EU Judgment in Case C-349/21 HYA and others

Thursday 16th February 2023

Judgment in Case C-349/21 HYA and others

(Area of Freedom, Security and Justice)

The Spetsializirana prokuratura (Specialised public prosecutor’s office, Bulgaria) brought criminal proceedings against five persons for their alleged participation in an organised criminal group that assisted third-country nationals in entering Bulgarian territory illegally; the same individuals were also accused of giving or taking bribes in connection therewith. Those acts constitute ‘serious offences’ under Bulgarian law.

On 10 April 2017, during the pre-trial stage of the proceedings, the prosecutor filed an application to use special investigative methods, including telephone tapping, in respect of one of the accused persons, IP.

On the same day, the President of the Spetsializiran nakazatelen sad (Specialised Criminal Court) authorised the interception of telephone conversations, the recording thereof and the storage of the recordings for the purposes of criminal proceedings.

The order records the name and function of the person who authorised the measures. It states that the authority making the application acted within its competence and that there are sufficient indications that an offence under Article 172(2) of the NPK or Article 3(1) of the ZSRS, which falls within the jurisdiction of the Spetsializiran nakazatelen sad (Specialised Criminal Court), has been committed. It states that the requirements of Articles 4, 12 and 21 of the ZSRS, or Article 175(2) of the NPK, have been complied with. It authorises the surveillance methods listed with regard to the person identified in the application bearing a reference number corresponding to that which appears on the first page and in the footer of pages 2 to 8 of the application.

The authorisation is signed, sealed and dated 10 April 2017. The first page of the request for authorisation bears the same signature, seal and date.

Similar applications were made in respect of other persons under investigation in connection with their involvement in the same criminal group. The statements of reasons given by the President of the Spetsializiran nakazatelen sad (Specialised Criminal Court) appear to be identical, save that in each case the authorisation appears to cross-refer to a different application.

According to the referring court, the generic template text of the authorisations covers the various scenarios in which covert surveillance may lawfully be authorised. It is standard practice that the authorisation does not include an individualised statement of the reasons for its issue. The referring court therefore had doubts as to whether the authorisations were properly reasoned.

As a result of the authorised surveillance measures, certain of the suspects’ telephone conversations were recorded and stored. The referring court accepts that those conversations are relevant to prove the criminal charges against the accused, but queries whether they are admissible if the authorisations are deemed to be unlawful.

Background Documents C-349/21