[{"data":1,"prerenderedAt":-1},["ShallowReactive",2],{"legal-provision-tfeu-267":3},{"detailData":4,"statistics":24,"related":30},{"id":5,"code":6,"article":7,"title":8,"fullText":8,"country":9,"decisions":10,"decisionsTotal":23},"124746","TFEU","267",null,"eu",[11],{"id":12,"ecli":13,"caseNumber":14,"courtId":15,"courtName":16,"decisionDate":17,"publicationDate":17,"fullText":18,"language":19,"source":20,"summary":21,"slug":22},"266","ECLI:EU:C:2026:16","C-748\u002F24",50,"Court of Justice of the European Union","2026-01-15T00:00:00.000Z","OPINION OF ADVOCATE GENERAL\n\nSPIELMANN 1 Case C‑748\u002F24 [Kotaňák ( i )]\n\nOkresná prokuratúra Bratislava III\n\nCriminal proceedings\n\nv\n\nAC\n\nintervening party:\n\nLZ\n\n(Request for a preliminary ruling from the Mestský súd Bratislava I (Bratislava I City Court, Slovakia)) \n\n(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Fundamental rights – Presumption of innocence and rights of the defence – Order of a court of first instance discontinuing criminal proceedings on the grounds that the acts under examination are not criminal in nature – Annulment by the higher court – Alleged criminal nature of those acts according to the higher court – Appropriate measures to remedy the breach of the presumption of innocence)\n\n**I.** **Introduction**\n\n1\\. As a fundamental principle of criminal procedure in States governed by the rule of law, the presumption of innocence, as Robert Badinter notes, ‘is first expressed in a question of procedure, the burden of proof … However, the accused person must be guaranteed protection of the presumption of innocence at each stage of the proceedings … More importantly, in the absence of conclusive evidence, any doubt should benefit the accused’. ( 2 ) Thus, at each stage, it is necessary to allow ‘the law to hear the reasoning that leads to innocence’. ( 3 )\n\n2\\. By its question for a preliminary ruling, the referring court asks the Court to clarify the scope of the procedural guarantees covered by the presumption of innocence, in the context of preliminary decisions of a procedural nature taken by judicial authorities before the main proceedings to determine whether the accused person is guilty.\n\n3\\. The request for a preliminary ruling, made in the context of criminal proceedings against AC for slander, relates more specifically to the interpretation of Article 4 and Article 6(1) of Directive (EU) 2016\u002F343 ( 4 ) and Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).\n\n**II.** **Legal context**\n\n**A.** **European Union law**\n\n4\\. Article 48 of the Charter, entitled ‘Presumption of innocence and right of defence’, provides, in paragraph 1, that ‘everyone who has been charged shall be presumed innocent until proved guilty according to law’.\n\n5\\. Recitals 9, 10, 16 and 48 of Directive 2016\u002F343 are worded as follows: \n\n‘(9) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial. (10) By establishing common minimum rules on the protection of procedural rights of suspects and accused persons, this Directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules may also remove obstacles to the free movement of citizens throughout the territory of the Member States. … (16) The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. This should be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, such as the indictment, and without prejudice to judicial decisions as a result of which a suspended sentence takes effect, provided that the rights of the defence are respected. This should also be without prejudice to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and are based on suspicion or on elements of incriminating evidence, such as decisions on pre-trial detention, provided that such decisions do not refer to the suspect or accused person as being guilty. Before taking a preliminary decision of a procedural nature the competent authority might first have to verify that there are sufficient elements of incriminating evidence against the suspect or accused person to justify the decision concerned, and the decision could contain reference to those elements. … (48) As this Directive establishes minimum rules, Member States should be able to extend the rights laid down in this Directive in order to provide a higher level of protection. The level of protection provided for by Member States should never fall below the standards provided for by the Charter or by the [European Convention on Human Rights, signed in Rome on 4 November 1950 (ECHR)], as interpreted by the Court of Justice and by the European Court of Human Rights [(ECtHR)].’\n\n6\\. Article 1 of that directive provides: ‘This Directive lays down common minimum rules concerning: (a) certain aspects of the presumption of innocence in criminal proceedings; (b) the right to be present at the trial in criminal proceedings.’\n\n7\\. According to Article 3 of that directive: ‘Member States shall ensure that suspects and accused persons are presumed innocent until proved guilty according to law.’\n\n8\\. Article 4 of that directive, that article being headed ‘Public references to guilt’, provides, in paragraphs 1 and 2: ‘1. Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the prosecution which aim to prove the guilt of the suspect or accused person, and to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and which are based on suspicion or incriminating evidence. 2\\. Member States shall ensure that appropriate measures are available in the event of a breach of the obligation laid down in paragraph 1 of this Article not to refer to suspects or accused persons as being guilty, in accordance with this Directive and, in particular, with Article 10.’\n\n9\\. Pursuant to Article 6 of Directive 2016\u002F343, entitled ‘Burden of proof’: ‘1. Member States shall ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution. This shall be without prejudice to any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law. 2\\. Member States shall ensure that any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted.’\n\n10\\. Article 10(1) of that directive provides: ‘Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached.’\n\n**B.** **Slovak law**\n\n11\\. Paragraph 373(1) and (2) of zákon č. 300\u002F2005 Z. z. Trestný zakon (Law No 300\u002F2005 establishing the Criminal Code) of 20 May 2005 (‘the Criminal Code’), which defines the criminal offence of slander, provides: ‘(1) Whoever communicates false information about another person which is capable of considerably damaging the respect of fellow citizens for such a person, their career and business, their family relations, or which causes them other grievous harm, shall be punished by a prison sentence of up to two years. (2) A prison sentence of one to five years shall be imposed upon an offender if they commit an act referred to in paragraph 1 … (c) publicly; …’\n\n12\\. Paragraph 327(1) of zákon č. 301\u002F2005 Z. z., Trestný poriadok (Law No 301\u002F2005 establishing the Code of Criminal Procedure) of 24 May 2005 (‘the Code of Criminal Procedure’) states that ‘the court to which the matter was returned for a new hearing and decision shall be bound by the legal opinion which the court of appeal pronounced in its ruling, and shall be obliged to proceed with the acts and the taking of evidence ordered by the appeal court’.\n\n**C.** **The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court**\n\n13\\. On 18 November 2020, the prosecutor filed an indictment with the Okresný súd Bratislava III (Bratislava III District Court, Slovakia) against AC for slander, an offence under Paragraph 373(1) and (2)(c) of the Criminal Code, which he is accused of having committed by posting several videos online containing a series of false allegations.\n\n14\\. By order of 8 November 2021, the Okresný súd Bratislava III (Bratislava III District Court) discontinued the proceedings on the ground that the conduct referred to in the indictment did not constitute a criminal offence.\n\n15\\. The prosecutor brought an appeal against that order. By order of 8 February 2022, the Krajský súd v Bratislave (Regional Court, Bratislava, Slovakia) set aside the order of the court of first instance and referred the case back to that court so that it could hear and decide the case again by re-examining all the evidence.\n\n16\\. By order of 3 October 2022, the Okresný súd Bratislava III (Bratislava III District Court) again dismissed the indictment against AC.\n\n17\\. By order of 18 April 2023, the Krajský súd v Bratislave (Regional Court, Bratislava) again set aside that dismissal decision and referred the case back to the court of first instance.\n\n18\\. Following a reorganisation of the Slovak judicial system, jurisdiction to hear the case in the main proceedings was transferred, on 1 June 2023, to the Mestský súd Bratislava I (Bratislava I City Court, Slovakia), which is the referring court.\n\n19\\. Before that court, AC argued that the rulings of the appeal court infringe the presumption of innocence, in so far as they leave no room for any finding other than a guilty verdict, even though it was not necessary for the appeal court to assess whether the charges against him were well founded. AC therefore considers that the referring court should disregard the rulings of the appeal court.\n\n20\\. The referring court observes that, under the Slovak rules of procedure, it is bound by the rulings of the appeal court. However, it considers that those rulings infringe the presumption of innocence of AC and that national regulations do not provide for appropriate measures to ensure respect for that presumption.\n\n21\\. In those circumstances, the Mestský súd Bratislava I (Bratislava I City Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: \n\n‘(1) Does the right to respect for the presumption of innocence pursuant to Article 48(1) of the [Charter] in conjunction with Article 4(1) and Article 6(1) of [Directive 2016\u002F343], and also the principle of proportionality and the rights of the defence pursuant to Article 48(2) of the [Charter], preclude a court of higher instance, in appeal proceedings brought by a prosecutor against an order handed down by a court of first instance discontinuing criminal proceedings, from setting out in the grounds of its ruling, before the case has been decided on the merits and without the court taking evidence in the case, the following findings of fact and law: “The false information of a purely intimate nature, which the accused shared with a large number of followers via his post, is – due to its content – liable to cause serious damage to the aggrieved person’s romantic, family and social relations, and to undermine trust in her … The evidence taken during the pre-trial investigation and on which the [court of first instance] also based its findings shows beyond doubt that the accused has been using lies about her and attacking her, which has placed her in a very unpleasant situation in her relations with her family and acquaintances. The intimate relationship between her and SB is a figment of the accused’s imagination, and the events to which the accused referred in his statements never took place … As regards the determination of which of the published statements were false, they are undoubtedly statements whose veracity was ascertained in the pre-trial investigation based on the evidence taken, and which concerned the intimate relationship between the aggrieved person and the witness SB, and the sexual practices which the accused clearly described in his post”? (2) Is the answer to the first question influenced by the fact that neither national legislation nor national practice require the court of higher instance to carry out an assessment of the factual and legal issues in the grounds for the order setting aside the ruling, and that those grounds could be limited to a simple statement that the ruling handed down by the lower court was flawed because the court of first instance is required to take evidence at the main hearing and to rule accordingly? (3) Is the answer to the first question influenced by the fact that the court of higher instance, when deciding on the prosecutor’s appeal, ruled solely on the basis of the evidence taken during the pre-trial investigation, which had not yet been heard before a court of first instance? (4) In the event that the first question is answered in the affirmative: should the following actions and rulings be regarded as appropriate measures for ensuring respect for the presumption of innocence within the meaning of Article 4(2) of [Directive 2016\u002F343]? (i) the actions of a national court of first instance, which – invoking the principle of the primacy and effectiveness of EU law – disregards the findings of fact and law made by the court of higher instance in the grounds for its ruling to the extent that they are contrary to EU law, even though those findings would otherwise have been legally binding under national legislation, and itself decides the case after the evidence has been properly taken; or the actions of a national court of first instance, which – invoking the principle of the primacy and effectiveness of EU law – disregards the findings of fact and law made by the court of higher instance in the grounds for its ruling to the extent that they are contrary to EU law, even though those findings would otherwise have been legally binding under national legislation, and itself decides the case again, handing down the same ruling to discontinue the criminal proceedings that had already been set aside once by the court of higher instance; or (ii) the recusal of the judges of the court of higher instance from the proceedings on the grounds of their lack of impartiality due to the fact that they had failed to observe the presumption of innocence, based on the plea of lack of impartiality entered by the suspect?’\n\n22\\. Written observations were lodged by the defendant AC, the Hungarian and Slovak Governments and the European Commission. AC and the Commission presented oral argument at the hearing on 16 October 2025.\n\n**III.** **Analysis**\n\n**A.** **Admissibility of the questions**\n\n23\\. The Slovak Government submits, primarily, that the request for a preliminary ruling is inadmissible in its entirety. It claims, first, that the request does not mention the factual and legal circumstances necessary to provide a useful answer or the reasons why it needs an answer from the Court, and, second, that the interpretation sought is not relevant to rule on the dispute in the main proceedings.\n\n24\\. According to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 5 )\n\n25\\. The Court has already emphasised that it may be necessary to answer questions referred in order to be able to provide referring courts with an interpretation of EU law that enables them to settle procedural questions of national law before they can rule on the substance of disputes pending before them. ( 6 )\n\n26\\. In the present case, by its first three questions, the referring court asks, in essence, whether the provisions of EU law referred to preclude a criminal court, hearing an appeal against a preliminary decision of a procedural nature, from taking a position on the incriminating evidence by determining whether the constituent elements of the criminal offence at issue are present, when it was not required to do so under national law and not all the evidence was taken at that preliminary stage of the proceedings. The referring court also questions the manner in which the appeal court took a position with regard to the presumption of innocence. In the fourth question, the referring court asks what the procedural consequences would be if the first three questions were answered in the affirmative.\n\n27\\. In my view, even though it largely referred to the arguments of the defence, the referring court has adequately specified the factual and legal circumstances necessary to give a useful answer to the questions referred. I would add that the content of the request for a preliminary ruling was sufficient to allow the Commission, the Hungarian Government and AC, as well as the Slovak Government in the alternative, to exercise the right to submit observations conferred on them by Article 23 of the Statute of the Court of Justice of the European Union.\n\n28\\. Moreover, the Slovak Government submits that the interpretation sought is not relevant for resolving the dispute in the main proceedings. It argues that any breach of the presumption of innocence by the appeal court would not prevent the referring court from dismissing the case on other grounds or on the same grounds, but on the basis of additional facts.\n\n29\\. However, since Slovak law requires the referring court to comply with the rulings of the appeal court, it seems to me that the Court’s answers to the first three questions are intended to provide it with useful guidance for assessing the conformity of the appeal court’s decision with the presumption of innocence and that the answer to the fourth question will, if necessary, allow it to infer the appropriate procedural consequences. In that respect, it does not seem evident that the interpretation of EU law sought bears no relation to the object of the main action.\n\n30\\. Nevertheless, in the third part of the fourth question, the referring court asks whether the procedural consequences of the appropriate measures within the meaning of Article 4(2) of Directive 2016\u002F343 include the possibility of recusal of the appeal court judges.\n\n31\\. It is apparent from both the observations of the Slovak Government and the answers to the questions put at the hearing that the referring court does not have jurisdiction to give a ruling on the recusal of the judges of the higher court thus invoked. ( 7 )\n\n32\\. Therefore, the third part of the fourth question is hypothetical and therefore inadmissible.\n\n33\\. Accordingly, except for the third part of the fourth question, the request for a preliminary ruling seems to me to be admissible.\n\n**B.** **Substance**\n\n**1.** **The first, second and third questions**\n\n34\\. By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(1) and Article 6(1) of Directive 2016\u002F343, read in conjunction with Article 48 of the Charter, must be interpreted as precluding a criminal court, hearing an appeal against a preliminary decision of a procedural nature, from taking a position on the incriminating evidence by determining whether the constituent elements of the criminal offence at issue are present, when it is not required to do so in order to give a ruling and not all the evidence was taken.\n\n**(a)** **The inapplicability of Article 6 of Directive 2016\u002F343**\n\n35\\. The referring court refers, in its first question, to Article 6(1) of Directive 2016\u002F343, according to which ‘Member States shall ensure that the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution … without prejudice to any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law’.\n\n36\\. The Slovak Government and the Commission submit that that provision, which relates to decisions on guilt, is inapplicable in the main proceedings.\n\n37\\. I also share that view.\n\n38\\. As the Court has already held with regard to decisions on the continued detention on remand pending trial of an accused person, ( 8 ) it follows from Article 4 of Directive 2016\u002F343 that that directive distinguishes between, on the one hand, judicial decisions on guilt, which necessarily occur at the conclusion of the criminal proceedings, and, on the other hand, other procedural acts, such as acts of the prosecution and preliminary decisions of a procedural nature. The reference to establishing guilt in Article 6 of Directive 2016\u002F343 must therefore be construed as meaning that the aim of that provision is to govern the allocation of the burden of proof only in the adoption of judicial decisions on guilt.\n\n39\\. In the present case, the questions referred relate to a *preliminary stage* of the Slovak criminal proceedings, during which a single judge must determine whether a given indictment constitutes a sufficient basis for the opening of criminal proceedings or whether, conversely, the case should be discontinued or dealt with by other means.\n\n40\\. As with decisions on, for example, the continued detention on remand pending trial of an accused person, ( 9 ) such a procedural decision cannot be classified as a judicial decision on the guilt of the accused person; on the contrary, it is a ‘judicial decision, other than [that] on guilt’, within the meaning of Article 4 of Directive 2016\u002F343. The fact that, as the applicant submits, the statements of fact and in law made in the appeal decision are binding on the court of first instance, to the extent, inter alia, that it finds that the constituent elements of the offence (in the present case, slander) are present, does not alter that finding.\n\n41\\. Accordingly, since the dispute in the main proceedings does not concern the substance of the question whether the accused person is guilty, it is not necessary to answer the questions referred on the basis of Article 6(1) of Directive 2016\u002F343.\n\n**(b)** **The scope of the presumption of innocence**\n\n42\\. The first three questions referred for a preliminary ruling require us to consider the scope of the presumption of innocence with regard to the content of a preliminary decision, as well as the conditions for the adoption of that decision.\n\n*(1)*  *Content of the preliminary decision (first question)*\n\n43\\. The referring court asks whether the criminal court hearing an appeal against the preliminary decision of a procedural nature infringed the presumption of innocence by expressing itself as it did. To that end, it quotes an excerpt from the statement of reasons of the appeal court.\n\n44\\. I should point out that it is clear from Article 4(1) of Directive 2016\u002F343 that Member States are to take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, judicial decisions in particular, other than those on guilt, do not refer to that person as being guilty, without prejudice to preliminary decisions of a procedural nature which are taken by judicial authorities and which are based on suspicion or on incriminating evidence.\n\n45\\. That provision must be read in the light, inter alia, of Article 48(1) of the Charter ( 10 ) and Article 3 of Directive 2016\u002F343 on the presumption of innocence, as well as recital 16 of that directive, according to which respect for the presumption of innocence is without prejudice to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and are based on suspicion or on elements of incriminating evidence, provided that such decisions do not refer to the suspect or accused person as being guilty. According to that recital, before taking a preliminary decision of a procedural nature, the judicial authorities might first have to verify that there is sufficient incriminating evidence against the suspect or accused person to justify the decision concerned, and that the decision could contain reference to that evidence.\n\n46\\. In the absence of specific guidance in Directive 2016\u002F343 and in the case-law concerning Article 48(1) of the Charter as to how to determine whether a person is presented as being guilty in a judicial decision, we should turn primarily to the case-law of the ECtHR. ( 11 )\n\n*(i)*  *The case-law of the ECtHR*\n\n47\\. The presumption of innocence governs the criminal proceedings in their entirety ( 12 ) and the scope of Article 6(2) ECHR, ‘thus extended from the outset beyond its natural domain, will gradually extend further, particularly *ratione temporis* , that is to say at the stages of the proceedings where the person concerned is no longer or is not yet “accused”’. ( 13 ) It thus consists of a first part, namely a as procedural guarantee during the criminal trial, ( 14 ) and a second part once the criminal proceedings have ended, specifically aimed at protecting the reputation of the person concerned. ( 15 ) In view of the elements of the dispute in the main proceedings, I will focus here solely on the first part.\n\n48\\. On that basis, the presumption of innocence will be infringed if a statement by a figure of public authority, such as a judge, ( 16 ) concerning a person charged with a criminal offence reflects an opinion that he or she is guilty, before that person has been proved guilty according to law. Therefore, judges should not start with the preconceived idea that the accused has committed the offence with which that person has been charged; the burden of proof is on the prosecution, and *in dubio pro reo* – any doubt should benefit the accused. ( 17 ) The presumption of innocence may thus be infringed, even in the absence of a formal statement, if an official statement by a public authority or the reasoning of a judicial decision suggests that the judge considers the person concerned to be guilty. ( 18 )\n\n49\\. The ECtHR emphasises the importance of the *choice of words* used by public authorities in their statements before a person has been tried and found guilty of an offence. ( 19 ) However, a distinction must be made between decisions or statements that reflect an *opinion* that the person concerned is guilty and those which merely describe a state of *suspicion*. The former violate the presumption of innocence, whereas the latter have been found on several occasions to be in conformity with the spirit of Article 6 ECHR. ( 20 )\n\n50\\. In the judgment in *Marziano v. Italy* , for example, while the preliminary investigations judge did make a prognosis, he merely noted that, although there were plausible reasons to suspect the person concerned of having committed the offence at issue, there were other indications suggesting that the prosecution would have little chance of winning in court. ( 21 ) The ECtHR held that that decision described a ‘state of suspicion’ without any finding of guilt, and so was not contrary to the presumption of innocence.\n\n51\\. In the judgment in *Lavents v. Latvia* , the judge presiding over the case had given several interviews to the press, stating, inter alia, that she did not yet know ‘whether the judgment [would] lead to a conviction or partial acquittal’, expressing her astonishment at the fact that the defendants persisted in pleading not guilty to all the charges, which violated the presumption of innocence. ( 22 ) The fact that the statements in question were formulated as a question or expressed doubt was not sufficient to evade the application of Article 6(2) ECHR. According to the ECtHR, what matters for the purposes of the application of that provision ‘is the actual meaning of the statements in question, not their wording’.\n\n52\\. In *Gutsanovi v. Bulgaria* , ( 23 ) the applicant complained about the reasoning of the court’s decision ordering his continued detention on remand pending trial. The ECtHR held that the judge of the regional court had to satisfy himself that there were still plausible reasons to suspect the applicant of the commission of a criminal offence and that the words used ( 24 ) had gone beyond merely describing a state of suspicion, which entailed the violation of Article 6(2) ECHR.\n\n53\\. Although the choice of words is important, it should also be recalled that whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the *context of the particular circumstances* in which the impugned statement was made. ( 25 ) In cases of ‘unfortunate’ language, it is necessary to look at the context of the proceedings as a whole and their special features to determine whether the statement gives rise to a violation of Article 6(2) ECHR. ( 26 ) In *Daktaras v. Lithuania* , ( 27 ) the impugned statements were made by a prosecutor in the course of a reasoned decision at a preliminary stage of the proceedings, rejecting the applicant’s request to discontinue the prosecution. The Court found that the assertion that the applicant’s guilt had been ‘proved’ by the evidence in the case file was ‘unfortunate’, but that, having regard to the context, the prosecutor was referring not to the question whether the applicant’s guilt had been established by the evidence – which was clearly not one for the determination of the prosecutor – but to the question whether the case file disclosed sufficient evidence of the applicant’s guilt to justify proceeding to trial. The presumption of innocence was not considered to have been breached in that case.\n\n54\\. Nevertheless, *Daktaras v. Lithuania* , in which the impugned statements were made by a prosecutor, is an opportunity to recall that judges’ statements are subject to a more thorough examination than the statements made by investigative authorities such as the police and the prosecutor’s office. ( 28 )\n\n55\\. Last, I should also mention the recent judgment in *Ravier v. France* , in which the ECtHR dismissed the violation of the presumption of innocence by the Conseil d’État (Council of State, France), in expressing its view that the applicant had ‘engaged in fraudulent conduct intended to undermine the fairness of the election’, because the Council of State’s decision had remained in the purely electoral sphere. ( 29 )\n\n56\\. The referring court must therefore take into account both the judicial authorities’ choice of words and the particular circumstances in which the words were used, such as the nature and context of the proceedings in question.\n\n*(ii)*  *Application in the present case*\n\n57\\. It should be recalled that, in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary. ( 30 )\n\n58\\. In the first place, I should point out that the indictment here relates to the criminal offence of slander, the three constituent elements of which are, under Slovak law: (i) disclosure; (ii) the fact that it involves false information; and (iii) the fact that it is ‘capable of considerably damaging the respect’ for the person concerned, particularly in their professional or family life. ( 31 )\n\n59\\. In the second place, as regards the choice of words, it is clear from certain passages of the statement of reasons that the appeal court seems convinced that the constituent elements of the offence are indeed present in the case at hand. It is stated, for example, that ‘false information’ was ‘shared with a large number of followers’ and the evidence taken during the pre-trial proceedings and on which the Okresný súd Bratislava III (Bratislava III District Court) also based its findings ‘shows beyond doubt’ that the accused ‘has been using lies’ about the aggrieved person.\n\n60\\. It seems to me that those words must be regarded as going beyond mere suspicion and as establishing, on the basis of the incriminating evidence uncovered during the investigation, the guilt of the accused person with regard to the false nature of the information disclosed.\n\n61\\. In so doing, the appeal court may be considered to have taken a position on the incriminating evidence by determining whether the constituent elements of the criminal offence at issue are present, using words that go beyond mere suspicion and that clearly reflect an opinion that the accused person is guilty.\n\n62\\. In the third place, as regards the nature of the decision at issue and its context, it should be emphasised that it is true that the guilt of the accused person was not a matter to be determined at that preliminary stage of the proceedings. It was not a question of whether the facts of the case were proven, but whether, if so, they could be classified as a criminal offence under national law.\n\n63\\. Yet that reasoning cannot justify remarks infringing the presumption of innocence, or it would be sufficient to point out that the guilt of the accused person is not yet at issue to exclude any possibility of a breach of the presumption of innocence at that stage. Such an approach cannot be accepted, since the guarantee of the presumption of innocence, as we have seen, governs criminal proceedings in their entirety and not solely the examination of the merits of the charge. ( 32 )\n\n64\\. I should add that, as we have also seen, judges, and in particular investigating judges, must pay particular attention to the choice of words in their decisions. ( 33 )\n\n65\\. Furthermore, in the present case, it should be noted that, in the context of the preliminary procedure, the appeal court seems to be the court of last instance, ( 34 ) that its decision is binding on the court of first instance at that preliminary stage and that its choice of words can also have an influence on the lower court which is to rule on the substance of the case, lending its decision significant weight in the entire proceedings, regardless of whether the accused person is eventually sent before the criminal court or the civil court.\n\n66\\. Moreover, there is no doubt that expressions that respect the presumption of innocence can easily be used at that stage of the proceedings, ( 35 ) while being sufficiently convincing about the presence of the constituent elements of the offence so as to justify, if necessary, the referral of the accused person to the criminal court.\n\n67\\. In addition, I am not convinced by the Slovak Government’s argument that it is appropriate to distinguish between, on the one hand, expressions intended to state the facts inferred from the case file and evidence that is intended to corroborate the legal opinion concerning the criminal nature or otherwise of the acts of slander at issue, and, on the other hand, expressions related to guilt in substance, which could imply that the presumption of innocence has been infringed. Such an approach suggests that the decision contains passages that are severable from each other having regard to respect for the presumption of innocence. Although it is true that an unfortunate word or expression may possibly be understood as being, in certain circumstances, accidental, judges have a duty not to give the impression that they are acting with the preconceived idea of the accused person’s guilt. To my mind, that means that they must choose the words of their entire statement of reasons with special attention and care. ( 36 )\n\n68\\. Admittedly, it is possible that insinuations or ambiguous passages having regard to the presumption of innocence may be considered accidental or balanced by other passages of the statement of reasons reflecting the fact that the court is not of the opinion that the accused person is guilty. ( 37 ) Nevertheless, comments implying that a judge who is not ruling on the substance of the case believes that the accused person is guilty may be sufficient to vitiate the entire statement of reasons, which must be assessed on a case-by-case basis.\n\n69\\. Therefore, although the right to respect for the presumption of innocence provided for in Article 4(1) of Directive 2016\u002F343, read in the light of Article 48(1) of the Charter, does not preclude a higher court, ruling in an appeal brought by the prosecutor against the decision of the court of first instance to discontinue the proceedings, from taking a position on the constituent elements of the criminal offence at issue in order to justify its decision whether or not to annul the discontinuance, it is only on condition that it does not refer to the accused person as being guilty, which it is for the referring court to assess.\n\n70\\. Is that observation altered by the fact that *the appeal court was not required* under national law to carry out an assessment of the factual and legal issues in the grounds for its decision (second question), even though *not all the evidence was taken* (third question)? That is what we now need to examine.\n\n*(2)*  *The conditions for adopting a preliminary decision (second and third questions)*\n\n71\\. I should point out that Directive 2016\u002F343 confines itself, in accordance with recital 10 thereof, to establishing common minimum rules on the protection of procedural rights of suspects and accused persons, in order to strengthen the trust of Member States in each other’s criminal justice systems and thus to facilitate mutual recognition of decisions in criminal matters. Accordingly, in the light of the minimal degree of harmonisation pursued therein, Directive 2016\u002F343 cannot be interpreted as being a complete and exhaustive instrument intended to lay down all the conditions for the adoption of preliminary decisions.\n\n72\\. The Court has already had occasion to rule on the conditions for the adoption of preliminary decisions with regard to the presumption of innocence, including decisions on the continued detention on remand pending trial. Such decisions may thus be based on suspicions or incriminating evidence, provided that they do not refer to the detained person as being guilty. ( 38 ) Similarly, where the competent court examines the reasonable grounds for believing that the suspect or the accused person has committed the offence with which he or she is charged, in order to give a ruling on the legality of a pre-trial detention decision, that court may compare the elements of incriminating and exculpatory evidence presented to it and give reasons for its decision, not only stating the evidence relied on, but also ruling on the objections of the defence counsel of the person concerned, provided that that decision does not present the person detained as being guilty. ( 39 )\n\n73\\. In addition, the Court has held that the discretion of the Member States in adopting the measures necessary for the purposes of Article 4(1) of Directive 2016\u002F343 included the possibility of referring to a plea-bargaining agreement between the prosecutor and an accused person who pleads guilty, and mentioning other accused persons, on condition, however, that the latter are not referred to as guilty. ( 40 ) The same reasoning was applied, *mutatis mutandis* , with respect to a decision by which a national court accepted a ‘guilty plea’ from one of the co-defendants. ( 41 )\n\n74\\. Accordingly, Article 4(1) of Directive 2016\u002F343, as interpreted by the Court, leaves the Member States a degree of latitude as regards the conditions for the adoption of a decision taken at a preliminary stage by a national court, and in particular as regards the procedures for hearing the evidence and the extent of the statement of reasons which it is required to provide in response to the arguments submitted to it, such questions being covered solely by national law.\n\n75\\. In those circumstances, in the first place, the referring court questions the assessment of the factual and legal issues carried out by the appeal court in the grounds of its decision, even though national law did not require it to do so (second question).\n\n76\\. In that regard, apart from the fact that the referring court does not cite any provision of its national law, I am of the opinion that such detailed grounds do not alter the interpretation of the provisions at issue with regard to the presumption of innocence.\n\n77\\. First of all, as the Slovak Government points out, the appeal court rules by way of an order and, according to Paragraph 176 of the Code of Criminal Procedure, any order must, as a court decision, be duly reasoned.\n\n78\\. Moreover, and in any event, for the purposes of the sound administration of justice, judicial decisions, including at that preliminary stage of the proceedings, must adequately state the grounds on which they are based, provided that they do not contain wording prejudging the guilt of the accused person. A sufficiently detailed statement of reasons seems capable of providing the accused person with better information on the charges against him or her and the reasons why the facts on which the criminal proceedings are based could constitute offences justifying the referral of the substance of the case to the criminal court. ( 42 )\n\n79\\. I would add that such a statement of reasons, provided that it respects the presumption of innocence, may be considered particularly appropriate in a case such as the one at issue in the main proceedings, in which the appeal court adjudicates for the second time on the order for dismissal from the court of first instance.\n\n80\\. It does not seem, therefore, that the provisions and principles of EU law invoked by the referring court must be interpreted as precluding a detailed statement of reasons, provided that it does not prejudge the guilt of the accused person.\n\n81\\. In the second place, the fact that the appeal court ruled solely on the basis of evidence taken in the investigation procedure – that is to say, at a stage when not all the evidence had been taken (third question) – also has no effect on the answer to the first question.\n\n82\\. I should point out that, at the preliminary stage of the procedure at issue in the main proceedings, it is a question – as is apparent from the observations of the Slovak Government – of determining, with regard to the investigation file, whether the indictment examined is a reliable basis for the continuation of the proceedings, whether the investigation was conducted in accordance with the law and whether a trial hearing may take place or whether a different approach is needed. The court may therefore close the case if the offence at issue is not criminal, which may be justified by mere doubts or contradictory evidence. The court’s assessment focuses here on the question whether the classification of the acts at issue falls under criminal law.\n\n83\\. Hypothetically, only the evidence adduced in the course of the pre-trial judicial investigation may be used at this stage. This is expressly provided for in Article 4(1) of Directive 2016\u002F343, when it mentions the possibility for the judicial authorities or other competent authorities, when making preliminary decisions of a procedural nature, as is the case here, to rely on suspicion or incriminating evidence.\n\n84\\. The presumption of innocence cannot prevent a court hearing an appeal against a preliminary decision from relying on the evidence available to it at that stage of the proceedings to adopt its decision, provided that it does not refer to the accused person as being guilty.\n\n85\\. In the third place, the referring court seems to have doubts concerning respect for the rights of the defence, guaranteed by Article 48(2) of the Charter, on the ground that the appeal court’s decision was adopted without the accused person being able to respond.\n\n86\\. I recall in that regard that, according to the long-standing and consistent case-law of the ECtHR, the guarantees of a fair trial under Article 6 ECHR are applicable as soon as there is a ‘criminal charge’ within the meaning of that provision. They may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them. ( 43 ) The guarantees of a fair trial, including the rights of the defence, thus apply from the pre-trial judicial investigation stage. ( 44 )\n\n87\\. In principle, however, the assessment takes place throughout the proceedings and according to the circumstances of the case. ( 45 )\n\n88\\. As regards the rights of the defence in appeal proceedings, it is apparent from the information in the file that the accused person was able to submit observations in response to the prosecutor’s observations during the appeal stage. Moreover, as regards the rights of the defence concerning respect for the presumption of innocence in the order from the appeal court, it must be stated that the proceedings are to continue before the referring court, before which the accused person will be able to put forward his arguments.\n\n89\\. In those circumstances, it seems that the referring court’s doubts concerning respect for the rights of the defence may be dispelled.\n\n**(c)** **Conclusions on the first three questions**\n\n90\\. In my opinion, it is appropriate to answer the referring court that the right to respect for the presumption of innocence provided for in Article 3 and Article 4(1) of Directive 2016\u002F343, read in the light of Article 48(1) of the Charter, does not preclude a criminal court, hearing an appeal against a preliminary decision of a procedural nature, from taking a position on the incriminating evidence by carrying out an assessment in fact and in law as to whether the constituent elements of the criminal offence at issue are present, when it was not required to do so under national law and not all the evidence was taken at that preliminary stage of the proceedings, provided that it does not refer to the accused person as being guilty, which it is for the referring court to assess.\n\n**2.** **The fourth question**\n\n91\\. In view of my proposed answer to the first question and since it will be for the referring court to determine whether there has been a breach of the presumption of innocence in the case in the main proceedings, I consider it appropriate to answer the fourth question, the purpose of which is to identify the measures to be adopted in such a case.\n\n92\\. By the first two parts of the fourth question, ( 46 ) the referring court asks whether, in the event that the presumption of innocence is found to have been infringed, the fact of disregarding the rulings of the appeal court setting aside an order that no further action be taken, before adjudicating either after the proper taking of evidence (first part), or by issuing the same decision as the one previously set aside by the appeal court (second part), would constitute an appropriate measure within the meaning of Article 4(2) of Directive 2016\u002F343.\n\n93\\. I should point out that, although Article 4(2) of Directive 2016\u002F343 requires that provision be made for ‘appropriate measures’, it does not specify the nature of those measures and merely refers ‘in particular’ to Article 10 of that directive, which implies that those measures could, inter alia, take the form of effective remedies available to the accused person within the meaning of that provision. Furthermore, in the light of the minimal degree of harmonisation pursued therein, Directive 2016\u002F343 cannot be interpreted as being a complete and exhaustive instrument intended to lay down all the conditions for the adoption of appropriate measures. ( 47 )\n\n94\\. Accordingly, in the absence of EU rules on the matter, ‘appropriate measures’ should be defined by the Member States in accordance with their procedural autonomy, within the limits resulting from the principles of equivalence and effectiveness. ( 48 )\n\n95\\. As a preliminary point, I note that the referring court does not mention the national remedies put in place in that regard.\n\n96\\. The Slovak Government refers, for its part, to four remedies in the event of a breach of the presumption of innocence by a higher court, namely: (i) the possibility of raising a plea of lack of impartiality of the judges, if the criminal case is subsequently assigned to them to rule on the substance of the case; (ii) the possibility of a liability claim against the State; (iii) the possibility of a constitutional challenge; and (iv) the possibility of lodging a claim of fault-based liability against the judges who committed such a breach. ( 49 )\n\n97\\. The Commission, for its part, maintains that it is necessary to examine first what available measures could place the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred. Further, the Commission submits that it is only if national law does not afford any such opportunity that the question arises as to whether the decision of the higher court should be left unapplied.\n\n98\\. I note, however, that it is apparent from the question put by the referring court that it concerns not the appropriate measures taken *by* *the Member State* to guarantee effective remedies in the event of a breach of the presumption of innocence, but how the referring court ensures the effectiveness of respect for that presumption in the event of a breach in that regard by the higher appeal court.\n\n99\\. Accordingly, it seems to me that, without prejudice to the appropriateness or otherwise of the remedies under Article 4(2) of Directive 2016\u002F343 put in place in national law, their existence does not preclude a court faced with a breach of the presumption of innocence at the preliminary stage of criminal proceedings, as an ordinary court in matters of EU law, from having to adopt certain measures to ensure that it is respected. ( 50 )\n\n100\\. In the first place, the referring court raises the possibility of disregarding a decision of a higher court that it considers contrary to the presumption of innocence.\n\n101\\. It seems to me that such a measure is based less on Article 4(2) of Directive 2016\u002F343 concerning appropriate measures than on the primacy of the presumption of innocence under Article 48(1) of the Charter and Article 3 of that directive.\n\n102\\. Indeed, it follows from the written and oral observations of the interested parties, and in particular the Slovak and Hungarian Governments, that such a measure would run counter to the rule that the legal opinion of the higher court is, under national law, legally binding on the referring court. ( 51 )\n\n103\\. However, it is apparent from the Court’s case-law that the principle of primacy of EU law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with EU law. ( 52 )\n\n104\\. It follows that, in so far as the referring court considers, having regard to the judgment of the Court to be delivered, that the statement of reasons of the appeal court infringed the presumption of innocence, it should, within the exercise of its jurisdiction to decide a case referred back to it by the appeal court, not consider itself bound by the *substantive rulings* of the appeal court which it considers to be vitiated by such a breach and disregard them.\n\n105\\. In that regard, I am not convinced by the Slovak Government’s argument regarding the ‘ancillary’ nature of a possible breach of the presumption of innocence, on the ground that it does not concern an ‘integral part of the legal ruling of the higher court’. Admittedly, the legal ruling of the higher court at that stage of the proceedings is not necessarily binding in subsequent proceedings concerning the accused person’s guilt or innocence in substance. Indeed, any breach of the presumption of innocence at that stage could be remedied at a later stage of the proceedings. ( 53 ) Nevertheless, it cannot be ruled out that the initial failure to comply with the requirement for a fair trial before a case is sent for trial may seriously prejudice the fairness of the trial. ( 54 ) As regards the failure to comply with the presumption of innocence, which is one of the components of a fair criminal trial, even though the terms of the appeal court’s decision are not binding on the court called upon to rule on the substance of the case, that preliminary decision could result in the accused person being sent for trial before the criminal court, which is a *decisive* step of the criminal proceedings. Furthermore, it is possible that the rulings of the appeal court at that preliminary stage, although contrary to the presumption of innocence, could carry some weight with the court adjudicating on the substance, which, moreover, is the lower court, with potential implications for the burden of proof.\n\n106\\. Accordingly, the principle of primacy of EU law requires, from that preliminary stage of the criminal proceedings, the referring court to disregard rulings of the appeal court that it considers contrary to the presumption of innocence.\n\n107\\. In the second place, the referring court is uncertain as to the procedural consequences it must infer from the finding of a breach of the presumption of innocence by the appeal court, and specifically whether, in the light of the principles of primacy and effectiveness, it must re-examine the evidence and reassess whether all the constituent elements of the offence are present.\n\n108\\. To understand the scope of that question, it should be recalled that, in that preliminary stage of the proceedings, the appeal court twice set aside the order of the court of first instance and referred the case back to it for a ‘new decision’. The order of the appeal court of 8 February 2022 stated that the court of first instance had to ‘re-examine the evidence obtained and, only then, individually assess whether all the constituent elements of the alleged offence were present’, before deciding the case in accordance with the applicable legal provisions. It should also be noted that even though the referring court took the view that the appeal court, in at least some of its substantive findings as set out in the statement of reasons, infringed the presumption of innocence, the fact remains that its annulment of the decision to take no further action has no bearing on whether the accused person is actually guilty and it is of a purely procedural nature.\n\n109\\. I would also point out that, in the context of the division of roles between the Court and the national courts which is the basis of Article 267 TFEU, it is not for the Court to interpret the provisions of national law, to rule on the compatibility of a national measure with EU law or to state which rule or remedy provided for by national law a referring court must follow. It is for the referring court to interpret its national law within the framework of its procedural autonomy, subject to compliance with the principle of equivalence, which requires that national rules are not less favourable than those governing similar domestic situations, and the principle of effectiveness, which requires that national procedural rules do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law. ( 55 ) However, in order to give the referring court some useful guidance, I consider it appropriate to specify the following.\n\n110\\. While, according to the principles of primacy and effectiveness, ( 56 ) any rulings of the appeal court that are contrary to the presumption of innocence must be disregarded, those principles do not seem necessarily to require the procedural effects of the appeal court’s decision to be disregarded. I draw a distinction between, on the one hand, an infringement of EU law that stems from the organic requirements of the court in question, which could lead to a declaration that a decision delivered by a body that does not constitute an independent and impartial tribunal previously established by law within the meaning of EU law ( 57 ) is null and void, and, on the other hand, a ‘circumstantial’ infringement – that is to say, in a given case – of the guarantee of a fair trial, the extent of which would be limited to the rulings given by the appeal court in that case. In other words, it is my view that the effectiveness of the presumption of innocence does not preclude the annulment, by the appeal court, of the decision to take no further action from having procedural effects. Nor does it preclude the referring court, after disregarding the rulings of the appeal court that it considers contrary to the presumption of innocence, from adopting a new decision, potentially finding that the case should be closed without further action, and if necessary re-examining the evidence in the file, as instructed by the appeal court in its decision.\n\n111\\. In addition, if the referring court were to adopt, at that stage, a new, duly reasoned decision, it could justify the fact that it disregarded the substantive rulings considered to be contrary to the presumption of innocence, thereby ensuring the fairness of the proceedings for all parties involved. Last, such a decision could also constitute a legal basis for the accused person to assert, if necessary, a right to compensation for that breach of the presumption of innocence.\n\n112\\. Accordingly, I consider that, at that preliminary stage of the criminal proceedings, the principles of primacy and effectiveness of the presumption of innocence do not preclude the referring court, while disregarding the rulings of the appeal court that it may consider to be contrary to the presumption of innocence, from complying with the order of the appeal court in so far as it requires it to hear and decide the case again.\n\n113\\. I am therefore of the opinion that the answer to the referring court must be that Article 4(2) of Directive 2016\u002F343, read in the light of Article 3 of that directive and Article 48(1) of the Charter, must be interpreted as meaning that it does not preclude the referring court, on the one hand, from disregarding the rulings of the appeal court that it may consider to be contrary to the presumption of innocence and, on the other hand, from hearing and deciding the case again in accordance with its national procedural law, as governed by the principles of equivalence and effectiveness.\n\n**IV.** **Conclusion** 1 ( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.\n\n114\\. In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Mestský súd Bratislava I (Bratislava I City Court, Slovakia) as follows: (1) The right to respect for the presumption of innocence provided for in Article 3 and in Article 4(1) of Directive (EU) 2016\u002F343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, read in the light of Article 48(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a criminal court, hearing an appeal against a preliminary decision of a procedural nature, from taking a position on the incriminating evidence by carrying out an assessment in fact and in law as to whether the constituent elements of the criminal offence at issue are present, when it was not required to do so under national law and not all the evidence was taken at that preliminary stage of the proceedings, provided that it does not refer to the accused person as being guilty, which it is for the referring court to assess. (2) Article 4(2) of Directive 2016\u002F343, read in the light of Article 3 of that directive and Article 48(1) of the Charter, must be interpreted as meaning that it does not preclude the referring court, on the one hand, from disregarding the rulings of the appeal court that it may consider to be contrary to the presumption of innocence and, on the other hand, from hearing and deciding the case again in accordance with its national procedural law, as governed by the principles of equivalence and effectiveness.\n\n* * *\n\n( 2 ) Badinter, R., ‘La présomption d’innocence, histoire et modernité’, in Catala, P., *Le droit privé français à la fin du XXe siècle: études offertes à Pierre Catala* , Litec, Paris, 2001, p. 134.\n\n( 3 ) See Vigouroux, C., ‘Présomption d’innocence’, in *La conscience des droits. Mélanges en l’honneur de Jean-Paul Costa* , Dalloz, Paris, 2011, p. 657 et seq., especially p. 665.\n\n( 4 ) Directive of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings ([OJ 2016 L 65, p. 1](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Foj\u002FJOL_2016_065_R_TOC)).\n\nI should point out that that directive is the result of a step-by-step process based on Article 82 TFEU, concerning judicial cooperation in criminal matters within the European Union, which provides for the principle of mutual recognition of judgments and judicial decisions, generally considered to be the cornerstone of judicial cooperation in criminal matters within the European Union since the Tampere European Council of 15 and 16 October 1999. The European Commission Green Paper of 26 April 2006 on the presumption of innocence (COM(2006) 174 final, 24 June 2006) was followed by the resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings ([OJ 2009 C 295, p. 1](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Foj\u002FJOC_2009_295_R_TOC)), which became an integral part of the European Council’s Stockholm Programme on the area of freedom, security and justice (The Stockholm Programme – An open and secure Europe serving and protecting citizens) ([OJ 2010 C 115, p. 1](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Foj\u002FJOC_2010_115_R_TOC)), and led, in November 2013, to the Proposal for a Directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (COM(2013)821 final), followed by Directive 2016\u002F343, which was adopted on 9 March 2016 (see Daminova, N., ‘The CJEU Faced with “Presumption of Innocence” Directive 2016\u002F343: Reshaping the ECHR Standards?’, in *European Yearbook of Human Rights* , Intersentia, 2022, pp. 137 to 175). Based on the competence conferred on the Union by Article 82(2)(b) TFEU to lay down minimum rules on the rights of individuals in criminal procedure, it is one of six directives adopted by the European Union to establish common minimum standards guaranteeing the right of access to an impartial court and the rights of suspects and accused persons under the Stockholm Programme (see Catteau, F., ‘Les droits procéduraux des personnes poursuivies et des victimes de criminalité devant la Cour de justice de l’Union. Vers un droit européen de la procédure pénale?’, *Cahiers de droit européen* , 2020\u002F2-3, pp. 485 to 547).\n\n( 5 ) See judgment of 8 April 2025, EPPO (Judicial review of procedural acts) ([C‑292\u002F23](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A255), [EU:C:2025:255](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A255), paragraph [36](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A255#point36) and the case-law cited).\n\n( 6 ) See judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others ([C‑748\u002F19 to C‑754\u002F19](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A931), [EU:C:2021:931](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A931), paragraph [48](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A931#point48)). 7 ( 8 ) See judgment of 28 November 2019, Spetsializirana prokuratura ([C‑653\u002F19 PPU](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A1024), [EU:C:2019:1024](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A1024), paragraphs [32](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A1024#point32) and [33](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A1024#point33); ‘the judgment in *Spetsializirana prokuratura* ’).\n\n( 9 ) See the judgment in *Spetsializirana prokuratura* (paragraphs 35 and 37): ‘a judicial decision having as its sole purpose the potential continued detention on remand pending trial of an accused person seeks only to resolve the question whether that person must be released or not, in the light of all the relevant circumstances, without establishing whether that person is guilty of having committed the offence with which he [or she] is charged. … Thus, that decision cannot be considered [to be] a judicial decision on the guilt of the accused person for the purposes of that directive’.\n\n( 10 ) In that regard, Article 52(3) of the Charter states that, in so far as it contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights must be the same as those laid down by that convention. As is apparent from the explanations relating to Article 48 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into consideration for the interpretation of the Charter, Article 48 corresponds to Article 6(2) and (3) ECHR. The Court must, accordingly, ensure that its interpretation of Article 48(1) of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6(2) ECHR, as interpreted by the ECtHR (see, to that effect, judgment of 23 November 2021, IS (Illegality of the order for reference) ([C‑564\u002F19](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A949), [EU:C:2021:949](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A949), paragraph [101](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A949#point101))).\n\n( 11 ) See, to that effect, judgment of 5 September 2019, AH and Others(Presumption of innocence) ([C‑377\u002F18](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670), [EU:C:2019:670](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670), paragraph [42](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670#point42)). For an application concerning the terms of a press release issued by the European Anti-Fraud Office (OLAF), see judgment of 1 October 2025, OC v Commission ([T‑384\u002F20 RENV](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AT%3A2025%3A925), [EU:T:2025:925](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AT%3A2025%3A925), paragraph [91](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AT%3A2025%3A925#point91) et seq.).\n\n( 12 ) See ECtHR, 25 March 1983, *Minelli v. Switzerland* (CE:ECHR:1983:0325JUD000866079, § 30).\n\n( 13 ) See Repík, B., ‘Réflexions sur la jurisprudence de la Cour européenne des droits de l’homme concernant la présomption d’innocence’, in *Liber amicorum Marc-André Eissen* , Brussels, Bruylant\u002FL.G.D.J., 1995, pp. 331 to 345, especially p. 333. See, also, Dold, B., ‘Artikel 6. Recht auf ein faires Verfahren’, in Frowein, J.A., and Peukert, W. *Europäische MenschenRechtsKonvention* , *EMRK-Kommentar* , 4th edition, N.P. Engel Verlag, Kehl am Rhein, Nos 67 to 69, 2024, pp. 323 to 324.\n\n( 14 ) Viewed as a procedural guarantee in the context of the criminal trial itself, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-trial publicity and premature expressions, by the trial court or by other public officials, of a defendant’s guilt (see ECtHR, 12 July 2013, *Allen v. the United Kingdom* (CE:ECHR:2013:0712JUD002542409, § 93), and ECtHR, 11 June 2024, *Nealon and Hallam v. the United Kingdom* (CE:ECHR:2024:0611JUD003248319, § 101)).\n\n( 15 ) In keeping with the need to ensure that the right guaranteed by Article 6(2) is practical and effective, the ECtHR has, over time, developed a ‘second aspect’ to the presumption of innocence, which comes into play after the criminal proceedings have concluded, either with an acquittal or a discontinuance. The ECtHR has made it clear that following the discontinuance of criminal proceedings the presumption of innocence required that the lack of a person’s criminal conviction be preserved in any other proceedings of whatever nature; and also that the operative part of an acquittal judgment must be respected by any authority referring directly or indirectly to the criminal responsibility of the interested party (ECtHR, 11 June 2024, *Nealon and Hallam v. the United Kingdom* (CE:ECHR:2024:0611JUD003248319, §§ 102 to 109 and the case-law cited)). See, in that regard, Beernaert, M.-A., ‘La présomption d’innocence et ses prolongements au-delà du procès pénal (obs. sous Cour eur. dr. h., Gde Ch, arrêt *Nealon et Hallam c. Royaume-Uni* , 11 juin 2024)’, *Revue trimestrielle des droits de l’homme* , Vol. 2, No 142, 1 April 2025, pp. 515 to 526.\n\nSee, also, on the distinction between the two aspects of the presumption of innocence, Jebens, S.E., ‘The Scope of the Presumption of Innocence in Article 6 § 2 of the Convention – Especially on its Reputation-Related Aspect’, in *Droits de l’homme – Regards de Strasbourg, Liber Amicorum Luzius Wildhaber* , N.P. Engel, Kehl, 2007, pp. 207 to 227. 16 ( 17 ) See, inter alia, ECtHR, 6 December 1988, *Barberà, Messegué and Jabardo v. Spain* (CE:ECHR:1988:1206JUD001059083, § 77).\n\nLet us also consider an example from judicial history. In the infamous Landru trial that began on 7 November 1921 before the cour d’assises de Seine-et-Oise (Assize Court of Seine-et-Oise, Versailles, France), the oral argument of Vincent de Moro-Giafferi, Landru’s lawyer, illustrated that principle by asking Robert Godefroy, the public prosecutor, whether ‘a man can be convicted for the murder of 10 women today, and yet the following day no finding of presumed death can be issued to the families, in the absence of any bodies?’. In a now famous scene, Landru’s lawyer went even further, claiming that one of the victims, presumed dead, had been found and was ready to appear. The entire courtroom, including the jurors, reportedly turned towards the door … which was proof, according to Landru’s lawyer, that no one was certain of Landru’s guilt. It should be added that the public prosecutor immediately responded with the argument that only Landru had not turned his head (for details of the Landru trial, see the website of the French Ministry of Justice available at: https:\u002F\u002Fwww.justice.gouv.fr\u002Factualites\u002Factualite\u002Fproces-landru).\n\n( 18 ) See ECtHR, 10 February 1995, *Allenet de Ribemont v. France* (CE:ECHR:1995:0210JUD001517589, § 35), *Revue trimestrielle des droits de l’homme* , No 24, 1995, pp. 661 to 672, note by Spielmann, D. See, also, ECtHR, 12 April 2012, *Lagardère v. France* (CE:ECHR:2012:0412JUD001885107, § 74), and ECtHR, 27 February 2014, *Karaman v. Germany* (CE:ECHR:2014:0227JUD001710310, § 41).\n\n( 19 ) See Hirsch, C., ‘La présomption d’innocence dans la jurisprudence de la Cour européenne des droits de l’homme (2006-2013)’, *Annales du droit luxembourgeois* , Vol. 23 (2013), Bruylant, Brussels, 2015, especially p. 160 et seq. See, also, ECtHR, 10 October 2000, *Daktaras v. Lithuania* (CE:ECHR:2000:1010JUD004209598, § 41), and ECtHR, 15 June 2021, *Vardan Martirosyan v. Armenia* (CE:ECHR:2021:0615JUD001361012, §§ 83 and 87) (citing the case-law on the choice of words in cases of continued detention on remand pending trial).\n\n( 20 ) See ECtHR, 28 November 2002, *Marziano v. Italy* (CE:ECHR:2002:1128JUD004531399, §§ 30 and 31), and ECtHR, 12 April 2012, *Lagardère v. France* (CE:ECHR:2012:0412JUD001885107, § 75).\n\n( 21 ) ECtHR, 28 November 2002, *Marziano v. Italy* (CE:ECHR:2002:1128JUD004531399, § 30).\n\n( 22 ) ECtHR, 28 November 2002, *Lavents v. Latvia* (CE:ECHR:2002:1128JUD005844200, §§ 126 and 127).\n\n( 23 ) ECtHR, 15 October 2013, *Gutsanovi v. Bulgaria* (CE:ECHR:2013:1015JUD003452910, §§ 202 and 203). 24 ( 25 ) See, inter alia, ECtHR, 26 March 1982, *Adolf v. Austria* (CE:ECHR:1982:0326JUD000826978, §§ 36 to 41), and ECtHR, 27 February 2014, *Karaman v. Germany* (CE:ECHR:2014:0227JUD001710310, §§ 63 to 65 and the case-law cited). See, also, ECtHR, 15 June 2021, *Vardan Martirosyan* *v. Armenia* (CE:ECHR:2021:0615JUD001361012, § 81). In paragraphs 83 to 90 of that judgment, the ECtHR carefully examined the wording of each decision at issue in their respective contexts. For example, the expression ‘the act committed’, although unfortunate, was to be understood in the context of the extension of pre-trial detention, taking into account the nature and the dangerousness of the act ‘committed’, further stating that the applicant ‘was charged with that offence’, the applicant’s guilt not being an issue to be determined at that stage, as the court of appeal noted (§ 84). See, conversely, §§ 87 and 88 for a violation of Article 6(2) ECHR concerning another decision, not corrected at a later stage of the proceedings.\n\n( 26 ) See ECtHR, 3 October 2019, *Fleischner v. Germany* (CE:ECHR:2019:1003JUD006198512, § 65), in which the ECtHR states that national law is part of that context.\n\n( 27 ) ECtHR, 10 October 2000, *Daktaras v. Lithuania* (CE:ECHR:2000:1010JUD004209598, §§ 44 and 45).\n\n( 28 ) In ECtHR, 21 September 2006, *Pandy v. Belgium* (CE:ECHR:2006:0921JUD001358302, § 19 and 43), comments made by an investigating judge had been picked up by the press (‘Pandy sees himself as Dreyfus, but I have other comparisons for him: Landru and Dr Petiot’). The comments were viewed as possibly unintentional and secondary in the context of a complex investigation that went smoothly, as the applicant himself acknowledged. However, the ECtHR held that they were still questionable from the point of view of the principle of the presumption of innocence, since they compared the applicant to known and recognised serial killers. Such comments were ‘not acceptable from an examining judge, responsible under Belgian law for investigating both inculpatory and exculpatory evidence, which justified a more thorough examination’ (§ 45).\n\n( 29 ) ECtHR, 19 June 2025, *Ravier v. France* (CE:ECHR:2025:0619JUD003232422, §§ 40 to 42).\n\n( 30 ) See judgments of 1 July 2008, MOTOE ([C‑49\u002F07](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2008%3A376), [EU:C:2008:376](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2008%3A376), paragraph [30](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2008%3A376#point30)), and of 30 May 2024, Amazon Services Europe ([C‑665\u002F22](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A435), [EU:C:2024:435](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A435), paragraph [40](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A435#point40)). 31 ( 32 ) See ECtHR, 25 March 1983, *Minelli v. Switzerland* (CE:ECHR:1983:0325JUD000866079, § 30), and ECtHR, 30 March 2010, *Poncelet v. Belgium* (CE:ECHR:2010:0330JUD004441807, § 50).\n\n( 33 ) See ECtHR, 21 September 2006, *Pandy v. Belgium* (CE:ECHR:2006:0921JUD001358302, § 43), and ECtHR, 21 June 2007, *Kampanellis v. Greece* (CE:ECHR:2007:0621JUD000902905, § 27) (concerning the words used in the context of a committal for trial by an investigating judge). See also Dold, B., op. cit., No 367, p. 459.\n\n( 34 ) The orders of the appeal court state that they are not amenable to ordinary appeal. See, in that regard, ECtHR, 15 June 2021, *Vardan Martirosyan* *v. Armenia* (CE:ECHR:2021:0615JUD001361012, § 88). The ECtHR held that it was prepared to entertain the possibility that the district court may have committed merely a technical error in poorly wording its decision, but notes that it subsequently never corrected it, the impugned decision not being amenable to appeal. 35 ( 36 ) For example, in ECtHR, 21 June 2007, *Kampanellis v. Greece* (CE:ECHR:2007:0621JUD000902905, § 28), one such phrase was found in the judges’ reasoned decision, adopted at a preliminary stage of the criminal proceedings brought against the applicant, by which his committal for trial was ordered. The ECtHR held that the use of the expression ‘to quieten down’ unequivocally expressed the idea that the applicant’s pre-trial detention could have had the effect of calming him down and curbing his criminal behaviour. It considered that, regardless of their position in the contested order, such remarks were not admissible from judges in an indictment division, responsible under Greek law for investigating both the inculpatory and exculpatory evidence, which required special care in the choice of words used.\n\n( 37 ) See, by analogy, judgment of 8 December 2022, HYA and Others(Impossibility of questioning prosecution witnesses) ([C‑348\u002F21](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A965), [EU:C:2022:965](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A965), paragraph [58](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A965#point58)), concerning the existence of counterbalancing factors capable of compensating for the difficulty caused to the defendant by the fact that the witness could not be directly cross-examined during the judicial stage of the criminal proceedings.\n\n( 38 ) On the continued detention on remand pending trial, see judgments of 19 September 2018, Milev ([C‑310\u002F18 PPU](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732), [EU:C:2018:732](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732), paragraphs [44](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732#point44) and [48](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732#point48)), and the judgment in *Spetsializirana prokuratura* (paragraph 29).\n\n( 39 ) See, to that effect, order of 12 February 2019, RH ([C‑8\u002F19 PPU](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110), [EU:C:2019:110](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110), paragraphs [57](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110#point57) to [60](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110#point60)).\n\n( 40 ) See judgment of 5 September 2019, AH and Others(Presumption of innocence) ([C‑377\u002F18](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670), [EU:C:2019:670](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670), paragraph [50](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A670#point50)).\n\n( 41 ) See order of 28 May 2020, UL and VM ([C‑709\u002F18](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2020%3A411), [EU:C:2020:411](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2020%3A411), paragraph [35](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2020%3A411#point35)).\n\n( 42 ) For example, under Luxembourg law, the role of the indictment division is to ‘determine whether indicia exist for each fact forming a key element of the pre-trial judicial investigation; it then assesses whether the indicia should be considered to be sufficient (Le Poittevin, *Code d’instruction criminelle annoté* , Article 221, Nos 27 and 28). … the investigating judge is only required to decide whether there are sufficient indicia to suspect that the accused committed the offence in circumstances that fall under the application of criminal law’ (see Thiry, R., *Précis d’Instruction Criminelle en Droit Luxembourgeois* , Vol. II, Lucien de Bourcy, Luxembourg, 1984, pp. 204 and 205). See also, on the prime facie evidence and sufficient grounds, the role of investigating judges in the Belgian judicial system (Franchimont, M., Jacobs, A. and Masset, A., *Manuel de procédure pénale* , 3rd edition, Larcier, Brussels, 2009, p. 541) and the French judicial system (pursuant to Article 184 of the French Code of Criminal Procedure).\n\n( 43 ) See ECtHR, 24 November 1993, *Imbrioscia v. Switzerland* (CE:ECHR:1993:1124JUD001397288, § 36), and ECtHR, 27 November 2008, *Salduz v. Türkiye* (CE:ECHR:2008:1127JUD003639102, § 50).\n\n( 44 ) See commentary by Dold, B., op. cit., No 67, especially p. 323. See, also, ECtHR, 9 November 2018, *Beuze v. Belgium* (CE:ECHR:2018:1109JUD007140910, § 147 et seq.), in which the ECtHR recalls that ‘the principle of placing the overall fairness of the proceedings at the heart of the assessment is not limited to the right of access to a lawyer under Article 6 § 3 (c) but is inherent in the broader case-law on defence rights enshrined in Article 6 § 1 [ECHR]’.\n\n( 45 ) See ECtHR, 12 May 2017, *Simeonovi v. Bulgaria* (CE:ECHR:2017:0512JUD002198004, § 114 and especially § 120), where the ECtHR provided a non-exhaustive list of factors to be taken into account, where appropriate, in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings. See, also, ECtHR, 9 November 2018, *Beuze v. Belgium* (CE:ECHR:2018:1109JUD007140910, § 148 et seq.), where the ECtHR states that such an approach is also consistent with the role of the ECtHR, which is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused. 46 ( 47 ) See, by analogy, on the conditions for adopting decisions on pre-trial detention, judgment of 19 September 2018, Milev ([C‑310\u002F18 PPU](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732), [EU:C:2018:732](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732), paragraph [47](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A732#point47)), and order of 12 February 2019, RH ([C‑8\u002F19 PPU](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110), [EU:C:2019:110](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110), paragraph [59](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2019%3A110#point59)).\n\n( 48 ) See judgment of 5 September 2024, M.S. and Others(Procedural rights of minors) ([C‑603\u002F22](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A685), [EU:C:2024:685](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A685), paragraph [170](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2024%3A685#point170)). 49 ( 50 ) See, by analogy, judgment of 5 June 2018, Kolev and Others ([C‑612\u002F15](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A392), [EU:C:2018:392](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A392), paragraph [94](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2018%3A392#point94)), concerning, inter alia, the timing of the defence’s access to the case materials, and judgment of 21 October 2021, ZX (Regularisation of the indictment) ([C‑282\u002F20](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874), [EU:C:2021:874](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874), paragraphs [28](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874#point28) and [32](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874#point32)), concerning errors and omissions in the indictment which prejudice the right of the accused person to be provided with detailed information on the charges. 51 ( 52 ) See judgments of 5 October 2010, Elchinov ([C‑173\u002F09](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2010%3A581), [EU:C:2010:581](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2010%3A581), paragraphs [30](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2010%3A581#point30) to [32](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2010%3A581#point32)), and of 22 February 2022, RS (Effect of the decisions of a constitutional court) ([C‑430\u002F21](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A99), [EU:C:2022:99](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A99), paragraph [75](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2022%3A99#point75)).\n\n( 53 ) As stated by Kuty, F., *Justice pénale et procès équitable* , 1st edition, Larcier, Brussels, 2023, p. 1711: ‘the disregard of the presumption of innocence by the investigating judge does not constitute an irremediable defect. … any act of the investigating judge affected by a breach of the presumption of innocence does not, in itself, have the effect … of making it impossible to hold a fair trial before the trial court’.\n\n( 54 ) On the right to be assisted by a lawyer from the start of the proceedings, see ECtHR, 24 November 1993, *Imbrioscia v. Switzerland* (CE:ECHR:1993:1124JUD001397288, § 36), and ECtHR, 27 November 2008, *Salduz v. Türkiye* (CE:ECHR:2008:1127JUD003639102, § 54). In that regard, although the criminal justice system functions ‘as a machine for layering guilt’, the ‘“layer” of guilt should not be too thick at the start of the proceedings’ (see Roets, D., *La présomption d’innocence* , 2nd edition, Dalloz, Paris, 2023, pp. 59 and 60).\n\n( 55 ) See judgment of 21 October 2021, ZX (Regularisation of the indictment) ([C‑282\u002F20](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874), [EU:C:2021:874](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874), paragraph [35](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2021%3A874#point35)). I should point out in that respect that, according to recital 44 of Directive 2016\u002F343, the principle of effectiveness of EU law ‘requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by [EU] law. An effective remedy, which is available in the event of a breach of any of the rights laid down in this Directive, should, as far as possible, have the effect of placing the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to protecting the right to a fair trial and the rights of the defence’. 56 ( 57 ) See judgment of 4 September 2025, AW T ([C‑225\u002F22](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A649), [EU:C:2025:649](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A649), paragraph [68](http:\u002F\u002Fpublications.europa.eu\u002Fresource\u002Fecli\u002FECLI%3AEU%3AC%3A2025%3A649#point68)).","en","cjeu","","ecli-eu-c-2026-16",1,{"totalDecisions":23,"byYear":25,"byCourt":28},[26],{"year":27,"count":23},2026,[29],{"courtId":15,"courtName":16,"count":23},[31,34,37,40,43,46],{"id":32,"code":6,"article":33,"title":8,"country":9},"124634","290",{"id":35,"code":6,"article":36,"title":8,"country":9},"124631","322",{"id":38,"code":6,"article":39,"title":8,"country":9},"124635","349",{"id":41,"code":6,"article":42,"title":8,"country":9},"124632","39",{"id":44,"code":6,"article":45,"title":8,"country":9},"124633","42",{"id":47,"code":6,"article":48,"title":8,"country":9},"124747","82"]