CJEU C‑439/16 PPU / Opinion
Key facts of the case:

Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in criminal matters — Directive (EU) 2016/343 — Strengthening of certain aspects of the presumption of innocence — Articles 3 and 6 — Temporal application — National legislation prohibiting, during the judicial stage of the proceedings, an examination whether there are reasonable grounds to suspect that the accused has committed a criminal offence — ‘Opinion’ of a supreme court finding a conflict between the national legislation and Article 5(1)(c) and (4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms — Discretion granted to national courts and tribunals to decide whether or not to apply that Convention

Results (sanctions) and key consequences of the case:

In the light of the above considerations, I propose that the Court give the following answer to the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria):
An Opinion of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) delivered in the course of the period for transposition of Directive (EU) 2016/343 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 is not liable seriously to compromise the objectives prescribed by that directive if it grants courts the freedom to decide between the application of Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, read in conjunction with Article 5(1)(c) thereof, and the application of national legislation contrary to those provisions.
Paragraphs referring to EU Charter
Judicial decisions on pretrial detention may, in specific cases, entail an infringement of the fundamental right to the presumption of innocence, as set out in Article 48(1) of the Charter. The meaning and scope of that provision are the same as those of Article 6(2) of the ECHR, as is clear from Article 52(3) of the Charter and the Explanations relating to the Charter.

In this respect, the European Court of Human Rights has ruled, in connection with continued pretrial detention, that suspicion and formal finding of guilt are not to be treated as being the same. (23) The European Court of Human Rights makes a distinction between statements ‘which reflect the opinion that the person concerned is guilty and statements which merely describe a state of suspicion’, concluding that ‘the former infringe the presumption of innocence, while the latter have been found to be in conformity with the spirit of Article 6 of the [ECHR]’. (24)

Thus, on the basis of an interpretation of Article 3 of Directive 2016/343, read in the light of Article 48 of the Charter, it can be stated, in accordance with the view taken by the Commission, that the Bulgarian system, under which the court, at the litigation stage of criminal proceedings is precluded from ruling on ‘reasonable grounds’ cannot be justified either from the point of view of the impartiality of the tribunal or from the point of view of the presumption of innocence. (25)

However, 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’ (26) or where a decision on detention contains statements not limited to describing a state of suspicion.

In the context of EU law, under Article 52(3) of the Charter, the meaning and scope of the rights guaranteed by the Charter are the same for corresponding rights as those laid down by the Convention. However, this does not mean that specific standards developed in the case-law of the European Court of Human Rights in connection with a certain fundamental right cannot constitute, in EU law, elements which are part of the content protected by other fundamental rights.

In particular, such a limitation cannot be applied in connection with the interpretation, in the light of fundamental rights, of an act of secondary legislation which follows a different internal logic. The system of the European Court of Human Rights permits the relevant complaints to be examined with reference to more specific provisions, whilst the system of protection of fundamental rights under the Charter differs in that it relates solely to areas within the scope of EU law.

Consequently, in interpreting Directive 2016/343 concerning certain aspects of the presumption of innocence, the content and meaning of the safeguards under Article 3 of the directive and under Article 48(1) of the Charter cannot be construed restrictively for the reasons put forward by the Commission. It should be noted in this regard that Article 52(3) of the Charter does not prevent Union law from providing more extensive protection than that offered by the ECHR.

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. As the referring court states, the presumption of innocence entails, in practice, not being 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 is undoubtedly a ‘serious departure from the rules of respect for individual liberty and of the presumption of innocence’. (30) Therefore, the existence of ‘reasonable grounds’ is, within the framework of the ECHR, one of the criteria permitting a person to be deprived of his liberty before any conviction, notwithstanding the presumption of innocence. (31) Thus, in the specific context of pretrial detention, the requirement relating to ‘reasonable grounds’ is linked to the guarantee of the presumption of innocence.

Article 4 of Directive 2016/343 thus preserves the Member States’ discretion whilst at the same time reflecting the obligation to base preliminary decisions of a procedural nature, such as pretrial detention, on sufficient justifying elements. On the one hand, the EU legislature wished to make clear that such decisions do not in themselves constitute an infringement of the presumption of innocence, even if they make reference to the existence of suspicion. On the other hand, the legislature expressly envisaged that courts may be required to base those decisions on sufficient evidence. The directive thus reflects the requirement of an examination of possible justifications for preliminary decisions based on suspicion, such as pretrial detention. The Member States must therefore respect the safeguards provided by the Charter when they avail themselves of the abovementioned possibility for ‘procedural decisions’.