Judgment of 27 October 2016, Milev, C‑439/16 PPU
Miroslava Chifchieva [1]
The article has as subject the recent judgement of the Court of Justice of the European Union and the conclusions of the Advocate General in the case Milev C‑439/16 PPU regarding the application of the presumption of innocence by Bulgarian jurisdictions when dealing with detention in custody. The procedure before the Court was opened by a preliminary ruling request from the Bulgarian Specialised Court for Criminal Cases.
The request has been made in criminal proceedings against Mr Emil Milev, who has remained in custody since 24 November 2013 and concerned the continuation of his detention in custody pending trial. The national court asks for the interpretation of Articles 3 and 6 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.
The referring court considers that the Bulgarian national law governing criminal procedure in accordance with Article 270(2) of the Code of Criminal Procedure runs counter to the requirements flowing from the European Convention for the Protection of Human Rights and Fundamental Freedoms. While that national law prohibits the court, during the trial stage of the case, to rule, in the court’s review of a remand in custody pending trial, on whether there are reasonable grounds to suspect that the accused has committed the offences of which he is accused, Article 5(1)(c) and 4 of the ECHR allows an accused to be kept in custody only where there is „reasonable suspicion of his having committed an offence”. In those circumstances, the Specialised court for criminal matters requested an opinion from the Bulgarian Supreme Court of Cassation. In an opinion delivered on 7 April 2016 by the plenary assembly of the judges of the criminal chamber of that court confirmed that there is a conflict between the national criminal procedural law and the ECHR. However, the Supreme Court of Cassation stated that they are not in a position to propose any solution to the problem. They are clearly of the view that each court must examine whether it should give priority to the ECHR or to national law and whether it is in a position to rule in that context.
According to the referring court, the authority of the opinion of 7 April 2016 must be analogous to that of an interpretative decision and the grounds which it contains are, accordingly, binding on all national courts. Nonetheless, the referring court entertains doubts as to the conformity of those grounds with Articles 3 and 6 of Directive 2016/343.
The CJEU notes that Directive 2016/343 entered into force on 31 March 2016 and in accordance with Article 14(1) the period prescribed for transposition of that directive expires on 1 April 2018. It remains that the Member States must refrain, during the period prescribed for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive. It also remains that the authorities and courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive.
Both, the Advocate General Bobek and the CJEU note that the opinion of the Supreme Court of Cassation leaves the courts free to apply the provisions of the ECHR, as interpreted by the European Court of Human Rights, or those of the national criminal procedural law.
On those grounds, the Court rules that the opinion delivered on 7 April 2016 by the Supreme Court of Cassation, Bulgaria 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.
The author puts special emphasis on the opinion of the General Advocate Bobek according to whom judicial decisions on pretrial detention may, in certain circumstances, infringe the principle of the impartiality of the tribunal and respect for the presumption of innocence — which is closely linked to that principle. This is the case, for example, where the judge bases pretrial detention on particularly confirmed suspicion that the accused has committed the crimes or where a decision on detention contains statements not limited to describing a state of suspicion. In this context, the logical link between the „reasonable grounds” test at the pretrial detention stage and the presumption of innocence as guaranteed by Article 3 of Directive 2016/343 and Article 48(1) of the Charter is undeniable. Therefore, the presumption of innocence would entail, in practice, that the court is not authorised to take any repressive measures, with regard to a person who is accused of having committed an offence, before proving at least that there are reasonable grounds for suspecting that that person is the perpetrator. Every detention without a conviction shall be considered as a „serious departure from the rules of respect for individual liberty and of the presumption of innocence”. Therefore, the continued detention of a person without any judicial consideration of reasonable grounds is likely to infringe the principle of the presumption of innocence under Article 3 of Directive 2016/343 and the safeguards offered by Articles 4 and 10 of that directive. This conclusion means, according to the author, not only that national jurisdiction should consider not applying the Bulgarian law which is contrary to that interpretation of the Directive 2016/343 but that Bulgarian legislation needs to be amended as soon as possible in order to abide by the requirements of that directive.
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Read the summary in English language of this article here: Обосновано подозрение или „виновен до доказване на противното”
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[1] Prosecutor at the Regional Prosecutor’s Office in Pernik; Ph. D candidate in Administrative Substantial and Procedural Law at the Sofia University “St. Kliment Ohridski”, Sofia, Bulgaria.