Okrazhna prokuratura - Varna v DR and TS.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:864
• Date: 21 October 2021
• Docket Number: C-863/19,C-845/19
• Celex Number: 62019CJ0845
• Procedure Type: Reference for a preliminary ruling
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

21 October 2021 (*)

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/42/EU – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Scope – Confiscation of illegally obtained assets – Economic benefit derived from a criminal offence which has not been the subject of a conviction – Article 4 – Confiscation – Article 5 – Extended confiscation – Article 6 – Confiscation from a third party – Conditions – Confiscation of money allegedly belonging to a third party – Third party having no right to appear as a party in the confiscation proceedings – Article 47 of the Charter of Fundamental Rights of the European Union)

In Joined Cases C‑845/19 and C‑863/19,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Apelativen sad – Varna (Court of Appeal, Varna, Bulgaria), made by decisions of 7 November 2019 (C‑854/19) and of 19 November 2019 (C‑863/19), received at the Court on 19 and 26 November 2019 respectively, in the criminal proceedings against

DR (C‑845/19),

TS (C‑863/19),

interested party:

Okrazhna prokuratura – Varna,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi (Rapporteur) and N. Wahl, Judges,

Advocate General: P. Pikamäe,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 13 January 2021,

after considering the observations submitted on behalf of:

– the Okrazhna prokuratura – Varna, by I. Todorov and V. Chavdarov, acting as Agents,

– the Bulgarian Government, by M. Georgieva, T. Mitova and E. Petranova, acting as Agents,

– the Austrian Government, by J. Schmoll and F. Zeder, acting as Agents,

– the European Commission, initially by S. Grünheid, Y. Marinova and R. Troosters, and subsequently by S. Grünheid and Y. Marinova, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 March 2021,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 2 of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The requests have been made in the context of criminal proceedings against DR (C‑845/19) and TS (C‑863/19) (together, ‘the persons concerned’) concerning applications for the confiscation, following the conviction of the persons concerned of possession of narcotics for the purposes of their distribution, of sums of money which those persons claim belong to third parties.

Legal context

EU law

Framework Decision 2004/757/JHA

3 Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ 2004 L 335, p. 8) provides, in Article 2 thereof, entitled ‘Crimes linked to trafficking in drugs and precursors’:

‘1. Each Member State shall take the necessary measures to ensure that the following intentional conduct when committed without right is punishable:

(a) the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;

…

(c) the possession or purchase of drugs with a view to conducting one of the activities listed in (a);

…’

4 Pursuant to Article 4(2) of that framework decision:

‘Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2(1)(a), (b) and (c) are punishable by criminal penalties of a maximum of at least between 5 and 10 years of imprisonment in each of the following circumstances:

…

(b) the offence either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons.’

Directive 2014/42

5 According to recitals 11, 19 to 21, 33 and 38 of Directive 2014/42:

‘(11) There is a need to clarify the existing concept of proceeds of crime to include the direct proceeds from criminal activity and all indirect benefits, including subsequent reinvestment or transformation of direct proceeds. Thus proceeds can include any property including that which has been transformed or converted, fully or in part, into other property, and that which has been intermingled with property acquired from legitimate sources, up to the assessed value of the intermingled proceeds. It can also include the income or other benefits derived from proceeds of crime, or from property into or with which such proceeds have been transformed, converted or intermingled.

…

(19) Criminal groups engage in a wide range of criminal activities. In order to effectively tackle organised criminal activities there may be situations where it is appropriate that a criminal conviction be followed by the confiscation not only of property associated with a specific crime, but also of additional property which the court determines constitutes the proceeds of other crimes. This approach is referred to as extended confiscation. …

(20) When determining whether a criminal offence is liable to give rise to economic benefit, Member States may take into account the modus operandi, for example if a condition of the offence is that it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences. However, this should not, in general, prejudice the possibility to resort to extended confiscation.

(21) Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct.

…

(33) This Directive substantially affects the rights of persons, not only of suspected or accused persons, but also of third parties who are not being prosecuted. It is therefore necessary to provide for specific safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of this Directive. This includes the right to be heard for third parties who claim that they are the owner of the property concerned, or who claim that they have other property rights (“real rights”, “ius in re”), such as the right of usufruct. The freezing order should be communicated to the affected person as soon as possible after its execution. Nevertheless, the competent authorities may postpone communicating such orders to the affected person due to the needs of the investigation.

…

(38) This Directive respects the fundamental rights and observes the principles recognised by [the Charter] and the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed at Rome on 4 November 1950], as interpreted in the case-law of the European Court of Human Rights. This Directive should be implemented in accordance with those rights and principles. This Directive should be without prejudice to national law in relation to legal aid and does not create any obligations for Member States’ legal aid systems, which should apply in accordance with the Charter and [the European Convention for the Protection of Human Rights and Fundamental Freedoms].’

6 Article 1 of Directive 2014/42, entitled ‘Subject matter’, provides:

‘1. This Directive establishes minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters.

2. This Directive is without prejudice to the procedures that Member States may use to confiscate the property in question.’

7 Article 2 of that directive, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions apply:

(1) “proceeds” means any economic advantage derived directly or indirectly from a criminal offence; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(2) “property” means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property;

…

(4) “confiscation” means a final deprivation of property ordered by a court in relation to a criminal offence;

…’

8 Article 3 of that directive, entitled ‘Scope’, provides as follows:

‘This Directive shall apply to criminal offences covered by:

…

(g) [Framework Decision 2004/757];

…’

9 Article 4 of Directive 2014/42, entitled ‘Confiscation’, states, in paragraph 1 thereof:

‘Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such...