Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 30 May 2023 – Criminal proceedings against M.S.S. and Others

(Case C-338/23, Brachev ¹ )

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

M.S.S. and Others

Questions referred

Are the actions of a defendant’s lawyer, who carries out, during the criminal proceedings as the legal of representative of the defendant’s commercial company, transactions (in the civil field) intentionally aimed at creating the conditions for recusal and for a ‘conflict of interests’ between the defendant and the judge hearing the pending criminal case, compatible with EU law and the corresponding Bulgarian law?

If that question is answered by the relevant court (the Court of Justice) in the negative, an answer is requested to the question whether the lawyer representing the defendant, who has officially legitimised his or her participation as the legal representative of a commercial company owned by the defendant in other extra-judicial civil law proceedings which were of a nature to deliberately and knowingly create artificial conditions for recusal and a conflict of interests between the defendant and the judge in the criminal proceedings and during the period in which the criminal proceedings are ongoing, is to continue to defend the defendant in those criminal proceedings.

In so far as the assessment of whether there are real grounds for recusal falls within the jurisdiction of the national court, how is the right of access to a lawyer in criminal proceedings, which is laid down by Directive 2013/48/EU, ¹ to be understood, and is it an absolute right and unconditionally linked to a particular lawyer personally? How is the contradiction to be resolved between (i) the right of access to a lawyer, laid down by the European directive, reflected in national law, which fully entitles the defendant to select and engage a lawyer, and (ii) the action of that same lawyer who has aided the defendant to create artificial conditions for the reporting judge’s recusal?

How should the right of the other 13 defendants to information in criminal proceedings and the right of access to the materials of the case, laid down in Article 7(2) and (3) of Directive 2012/13/EU, ¹ to be interpreted and regulated with regard to the request for recusal submitted by the lawyer in question and the documents with that request? How should these actions of that lawyer be assessed having regard to the right of judges, as EU citizens, to respect for private and family life?

If a defendant succeeds, either personally or through his or her commercial company, by means of deliberate and active conduct, in artificially creating conditions for a conflict of interest, are those conditions to be considered as a ‘conflict of interest’, and constitute a means of hidden pressure to avoid criminal proceedings?

Does the request for a preliminary ruling on the above questions constitute a ground for the lawyer of the defendant in question to initiate and conduct disciplinary proceedings against the judge of the referring national court, knowing that that judge lodged a complaint with the competent national authorities immediately after the defence lawyer’s actions had been discovered?

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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 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013, L 294, p. 1).

¹ Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).