Case C-703/26, Dosilev – when harsher custody counts for more
Every legal system deducts remand from a prison sentence, day for day. The Sofiyski gradski sad asks whether a day is still a day when it was served in conditions the law does not permit.
Facts
XXX is being tried before the Sofiyski gradski sad for possession of narcotic substances with intent to distribute — an offence within Article 2 of Framework Decision 2004/757/JHA, the Union’s minimum rules on drug-trafficking offences and penalties. Before trial XXX was held on remand, and the referring court has found that the conditions of that custody were “significantly more stringent” than those provided for by law and those specified in the eventual conviction. Under Bulgarian law the remand period is deducted from the sentence. The court asks first whether it is compatible with Article 4(1) of the Framework Decision, Article 49 of the Charter and the second subparagraph of Article 19(1) TEU that the deducted time should be treated as ordinary time — and, if not, whether it may reason by analogy so that the harsher custody counts as a longer period, with any surplus after set-off credited against a future custodial sentence. (Dosilev is a fictitious name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
1. Does national law comply with Article 4(1) of Framework Decision 2004/757/JHA, Article 49 of the Charter and the [second] subparagraph of Article 19(1) of the Treaty on European Union whereby, after the deduction of time spent in remand custody, a sentence imposed for possession of narcotic substances with intent to distribute them, must be regarded as having been served in conditions which are significantly more stringent than those provided for by law and those specified in the conviction delivered by the court?
2. If the first question is answered in the negative, is it consistent with those provisions to apply the national rule on the application of the law by legal analogy, with the following effect:
2.1. in the deduction of time spent in remand custody, the more stringent conditions lead to the conclusion that the time spent in remand custody must be equated to a longer period of time, and that it is precisely that longer period which must be deducted from the imposed custodial sentence;
2.2. the portion of the time spent in remand custody which remains after such set-off may be credited against another custodial sentence to be served in the future?
Sources
OJ notice C/2026/4578 (EUR‑Lex) · Case file on CURIA · Framework Decision 2004/757/JHA · Charter of Fundamental Rights
Comment
The idea underneath this reference is a simple one and, so far as this site can find, has not been put to the Court before: that the severity of a period of custody, and not only its length, is part of the penalty — so that a person held in unlawfully harsh conditions has already served more than the calendar records. Question 2.1 asks whether that surplus may be recognised by treating the remand as longer than it was; question 2.2 asks whether what is left over may be carried forward, a kind of credit for time not yet owed.
The Union-law hooks are unevenly strong. Article 4(1) of the Framework Decision requires penalties that are “effective, proportionate and dissuasive” and sets a floor on the maximum — offences under Article 2 must carry “a maximum of at least between one and three years”. That is an instrument for making national penalties severe enough, not for limiting them, and it is a strained foundation for an argument that runs in the defendant’s favour. The second subparagraph of Article 19(1) TEU concerns effective judicial protection in the fields covered by Union law and would need to be made to do a good deal of work to reach the arithmetic of sentence set-off. The weight of the reference lies on Article 49 of the Charter: the principle that penalties must be provided for by law and must not be disproportionate to the offence. If a sentence is served in conditions the law did not authorise, the argument runs, the penalty actually inflicted is not the one the law provided for, and proportionality between offence and penalty has to be measured against what was in fact suffered.
Two features of the questions may trouble the Court before it reaches the merits. The first question is framed as whether “national law complies” with the provisions cited, which is not a question the Court answers under Article 267; it will reformulate, but the reformulation may narrow what survives. More substantively, the second question asks for permission to apply a national rule by analogy — a technique of Bulgarian law whose limits are for Bulgarian courts — and the Court is unlikely to say more than whether Union law permits or requires the result, leaving the method to the referring judge.
The Court’s existing case law on detention conditions has developed almost entirely in the context of surrender under the European arrest warrant, beginning with Joined Cases C‑404/15 and C‑659/15 PPU, Aranyosi and Căldăraru (ECLI:EU:C:2016:198), where the question was whether conditions in the requesting State were bad enough to stop a transfer. Dosilev asks something different: not whether a person may be sent into harsh custody, but what the law owes them afterwards for having endured it. If the Court engages, it will be saying something about the relationship between the conditions of imprisonment and the quantum of the sentence that reaches well beyond drug offences and well beyond Bulgaria.