Case C-570/26, Ariel – compelled to speak so the machine can listen
Blood can be taken from a suspect who says nothing. A voice cannot. That distinction is the whole of this reference, and the Directive on the presumption of innocence draws it in a recital rather than in its text.
Facts
The Sofiyska gradska prokuratura wants voice and speech samples from a suspect. Article 146(3) of the Bulgarian Code of Criminal Procedure is read as permitting compulsion to obtain them, and the referring court sets out what that compulsion looks like in practice: an obligation to answer questions that are not themselves incriminating, compulsory attendance and a fine if the suspect fails to appear or refuses to answer those questions, and the threat of criminal consequences for refusing to provide the samples. The Sofiyski gradski sad (Sofia City Court) has referred a single question with three limbs, framed against Article 7 and recitals 27 and 29 of Directive 2016/343 and recital 35 of Directive 2016/680.
Questions Referred
According to the Official Journal notice, the Sofiyski gradski sad asks:
Is it compatible with recitals 27 and 29 and Article 7 of Directive 2016/343, and with the third to fifth sentences of recital 35 of Directive 2016/680, to interpret national law — Article 146(3) of the Nakasatelno-protsesualen kodeks — as meaning that:
1. it is permissible to make use of powers of compulsion in order to obtain voice and speech samples from a suspect?
2. If so, what forms of compulsion are permitted to be used against the suspect?
3. Are [the following measures] permissible forms of compulsion: 3.1. the obligation to answer non-incriminating questions; 3.2. compulsory attendance in the event of failure to appear and the imposition of a fine in the event of refusal to answer non-incriminating questions; 3.3. threatening criminal-law consequences in the event of refusal to provide such samples?
Sources
OJ notice C/2026/4396 (EUR‑Lex) · Case file on CURIA · Directive (EU) 2016/343 · Directive (EU) 2016/680
Comment
The answer is likely to be found in a single sentence of recital 29, and the Bulgarian court has clearly read it closely. The right not to incriminate oneself, that recital says, should not prevent authorities from gathering evidence “which may be lawfully obtained from the suspect or accused person through the use of legal powers of compulsion and which has an existence independent of the will of the suspect or accused person” — and it gives examples: material acquired under a warrant, material subject to a legal obligation of retention and production, breath, blood or urine samples, and bodily tissue for DNA testing.
Every item on that list has the same property. A blood sample exists whether or not the person cooperates; extracting it requires their body, not their volition. Speech does not work that way. A voice sample cannot be taken from a silent suspect, because there is nothing to take until the suspect decides to speak. The evidence is not merely obtained from the person; it is produced by an act of will that the State proposes to compel. On the ordinary reading of recital 29, that places voice on the far side of the line from blood — and the drafters’ omission of it from a list that troubled itself to mention urine is not obviously accidental.
Which is what makes limb 3.1 the elegant and troubling part of the reference. Compelling answers to non-incriminating questions looks, at first sight, like a way around the problem: if the content cannot hurt the suspect, the privilege has nothing to protect. But the content is not what the prosecutor wants. The questions are a pretext for phonation; the evidence is the biometric carried by the sound, not the meaning of the words. If that device works, the protection in Article 7 becomes trivially avoidable — a suspect could be compelled to read the telephone directory aloud and the recording used against them, on the footing that no answer was self-incriminating.
The Court has already declined to let the privilege be narrowed by the formal character of the questioning. In Case C‑481/19, DB v Consob (ECLI:EU:C:2021:84) it held, reading the market-abuse rules in the light of Articles 47 and 48 of the Charter, that Member States may refrain from penalising natural persons who refuse to give a supervisory authority answers capable of establishing their liability for an offence punishable by administrative sanctions of a criminal nature, or their criminal liability. The protection there attached to the consequences of the answers, not to their subject label. Ariel asks the Court to complete that thought from the other direction: what matters is not whether the words incriminate, but whether the State compelled the person to generate the evidence.
Limbs 2 and 3 also invite something the Court usually resists — an enumeration. Asking “what forms of compulsion are permitted” and then listing three candidates puts the Court in the position of drawing a catalogue rather than a test, and it will more likely answer with the criterion (does the evidence exist independently of the will?) and leave the Bulgarian court to sort the measures. That is the answer with the longest reach anyway. Voice biometrics are now routine in investigations across the Union, and the question of whether a suspect can be made to speak in order to be identified by how they speak has not, until now, had a European answer.