CYIL vol. 13 (2022)

MONIKA FOREJTOVÁ CYIL 13 ȍ2022Ȏ of the offences of which the complainant was alleged to have been guilty, and, according to the information available to the ECtHR, the national court, when approving the plea agreement, carried out its assessment in a broader factual and procedural context. Thus, although the convictions which approved the plea bargain do not directly establish the guilt of the complainant, they are in principle capable of raising doubts, according to the ECtHR, as to whether they did not prejudge the question of the complainant’s guilt. According to the ECtHR, if a reference is made in the sentencing decision to another person who is yet to be tried in the future, it may trigger the requirement of a presumption of innocence for that person. I would like to point out that the ECtHR has referred to two rulings of the Court of Justice of the EU (C-377/18; C-709/18) in this decision. In a judgment of CJEU in AH and Others (C-377/18), 82 in response to a “ reference ” for a preliminary ruling from Bulgaria’s Specialised Criminal Court, the Court of Justice of the EU concluded: “ Article 4(1) of [Directive 2016/343] 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 that reference is necessary for the categorisation of the legal liability of the person who entered into the agreement and, second, 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 .” 83 In a judgment of CJEU in UL and VM (C-709/18), 84 in response to a “reference” for a preliminary ruling from Slovakia’s SCC, the CJEU ruled in a similar context as follows: “ Articles 3 and 4(1) of Directive 2016/343, read in conjunction with … the second paragraph of Article 47 and Article 48 of the Charter of Fundamental Rights of the European Union, 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 .” 82 See Judgment CJEU in AH and Others of 5 September 2019 (C-377/18, EU:C:2019:670). 83 The European Court of Human Rights has stated that “ Moreover, the CJEU held that, in order to review compliance with the presumption of innocence, it was always necessary to analyse a judicial decision and its reasoning as a whole, giving due consideration to the circumstances in which it had been adopted. Any explicit reference, in certain parts of a judicial decision, to the absence of guilt of the joint perpetrators would be devoid of sense if other parts of that decision were likely to be understood as constituting a premature expression of their guilt (…) Because it appeared that the plea-bargaining agreement at issue in the main proceedings did not make it clear that the accused persons had been accused separately and that their guilt had not been legally established (which was for the referring court to determine with definitive effect), that agreement was likely to portray those persons as being guilty, whereas their guilt had not yet been legally established, contrary to Article 4(1) of Directive 2016/343 (…). ” Judgment of the ECtHR in Mucha v. Slovakia of 25 November 2021, application no. 63703/19, §§ 35, 46 and 48. 84 See Judgment CJEU in UL and VM of 28 May 2020 (C-709/18, EU:C:2020:411).

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