CJEU Case C-748/24 / Opinion

45. That provision must be read in the light, inter alia, of Article 48(1) of the Charter ( 10 ) and Article 3 of Directive 2016/343 on the presumption of innocence, as well as recital 16 of that directive, according to which respect for the presumption of innocence is without prejudice to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and are based on suspicion or on elements of incriminating evidence, provided that such decisions do not refer to the suspect or accused person as being guilty. According to that recital, before taking a preliminary decision of a procedural nature, the judicial authorities might first have to verify that there is sufficient incriminating evidence against the suspect or accused person to justify the decision concerned, and that the decision could contain reference to that evidence.

46. In the absence of specific guidance in Directive 2016/343 and in the case-law concerning Article 48(1) of the Charter as to how to determine whether a person is presented as being guilty in a judicial decision, we should turn primarily to the case-law of the ECtHR.

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69. Therefore, although the right to respect for the presumption of innocence provided for in Article 4(1) of Directive 2016/343, read in the light of Article 48(1) of the Charter, does not preclude a higher court, ruling in an appeal brought by the prosecutor against the decision of the court of first instance to discontinue the proceedings, from taking a position on the constituent elements of the criminal offence at issue in order to justify its decision whether or not to annul the discontinuance, it is only on condition that it does not refer to the accused person as being guilty, which it is for the referring court to assess.

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85. In the third place, the referring court seems to have doubts concerning respect for the rights of the defence, guaranteed by Article 48(2) of the Charter, on the ground that the appeal court’s decision was adopted without the accused person being able to respond.

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90. In my opinion, it is appropriate to answer the referring court that the right to respect for the presumption of innocence provided for in Article 3 and Article 4(1) of Directive 2016/343, read in the light of Article 48(1) of the Charter, does not preclude a criminal court, hearing an appeal against a preliminary decision of a procedural nature, from taking a position on the incriminating evidence by carrying out an assessment in fact and in law as to whether the constituent elements of the criminal offence at issue are present, when it was not required to do so under national law and not all the evidence was taken at that preliminary stage of the proceedings, provided that it does not refer to the accused person as being guilty, which it is for the referring court to assess.

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101. It seems to me that such a measure is based less on Article 4(2) of Directive 2016/343 concerning appropriate measures than on the primacy of the presumption of innocence under Article 48(1) of the Charter and Article 3 of that directive.

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113. I am therefore of the opinion that the answer to the referring court must be that Article 4(2) of Directive 2016/343, read in the light of Article 3 of that directive and Article 48(1) of the Charter, must be interpreted as meaning that it does not preclude the referring court, on the one hand, from disregarding the rulings of the appeal court that it may consider to be contrary to the presumption of innocence and, on the other hand, from hearing and deciding the case again in accordance with its national procedural law, as governed by the principles of equivalence and effectiveness.