By Adriano Martufi (Assistant Professor, Leiden University) and Christina Peristeridou (Assistant Professor, Maastricht University)

Introduction

The recent judgment of the Court of Justice of the European Union (CJEU) in the case of DK (C-653/19 PPU, 28 November 2019) has validated two concerning observations about the state of European criminal law. Firstly, Directive 2016/343 on the presumption of innocence has limited practical application, particularly regarding pre-trial detention. Secondly, pre-trial detention is a contentious subject, with both the CJEU and the EU legislator hesitant to establish common standards despite their absence negatively impacting mutual trust between Member States’ judicial systems.

The facts

In the case of DK, the Bulgarian Specialised Criminal Court requested a preliminary ruling from the CJEU to determine whether its national code of criminal procedure, specifically the handling of pre-trial detention, aligns with Article 6 of the Directive on the presumption of innocence and Articles 6 (right to liberty) and 47 (fair trial and effective remedy) of the EU Charter of Fundamental Rights.

Under Bulgarian law, when a detained suspect’s case goes to trial, the trial court assumes responsibility for the detention. If the court deems the detention lawful, it becomes indefinite. The defendant can request release, but they bear the burden of proving changed circumstances justifying their release. DK, detained since June 11, 2016, filed multiple unsuccessful release applications due to insufficient evidence of changed circumstances.

The ruling

The CJEU, using its expedited judgment procedure, determined that Article 6 of the Directive on the presumption of innocence and Articles 6 and 47 of the Charter were not applicable in this situation (para 42). Their reasoning was grounded in the Directive’s wording and previous case law.

Firstly, the Directive provides minimal harmonization and doesn’t comprehensively address pre-trial detention. Previous cases confirmed that aspects like reasonable suspicion, evidence assessment, and judicial rationale for pre-trial detention fall under national law (Milev). Secondly, the court interpreted Articles 4 and 6, along with recitals 16 and 22 of the Directive, as implicitly differentiating between judicial decisions on guilt and other procedural actions like remand procedures. The argument, echoing Advocate General Pitruzzella’s opinion, posits that unlike Article 4 (public statements of guilt) which applies to pre-trial decisions, Article 6 (burden of proof) applies solely to decisions on guilt. Therefore, the prosecution must bear the burden of proof only for decisions related to guilt, not for pre-trial decisions. Thirdly, since this case falls outside EU law purview, the Charter isn’t applicable (Article 51). Articles 6 and 47 of the Charter are not directly applicable as there’s no EU law implementation in this specific situation.

Commentary

The CJEU ruling in DK reinforces the EU legislator’s perspective of the presumption of innocence as a limited concept. The Directive on the presumption of innocence, with its minimalist approach, did not aim for substantial change. Consequently, DK doesn’t significantly impact existing law; there’s no bold expansion of EU law through judicial activism. The court maintains the existing situation.

However, this uneventful outcome doesn’t address the growing concern regarding judicial cooperation without unified pre-trial detention standards. Given the escalating problem of excessive pre-trial detention in several EU legal systems, which even prompted exceptions to the principle of mutual trust in Aranyosi, it was hoped that this Directive could pave the way for regulating certain aspects of pre-trial detention.

The European Court of Human Rights (ECtHR) has consistently linked the presumption of innocence and pre-trial detention, recognizing that the latter can negatively impact the former. In the absence of legislative harmonization, the CJEU could potentially fill these protection gaps. DK presented such an opportunity, as recent ECtHR case law directly addressed practices similar to those in DK, where the burden of proof is shifted within remand proceedings. The CJEU could have readily relied on established ECHR standards, which seemed fitting for the problem at hand. However, the court didn’t capitalize on this opportunity. Moreover, the reasoning presented by the Luxembourg judges is not without flaws and merits closer examination.

Interpretation of the Directive

The Court’s determination that the DK situation falls outside the Directive’s scope feels simplistic and incomplete. Their argument relies heavily on the grammatical interpretation of the Directive, as put forth by Advocate General Pitruzzella. The Advocate General argues that while certain provisions in the Directive apply to both trial and pre-trial measures, others specifically target trial measures. This interpretation stems from references in Article 4 (public references to guilt) to all ‘judicial decisions’ apart from those on guilt. This comprehensive phrase isn’t echoed in Article 6 (burden of proof) nor in the preamble’s explanations. This grammatical analysis, according to both the Advocate General and the Court, suggests that the two provisions apply to distinct stages of the criminal process. It’s true that Article 6 refers to the ‘burden of proof for establishing the guilt’ of the suspect, not any burden of proof generally. However, one could argue that if the legislator intended such a distinction between pre-trial and trial stages for these articles’ applicability, it would have been stated more explicitly in the text.

Given this, it’s puzzling that the Court handled this issue quite differently in the previous case of RH. In RH, the court interpreted Article 6 of the Directive more broadly, stating that it refers to ‘any obligation on the judge or the competent court to seek both elements of inculpatory and exculpatory evidence’ (para 56 in RH). This established a connection between Articles 4 and 6 of the Directive, implying Article 6’s relevance to pre-trial detention. Conversely, the Court in DK attempts to downplay this link in an effort to exclude Article 6 from pre-trial detention proceedings. This is surprising considering that, in practice, the presumption of innocence applies to these proceedings under both ECHR standards and most, if not all, national legal systems.

Ultimately, while the Court’s interpretation of the Directive isn’t inherently implausible, the lack of further justification against extending Article 6 to pre-trial detention is inadequate. Advocate General Pitruzzella’s Opinion offers a more comprehensive and compelling argument to support this narrow understanding of the presumption of innocence. The legislative history reveals that the Commission had advocated for completely excluding pre-trial detention from this Directive (point 33 of Opinion). The Court’s interpretation of the Directive would have been more convincing and less legalistic had it acknowledged its shift in stance from RH and referenced the Directive’s intended purpose as understood by its drafters.

The Charter

The Court was also tasked with interpreting Articles 6 (right to liberty) and, surprisingly, 47 (effective remedy and fair trial) of the Charter. Considering the case facts, one might have expected the Bulgarian court to request the interpretation of Article 48 (presumption of innocence). The relevance of the right to an effective remedy (or right to a fair trial) in this context is unclear, although one could argue that the aforementioned shift in the burden of proof could hinder the effectiveness of the remedy: being detained, DK would struggle to provide new circumstances to challenge his detention. That said, an (additional) argument encompassing the presumption of innocence (Article 48 of the Charter) would have been more compelling. This is supported by the Advocate General’s Opinion, where Pitruzzella groups Articles 47 and 48 together despite the referring court not mentioning Article 48.

Despite these inconsistencies, the Court’s approach to interpreting the Charter is remarkably insular. In a few brief sentences (para 40-41), the court dismisses the national court’s requests, stating that since the situation doesn’t fall under EU law (the Directive), the Charter’s safeguards cannot be triggered. Citing Article 51, the Court simply reiterates that the Charter only applies when national authorities are ‘implementing EU law’.

However, the Court has previously adopted the view that the Charter’s applicability extends beyond direct EU law implementation, encompassing situations with a less direct connection. In this case, while the Directive doesn’t fully regulate pre-trial detention, some aspects are affected (Article 4 prohibits references to guilt in pre-trial detention orders). Therefore, a connection to EU law exists, and an argument could be made for utilizing the Charter based on the Åkeberg Fransson case. Furthermore, the Charter has been used to address legal gaps in the past. In Aranyosi, where the European Arrest Warrant Framework Decision didn’t provide grounds for refusal based on (potential) fundamental rights violations, the Court employed the Charter to address this gap and effectively created a new ground for refusal.

In Aranyosi, the Court adopted a more principled approach, even contradicting a literal or purposive interpretation of the legal instrument in question. This is notable considering the pressure on the Luxembourg judges to uphold mutual trust and preserve the European Arrest Warrant procedure. Why didn’t the Court take a similar approach in DK?

We are not alone in raising this question. Advocate General Pitruzzella strongly criticizes the lack of common pre-trial detention standards and urges the EU legislator to address this issue (points 20-22). Interestingly, however, he admits he has ’no choice’ but to conclude that the DK situation falls outside EU law. Similar sentiments were expressed in Advocate General Wathelet’s Opinion in Milev, where he strongly disagreed with the Commission’s view that the Directive lacked substantial provisions on pre-trial detention (points 55-57).

Explanation of Court’s approach

So why didn’t the Court extend Article 6’s application on the burden of proof to pre-trial detention using the Charter?

One plausible explanation is that the Charter doesn’t automatically lead to broader protection within this Directive. The Court reiterated in both Milev (para 47) and DK that harmonization isn’t exhaustive. The Directive offers partial (and minimal) harmonization, addressing only specific aspects of the presumption of innocence. Consequently, the Charter cannot expand the harmonization scope beyond what the Directive already defines. In constitutional terms, one could argue that the Court was hesitant to overstep the boundaries set by the principles of subsidiarity and conferral. Of course, the Luxembourg judges could easily justify their stance by citing the inherent ambiguity of the presumption of innocence. This concept is notoriously elusive, inconsistently applied in practice, and theoretically debated. Some national laws offer little more than a statement of principle, and despite substantial academic effort, there’s no consensus on its meaning. In this light, the EU legislator was rather ambitious to address this concept. Arguably, the Directive would have been more successful and clearer had the harmonization of the presumption of innocence been comprehensive.

A second explanation for not taking a more principled approach could be a general reluctance toward judicial activism, particularly given the sensitive legal issue at the heart of the preliminary ruling. Pre-trial detention is controversial, as evidenced by the debates surrounding its harmonization at the EU level. The EU has repeatedly hinted at adopting minimum rules in this area (Green Paper, EP Resolution), yet Member States have been hesitant. Pre-trial detention is considered complex and diverse, making harmonization difficult, leading the EU legislator to focus on less contentious alternative measures (like the European Supervision Order Framework Decision).

In this case, the Court is arguably hesitant to address pre-trial detention given the Commission and the Council’s strong opposition to including it within the Directive’s scope. However, pre-trial detention has a significant human impact that is difficult to ignore. Before excluding the present case from EU law, Advocate General Pitruzzella acknowledges that the defendants’ only remaining option was to appeal to the ECtHR, a process which, as he recognizes, could take years (point 21). This simple yet powerful observation shifts the focus from the complexities and conflicts of European courts to the defendant’s perspective. The question, implicitly yet powerfully posed, is whether it’s time for the EU to address pre-trial detention as a matter of EU law.

A third explanation encourages us to view DK within the context of earlier cases referred by Bulgarian courts. Prior to DK, the same court had referred two other cases challenging the compatibility of the national pre-trial detention system with EU law. In both Milev and RH, the Bulgarian court sought clarification on the same national legislation and its relation to the Directive. As Advocate General Wathelet explained in Milev, the pre-trial detention system had been modified following ECtHR rulings, but the situation remained divisive among judges. In RH, the Bulgarian court even revealed details about internal conflicts between the Bulgarian Supreme Court and lower courts. The Supreme Court had instructed lower courts not to await the preliminary ruling procedure’s outcome and to decide on pending detention statuses ‘within a reasonable time’. The lower court’s defiance even led to disciplinary action. This incident was presented to the CJEU as a question regarding judicial independence (a topical issue currently), specifically concerning the power to prevent lower courts from awaiting CJEU preliminary rulings. Given this background, DK can be seen as a request for the CJEU to mediate a national debate, which might explain the Court’s reluctance to rule definitively on this issue.

Leaving aside the internal disputes between Bulgarian courts, the fact remains that there’s an ongoing struggle in Bulgaria to uphold and enhance human rights standards within criminal proceedings. It’s understandable that Bulgarian judges would use the Directive on the presumption of innocence, especially considering the broader interpretation in RH, to achieve this. DK could have been an opportunity for the CJEU to act as a ‘competence regulator’ - aiguilleur des compétences (point 21 of the Opinion). Referencing Vedel’s theory of constitutional control, Advocate General Pitruzzella encouraged the Court to take this opportunity and guide national authorities towards reforming their national pre-trial detention procedures. However, the Court chose not to follow this advice.

DK might discourage national courts from raising further questions about the Directive’s application to pre-trial detention. However, it’s a valuable addition to existing case law, highlighting that pre-trial detention is increasingly becoming a focal point for EU intervention. If national courts continue seeking CJEU involvement, the question of harmonizing pre-trial detention cannot be ignored much longer.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:4
Art credit: Jan Lieven, via Wikicommons