Contradiction between Article 281 of Criminal Procedure Code and the EU law

Dimitrov & Partners Law Firm
Jul 15, 2022
The subject matter of the request for a preliminary ruling is Article 281 of the Criminal Procedure Code  and in particular the question: “Is a national law which provides that the right of an accused person to be present in proceedings is safeguarded and the public prosecutor’s office properly discharges its obligation to prove the guilt of the accused person compatible with Article 8(1) and Article 6(1) of Directive 2016/343, read in conjunction with recitals 33 and 34 thereof and the second paragraph of Article 47 of the Charter, if the testimony given at the pre-trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre-trial stage, but did not do so?”

The Advocate General issues the request for a preliminary ruling in the light 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 which lays down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. Thus, it is stated that the requirement to uphold minimum standards is closely linked to the aims of strengthening the Member States’ trust in each other’s criminal justice systems and of facilitating mutual recognition of decisions in criminal matters.

In his delivered Opinion Anthony Collins invokes as a fundamental principle that the Member States shall ensure the right of suspects and accused persons to be present at the trial against them. By referring to the case-law of both the Court and the ECtHR he observes that the right of accused persons to question witnesses called by the prosecution during a trial on criminal charges is part of the essence of the right of a person to be present at his or her trial.

The legislative provisions adopted by the Bulgarian Criminal Procedure Code are also outlined in the course of the following reasoning, in particular that Article 281(1) of the NPK, read in conjunction with Article 223 thereof, allows a court hearing criminal charges, where a witness is, for good reason, unable to be present at the trial, to take into account, in order to determine the guilt or innocence of an accused person, statements made by that witness before a judge on examination by the prosecution at the pre-trial stage of the proceedings, on the understanding that if the accused person has not been formally charged at the time that examination takes place he or she cannot participate in it.

To the extent that, in practice, these provisions preclude accused persons or their counsel from questioning prosecution witness at trial, the General Advocate derives the consideration that such may infringe those persons’ right to be present at their trial as guaranteed by Article 8(1) of Directive 2016/343 as well as the right to a fair trial and the rights of the defence enshrined in the second paragraph of Article 47 and Article 48(2) of the Charter, respectively.

In the light of the foregoing the General Advocate suggests that the Court shall answer the question referred for a preliminary ruling by the Specialised Criminal Court, Bulgaria as follows:
“A national law which provides that the right of an accused person to be present in proceedings is safeguarded is incompatible with Article 8(1) 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, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, if the testimony given at the pre-trial stage of the proceedings by witnesses who cannot be examined for objective reasons is introduced at the trial stage of the criminal proceedings, whereby those witnesses were examined solely by the prosecution and without the participation of the defence, but before a judge, and the prosecution could have provided the defence with the opportunity to participate in that examination at the pre-trial stage, but did not do so.”

You can find the full text of the Opinion here:
curia.europa.eu