Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 12 April 2023 – Criminal proceedings against SS, IP, ZI, DD, HYA

(Case C-229/23, HYA and Others)

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

SS, IP, ZI, DD and HYA

Questions referred

Must Article 15(1) of Directive 2002/58, ¹ read in conjunction with the second paragraph of Article 47 of the Charter [of Fundamental Rights of the European Union (‘the Charter’)], as interpreted by the Court of Justice of the European Union in the judgment of 16 February 2023 in Case C-349/21 ² and in the light of recital 11 of that directive, of Article 52(1) and Article 53 of the Charter and of the principle of equivalence, be interpreted as requiring a national court:

–    to disapply provisions of national law (Article 121(4) of the [Konstitutsia na Republika Bulgaria (Constitution of the Republic of Bulgaria)], Article 174(4) of the [Nakazatelnoprotsesualen kodeks (Code of Criminal Procedure; ‘the NPK’)] and Article 15(2) of the [Zakon za spetsialnite razuznavatelni sredstva (Law on Special Investigative Methods; ‘the ZSRS’)]) and the interpretation of Article 8(2) of the [European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR)] adopted by the [European Court of Human Rights (ECtHR)] in the judgment in Case No 70078/12, according to which a judicial authorisation (to listen to, intercept and store telecommunications without the consent of the users concerned) must contain an express statement of written reasons, irrespective of the existence of a reasoned application on the basis of which the authorisation was issued, the reason for such disapplication being that a cross-reading of the application and the authorisation makes apparent (1) the precise grounds on which the court, in the factual and legal circumstances of the particular case, arrived at the view that the legal requirements had been met, and (2) the person and the means of communication that formed the subject of the judicial authorisation issued?

–    in the context of the examination as to whether the telecommunications at issue must be excluded as evidence, to disapply a provision of national law (Article 105(2) of the NPK), or to interpret it in conformity with EU law, in so far as it requires compliance with the national procedural rules (in this case, Article 174(4) of the NPK and Article 15(2) of the ZSRS), and to apply instead the rule laid down by the Court of Justice in the judgment of 16 February 2023 in Case C-349/21?

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¹ Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).

¹ ECLI:EU:C:2023:102.