceedings: ‘A judicial decision having as its sole purpose the potential continued detention on remand pending trial of an accused person seeks only to resolve the question whether that person must be released or not, in the light of all the relevant circumstances, without establishing whether that person is guilty of having committed the offence with which he is charged’ (para. 35). Other provisions of the Directive thus apply to these decisions that do not concern the guilty of the person concerned, such as Article 3 and 4, which require that these decisions do not refer to that person as being guilty.

The non-applicability of Article 6 of the Directive, which in turn implies the non-application of the Charter, is not contradicted by para. 56 of the Court’s order in the RH case (C-8/19 PPU), which reads as follows: ‘Article 6 of Directive 2016/343 […] specifically states […] that that provision applies to any obligation on the judge or the competent court to seek both elements of inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law’. As the Court clarifies, this paragraph only aims to explain the context surrounding Article 4 of the Directive but cannot be read as justifying the application of Article 6 to a procedure leading to the adoption of a decision to remand in custody. The Court therefore concludes that Article 6 of Directive 2016/343 and Articles 6 and 47 of the Charter ‘do not apply to a national law that makes the release of a person held in detention on remand pending trial conditional on that person establishing the existence of new circumstances justifying that release’ (para. 42).