delivered on 13 June 2019 (1)

Case C‑377/18

Criminal proceedings

against

AH,

PB,

CX,

KM,

PH,

other party

MH

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive (EU) 2016/343 – Presumption of innocence – Article 4 – Public references to guilt – Right not to be referred to, in a public statement or a court decision, as guilty even before a definitive judgment has been delivered – Commission of a criminal offence as a member of a group – Plea bargain between the prosecutor and one of the persons being prosecuted – Reference to and identification of the persons being prosecuted separately as joint perpetrators of the offence – Compatibility – Charter of Fundamental Rights of the European Union – Article 48 – Convention for the Protection of Human Rights and Fundamental Freedoms – Article 6(2))

I.Introduction

1.In the context of a plea bargain entered into between a prosecutor and an accused person (2) in which the latter acknowledges in advance guilt in respect of the commission of an offence as a member of a group, does the right to be presumed innocent preclude a national procedural rule under which that agreement is required to mention the participation in the offence of the other persons who are accused separately and to identify them?

2.That, in essence, is the subject matter of the question for a preliminary ruling referred by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria).

3.That question arose in the context of criminal proceedings brought against six individuals on account of their alleged participation in an organised criminal group. In the context of those proceedings, one of the accused persons wished to enter into a plea bargain, the terms of which must be approved by the referring court, in accordance with the applicable national legislation. It is in that context that that court is required to determine whether the reference in that agreement to the five other persons who are accused separately as joint perpetrators of the offence and their identification by their names and their national identity numbers is liable to breach the right to be presumed innocent which those five individuals enjoy pursuant to Article 48(1) of the Charter of Fundamental Rights of the European Union (3) and thus to infringe the terms of Article 4(1) of Directive (EU) 2016/343. (4)

4.By its question for a preliminary ruling, the referring court asks the Court to clarify the scope of one of the main requirements that must be satisfied in order to ensure respect for the presumption of innocence, namely the requirement not to refer in a public statement or a judicial decision to an accused person as being guilty when his guilt has not previously been established according to law. That question is in line with the case that gave rise to the judgment of 19 September 2018, Milev. (5)

II.Legal framework

5.Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, (6) entitled ‘Right to a fair trial’, provides:

‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’

B. EU law

6.Article 48 of the Charter, entitled ‘Presumption of innocence and right of defence’, provides:

‘1. Everyone who has been charged shall be presumed innocent until proved guilty according to law.

7.According to Article 1, Directive 2016/343 lays down minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial.

8.Recitals 9, 10, 16, 17, 47 and 48 of that directive state:

(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial.

(10) By establishing common minimum rules on the protection of procedural rights of suspects and accused persons, this Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. …

(16) The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. …

(17) The term “public statements made by public authorities” should be understood to be any statement which refers to a criminal offence and which emanates from an authority involved in the criminal proceedings concerning that criminal offence, such as judicial authorities, police and other law enforcement authorities, or from another public authority, such as ministers and other public officials, it being understood that this is without prejudice to national law regarding immunity.

(47) This Directive upholds the fundamental rights and principles recognised by the Charter and by the [ECHR], including … the right to a fair trial, the presumption of innocence and the rights of the defence. …

(48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the ECHR, as interpreted by the Court of Justice [of the European Union] and by the European Court of Human Rights.’

9.Article 2 of Directive 2016/343, entitled ‘Scope’, provides:

‘This Directive applies to natural persons who are suspects or accused persons in criminal proceedings. It applies at all stages of the criminal proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive.’

10.Article 3 of that directive enshrines the right to be presumed innocent. That provision is worded as follows:

‘Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law.’

Articles 4 to 7 of that directive regulate certain aspects of the right to be presumed innocent.

In particular, Article 4 of Directive 2016/343, the interpretation of which is sought here, entitled ‘Public references to guilt’, states:

‘1. Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, and to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and which are based on suspicion or incriminating evidence.

Bulgarian law

The Konstitutsiya (Constitution), in Article 31(3), and the nakazatelno protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’), in Article 16, state that an accused person is to be presumed innocent until the contrary is established by a conviction which has acquired the force of res judicata.

Article 381(1) and 6 of the NPK allows an accused person to acknowledge his guilt and to enter into an agreement with the prosecution through his lawyer, once the investigation has ended.

Article 381(5)(1) of the NPK provides:

‘The agreement must be made in writing and include an acknowledgement with regard to the following questions:

1.was an act committed, was it committed by the accused person, is it attributable to him, does the act constitute a criminal offence, and the legal classification of that act?’

Article 381(7) of the NPK provides that, ‘where the proceedings concern several persons …, the agreement may be entered into by some of those persons …’.

Article 382(5) of the NPK states:

‘The court may propose amendments to the agreement, which shall be examined along with the prosecutor and the lawyers for the accused persons. The accused person shall be heard last.’

According to 382(7) of the NPK, the court is to approve the agreement if it is not unlawful and is not contrary to accepted principles of morality.

In accordance with Article 383(1) of the NPK, the agreement is to have the effects of a judgment which has acquired the force of res judicata.

Last, under Articles 12 to 14 of the zakon za grazhdanskata registratsia (Law on civil status), Bulgarian nationals have three names, namely a first name, a patronymic and a surname. According to Article 11(1) of the Law on civil status, they also have a national identity number, by way of an administrative identifier allowing the person in question to be clearly determined.

III.

The facts of the main proceedings, the question for a preliminary ruling and the procedure before the Court

The present case arose in the context of criminal proceedings brought against six persons, namely AH, PB, CX, KM, PH and MH, who were charged under Article 321(2) and (3)(2) of the nakazatelen kodeks (Criminal Code, ‘the NK’) with being members of an organised criminal group. That group was active between November 2014 and November 2015 in Sofia (Bulgaria). The indictment states that those six persons shared the tasks with the aim of enriching themselves by making false official documents or falsifying the content of those documents, namely identity documents and vehicle driving licences.

Only one of those persons, MH, expressed the wish to enter into a plea bargain in exchange for a reduced penalty.

The other five accused persons agreed that MH should enter into that agreement, but expressly stated that that did not mean that they acknowledged their guilt or that they waived the right to plead not guilty.

The agreement between the prosecutor and MH states that MH pleads guilty: ‘between November 2014 and 26 November 2015, in Sofia and in Pavlikeni [Bulgaria], having participated in an organised criminal group, a stable and structured group of more than three persons having as its participants [the names and national identity numbers of the other five accused persons] with the aim of committing a criminal offence [within the meaning of Article 308(2) and (7) and Article 321(2) and (3)(2) of the NK]’. It is apparent from the text of that agreement that all the accused persons are identified in the same way, that is to say, by their three names and their national identity numbers. The only difference is that MH is also identified by his date and place of birth, his address, his nationality, his ethnic group, his family circumstances and his previous judicial record.

In accordance with the national procedural rules, the agreement entered into by the prosecutor and MH was submitted for approval to the referring court, which is authorised to amend it.

In that regard, the referring court wonders whether it is consistent with Article 4(1) of Directive 2016/343 that that agreement should clearly and expressly mention, as being members of that organised criminal group, the other five persons, who did not enter into that agreement and are being dealt with under the ordinary criminal procedure, and identify them by their three names and by their national identity numbers.

The referring court states that, according to settled national case-law, the text of the plea bargain must correspond exactly to the text of the indictment, in which all the accused persons are mentioned as joint perpetrators of the criminal offence. Consequently, it is appropriate that they should be mentioned as such in the agreement entered into between the prosecutor and MH. In addition, the reference to the joint perpetrators of the offence might be of great significance in order for the components of the criminal offence concerned to be satisfied, since an organised criminal group is not formed unless at least three persons take part in it.

The referring court observes, nonetheless, that Article 4(1) of Directive 2016/343 prohibits a judicial authority from referring to an accused person as being guilty in a decision other than the decision on guilt. It considers that there is thus a contradiction between the national case-law, under which the agreement is required to refer to the other accused persons as being the joint perpetrators of the criminal offence in question, and the obligation imposed by the EU legislature not to refer to those persons as being guilty.

In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is national case-law which requires that, in the text of an agreement (entered into in the context of criminal proceedings), not only the accused person who has admitted that he is guilty of a criminal offence and has entered into that agreement, but also other accused persons, the joint perpetrators of the offence, who have not entered into that agreement, who have not admitted that they are guilty and against whom the case continues in accordance with ordinary criminal procedure, but who have agreed to the first accused person entering into that agreement, be identified as perpetrators of the criminal offence in question, compatible with the first sentence of Article 4(1), read in conjunction with the first sentence of recital 16 and with recital 17, of Directive 2016/343?’

The German and Italian Governments and the European Commission submitted written observations and also, apart from the Italian Government, oral observations.

In the light of the discussion that took place before the Court, I think that the examination of the question for a preliminary ruling calls for a preliminary observation on the application ratione personae and ratione materiae of Directive 2016/343 and, in particular, of Article 4 of that directive. (9)

In the first place, the situation of AH, PB, CX, KM and PH indisputably comes within the scope of that directive.

The scope of Directive 2016/343 is defined in Article 2. Under that provision, that directive is to apply to natural persons who are suspects or accused persons in criminal proceedings, at all stages of those proceedings, from the moment when a person is suspected or accused of having committed a criminal offence, until the decision on the final determination of whether that person has committed the criminal offence concerned has become definitive.

It is common ground, in the main proceedings, that those five persons are accused of having committed a criminal offence and that they have not been proved guilty according to law.

In the second place, the impugned references to the involvement of AH, PB, CX, KM and PH in the commission of the criminal offence at issue may be seen from the aspect of Article 4(1) of Directive 2016/343, in view of the nature and the scope of the agreement entered into between the prosecutor and MH.

In fact, that agreement constitutes, vis-à-vis the other five persons, a judicial decision that is not a decision on guilt within the meaning of that provision.

On the one hand, a plea bargain is a judicial decision, forming part of what is commonly called a ‘settlement in criminal proceedings’. (10)

The agreement, whereby an accused person pleads guilty to having committed a criminal offence, often in exchange for a reduced penalty, is entered into with the prosecuting authority, in this instance the prosecutor, before being approved, in a hearing, by the competent judicial authority.

A plea bargain is therefore judicial in nature, since its conclusion requires the intervention of a trial court exercising the judicial power in the context of an expedited procedure.

In the present case, it is apparent from Articles 381 to 384 of the NPK that the referring court must adjudicate on the agreement entered into between the prosecutor and MH in a hearing where MH’s presence is expressly required by national law. That court is then required to verify whether the plea bargain was entered into in accordance with the applicable procedural and substantive rules and whether the accused person entered into the agreement of his own free will and with full knowledge of the facts. The referring court is expressly authorised to propose amendments to the terms used in the context of that agreement and it is in that context, moreover, that it submits the question for a preliminary ruling.

The agreement entered into between the prosecutor and MH therefore leads to a decision being taken, following a simplified judicial examination, not only on the legal characterisation of a criminal offence, but also on MH’s criminal liability and on the penalty imposed on him. That agreement, as approved by the referring court, is legally binding and, as is apparent from Article 383 of the NPK, has the effects of a judgment having the force of res judicata. Enforceability and the authority of res judicata are the two characteristic features of any judicial decision.

In the light of those factors, there is no doubt, in my view, that the agreement entered into between the prosecutor and MH is the expression of the ius punendi and that, by means of that agreement, a judicial decision is delivered on the facts of the case and also on MH’s guilt.

On the other hand, that agreement is a judicial decision that does not adjudicate on the guilt of AH, PB, CX, KM and PH.

The concept of ‘judicial decisions, other than those on guilt’, referred to in Article 4(1) of Directive 2016/343, must be interpreted in such a way as to ensure the effectiveness of that provision and, in particular, to ensure actual and effective respect for the rights of accused persons not to be referred to as being guilty for as long as they have not been proved guilty according to law.

Admittedly, as authorised by Article 381(7) of the NPK, the agreement between the prosecutor and MH was entered into in the context of criminal proceedings involving a number of persons. Nonetheless, as regards the substance, it rules only on the guilt of the person who, in acknowledging his guilt, is a party to that agreement. The other accused persons, who are not parties to that agreement, have not waived any of their procedural rights, which include the right to be presumed innocent. It thus follows from the order for reference that, in spite of the ‘procedural consent’ expressed by the other five accused persons to such a settlement in criminal proceedings being entered into, they expressly stated that they did not acknowledge their guilt and that they did not waive their right to plead not guilty.

Consequently, I do not share the doubts expressed in that regard by the German Government.

The latter government submits that, even if the agreement entered into by the prosecutor and MH does not rule on the guilt of the other separately prosecuted persons, the fact nonetheless remains that it is a judicial decision as to MH’s guilt and that it must therefore be characterised as such vis-à-vis those other persons.

To my mind, that interpretation is over formalistic and results in the guarantees enshrined in Article 4(1) of Directive 2016/343 being deprived of all practical effect.

Furthermore, it is contrary to the case-law of the European Court of Human Rights. As I shall explain in the context of my analysis, the European Court of Human Rights has held that the right to be presumed innocent also applies where a judicial decision delivered at the close of proceedings that are not directed against the applicant in his capacity as ‘accused’, but nevertheless concern and have a link with those proceedings, implies a premature assessment of his guilt. (11)

50.In those circumstances, it must be considered that the agreement entered into between the prosecutor and MH constitutes, vis-à-vis AH, PB, CX, KM and PH, a judicial decision that is not a decision on their guilt within the meaning of Article 4(1) of Directive 2016/343. Those parties are therefore able to rely on the rights recognised to them by that provision.

B. Examination of the question for a preliminary ruling

51.By its question, the referring court asks the Court, in essence, whether, in the context of criminal proceedings brought against a number of persons because of the commission of a criminal offence in a group, Article 4(1) of Directive 2016/343 precludes a national procedural rule under which the plea bargain entered into by one of the accused persons is required to mention the participation in the offence of the other separately prosecuted persons and to identify them by their names and their national identity numbers.

52.In other words, the referring court wonders about the form of words to be used in such an agreement, in order for that agreement not to breach the right to be presumed innocent of the persons prosecuted in separate proceedings, in particular their right not to be referred to, in a judicial decision, as being guilty before their guilt has previously been established according to law.

53.The referring court is faced with a particular problem connected with the nature of the offence at issue.

54.It will be recalled that six persons are being prosecuted for having participated in an ‘organised criminal group’ within the meaning of Article 321(2) and (3)(2) of the NK. Participation in an organised criminal group is by nature a collective offence, in the same way as criminal association, which penalises participation in general. As the word ‘group’ indicates, that offence is made out only in so far as a number of perpetrators participated in its commission. (12) Legal commentators traditionally regard them as being joint perpetrators of the offence committed. They all participate in the same offence and their conduct is closely linked. Since there is genuine solidarity between the joint perpetrators when the offence takes place, logic dictates that that solidarity should also be found in the proceedings brought against them. (13) That interdependence specific to the joint action has consequences, especially when the joint perpetrators are not tried together. The referring court thus observes that, in the context of a plea bargain entered into by one of the joint perpetrators, that interdependence may require that the other joint perpetrators be identified in order to determine the legal characterisation of the impugned act and the criminal liability of the person concerned. Such a requirement may however affect the procedural guarantees of the joint perpetrators and, in particular, their right to be presumed innocent.

55.In the judgment in Navalnyy and Ofitserov v. Russia, the European Court of Human Rights thus expressed significant reservations when the judicial authority decides to try the persons jointly accused of a criminal offence in disjoined proceedings, although the nature of the charges means that, for the purposes of determining the legal liability of one of them, it is necessary to establish that the others participated in the offence. (14)

56.It therefore formulated a number of specific requirements for the purposes of respect for the right to be presumed innocent enshrined in Article 6(2) ECHR, where a judicial authority decides to disjoin the proceedings because one of the co-accused has entered into a plea bargain.

57.Before adopting such a decision, the judicial authority must carry out a careful assessment of all the interests involved and give the co-accused an opportunity to object to that decision. (15)

58.Furthermore, the judicial authority must provide in connection with the plea-bargaining procedure two safeguards which the European Court of Human Rights deems essential in order to allow the co-accused to benefit from a fair trial in the context of the pending proceedings directed against them. (16)

59.First, the judicial authority is under an obligation not to attach the force of res judicata to the facts admitted in proceedings to which the other co-accused were not parties, as the scope of the establishment of those facts is limited to the proceedings in question.

60.Second, the judicial authority must refrain from any reference or statement that might undermine the fairness of the examination of the charges against those co-accused in separate proceedings and, in particular, from compromising their right to be presumed innocent.

61.It is to the latter point that the present question for a preliminary ruling relates and, in particular, to the rules on the identification of and the reference to AH, PB, CX, KM and PH, in the agreement entered into between the prosecutor and MH, in connection with their participation in the offence.

62.Article 4(1) of Directive 2016/343 provides that Member States are to take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, judicial decisions, in particular, other than those on guilt, do not refer to that person as being guilty.

63.Article 4(2) of that directive further provides that Member States are to ensure that appropriate measures are available in the event of a breach of that obligation.

64.The provisions laid down in Article 4(1) and (2) of Directive 2016/343 therefore give no indication of the measures which the competent national authorities must actually adopt in order to ensure, in a situation such as that at issue in the main proceedings, respect for the separately prosecuted persons’ right to be presumed innocent. Nor is any other provision of that directive relevant. (17) Only recital 16, to which the referring court expressly refers, states that judicial decisions should not reflect an opinion that those persons are guilty.

65.It follows from Article 1, and also from recitals 10 and 48, of Directive 2016/343 that the rules designed to prevent and correct all public references to guilt are minimum standards, while the Member States are invited, in the words of Article 4(1) and (2) of that directive, to adopt ‘necessary’ or ‘appropriate’ measures for that purpose.

66.The EU legislature therefore leaves to the Member States the task of determining, according to the specific features of the national legal system, the actual nature and scope of those measures. The Court has thus expressly recognised that that directive was not a complete and exhaustive instrument intended to lay down all the conditions for the adoption of decisions on pre-trial detention. (18) That observation is clearly applicable as regards conditions that apply to the adoption of a judicial decision such as the plea bargain at issue.

67.However, the Member States’ discretion in that respect is not unlimited. Member States must observe the fundamental rights and principles recognised by the Charter and by the ECHR, as is apparent, moreover, from recital 47 of Directive 2016/343, and the measures adopted must, in particular, allow any breach of the right to be presumed innocent to be prevented or corrected.

Article 4(1) of Directive 2016/343 should therefore, in principle, be interpreted by reference to the standard of protection provided for in Article 48 of the Charter. (19) Nonetheless, it must be stated that neither that provision nor the Court’s case-law makes it possible to determine the nature and the scope of the measures which the competent national authorities must implement.

The European Court of Human Rights, on the other hand, has dealt with a considerable body of litigation, the principles of which, in these circumstances, it is appropriate to summarise.

As is apparent from the Explanations relating to the Charter, (20) the right to be presumed innocent enshrined in Article 48(1) of the Charter corresponds to Article 6(2) ECHR. In order to ensure the necessary consistency between the Charter and the ECHR, the EU legislature has laid down the rule that the meaning and scope of that right are the same as those conferred on it by the ECHR. (21)

Furthermore, it is apparent from the Commission’s proposal for a directive (22) that the EU legislature intended to strengthen and guarantee the effective application of the right to be presumed innocent in criminal proceedings by incorporating into EU law the case-law developed by the European Court of Human Rights with regard to respect for Article 6(2) ECHR. (23) The EU legislature clearly expressed its intention to favour the application of Articles 6, 47 and 48 of the Charter by relying on Article 6 ECHR, as interpreted by the European Court of Human Rights.

Article 3 of Directive 2016/343 thus enshrines the right to be presumed innocent in words identical to those used in Article 6(2) ECHR.

As for Articles 4 to 7 of that directive, they regulate certain aspects of the right to be presumed innocent, as they have been developed in the case-law of the European Court of Human Rights.

Thus, in Article 4(1) of that directive, the EU legislature formulates one of the main requirements established by the European Court of Human Rights, as long ago as 1983, in order to guarantee respect for the right to be presumed innocent, namely the right not to be referred to in a public statement or in a judicial decision as being guilty before a definitive judgment has been delivered. (24)

That provision lays down a minimum rule and is therefore not intended, as EU law now stands, to provide wider protection than that provided by the ECHR. (25)

The case-law of the European Court of Human Rights is therefore relevant for the purposes of the interpretation of the right to be presumed innocent enshrined in Article 48 of the Charter and, in particular, of one of the aspects of that right referred to in Article 4(1) of Directive 2016/343. That case-law provides very helpful indications of the measures which the national authorities are required to adopt in order to ensure that, by the grounds of a decision or by the words used in the context of that decision, there is no breach of the separately accused persons’ right to be presumed innocent.

The case-law of the European Court of Human Rights on respect for the right to be presumed innocent where co-accused are tried in separate proceedings

In application of Article 6(2) ECHR, ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. (26)

In the judgment in Karaman v. Germany, the European Court of Human Rights recalls that the presumption of innocence is one of the elements of a fair criminal trial required by Article 6(1) ECHR. According to that Court, that presumption is violated if, in a court decision, there is a premature expression by the trial court that the person prosecuted is guilty before he has been so proved according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. (27)

In order to assess whether that reasoning constitutes a violation of the right to be presumed innocent, the European Court of Human Rights places ‘decisive’ importance on the choice of words used by the judicial authority. (28) It also takes into account the particular circumstances in which those words were formulated and, in particular, the nature of the proceedings and the nature of the charges against the person or persons prosecuted. (29) Those factors make it possible to assess the extent to which the judicial authority is required to refer to the actual role and the intentions of all the persons liable to be involved in the commission of a criminal offence. (30)

In the judgment in Karaman v. Germany, (31) the European Court of Human Rights thus accepted that, ‘in complex criminal proceedings involving several persons who cannot be tried together, references by the trial court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial’. (32) It asserted that, in such cases, ‘criminal courts are bound to establish the facts of the case relevant for the assessment of the legal responsibility of the accused as accurately and precisely as possible, and they cannot present established facts as mere allegations or suspicions’. (33) It held that ‘this also applies to facts related to the involvement of third persons’. (34)

That court qualified its words, however, and stated that, ‘if such facts have to be introduced, the court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it’. (35)

In that case, the judgment of the national court mentioned on a number of occasions not only the applicant’s surname and his full given names, but also the role which he had played in the fraud. The identification of the applicant was nonetheless followed by the expression ‘separately prosecuted’.

The European Court of Human Rights was required to determine whether the reasoning in that judgment was worded in such a way as to give rise to doubts as to a potential pre-judgment about the applicant’s guilt and thus to jeopardise the fair examination of the charges brought against him in the separate proceedings in Germany and/or in Turkey.

That court did not find that there had been a violation of the right to be presumed innocent. It observed that, in order to determine the degree of liability of the accused person in the context of the judgment at issue, the judicial authority was required to determine ‘who had made the plans to misuse the [funds in question] and, on this basis, who had given which instructions to whom’. (36) Nor did it take issue with the identification of the applicant by his full name, since he was referred to throughout the judgment as being ‘separately prosecuted’. According to that court, the judicial authority had thus underlined the fact that it was not called upon to determine the applicant’s guilt but, in line with the provisions of domestic law on criminal procedure, was only concerned with assessing the criminal responsibility of the accused within the scope of the proceedings in issue. (37)

In the judgment in <span class="coj-italic">Navalnyy and Ofitserov v. Russia</span>, the European Court of Human Rights confirmed that case-law, while initially expressing numerous reservations where a plea bargain is entered into in proceedings where the nature of the charges would, on the contrary, have justified the co-accused being tried together. (38) It thus emphasised the extent to which it is ‘essential’ that the judicial authority should ensure that in the context of the plea-bargaining procedure safeguards are in place to ensure the fairness of the proceedings against the co-accused, including refraining from any statements that may undermine the presumption of innocence. (39) It was in order to assess the actual words of that reasoning that it then referred to the evaluation matrix which it had established in the judgment in <span class="coj-italic">Karaman v. Germany</span>.

In the case that gave rise to the judgment <span class="coj-italic">in Navalnyy and Ofitserov v. Russia</span>, the judgment delivered against X in the context of a plea-bargaining procedure stated that X had committed the offence in question with two other persons. Although their names were anonymised, the judgment nonetheless mentioned the professional duties carried out by those persons within the government or prominent undertakings and also their role in the commission of the offence. (40) The European Court of Human Rights condemned the words used in that judgment, since no doubt could remain either about the identity of the co-accused or about their involvement in the offence of which X had been convicted. (41)

The contributions of the case-law of the European Court of Human Rights as regards the interpretation of Article 48 of the Charter and of Article 4(1) of Directive 2016/343

That case-law makes it possible to derive a number of lessons as regards the scope of the right to be presumed innocent enshrined in Article 48 of the Charter and, in particular, as regards the actual rules that make it possible to prevent and correct any public reference to guilt within the meaning of Article 4(1) of Directive 2016/343.

Public references must be assessed on a case-by-case basis, in the light of the particular circumstances in which they were made and, in particular, of the nature and the context of the procedure in question.

Those circumstances may be decisive when co-accused are tried in separate sets of criminal proceedings, in particular, where one co-accused is dealt with in an expedited plea-bargaining procedure.

In principle, the judicial authority must adopt the appropriate measures to ensure the fair examination of the charges against the other co-accused in the context of the proceedings against them and must therefore refrain, in the plea bargain, from any mention or reference that might jeopardise their right to be presumed innocent.

Nonetheless, that agreement may refer to the participation of the other co-accused in the offence and identify them if, first, those references are necessary for the purposes of the legal characterisation of the impugned act and the analysis of the criminal liability of the person pleading guilty and, second, they are accompanied by a clear indication that those co-accused are being prosecuted separately and that they have not been proved guilty according to law.

That means that the judicial authority must pay decisive attention not only to the words used when referring to and identifying the other separately prosecuted persons, but also to the reasoning, taken as a whole, of the plea bargain.

First, as regards the words used in order to refer to the role played by the other accused persons and to identify them, I would thus observe that the case-law of the European Court of Human Rights does not preclude the judicial authority from identifying them by their full name. However, it requires that, in that case, those references are followed by an expression or words that make clear to everyone that those references are necessary for the purposes of the assessment not of the guilt of the other separately prosecuted persons, but solely of the criminal liability of the accused. (42)

Second, it is necessary to review the reasoning, taken as a whole, of the plea bargain at issue. As the Commission has correctly observed in its observations, any expression or form of words attached to the reference to and the identification of the other accused persons would be rendered meaningless if other parts of the reasoning or the legal analysis of the decision were capable of being understood as an assessment of their guilt.

In the light of all of those considerations, I therefore think that, in a situation in which a judicial authority tries a person who is being prosecuted for committing an offence as a member of a group in the context of an expedited plea-bargaining procedure, Article 4(1) of Directive 2016/343 must be interpreted as meaning that it does not preclude that authority from referring, in the plea bargain, to the participation in the offence of the other parties being prosecuted and from identifying them, provided that it ensures, first, that those references are necessary for the purposes of the legal characterisation of the impugned act and also of the analysis of the criminal liability of the person pleading guilty and, second, that they are accompanied by wording clearly showing that those persons are being prosecuted in separate criminal proceedings and that their guilt has not yet been determined according to law.

I think that it is also important to bear in mind that Directive 2016/343 lays down minimum rules and that the EU legislature expressly authorises Member States to extend the rights laid down in that directive in order to provide a higher level of protection (43) Consequently, that directive does not preclude a Member State from adopting measures affording greater protection designed to prevent, in a situation such as that at issue in the main proceedings, any reference that might compromise the right to be presumed innocent of the persons being prosecuted in the context of separate criminal proceedings.

In the present case, it is common ground that the criminal proceedings brought against AH, PB, CX, KM, PH and MH because of their alleged involvement in an organised criminal group were disjoined, following MH’s expressed intention to enter into a plea bargain. It is also accepted that the other five accused persons consented to MH’s entering into that agreement, while stating that their consent did not amount to recognition of their guilt or to a waiver of their right to plead not guilty.

It is also apparent from the order for reference that the references to the participation of AH, PB, CX, KM and PH in the commission of the offence and their identification by their full names and by their identity numbers in the agreement entered into between the prosecutor and MH is the consequence of the application of the national case-law, which requires that the text of the agreement correspond in full with the text of the indictment.

That requirement comes within the margin of discretion which the Member States enjoy as regards the conditions governing the adoption of an agreement such as that at issue, owing to the minimum harmonisation brought about by Directive 2016/343.

However, the implementation of that requirement calls for special precautions to be adopted so that the agreement entered into between the prosecutor and MH will not undermine the fair examination of the charges against AH, PB, CX, KM and PH in the proceedings pending against them and, in particular, will not jeopardise their right to be presumed innocent. In fact, in its present version, that agreement contains references which, in the absence of any further detail, are capable of being understood as a premature expression of their guilt.

101.It is not for the Court to make suggestions or to propose amendments as regards the words used in that agreement. That task is borne by the referring court which, on the one hand, is alone capable of interpreting the applicable national law and of taking the circumstances of the proceedings into account and, on the other hand, has sole jurisdiction to approve that agreement.

102.In order to satisfy the requirements laid down in Article 4(1) of Directive 2016/343, that court must assess the extent to which the references at issue are necessary for the purposes of the legal characterisation of the impugned act and the analysis of MH’s criminal liability. I would observe, in that regard, that that court emphasises in its order for reference that those references may be essential for the purposes of ensuring that the constituent elements of the offence in question are present.

103.Where appropriate, the referring court is required to assess the extent to which those words may be followed by an expression or a formulation clearly showing that AH, PB, CX, KM and PH are being prosecuted in separate proceedings and that their guilt has not yet been determined according to law.

104.Last, that court must ensure that the agreement reached between the prosecutor and MH includes nothing else that might be taken as a premature expression of the guilt of those five persons.

105.Having regard to the foregoing reflections, I propose that the Court’s answer to the question for a preliminary ruling referred by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) should be as follows: Article 4(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 must be interpreted as meaning that, in a situation such as that at issue, where the national judicial authority deals with a person who is being prosecuted for having committed a criminal offence as a member of a group and is pleading guilty in the context of a plea bargain, it does not preclude that judicial authority from referring in that agreement to the participation in the offence of the other persons accused separately and from identifying them, provided that that authority ensures, first, that those references are necessary for the purposes of the legal characterisation of the impugned act and also of the analysis of the criminal liability of the person pleading guilty and, second, that they are accompanied by wording clearly showing that those persons are being prosecuted in separate criminal proceedings and that their guilt has not yet been determined according to law.

—

(1) Original language: French.

(2) ‘The plea bargain’. The relevant procedure will hereinafter be referred to as ‘the plea-bargaining procedure’.

(3) ‘The Charter’.

(4) Directive of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

(5) Signed at Rome on 4 November 1950, ‘the ECHR’.

(6) DV No 67 of 27 July 1999.

(7) Text of the agreement communicated by the referring court at the Court’s request.

(8) The application ratione temporis of Directive 2016/343 does not in my view raise any particular problem. Pursuant to Article 14(1) of that directive, Member States were required to transpose that directive by 1 April 2018. I note that the agreement at issue was entered into by the prosecutor and MH on 18 May 2018 and must still be approved by the referring court.

(9) See, in that regard, the argument devoted to settlements in criminal proceedings within the European Union in the Opinion of Advocate General Ruiz-Jarabo Colomer in Gözütok and Brügge (C‑187/01, EU:C:2002:516, points 61 to 106). See also, as regards the case-law of the European Court of Human Rights, judgment of the ECtHR, 23 February 2016, Navalnyy and Ofitserov v. Russia (CE:ECHR:2016:0223JUD004663213, § 100 and the case-law cited), ‘the judgment in Navalnyy and Ofitserov v. Russia’.

(10) See judgment EctHR, 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310, § 41 and the case-law cited), ‘the judgment in Karaman v. Germany’.

(11) It follows from the order for reference and also from the terms of the agreement at issue that a minimum number of three participants is thus required in order for there to be a ‘group’.

(12) See, in that regard, Baron, E., La coaction en droit pénal, doctoral thesis defended on 7 December 2012, in particular point 371.

(13) Judgment in Navalnyy and Ofitserov v. Russia (§ 100 and the case-law cited, and also §§ 103 and 104 and the case-law cited). In § 104 the European Court of Human Rights makes the following observation: ‘If the nature of the charges makes it unavoidable for the involvement of third parties to be established in one set of proceedings and those findings would be consequential on the assessment of the legal responsibility of the third parties tried separately, this should be considered as a serious obstacle for disjoining the cases.’

(14) Judgment in Navalnyy and Ofitserov v. Russia (§ 104).

(15) Judgment in Navalnyy and Ofitserov v. Russia (§§ 103 to 105).

(16) The provisions laid down in Article 4(3) of Directive 2016/343 are not relevant in the present case.

(17) Judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraphs 45 to 47).

(18)

See, by analogy, judgments of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraphs 127 and 128 and the case-law cited), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the legal system) (C‑216/18 PPU, EU:C:2018:586, paragraph 62).

(1) OJ 2007 C 303, p. 17.

See explanation on Article 52 of the Charter.

Proposal for a Directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (COM(2013) 821 final).

See paragraphs 13 to 17 of that proposal.

In its proposal for a directive, the Commission thus expressly referred to the judgment of the European Court of Human Rights of 25 March 1983, Minelli v. Switzerland (CE:ECHR:1983:0325JUD000866079, § 37), in which that Court held that ‘the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty’.

(26) See, as regards the right to be presumed innocent enshrined in Article 6(2) ECHR, Kjølbro, J.F., Den Europaeiske Menneskerettighedskonvention – for praktikere, Jurist – og Okonomforbundets Forlag, Copenhagen, 2017, especially p. 655 et seq.

(27) See, in that regard, judgment in Karaman v. Germany (§ 41 and the case-law cited).

(28) See, in that regard, judgment in Karaman v. Germany (§ 63 and the case-law cited), and also, to the same effect, judgment of the ECtHR, 31 October 2013, Mosinian v. Greece (CE:ECHR:2013:1031JUD000804510, § 23 and the case-law cited).

(29) See, in that regard, the judgments in Karaman v. Germany (§ 64) and Navalnyy and Ofitserov v. Russia (§ 104), and also the judgment of the ECtHR, 25 January 2018, Bikas v. Germany (CE:ECHR:2018:0125JUD007660713, § 46 and the case-law cited).

(30) As the European Court of Human Rights observed in § 63 of the judgment in Karaman v. Germany, ‘even the use of some unfortunate language may not be decisive when regard is had to the nature and context of the particular proceedings’.

(31) In that case, the applicant claimed that there had been a violation of his right to be presumed innocent owing to the references to his participation in the commission of a criminal offence which appeared in a judgment delivered against other separately prosecuted suspects in Germany. The court decision at issue was therefore delivered following proceedings that were not directed against the applicant in his capacity as ‘accused’ but nevertheless concerned and had a link with criminal proceedings simultaneously pending against him.

(32) Judgment in Karaman v. Germany (§ 64), emphasis added.

(33) Judgment in Karaman v. Germany (§ 64).

(34) Ibid.

(35) Ibid.

(36) Ibid. (§ 66).

(37) Ibid. (§ 69).

(38) See the argument devoted to this problem in points 56 to 61 of this Opinion.

(39) Judgment in Navalnyy and Ofitserov v. Russia (§§ 103 and 104).

(40) This judgment stated that X had conspired with two other persons, ‘Governor’s former volunteer consultant N.’ and ‘VLK former director O.’, and asserted in particular that ‘N.’ had ‘developed a criminal plan to misappropriate … assets …’ (see press release concerning the judgment in Navalnyy and Ofitserov v. Russia, available at the following internet address: https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%2246632/13%22]}).

(41) Judgment in Navalnyy and Ofitserov v. Russia (§ 106).

(42) See points 82 to 84 of this Opinion.

(43) See recital 48 of that directive.