Request for a preliminary ruling from the Okrazhen sad Pleven (Bulgaria) lodged on 3 April 2024 – Criminal proceedings against M.N.D. and Y.G.Ts.
(Case C-241/24, Tsenochev) 1
Language of the case: Bulgarian
Referring court
Okrazhen sad Pleven
Defendants in the criminal proceedings:
M. N. D. and Y. G. Ts.
Questions referred
Is the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) and (3) TEU and Article 267 TFEU to be interpreted as meaning that it grants to the national court, which was duly seised concerning an agreement to settle the case at the pre-trial stage and has referred questions for a preliminary ruling on the effective protection of the rights conferred on victims of trafficking in human beings by Directive 2011/36/EU 1 of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, the power to disregard subsequent applications for the termination of the procedure that have been filed by the accused person and his defence lawyer, where the court has reason to believe that those applications constitute an abuse of rights under Article 54 of the Charter of Fundamental Rights of the European Union, for the following reasons: 1. National law provides no opportunity for the seising of the court, to which an agreement has been submitted for approval, to be undone and for the procedure to be consequently terminated for that reason; 2. One of the accused and his defence lawyer have complained of failure to comply with the normal period of one week for termination of the procedure, a period which could not be complied with because of a request made by the referring court to the Konstitutsionen sad na Republika Bulgaria (Constitutional Court of the Republic of Bulgaria), with the result that the ‘pre-trial detention’ was wrongly extended; 3. One of the accused and his defence lawyer have petitioned the President of the Court and the Minister of Justice to initiate disciplinary proceedings against the judge on the grounds that the judge did not terminate the procedure within the usual time limit of one week; 4. One of the accused has withdrawn his consent to the signed agreement ‘due to a lack of trust in the judge seised of the matter’ and has asked the President of the Court to hold the judge disciplinarily liable, to recuse him and to refer the criminal case to another judge; 5. The other judges who examined and approved the agreements of the 10 other accused persons in the same criminal proceedings did not raise the question of procedural law being incompatible with the requirements of effective protection for victims of trafficking in human beings?
Are the provisions of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, and Article 5 of the Charter, read in conjunction with the Explanations relating to the Charter, to be interpreted as meaning that a victim of trafficking in human beings has to be involved in the penalty determination procedure, even in the event that an agreement to be approved by the court has been made during the pre-trial stage of the criminal proceedings?
Is it of any relevance to the answer to Question 2 that the approval of the agreement depends on whether the material damage caused by the offence has already been compensated or guaranteed, given that, according to an interpretative decision binding on the court, only ‘offence-related damage’, that is to say, damage attributable to the elements of the offence, but not ‘non-offence-related damage’, that is to say, loss of earnings suffered by victims of human trafficking, is to be taken into account?
Is a national provision such as Article 381(2) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure), which prohibits the settlement of criminal cases by means of agreement for serious and intentionally committed offences in certain chapters of the Criminal Code, including the offences in Section VIII ‘Unlawful acts of a sexual nature’, but not the offences of Section IX ‘Trafficking in human beings’, compatible with the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union?
Are Article 4(2)(b) and Article 4(4) of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, to be interpreted as meaning that they require a national court seised of an agreement during the pre-trial stage of criminal proceedings to examine whether the agreed penalty (in the present case: two years’ imprisonment) is ‘effective, proportionate and dissuasive’, taking into account the number of individual instances of trafficking in human beings and the commission of the offences by a criminal organisation?
If Question 5 is answered in the negative: Must the national court ensure the application of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, by interpreting, in accordance with the principle that national law must be interpreted in conformity with EU law and by way of derogation from settled case-law, the national law under which it may approve the agreement only if it ‘is not contrary to law or to accepted principles of morality’ as meaning that it may also examine whether the penalty imposed in the agreement (in the present case: two years’ imprisonment) is ‘effective, proportionate and dissuasive’, taking into account the number of individual instances of trafficking in human beings and the commission of the offences by a criminal organisation?
How should the terms ‘effective, proportionate and dissuasive’ within the meaning of Article 4(4) of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, be interpreted and can two years’ imprisonment be regarded as being effective, proportionate and dissuasive where the offender has participated in a criminal organisation and has recruited a number of persons for the purposes of using them in other Member States, without their consent, for sexual exploitation, the offence having been committed through deception? In this regard, is the ‘maximum penalty of at least 10 years of imprisonment [where that offence]: … (b) … was committed within the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime’ provided for in Article 4(2)(b) to be interpreted as meaning that it applies to each individual act of trafficking in human beings relating to each individual victim or applies to the criminal activity overall which includes several acts of trafficking in human beings?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 OJ 2011 L 101, p. 1.