PT () and the perpetrator of an offence) ((Area of freedom, security and justice - Judicial cooperation in criminal matters - Criminal offences and penalties in the field of illicit drug trafficking and the fight against organised crime - Opinion) [2023] EUECJ C-432/22

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> PT () and the perpetrator of an offence) ((Area of freedom, security and justice - Judicial cooperation in criminal matters - Criminal offences and penalties in the field of illicit drug trafficking and the fight against organised crime - Opinion) [2023] EUECJ C-432/22_O (14 December 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C43222_O.html Cite as: [2023] EUECJ C-432/22_O

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

(Reference for a preliminary ruling - Judicial cooperation in criminal matters - Organised crime - Framework Decision 2008/841/JHA - Framework Decision 2004/757/JHA - Drug trafficking - Agreement between the public prosecutor and the perpetrator of an offence on the imposition of a negotiated sentence - Jurisdiction of the Court of Justice - Second subparagraph of Article 19(1) TEU - Charter of Fundamental Rights of the European Union - Article 47 - Approval of the agreement by the court - Conditions - Designation of an ad hoc court - Consent of the other accused persons)

1. The possibility for an accused person to obtain the lessening of charges or receive a reduction of his or her sentence in exchange for a guilty or nolo contendere plea in advance of trial or for providing substantial cooperation with the investigative authority has become a common feature of European criminal-justice systems, according to the European Court of Human Rights (‘the ECtHR’). (2)

2. The Court of Justice, for its part, has already ruled in cases concerning plea-bargaining agreements, but only where certain procedural rights granted to the accused persons were at issue, such as the right to the presumption of innocence under Directive (EU) 2016/343, (3) or the right to be informed of the accusation under Directive 2012/13/EU. (4)

3. The present case raises the question of the compatibility with the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of national legislation under which the judicial approval of an agreement in which one of the accused persons acknowledges his or her guilt for the offences charged in exchange for a more lenient sentence is assigned to the jurisdiction of a court other than the one initially hearing the case and is subject to the precondition of acceptance of that agreement by all the other accused persons who have not admitted criminal liability.

4. The second subparagraph of Article 19(1) TEU is relevant in the present case.

5. Article 381 of the Nakazatelno protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’) (5), entitled ‘Agreement for the negotiation of a sentence in preliminary proceedings’, provides:

‘(1) At the end of the investigation, on the proposal of the prosecutor or the lawyer, an agreement may be drawn up between them to settle the case.

(4) The agreement may determine the penalty under the conditions referred to in Article 55 of the NPK, even in the absence of exceptional or numerous mitigating circumstances.

(5) The agreement shall be in written form and include a consensus on the following questions:

1. Was an act committed, was it committed by the accused person and was it wrongful, does the act constitute a criminal offence and what is its legal classification?

(6) The agreement shall be signed by the prosecutor and the lawyer. The defendant shall sign the agreement if he or she accepts it, after declaring that he or she waives the right to have his or her case tried according to the ordinary procedure.

(7) Where the proceedings are directed against several persons or several offences, the agreement may be concluded by some of those persons or for some of those offences.

6. Under Article 382 of the NPK, entitled ‘Decision of the court on the agreement’:

‘(1) The agreement shall be submitted by the prosecutor before the competent court of first instance immediately after having been drawn up, at the same time as the case.

(5) It is open to the court to propose amendments to the agreement. Those amendments shall be examined with the prosecutor and the lawyer. The accused person shall be heard last.

(7) The court shall approve the agreement in so far as it is not contrary to the law or to accepted principles of morality.

7. Under Article 384 of the NPK, entitled ‘Agreement on the settlement of the case in the course of the judicial stage of the proceedings’:

‘(1) According to the terms and conditions of this chapter, the court of first instance may approve an agreement for settlement of the case negotiated after the opening of the judicial procedure, but before the conclusion of the judicial investigation phase.

(3) In such cases, the agreement on the imposition of a negotiated sentence shall be approved only once the consent of all the parties [to the proceedings] has been obtained.’

8. Article 384a of the NPK, entitled ‘Decision on an agreement entered into with one of the accused or for one of the offences’, provides:

‘(1) When, after the opening of the judicial proceedings, but before the conclusion of the pre-trial judicial investigation, an agreement has been entered into with one of the accused or for one of the offences, the court shall stay the proceedings.

(2) Another formation of the court shall give a ruling on the agreement within seven days of receiving the case.

(3) The formation of the court referred to in paragraph 1 shall continue to examine the case after it has given a ruling on the agreement.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

9. On 25 March 2020, the Spetsializirana prokuratura (Specialised Prosecutor’s Office, Bulgaria) brought charges against 41 persons, including SD and PT before the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), for running and participating in a criminal organisation which sought to enrich itself through the distribution of drugs. PT is being prosecuted for participating in this criminal organisation, as well as for possession of drugs with intent to distribute.

10. On 26 August 2020, during the preliminary phase of the proceedings, the public prosecutor and SD’s defence counsel entered into an agreement under which SD pleaded guilty to all the charges against him in exchange for a more lenient penalty than that provided for by law. The agreement mentioned the names and national identity numbers of the other accused persons. The consent of those persons was not sought and, on 1 September 2020, another formation of the court approved the agreement.

11. On 17 November 2020, during the judicial phase of the proceedings, the public prosecutor and PT’s defence counsel entered into an agreement under which PT pleaded guilty to all the charges against him in exchange for a suspended custodial sentence for the offences committed (‘the agreement of 17 November 2020’). That agreement was amended to omit the names and national identity numbers of the other accused persons, in the light of the judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670).

12. At a hearing held on 14 January 2021, the referring court obtained the views of the other accused persons, some of whom did not consent to the approval of the agreement of 17 November 2020. On 18 January 2021, in accordance with Article 384a of the NPK, the referring court forwarded the agreement to the President of the Court, so that a court could be designated to give a ruling on it. On 21 January 2021, that court refused to approve the agreement of 17 November 2020 on the ground that some of the accused persons had not consented to it.

13. On 10 May 2022, the public prosecutor and PT’s defence counsel, on the basis of the judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628), asked the court hearing the case to give a ruling on that agreement without seeking the consent of the other accused persons. However, on 11 May 2022, that court was excluded from the random selection, on the basis of Article 384a of the NPK, of a court designated to give a ruling on the agreement.

14. On 18 May 2022, the court designated pursuant to that provision examined the agreement of 17 November 2020 and refused to approve it on the ground that such approval required the consent of the 39 other accused persons. On the same day, in the light of that refusal, the public prosecutor, PT and his defence counsel once again applied to the court before which all the evidence had been submitted to approve the agreement, without seeking the consent of the other accused persons. Nevertheless, the public prosecutor expressed doubts as to the impartiality of that court to proceed with the case against the other persons were it to approve the agreement entered into with PT. For his part, PT considers that the impossibility for him to enter into an agreement violates his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).

15. In its request for a preliminary ruling, the referring court notes that an answer to the questions referred is necessary for it to be able to give a ruling on the substance of the case before it, which relates to criminal offences falling within the scope of Framework Decisions 2004/757/JHA (6) and 2008/841/JHA (7) and therefore ‘fields covered by Union law’ within the meaning of the second subparagraph of Article 19(1) TEU. It considers that the procedures provided for by national law for an agreement entered into between the public prosecutor and an accused person constitute ‘implementation’ within the meaning of Article 51(1) of the Charter, Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841.

16. The referring court questions the compatibility of Article 384a of the NPK with the second subparagraph of Article 19(1) TEU and the first and second paragraphs of Article 47 of the Charter. According to the referring court, it would be contrary to the principle of immediacy of criminal proceedings and the right to effective judicial protection to place the defence in a situation where the evidence is taken by one court, while another court has the task of ruling on it.

17. The referring court also questions the compatibility of Article 384(3) of the NPK, in so far as it requires, for the approval of such an agreement, the consent of the other accused persons in the same criminal procedure, not only with Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, but also with the second subparagraph of Article 19(1) TEU and Article 52 of the Charter, read in conjunction with Article 47 thereof. Indeed, the requirement for such consent would have the effect of restricting access to a remedy, within the meaning of the latter provision, contrary to the principle of proportionality, as required by Article 52 of the Charter.

18. Lastly, the referring court is uncertain whether, in the event that it approves the agreement entered into between the public prosecutor and PT, it would then be required to withdraw from the case, in the light of the order of 28 May 2020, UL and VM (C‑709/18, EU:C:2020:411, paragraph 35), to guarantee the right to an impartial tribunal for the other accused persons, as provided for in the second paragraph of Article 47 of the Charter.

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

‘(1) In the context of criminal proceedings concerning charges brought for offences coming within the scope of EU law, is it compatible with the second sentence of Article 19(1) TEU and the first and second paragraphs of Article 47 of the Charter for a national law to impose a requirement under which a court other than the one hearing the case and before which all the evidence has been taken is to examine the substance of an agreement entered into between the public prosecutor and an accused person, whereby the reason behind that requirement is the fact that there are other co-accused persons who have not entered into an agreement?

(2) Is a national law under which an agreement discontinuing criminal proceedings is to be approved only with the consent of all other co-accused persons and their defence counsel compatible with Article 5 of Framework Decision 2004/757, Article 4 of Framework Decision 2008/841, the second sentence of Article 19(1) TEU and Article 52 of the Charter, in conjunction with Article 47 thereof?

(3) Does the second paragraph of Article 47 of the Charter require a court, after having examined and approved an agreement, to decline to examine the charges against the other co-accused persons where it has ruled on that agreement in such a manner that it does not make any statement as to their involvement or express an opinion as to their guilt?’

21. As is apparent from the requests for a preliminary ruling, the referring court considers that it must obtain from the Court an interpretation of the second subparagraph of Article 19(1) TEU, Articles 47 and 52 of the Charter and Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, in view of the doubts it has as to the conformity with those provisions of EU law of national legislation defining the conditions for the judicial approval of an agreement concluded between the public prosecutor and an accused person, by which the latter pleads guilty to the alleged offences in exchange for a pre-negotiated sentence.

22. In its written observations, the Commission argued, in essence, that Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841, as well as Article 47 of the Charter, did not apply. It also claimed that the reasoning given in the order for reference regarding the second question referred for a preliminary ruling did not satisfy the requirements under Article 94 of the Rules of Procedure of the Court of Justice. It is important to bear in mind that, according to settled case-law, the Court itself must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction or whether the request submitted to it is admissible. (8)

23. According to settled case-law, the Court does not have jurisdiction to reply to a question referred for a preliminary ruling where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying. (9) Where a legal situation does not come within the scope of EU law, the Court has no jurisdiction to rule on it, and any Charter provisions relied upon cannot, of themselves, form the basis for such jurisdiction. (10)

24. In the first place, as regards the application of the second subparagraph of Article 19(1) TEU, it should be recalled that, under that provision, Member States are to provide remedies sufficient to ensure effective judicial protection for individuals in the fields covered by EU law. It is therefore for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields. It follows from the Court’s case-law that, as regards the scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter. (11)

25. The second subparagraph of Article 19(1) TEU is intended inter alia to apply to any national body which can rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fall within the fields covered by that law. This is true of the referring court, which may be called upon, in its capacity as an ordinary Bulgarian court, to rule on questions relating to the application or interpretation of EU law and, as ‘courts or tribunals’ within the meaning of EU law, comes under the Bulgarian judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that that court must meet the requirements of effective judicial protection. Furthermore, it should be recalled that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU. (12)

26. It follows from the foregoing that, in the present case, the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU.

27. In the second place, the scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations.

28. In the present case, as regards, more specifically, Article 47 of the Charter, which is the subject of the present request for a preliminary ruling, it should be noted that criminal proceedings have been brought before the referring court against 40 persons, including PT, for participation in a criminal organisation which sought to enrich itself through the distribution of drugs, the person concerned also being prosecuted for possession of drugs with intent to distribute.

29. It is common ground that those offences, defined and penalised by Article 321(3)(2) and Article 354a(1) of the Bulgarian Criminal Code, fall within the scope of Framework Decisions 2004/757 and 2008/841, Article 5 and Article 4 of which, respectively, provide that Member States may take the necessary measures to ensure that the penalties referred to in those framework decisions may be reduced when the offender renounces his criminal activities in the areas covered by those framework decisions and provides the administrative or judicial authorities with information that they could not otherwise have obtained, including by helping them to identify or bring to justice other perpetrators of the offence or to find evidence.

30. Is it possible to infer from that, as the referring court does, that the national rules of procedure governing the judicial approval of a plea-bargaining agreement constitute an implementation of EU law within the meaning of Article 51(1) of the Charter, thus dictating the applicability of its provisions?

31. That question could be answered in the negative on the basis of a reasoning by analogy with the order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776), concerning the interpretation of Article 7(4) of Directive 2016/343, under which ‘Member States may allow their judicial authorities to take into account, when sentencing, cooperative behaviour of suspects and accused persons’. In that decision, the Court of Justice ruled that that article must be interpreted as meaning that it does not govern the issue of whether or not the approval, by a court, of an agreement on the imposition of a negotiated sentence, as provided for by the same rules as those at issue in the main proceedings, concluded between a person accused, on the basis of his alleged membership of a criminal group, and the prosecutor, may be rendered subject to the condition that the other persons accused, on the basis of their membership of that criminal group, must give their consent to the conclusion of that agreement, even where it has already been established that the directive applies ratione personae et materiae to the main proceedings.

32. In this case, it is important to stress, first, that Framework Decisions 2004/757 and 2008/841 were adopted, inter alia, on the basis of Article 31(1)(e) TEU, which provided, in particular, that common action on judicial cooperation in criminal matters is to include progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the field of organised crime, terrorism and illicit drug trafficking. (13) Those framework decisions establish, on the basis of the current Article 83(1) TFEU, which replaced Article 31(1) TEU, minimum provisions under substantive criminal law.

33. However, it should be noted that the national legislation at issue falls within the field of criminal procedure and that none of the legal instruments of EU law aimed at strengthening the rights of suspects or accused persons during the criminal procedure, adopted on the basis of Article 82(2) TFEU, specifically governs the procedures for concluding a plea-bargaining agreement between the public prosecutor and the perpetrator of an offence. According to well-established case-law, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other. (14)

34. Second, it should be recalled that framework decisions are binding on the Member States as to the result to be achieved, while leaving to the national authorities the choice of form and methods. (15) As observed above, Framework Decisions 2004/757 and 2008/841 are only intended to provide minimum harmonisation. Consequently, the Member States have a wide margin of discretion as regards the implementation of those texts in their national law. (16)

35. Third, it follows from the wording of Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841 that those provisions are limited to reserving to Member States the right to authorise their judicial authorities, when determining the penalty following the recognition of criminal liability, to take into account the cooperation of accused persons. Since those provisions do not impose any obligation on the Member States to guarantee that those authorities take that cooperation into account, they do not confer any right on an accused person to receive a reduced penalty in the event that they cooperate with the judicial authorities, for example through the conclusion of an agreement with the prosecutor in which that person admits his guilt. (17)

36. It is significant that the Court has found that fundamental European-Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings. (18)

37. Fourth, it must, admittedly, be observed that Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841 specify the conditions governing, where applicable, the possibility for the judicial authorities to take into account cooperative behaviour of accused persons, with regard, in this case, to the substance of that conduct. Clearly, that observation does not invalidate the finding as to the absence of an obligation for Member States to take such behaviour into account. Moreover, the abovementioned provisions of Framework Decisions 2004/757 and 2008/841 give no indication of the procedural arrangements for the judicial authority to take into account the cooperation of the perpetrator of the offence, whether it concerns the recognition of mitigating circumstances by the court or the existence of a plea-bargaining agreement between the public prosecutor and the person concerned, possibly at different stages of the procedure, as well as the content of such an agreement, the decision-making process regarding its judicial approval in the event of multiple prosecutions and its effects. The determination of such arrangements is solely a matter of national law. (19)

38. It follows that Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841 do not govern the issue of whether or not the approval of an agreement on the imposition of a negotiated sentence may be rendered subject to a requirement of consent from the other accused persons and delivered by a court other than the one initially hearing the case. (20) In the absence of the implementation of EU law in the main proceedings, the provisions of the Charter that the referring court relies on cannot apply, and therefore the Court of Justice has no jurisdiction to hear and determine the case.

39. It must be noted, however, that the Court’s case-law contains examples of a less strict interpretation of the concept of ‘implementation of EU law’, (21) which implies that it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and whether there are specific rules of EU law on the matter or rules which are capable of affecting it. (22) Thus, in the context of a combined reading of Article 5 of Framework Decision 2004/757 and Article 4 of Framework Decision 2008/841 with the preceding provisions, relating to the need for Member States to provide for effective, proportionate and dissuasive penalties, (23) it could be argued that the national legislation at issue is intended to implement EU law and actually meets the same objectives as those decisions, namely to combat illicit drug trafficking and organised crime.

40. However, the importance of the finding as to the applicability or otherwise of the provisions of the abovementioned secondary legislation in the present case, and its consequences as regards the applicability of the Charter, and specifically Article 47 thereof, must be put into perspective. It has been ruled that, since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU. (24)

41. It should be noted at the outset that the referring court’s questions as to the compatibility of the national legislation specifically relate to a double legal requirement: (i) designating an ad hoc court, other than the one initially hearing the case, for the purpose of approving the agreement concluded during the judicial procedure between the public prosecutor and one of the accused persons or for one of the alleged offences (first and third questions referred for a preliminary ruling); (25) and (ii) obtaining consent to that agreement from all the parties to the proceedings, and therefore the co-accused persons, as a precondition for its judicial approval (second question referred for a preliminary ruling).

42. Having regard to the relevant case-law of the Court, and specifically, its consolidated expression in the judgment in Miasto Łowicz, it is important to point out that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them and that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute. It is apparent from the actual wording of Article 267 TFEU that the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal (26) is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. The Court’s function in proceedings for a preliminary ruling is to help the referring court to resolve the specific dispute pending before that court. In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court. (27)

43. It follows from the judgment in Miasto Łowicz that this connecting factor may be direct or indirect, depending on the three situations of admissibility described therein. It is direct where the national court is required to apply the EU law whose interpretation is sought in order to determine the substantive solution to be given to the main dispute (first situation). It is indirect when the preliminary ruling is capable of providing the referring court with an interpretation of procedural provisions of EU law which the referring court is required to apply in order to deliver its judgment (second situation), or an interpretation of EU law which would allow it to resolve procedural questions of national law before being able to rule on the substance of the disputes before it (‘the third situation’). (28) In the judgment in Miasto Łowicz, the Court examined in turn the admissibility of the questions referred for a preliminary ruling in the light of three distinct and independent situations satisfying the criterion of necessity to conclude that they were inadmissible, highlighting, for the third situation, the difference with the cases giving rise to the judgment in A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), (29) in which the interpretation sought from the Court was such as to have a bearing on the issue of determining which court had jurisdiction for the purposes of settling disputes relating to EU law. (30)

44. It could be considered, prima facie, that by the questions it has referred to the Court of Justice for a preliminary ruling and the interpretation of EU law sought, the referring court wishes to be instructed on a procedural question of national law which it must settle in limine litis, which corresponds to the third situation. The question concerns the jurisdiction of an ad hoc court, in the place of the referring court, to give a ruling on the approval of a plea-bargaining agreement entered into between the public prosecutor and an accused person before that court.

45. In a recent judgment, the Court stated, in general, that questions referred for a preliminary ruling which seek to enable a referring court to settle, in limine litis, procedural difficulties such as those relating to its own jurisdiction to hear and determine a case pending before it, or which concern the legal effects which must or must not be conferred on a judicial decision which potentially precludes the continuation of the examination of such a case by that court, are admissible under Article 267 TFEU. (31) This approach seems to lend weight to the procedural question, in the sense that it would be able to satisfy, on its own, the criterion of necessity under Article 267 TFEU. While it is true that the Court of Justice clearly only intended there to be two types of cases, the first seems to address the question of the jurisdiction - or rather lack thereof - of the referring court, before which the proceedings against all the co-accused persons were initially brought, to give a ruling on the approval of a plea-bargaining agreement signed by one of the accused persons.

46. By contrast, the requirement for the unanimous consent of the other accused persons comes under the process of independent approval of the court examining it, such as to justify a finding of inadmissibility of the second question referred for a preliminary ruling. That finding may, however, seem too abstract, in so far as it separates two aspects that are part of the same mechanism and have an equal bearing on the criminal proceedings before the referring court.

47. That observation leads me to consider the first situation of admissibility described in the judgment in Miasto Łowicz to be relevant. In that regard, and as the referring court rightly points out, (32) the questions referred for a preliminary ruling relate to procedural difficulties that are inextricably linked to the substantive decision that it must deliver, as regards the criminal liability of the accused persons and any sentence imposed. It is important to point out that, according to the order for reference, the agreement entered into between the public prosecutor and an accused person, by which the latter pleads guilty to the charges and therefore receives a pre-negotiated sentence, settles all the questions to be taken into account in the judgment on the substance, since it indicates the offence committed by the person concerned and his legal status, as well as the nature and level of the penalty.

48. In those circumstances, the Court’s answers as to the compatibility of national legislation laying down conditions for the judicial approval of such an agreement, intended to replace the substantive decision according to the referring court, seem necessary to allow the referring court to rule on the criminal prosecution before it. It appears therefore that there is a connecting factor between the case in the main proceedings and the second subparagraph of Article 19(1) TEU whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision on the substance of the case to be taken by the referring court.

49. Furthermore, contrary to the Commission’s claims, it seems to me that the requirements of Article 94 of the Rules of Procedure of the Court of Justice, particularly as provided for in Article 94(c), are satisfied in the present case. Indeed, the referring court has sufficiently set out the reasons that led it to question the interpretation of the requirement as to effective judicial protection, which the second subparagraph of Article 19(1) TEU refers to, in the light of the condition of approval of the plea-bargaining agreement and the unanimous consent of the other accused persons. (33) The referring court submits that the plea-bargaining agreement is a form of legal remedy for the accused person PT, allowing him to obtain a more lenient penalty, and that the need for such consent has the effect of unduly restricting access to that remedy, in violation of the abovementioned requirement, and specifically the right to a fair trial.

50. It is possible therefore to conclude that this request for a preliminary ruling is admissible.

51. The referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, precludes the procedural rule that the approval of a plea-bargaining agreement entered into between the public prosecutor and one of the accused persons during the judicial phase of the procedure, is automatically assigned to the jurisdiction of a court other than the one before which all the accused persons are being prosecuted and before which all the evidence has been taken, even though the approval decision does not determine the guilt of the co-accused persons. The doubts thus expressed by the referring court concern both the requirement of impartiality of the judicial body concerned and the principle of immediacy of criminal proceedings.

52. As is provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The principle of the effective judicial protection of individuals’ rights under EU law thus referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 ECHR and which is now reaffirmed by Article 47 of the Charter. (34)

53. As previously stated, since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU, in the same way as the case-law of the ECtHR on Article 6(1) ECHR. (35) To ensure that bodies which may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure such effective judicial protection, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent and impartial’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. The requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded. (36)

54. According to settled case-law, the requirement that courts be independent has two aspects to it. The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (37)

55. Referring to the settled case-law of the ECtHR, the Court also clarified that the requirement of impartiality can be tested in various ways. According to a subjective approach, it is necessary to take into account the personal convictions and behaviour of the judge, by examining whether the judge gave any indication of personal prejudice or bias in a given case, it being observed that personal impartiality is presumed until proven otherwise. The objective approach consists of ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings. (38)

56. It is clear from the request for a preliminary ruling that the referring court’s question only concerns the issue of objective impartiality, where different functions are exercised by the same judge or collegiate court during a judicial process.

57. It should be noted in that regard that, according to the Court, the fact that the judges who heard and determined a case initially may sit in another formation hearing and determining the same case again is not in itself incompatible with the requirements of a fair trial. In particular, the fact that one or more of the judges were present in two successive formations and exercised the same functions, such as president or judge-rapporteur, is in itself irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the court. Such considerations are even more relevant where the two successive formations do not have to hear and determine the same case, but two separate cases which are related to some extent. (39)

58. In respect specifically of plea-bargaining procedures, the Court has answered various questions on the interpretation of the provisions of Directive 2016/343, relying on the case-law of the ECtHR, according to which, in complex criminal proceedings involving several persons who cannot be tried together, references by the national 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. The ECtHR stated, however, that if facts related to the involvement of third parties have to be introduced, the relevant 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. In addition, that court stated that the reasoning of judicial decisions must be worded in such a way as avoid a potential pre-judgment about the guilt of the third parties concerned, capable of jeopardising the fair examination of the charges brought against them in the separate proceedings. (40)

59. The Court held that Article 4(1) of Directive 2016/343 (41) must be interpreted as meaning that it does not preclude that an agreement in which the accused person recognises his guilt in exchange for a reduction in sentencing, which must be approved by a national court, expressly mentions as joint perpetrators of the criminal offence in question not only that person, but also other accused persons, who have not recognised their guilt and are being prosecuted in separate criminal proceedings, on the condition that, first, that reference is necessary for the categorisation of the legal liability of the person who entered into the agreement and, second, that that same agreement makes it clear that those other persons are being prosecuted in separate criminal proceedings and that their guilt has not been legally established. (42)

60. In another case, the Court held that Article 3 (43) and Article 4(1) of Directive 2016/343, read in conjunction with recital 16 of that directive and the second paragraph of Article 47 and Article 48 of the Charter, must be interpreted as not precluding a national court, first of all, from accepting, in the context of criminal proceedings brought against two persons, by order, the guilty plea of the first person to offences stated in the indictment allegedly committed together with the second person who has not pleaded guilty and, thereafter, from deciding, after taking evidence relating to what the second person is alleged to have done, on the guilt of that person, provided that, first, the reference to the second person as co-perpetrator of the alleged offences is necessary to the characterisation of the legal liability of the person who pleaded guilty and, secondly, that order and/or the indictment to which it refers clearly state that the guilt of that second person has not been legally established and will be the subject of separate taking of evidence and a separate judgment. (44)

61. To complete this round-up of case-law, it is worth mentioning a recent judgment of the ECtHR which implements its general principles in the matter of impartiality. The ECtHR considers, in that regard, that while the mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality, the question as to the judge’s impartiality arises, however, where the earlier judgment already contains a detailed assessment of the role of the person judged subsequently in an offence committed by several persons and, in particular, where the earlier judgment contains a specific categorisation of the involvement of the applicant or must be seen to have determined that the person judged subsequently fulfilled all the criteria necessary to have committed a criminal offence. Given the circumstances of the specific case, such elements may be seen as prejudging the question of the guilt of the person on trial in the subsequent proceedings and may thus lead to objectively justified doubts that the domestic court has a preconceived view regarding the merits of the case of the person judged subsequently at the outset of his or her trial. (45)

62. Hearing a case brought by an applicant who was tried and convicted by the same trial court that had previously convicted his co‑perpetrators for criminal actions committed jointly with him, and this on the basis of their plea-bargaining agreements, the ECtHR found that there had been a violation of Article 6(1) ECHR in view of the following factors. The ECtHR thus held that although the judgments approving the agreements did not contain any separate finding of guilt in relation to the applicant per se and that the nature of the alleged offence presupposed coordinated criminal actions, they included a precise factual definition of the applicant’s specific role in them. The trial court was thus perfectly aware of the applicant’s identity, despite the fact that he was referred to by his initials and an alias, and of his role, there being no possible doubt as to his participation in the offence. This situation was an incentive for the court to remain consistent with its earlier set of judgments approving the agreements, like the co-perpetrators with their earlier statements incriminating the applicant. Accordingly, the ECtHR found that, in view of their wording, the judgments against the applicant’s co-perpetrators were prejudicial to the applicant’s right to be presumed innocent until proven guilty. Given the role they played in the applicant’s own trial, which took place before the same court, his doubts as to its impartiality were objectively justified. (46)

63. It is clear from the case-law that the concepts of ‘objective impartiality’ and ‘presumption of innocence’, which are legally separate, are actually closely linked, as a breach of the requirement of impartiality may, in certain conditions, result from an infringement of that presumption.

64. In the present case, the referring court has stated that the plea-bargaining agreement entered into by PT reproduces the operative part of the indictment in its entirety, includes a reference to the offence committed by the accused person and his legal status, as well as the nature and level of the penalty. However, it does not mention, following the judgment in AH and Others (Presumption of innocence), (47) the name and national identity number of the accused persons still on trial, since the agreement was approved without commenting on the latter’s participation in the offences in question and without taking a position on their guilt. (48) It thus appears from the order for reference that the wording of the plea-bargaining agreement at issue and of the judicial decision approving it is free from any pre-judgment of the guilt of the defendants who refused to plead guilty to the charges. In those circumstances, the fact that the referring court can approve the plea-bargaining agreement and subsequently assess the criminal liability of the accused persons does not seem to contradict the requirements of objective impartiality.

65. Nevertheless, it should be noted that the situation of the accused person PT seems unusual, to say the least, in so far as the referring court has specified that, in general and in accordance with settled case-law, plea-bargaining agreements continue to mention the full names and identity numbers of accused persons who have not entered into such an agreement. (49) In addition, those agreements and the judgments approving them do not necessarily contain an explicit reference to the fact that those accused persons are being prosecuted in separate criminal proceedings and that their guilt has not been legally established, a reference clearly required by the Court of Justice in its assessment of whether the presumption of innocence has been observed. (50) When assessing the compatibility of the Bulgarian legislation at issue, as applied by the national courts, those aspects are capable of justifying, on the basis of objective impartiality, the jurisdiction of an ad hoc court for the approval of the agreements, as the referring court itself acknowledges. (51)

66. In any event, it cannot, in my view, be inferred from the information contained in point 64 of this Opinion that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as precluding the national legislation at issue. Indeed, far from contradicting the abovementioned requirements, the fact that the court initially hearing the case systematically declines jurisdiction in favour of an ad hoc court, for the purpose of approving the plea-bargaining agreement, necessarily reinforces the objective impartiality of the court called upon to try the co-accused persons who have not pleaded guilty, and thus precludes a lack of appearance of impartiality likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals. (52)

67. When asked about the scope of certain provisions of Directive 2012/29/EU, (53) in the light of national legislation requiring further examination of the victim by a newly composed court, when one of the parties to the proceedings refuses to allow that court to rely on the transcript of the first hearing, the Court of Justice referred to the abovementioned principle, relying on the case-law of the ECtHR.

68. The Court of Justice has thus ruled that an important aspect of fair criminal proceedings is the ability for the accused to be confronted with the witnesses in the presence of the judge who ultimately decides the case. The principle of immediacy is an important guarantee in criminal proceedings in which the observations made by the court about the demeanour and credibility of a witness may have important consequences for the accused. Therefore, a change in the composition of the trial court after the hearing of an important witness should normally lead to the rehearing of that witness. However, the principle of immediacy cannot be deemed to constitute a prohibition of any change in the composition of a court during the course of a case. Very clear administrative or procedural factors may arise rendering a judge’s continued participation in a case impossible. Measures can be taken to ensure that the judges who continue hearing the case have the appropriate understanding of the evidence and arguments, for example, by making transcripts available, where the credibility of the witness concerned is not in issue, or by arranging for a rehearing of the relevant arguments or of important witnesses before the newly composed court. (54)

69. The concept of ‘immediacy’ thus presupposes a direct relationship between the judge and the party concerned, so that a judge who was not present at the hearing cannot contribute to the decision in the case. (55)

70. According to the referring court, the principle of immediacy is reflected in Articles 18 and 55 of the NPK, which guarantee the participation of the defence in the proceedings, in the presence of the judge who is called upon to rule on the substance of the case, whereas Article 384a of the NPK deviates from it. The referring court states that the right to effective judicial protection would be violated if the defence were placed in the situation where it would be for a court to make a substantive decision on the basis of evidence examined and debated before another judge. That court will have been privy to the procedural documents, but will not have participated in the process of gathering and assessing the evidence, in the presence and under the observation of the defence.

71. To my mind, the referring court’s position negates the specificity and independence of the plea-bargaining procedure on which the ECtHR has already had occasion to rule. The ECtHR considers that where the effect of plea bargaining is that a criminal charge against the accused is determined through an abridged form of judicial examination, this amounts, in substance, to the waiver of a number of procedural rights. This cannot be a problem in itself, since neither the letter nor the spirit of Article 6 ECHR prevents a person from waiving these safeguards of his or her own free will. Therefore, in accordance with the principles concerning the validity of such waivers, the applicant’s decision to accept the plea bargain should be accompanied by the following conditions: first, the bargain had to be accepted in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and second, the content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review. (56)

72. By entering into an agreement with the public prosecutor in which he pleaded guilty to the charges and accepted the suspended custodial sentence, PT waived the right to have the case tried according to the ordinary procedure, under the terms of Article 381(6) of the NPK, and thus obtain an examination of the substance of the case, in which, at the trial hearing, both sides are heard on the evidence before the court called upon to rule on the substance. The plea-bargaining procedure, which the accused person opts for on the advice of his defence counsel, constitutes a particular mode of administration of criminal justice in that it is an alternative to the trial under ordinary law. By arguing that the principle of immediacy, as it applies during the abovementioned trial, has been breached, the reasoning of the referring court seems to me to overlook the legal and factual reality of the plea-bargaining procedure, the aim of which is to simplify and speed up the adjudication of criminal cases, as advocated by the ECtHR. (57)

73. In those circumstances, it cannot be alleged that the mere fact that the court initially hearing the case against all the accused persons declines jurisdiction in favour of an ad hoc court, for the purpose of approving the plea-bargaining agreement entered into by one of the accused persons, undermines the principle of immediacy of criminal proceedings. Nevertheless, the court must be able to ensure a sufficient judicial review, as required by the ECtHR, (58) it being observed that the referring court provides no other evidence to the contrary. (59)

74. The referring court has doubts as to the compatibility with the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, of the national rule that the unanimous consent of the co-accused persons is a precondition for the judicial approval of the plea-bargaining agreement. (60) Any such requirement would have the effect of unduly restricting access by the accused person to a ‘remedy recognised by law’, allowing him to receive a more lenient penalty than the penalty he would have received under the ordinary procedure.

75. In view of the unorthodox wording of the order for reference, it is important to emphasise, as a preliminary point, that the plea-bargaining procedure at issue cannot be characterised or treated as a means of redress, that is to say a legal remedy allowing an allegedly irregular situation to be reviewed and challenged before a court of law.

76. Considered in its entirety, it seems to me that the order for reference has to be interpreted as an indication of a possible infringement of the right to a fair trial of the accused person, and specifically the rights of the defence. In that respect, I recall that the content and scope of the second subparagraph of Article 19(1) TEU is determined by reference to Article 47 of the Charter. The Court specified that the fundamental principle of effective judicial protection of rights, reaffirmed in Article 47 of the Charter, and the concept of ‘a fair trial’, referred to in Article 6 ECHR, consist of various elements, which include, in particular, respect for the rights of the defence. (61)

77. According to the referring court, certain provisions of Framework Decisions 2004/757 and 2008/841 provide for the possibility of reduced sentencing in the event of cooperation by the accused person, under the same conditions as those allowing a plea-bargaining agreement to be made. The fact that the judicial approval of the plea-bargaining agreement is subject to the consent of the co-accused persons undermines the right of the accused person, having admitted his criminal liability, to receive a lighter sentence under that agreement, contrary to the principle of proportionality (62) and the rights of the defence.

78. However, to my knowledge, no provision of EU law, whether primary law or an instrument of secondary law, guarantees an accused person the right to receive a lighter sentence in a given situation, including in the context of a plea-bargaining agreement entered into with the public prosecutor. In that regard, the Court has held that, since Article 7(4) of Directive 2016/343 does not impose any obligation on the Member States to guarantee that the judicial authorities take into account the cooperation of the accused person, it does not confer any right on that person to receive a reduced penalty in the event that they cooperate with the judicial authorities, for example through the conclusion of an agreement with the prosecutor in which that person admits his guilt. (63) It also held that Article 6(4) of Directive 2012/13, providing for an obligation to inform accused persons of any change in the accusation against them, where this is necessary to ensure the fairness of the proceedings, and the rights of the defence provided for in Article 48(2) of the Charter, as regards the right to information of those persons, do not require the accused persons to be entitled, once the trial proceedings have commenced, to request the imposition of a negotiated penalty where there has been a modification of the acts on which the accusation is based or a modification of the legal classification of the acts to which the accusation relates. (64)

79. It cannot be inferred from the right to remain silent of suspects and accused persons in relation to the criminal offence they are accused of and the right not to incriminate themselves, as recognised in Article 7(1) and (2) of Directive 2016/343, (65) that they have a right to receive a reduced sentence if they plead guilty, the unequivocal wording of paragraph 4 of that article precluding such an interpretation.

80. Moreover, it must be noted that the national legislation at issue also guarantees no such a right. The procedure leading to an agreement on the imposition of a negotiated penalty is a special adjudication procedure for criminal offences which the public prosecutor is free to implement, on his own initiative or at the request of the accused person’s defence counsel, provided that the accused person pleads guilty to the alleged offences. The accused person does not have the right to be tried according to that procedure, even though he has pleaded guilty, since the agreement must be signed by the public prosecutor in order to be submitted for approval. (66) Neither does the accused person have the right - where the public prosecutor has opted for that procedure and the accused person has accepted the proposed sentence - to its approval by the competent court, which is bound neither by the proposal of the public prosecutor nor by its acceptance by the person concerned. It follows from Article 382(8) of the NPK that where the court refuses to approve the plea-bargaining agreement, it must refer the case back to the public prosecutor’s office.

81. Consequently, a consent requirement, such as that at issue in the main proceedings, to which the approval of an agreement on the imposition of a negotiated sentence is rendered subject, cannot be regarded as infringing the right to a fair trial and, in particular, the rights of the defence.

82. In the light of the foregoing, I propose that the Court respond to the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) as follows:

The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not preclude national legislation under which the judicial approval of an agreement in which one of the accused persons acknowledges his or her guilt for the offences charged in exchange for a more lenient sentence is assigned to the jurisdiction of a court other than the one initially hearing the case, and is subject to the precondition of acceptance of that agreement by all the other accused persons who have not admitted criminal liability.

2 ECtHR, 29 April 2014, Natsvlishvili and Togonidze v. Georgia (CE:ECHR:2014:0429JUD000904305, § 90).

3 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 of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

4 Directive of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

6 Council Framework Decision of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8).

7 Council Framework Decision of 24 October 2008 on the fight against organised crime (OJ 2008 L 300, p. 42).

8 Judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court - Appointment) (C‑508/19, EU:C:2022:201, paragraph 59).

9 Judgment of 24 February 2022, Viva Telecom Bulgaria (C‑257/20, EU:C:2022:125, paragraph 123).

10 Order of 18 April 2023, Vantage Logistics (C‑200/22, EU:C:2023:337, paragraph 27).

11 Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, ‘the judgment in Miasto Łowicz’, EU:C:2020:234, paragraphs 32 and 33).

13 For Framework Decision 2004/757, see judgment of 11 June 2020, JI (C‑634/18, EU:C:2020:455, paragraph 32).

14 Judgment of 10 July 2014, Julián Hernández and Others (C‑198/13, EU:C:2014:2055, paragraph 34).

16 For Framework Decision 2004/757, see judgment of 11 June 2020, JI (C‑634/18, EU:C:2020:455, paragraph 41).

17 See, by analogy, order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776, paragraph 34).

18 Order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776, paragraph 41 and the case-law cited).

19 See, by analogy, order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776, paragraphs 34 and 35).

20 See, by analogy, order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776, paragraph 36).

21 See, for example, judgments of 21 December 2011, N.S. and Others (C‑411/10 and C‑493/10, EU:C:2011:865, paragraphs 64 to 69), and of 9 March 2017, Milkova (C‑406/15, EU:C:2017:198, in particular paragraph 52).

22 Judgment of 10 July 2014, Julián Hernández and Others (C‑198/13, EU:C:2014:2055, paragraph 37 and the case-law cited).

23 I note that the order for reference refers to Article 4(1) of Framework Decision 2004/757 and Article 3 of Framework Decision 2008/841.

24 Judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 37).

25 Although formulated separately, the first and third questions referred reflect the same issue of identifying which court has jurisdiction to rule on the criminal liability of the accused persons, including by means of the approval of a plea-bargaining agreement that one of the accused persons has entered into.

26 By letter of 5 August 2022, the Sofiyski gradski sad (Sofia City Court, Bulgaria) informed the Court of Justice that, following a legislative amendment which entered into force on 27 July 2022, the Spetsializiran nakazatelen sad (Specialised Criminal Court) was dissolved and that certain criminal cases brought before that court, including the case in the main proceedings, were transferred to it as from that date. It thus appears that the condition of admissibility relating to the pending nature of the dispute in the main proceedings remains satisfied.

29 Judgment of 19 November 2019 (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982).

31 Judgment of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties) (C‑615/20 and C‑671/20, EU:C:2023:562, paragraphs 46 and 47).

33 Although the referring court mentions the second subparagraph of Article 19(1) TEU, admittedly in relatively abstruse terms, it also refers several times to Article 47 of the Charter, which the Court has held must be taken into account when interpreting Article 19(1) TEU.

34 Judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 52).

35 See, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court) (C‑430/21, EU:C:2022:99, paragraph 37).

36 See, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraphs 57 and 58 and the case-law cited).

37 See, to that effect, judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 to 123).

38 Judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 128).

39 Judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament (C‑308/07 P, EU:C:2009:103, paragraphs 43 to 45).

40 Judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraph 44).

41 Article 4(1) of Directive 2016/343 provides that 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.

42 Judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraph 50). It should be noted that, in the case giving rise to that judgment, the agreement entered into between the public prosecutor and one of the accused was submitted for approval to the referring court corresponding to the ad hoc court, as follows from paragraph 22 of the judgment.

43 Article 3 of Directive 2016/343 requires Member States to ensure that suspects and accused persons are presumed innocent until proved guilty according to law.

48 The absence of anonymity is an important consideration, particularly when discussing observance of the presumption of innocence.

50 Judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraphs 45 and 49). In its answer to the Court’s questions, the referring court stated that such a reference was within the power of the court having jurisdiction to approve the agreement, since it could propose amendments to the agreement.

52 See, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 60).

53 Directive of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ 2012 L 315, p. 57).

54 Judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628, paragraphs 43 and 44).

55 See Opinions of Advocate General Léger in Baustahlgewebe v Commission (C‑185/95 P, EU:C:1998:37, paragraphs 82 and 83), and of Advocate General Saugmandsgaard Øe in Komisia za zashtita ot diskriminatsia (C‑824/19, EU:C:2021:324, paragraph 62). I also recall that, according to Article 32(2) of the Rules of Procedure of the Court, ‘when a hearing has taken place, only those Judges who participated in that hearing … shall take part in the deliberations’.

56 ECtHR, 29 April 2014, Natsvlishvili and Togonidze v. Georgia (CE:ECHR:2014:0429JUD000904305, §§ 91 and 92).

57 For the ECtHR, plea bargaining, apart from offering the important benefits of speedy adjudication of criminal cases and alleviating the workload of courts, prosecutors and lawyers, can also, if applied correctly, be a successful tool in combating corruption and organised crime and can contribute to the reduction of the number of sentences imposed and, as a result, the number of prisoners (ECtHR, 29 April 2014, Natsvlishvili and Togonidze v. Georgia, CE:ECHR:2014: 0429JUD000904305, § 90).

58 In its answer to the Court’s questions, the referring court specified that, in the context of the judicial approval of the agreement, the court having jurisdiction examines the accused person on the material (guilty plea) and procedural (waiver of a judgment under the ordinary procedure) aspects and approves the agreement only in the event of confirmation by the person concerned.

59 I note that the referring court further argues that, given the power of the court to propose amendments to the agreement in the sense of a heavier sentence, the defence ‘always’ has a legal interest in the decision being delivered by the court that took the evidence in its presence and under its control. It should be emphasised that these considerations are purely speculative, even contradictory, in so far as that same court indicates, in paragraphs 51 and 52 of the order for reference, that the plea-bargaining agreement entered into by the accused persons results in a more lenient penalty than the penalty he would have received under the ordinary procedure.

60 This is the third time that the referring court (or its predecessor) has asked the Court of Justice about this particular procedural rule. In the judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670, paragraph 28), the Court took care to point out that it was not questioned on the possible compliance with EU law of national legislation which would, where appropriate, make judicial approval of an agreement implying the recognition of guilt in exchange for a reduction in sentencing subject to the consent of the other accused persons who did not plead guilty. Without waiting for the Court’s answer in the present case, the referring court again referred the question of the compliance of such a rule with EU law and, in particular, Article 20 of the Charter, to the Court (Case pending C‑398/23).

61 Judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 203).

63 Order of 24 September 2019, QR (Presumption of innocence) (C‑467/19 PPU, EU:C:2019:776, paragraph 34). It is in reference to the latter point that the Court held, in paragraph 42 of that order, that ‘EU law’ does not impose any obligation on the Member States to allow their judicial authorities, when sentencing, to take into account cooperative behaviour of suspects and accused persons, inter alia though the conclusion of an agreement with the prosecutor in which a person admits his guilt in exchange for a reduced sentence.

64 Judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 63 and 72).

65 The Court has pointed out that, according to the ECtHR, even though Article 6 ECHR does not explicitly mention the right to silence, that right is a generally recognised international standard which lies at the heart of the notion of a fair trial (judgment of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraph 38 and the case-law cited).

Court of Justice of the European Communities (including Court of First Instance Decisions)