ECJ: preliminary ruling does not give grounds for the disqualification of the national court

JUDGMENT OF THE ECJ (Grand Chamber) 5 July 2016, ECLI:EU:C:2016:514

By judgment of 28 November 2012, Mr. O., a Bulgarian national, was convicted of murder and aggravated theft by a Danish court and sentenced to a cumulative fifteen years imprisonment. After having served part of his sentence of imprisonment in Denmark he was handed over to the Bulgarian authorities to serve the remainder of his sentence in Bulgaria.

By a request for a preliminary ruling, of 25 November 2014 brought in Case C‑554/14, repeated and thereafter supplemented by two requests of 15 December 2014, the Sofia City Court referred to the Court various questions on the interpretation of Council Framework Decision 2008/909/JHA of 27 November 2008 .

After the lodging of those questions for a preliminary ruling in Case C‑554/14, the Sofia City Prosecutor, a party to the main proceedings, requested that the panel of judges of the Sofia City Court that was responsible for the examination of the case at issue should disqualify themselves, on the ground that, in the request for a preliminary ruling, the factual and legal context of that case, that court was expressing a provisional opinion on questions of fact and law before deliberations had begun.

According to the Bulgarian Criminal Procedure Code a judge may not take any part in the hearing of a case where there are reasons to believe that judge to be biased. According to the established practice of the Bulgarian courts, if a judge expresses a provisional opinion on the substance of a case before the final judgment is delivered, that constitutes one particular example of bias.

In the event of bias, the panel of judges allocated the case are obliged to disqualify themselves, which means, first, that those judges are to undertake no further examination of the case, second, that the case is re-allocated to other judges of the court concerned and, third, that the designated new panel of judges recommences examination of the case.

In those circumstances the Bulgarian court decided to stay the proceedings and refer to the ECJ the question whether the request for a preliminary ruling by the national court should be accepted as valid ground for disqualification due to bias, such as the national rule demands.

The Court of Justice ruled that, Article 267 TFEU and Article 94 of the Rules of Procedure of the Court, read in the light of the second paragraph of Article 47 and of Article 48(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a national rule which is interpreted in such a way as to oblige the referring court to disqualify itself from a pending case, on the ground that it set out, in its request for a preliminary ruling, the factual and legal context of that case.

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