Opinion of Advocate General Ćapeta delivered on 25 May 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:436
• Date: 25 May 2023
• Celex Number: 62022CC0175

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 25 May 2023(1)

Case C‑175/22

BK,

joined parties:

Spetsializirana prokuratura

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2012/13/EU – Right to information in criminal proceedings – Article 6(4) – Right to be informed of the reclassification of a criminal offence by a national court – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Right to a fair trial – Judicial impartiality)

I. Introduction

1. According to recent reports, every year over 9 million people face criminal proceedings across the European Union. (2) To that end, the European Union has adopted several legal instruments setting out certain common procedural rights which apply in criminal proceedings.

2. One of those instruments is Directive 2012/13/EU on the right to information in criminal proceedings, (3) which establishes rules regarding the right of persons to be informed of their procedural rights, including the accusation brought against them.

3. The present case arises from a request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) concerning the interpretation of that directive, along with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

4. The main issue raised by this case is essentially whether Directive 2012/13 precludes a national law allowing a court to find an accused person guilty of a criminal offence which has been reclassified by it without informing that person prior to the delivery of its judgment. This case also raises issues relating to whether the fact that the information about the reclassification of a criminal offence comes from a court might run counter to the guarantees of judicial impartiality enshrined in the second paragraph of Article 47 of the Charter.

II. The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

5. The Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria) brought criminal charges against the accused person BK before the Spetsializiran nakazatalen sad (Specialised Criminal Court, Bulgaria), the referring court in the present case.

6. The Spetsializirana prokuratura (Specialised Public Prosecutor’s Office) accused BK of having committed the criminal offence of corruption in his capacity as a police investigator. Under the Bulgarian Criminal Code, (4) that offence is punishable by a custodial sentence of 3 to 15 years, a fine of 25 000 leva (BGN) (approximately EUR 12 500), confiscation of half of the assets and loss of rights.

7. BK’s defence objected to that legal classification, claiming that the acts at issue fell outside the scope of BK’s responsibilities as a police investigator and rather involved the criminal offence of fraud. Under the Bulgarian Criminal Code, (5) that offence is punishable by a custodial sentence of up to five years.

8. The referring court points out that its decision on the merits must, in principle, be based on the accusation as formulated by the public prosecutor’s office. Should it take the view that the elements of the alleged offence are not satisfied, it would have to issue an acquittal. However, if it were to consider the facts alleged by the public prosecutor’s office to be correct, it would have to examine whether this results in a different offence with a penalty that is equally or less severe.

9. In such a case, the referring court explains that the relevant Bulgarian legislation (6) has been interpreted in the case-law as allowing a court to modify of its own motion the legal classification of the criminal offence without informing the accused person beforehand. That is so only when there is no substantial change to the details of the accusation and the new legal classification does not entail the imposition of a more severe penalty. (7) In practice, the accused person will only become aware of the new legal classification upon delivery of the court’s judgment.

10. The referring court therefore considers that, pursuant to national law, it would be possible for it to modify the legal classification of the offence with which BK is charged, and thus to establish an offence of fraud, as claimed by BK’s defence. The referring court also mentions another possible offence, the exercise of undue influence, which is punishable under the Bulgarian Criminal Code (8) by a custodial sentence of up to six years or a fine of up to BGN 5 000 (approximately EUR 2 500).

11. The referring court harbours doubts as to whether the national legislation as interpreted in the case-law complies with Article 6(3) and (4) of Directive 2012/13, since the accused person is deprived of any opportunity to present a defence against the new legal classification and does not learn of it until conviction. Nevertheless, the referring court is uncertain whether the fact that the new legal classification does not entail a more severe penalty might justify that national law.

12. The referring court further observes that, if the Court finds that that national law is precluded by Directive 2012/13, it would be obliged to inform BK of the possibility of a conviction on the basis of a different legal classification from that indicated by the public prosecutor’s office and to give him an opportunity to prepare his defence. In such a case, that court fears that it might lose its neutrality if it considers a certain legal classification to be conceivable and then convicts the accused person on the basis of that classification, even if it has previously given that person the opportunity to prepare for this. In those circumstances, the referring court is uncertain whether the fact that the information about the reclassification of the offence comes from the court, and not the public prosecutor’s office, might call into question that court’s impartiality, as guaranteed by the second paragraph of Article 47 of the Charter.

13. In those circumstances, the Spetsializiran nakazatalen sad (Specialised Criminal Court) decided to stay the main proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘[(1)] Does Article 6(3) and (4) of Directive [2012/13] preclude an interpretation of national legal provisions – Article 301(1)(2), in conjunction with Article 287(1), of the [NPK] – in the case-law according to which the court may, in its judgment, give a legal classification of the offence that differs from that set out in the bill of indictment, provided that it is not classified as an offence attracting a more severe penalty, on the ground that the accused person was not properly informed of the new, different legal classification before the delivery of the judgment and was unable to defend himself against it?

[(2)] If Question 1 is answered in the affirmative: Does the second paragraph of Article 47 of the Charter prohibit the court from informing the accused person that it could base its decision on the merits on a different legal classification of the offence, and also from giving him the opportunity to prepare his defence against that classification, because the initiative for this different legal classification did not come from the public prosecutor’s office?’

14. By letter of 5 August 2022, the Sofiyski gradski sad (Sofia City Court, Bulgaria) informed the Court that, following a legislative amendment that entered into force on 27 July 2022, the Spetsializiran nakazatelen sad (Specialised Criminal Court) was dissolved and that certain criminal cases brought before it, including the present case, were transferred from that date to the Sofiyski gradski sad (Sofia City Court).

15. Written observations were submitted to the Court by the Czech Republic and the European Commission. A hearing was held on 2 March 2023 at which those parties presented oral argument.

III. Analysis

16. The two questions before the Court arise from the particularities of Bulgarian criminal procedural law concerning the possibility for a court to reclassify a criminal offence in certain circumstances without informing the accused person. In practice, that person only becomes aware of the new legal classification of the criminal offence upon delivery of the court’s judgment and thus has no opportunity to defend himself or herself against the new legal classification in the criminal proceedings. However, such reclassification is permitted only when there is no substantial change to the details of the accusation and the new legal classification does not entail the imposition of a more severe penalty. Those particularities are the result of the judicial interpretation of the relevant Bulgarian legislation.

17. The concerns raised by the referring court about the conformity of such national law with EU law require the interpretation of Article 6 of Directive 2012/13 and the fundamental right to an impartial court as guaranteed by Article 47 of the Charter. I will deal with each of the two questions in turn.

A. The first question

18. The first question relates to the right of an accused person to be informed of the reclassification of the criminal offence. This question requires, in my view, the interpretation of Article 6(4) of Directive 2012/13, even though the referring court also mentions Article 6(3) of that directive in its question. (9)

19. I therefore propose that the Court reformulate the first question so as to essentially ask whether Article 6(4) of Directive 2012/13 precludes a national law that allows a court to inform the accused person, only upon the pronouncement of the judgment, that it has reclassified the criminal offence.

20. This question implies that the court may change the legal classification of...