Opinion of Advocate General Bobek delivered on 5 February 2019.

• Jurisdiction: European Union
• Celex Number: 62017CC0646
• ECLI: ECLI:EU:C:2019:95
• Date: 05 February 2019
• Docket Number: C-646/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 5 February 2019(1)

Case C‑646/17

Criminal proceedings

against

Gianluca Moro

(Request for a preliminary ruling from the Tribunale di Brindisi (District Court, Brindisi, Italy))

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Right to information in criminal proceedings — Modification of the accusation in terms of classification of the act — No possibility to apply for a negotiated settlement after the trial proceedings had begun)

I. Introduction

1. Mr Moro (‘the Defendant’) was charged with the criminal offence of handling the proceeds of crime, namely stolen gold jewellery. During the trial hearing, the Defendant confessed that it was in fact him who had stolen that jewellery. Following his confession, he was informed that the acts of which he was accused could be reclassified and the charge could thus be modified to the criminal offence of theft.

2. The Defendant subsequently applied for a negotiated penalty, known under Italian law as ‘patteggiamento’. That application was rejected because, under the Codice di procedura penale (Code of Criminal Procedure), a request for the application of that procedure must in principle be submitted before the trial proceedings begin, at least in cases in which a mere legal reclassification of the act occurs, as opposed to a change in facts.

3. The Tribunale di Brindisi (District Court, Brindisi, Italy) has doubts as to whether such national provisions comply with EU law provisions concerning the rights of the defence of accused persons, and in particular with a number of provisions of Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings (Directive 2012/13). (2) Apart from the need to ascertain the exact scope of the specific obligations flowing from the right to be informed promptly of any change to the accusation, as enshrined in that directive, the transversal issues raised in the present case are: what exactly is the scope of application of that directive as a whole? What role does the EU Charter play in interpreting such procedural rights?

II. Legal framework

A. EU law

4. Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) provides that ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.

5. According to recital 3 of Directive 2012/13, ‘the implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems. The extent of mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition’.

6. According to recital 8, ‘strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the Charter and from the ECHR’.

7. Pursuant to recital 10, ‘common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the field of information in criminal proceedings’.

8. Pursuant to recital 29, ‘where, in the course of the criminal proceedings, the details of the accusation change to the extent that the position of suspects or accused persons is substantially affected, this should be communicated to them where necessary to safeguard the fairness of the proceedings and in due time to allow for an effective exercise of the rights of the defence’.

9. According to its Article 1, Directive 2012/13 ‘lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. It also lays down rules concerning the right to information of persons subject to a European Arrest Warrant relating to their rights’.

10. Pursuant to its Article 2(1), Directive 2012/13 applies ‘from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal’.

11. Article 3 of Directive 2012/13 is entitled ‘Right to information about rights’. It reads as follows:

‘1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

(a) the right of access to a lawyer;

(b) any entitlement to free legal advice and the conditions for obtaining such advice;

(c) the right to be informed of the accusation, in accordance with Article 6;

(d) the right to interpretation and translation;

(e) the right to remain silent.

2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.’

12. Article 6 of Directive 2012/13 is entitled ‘Right to information about the accusation’ and provides as follows:

‘1. Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

2. Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.

3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.

4. Member States shall ensure that suspects or accused persons are informed promptly of any changes in the information given in accordance with this Article where this is necessary to safeguard the fairness of the proceedings.’

B. Italian law

13. Pursuant to Article 444 of the Codice di procedura penale (Code of Criminal Procedure) (‘CPP’), entitled ‘Imposition of a penalty negotiated between the parties’ [called ‘patteggiamento’], the accused and the public prosecutor may ask the court to apply an alternative sanction, (of a kind and duration that is appropriate), a financial penalty, reduced by up to one third, or a sentence of imprisonment which, taking into account the circumstances and reduced by up to one third, does not exceed five years, including if a financial penalty is imposed in addition to that sentence.

14. Article 552 CPP provides that the summons to appear must contain certain elements, failing which it will be invalid. In particular, there must be ‘a statement of the offence, in clear and precise terms, of aggravating circumstances and of those that may require the application of preventive measures, citing the relevant provisions of law’. That summons must be notified to the accused person, his counsel and to the victim at least 60 days before the hearing in court.

15. Article 555 CPP, bearing the title ‘Hearing in court following a direct summons’, states that the accused or the public prosecutor may make the request provided for by Article 444 CPP before the trial proceedings have been opened.

16. Article 516 CPP (‘Change to the accusation’) provides that ‘if in the course of the trial proceedings the acts prove to be different from how they are described in the summons to appear, and not to fall within the jurisdiction of a higher court, the public prosecutor shall amend the accusation and proceed with the relevant prosecution …’.

17. According to the order for reference, the Corte Costituzionale (Constitutional Court, Italy) has declared Article 516 CPP to be unconstitutional in so far as the accused was not entitled to request the negotiated penalty in the course of trial proceedings if there had been, in essence, factual changes to the charge. That statement made by the Corte Costituzionale (Constitutional Court) thus did not concern the situation in which an offence has been legally reclassified. (3)

18. Finally, pursuant to Article 521 CPP, the court may give the acts a legal classification other than that in the accusation. If, however, the acts differ from the given description, or if there are new prosecution proceedings, the court must order that the documents in the case be remitted back to the public prosecutor.

III. Facts, national proceedings and the questions referred

19. By way of a summons issued on 1 April 2016, criminal proceedings were brought against the Defendant. He was accused of handling the proceeds of crime. It was alleged that he had received gold jewellery from unknown persons. That jewellery had been stolen from Mr Legrottaglie (the ‘civil party in the main proceedings’). The Defendant, in order to make a profit, was accused of having passed it on to an undertaking that buys and sells gold.

20. At a trial hearing on 13 October 2017, the Defendant admitted that he had committed the theft himself. As a result, he was informed that the acts of which he was accused could be reclassified from ‘handling the proceeds of crime’ to...