PT v Spetsializirana prokuratura.

• Jurisdiction: European Union
• Celex Number: 62022CJ0432
• ECLI: ECLI:EU:C:2024:987
• Date: 28 November 2024
• Docket Number: C-432/22
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

28 November 2024 (*)

( Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Criminal offences and penalties in the field of illicit drug trafficking and the fight against organised crime – Possibility to reduce applicable penalties – Scope – Framework Decision 2004/757/JHA – Articles 4 and 5 – Framework Decision 2008/841/JHA – Articles 3 and 4 – National legislation not implementing EU law – Article 51(1) of the Charter of Fundamental Rights of the European Union – Effective judicial protection – Second subparagraph of Article 19(1) TEU – Criminal proceedings against several persons – Agreement for settlement of the case provided for in national law – Approval by an ad hoc court – Consent of the other defendants )

In Case C‑432/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), made by decision of 28 June 2022, received at the Court on 28 June 2022, in the criminal proceedings against

PT,

intervening party:

Spetsializirana prokuratura,

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Second Chamber, acting as President of the Third Chamber, N. Jääskinen and N. Piçarra (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the European Commission, by S. Grünheid, M. Wasmeier and I. Zaloguin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 December 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5 of 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); (ii) Article 4 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ 2008 L 300, p. 42); (iii) the second subparagraph of Article 19(1) TEU; and (iv) Articles 47 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in criminal proceedings brought against PT and other persons prosecuted for directing, and/or participating in, an organised criminal group.

Legal context

European Union law

Treaty on European Union

3 The second subparagraph of Article 19(1) TEU provides:

‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

Framework Decision 2004/757

4 Article 4 of Framework Decision 2004/757, entitled ‘Penalties’, provides, in paragraph 1:

‘Each Member State shall take the measures necessary to ensure that the offences defined in Articles 2 and 3 are punishable by effective, proportionate and dissuasive criminal penalties.

Each Member State shall take the necessary measures to ensure that the offences referred to in Article 2 are punishable by criminal penalties of a maximum of at least between one and three years of imprisonment.’

5 Article 5 of that framework decision, entitled ‘Particular circumstances’, provides:

‘Notwithstanding Article 4, each Member State may take the necessary measures to ensure that the penalties referred to in Article 4 may be reduced if the offender:

(a) renounces criminal activity relating to trafficking in drugs and precursors, and

(b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to

(i) prevent or mitigate the effects of the offence,

(ii) identify or bring to justice the other offenders,

(iii) find evidence, or

(iv) prevent further offences referred to in Articles 2 and 3.’

Framework Decision 2008/841

6 Article 3 of Framework Decision 2008/841, entitled ‘Penalties’, provides, in paragraph 1(a):

‘Each Member State shall take the necessary measures to ensure that:

(a) the offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of at least between two and five years;

…’

7 Article 4 of that framework decision, entitled ‘Special circumstances’, provides:

‘Each Member State may take the necessary measures to ensure that the penalties referred to in Article 3 may be reduced or that the offender may be exempted from penalties if he, for example:

(a) renounces criminal activity; and

(b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to

(i) prevent, end or mitigate the effects of the offence;

(ii) identify or bring to justice the other offenders;

(iii) find evidence;

(iv) deprive the criminal organisation of illicit resources or of the proceeds of its criminal activities; or

(v) prevent further offences referred to in Article 2 from being committed.’

Bulgarian law

The NK

8 Article 55(1) of the Nakazatelen kodeks (Criminal Code) in the version applicable to the case in the main proceedings (‘the NK’) provides:

‘Where there are exceptional or numerous extenuating circumstances, when the most lenient penalty provided by law proves disproportionate, the court:

1. shall impose a penalty below the minimum tariff;

…’

9 Article 321 of the NK provides:

‘…

(2) Participation in an [organised criminal group] is punishable by a term of imprisonment of between one and six years.

(3) Where the [organised criminal] group is armed or formed for the purposes of enrichment or to commit the offences referred to in … Article 354a, paragraphs 1 and 2 … the penalties are as follows:

…

2. for the offences referred to in paragraph 2: a term of imprisonment of between three to ten years.

…’

10 Under Article 354a(1) of the NK:

‘Producing, processing, acquiring or possessing, without lawful authorisation, narcotics or analogues thereof for the purposes of distribution or distributing narcotics or analogues therefore, shall be subject, in the case of highly dangerous narcotics or analogues thereof, to a term of imprisonment of between two and eight years and a fine of 5 000 and 20 000 [Bulgarian lev (BGN); (approximately EUR 2 260 to 10 230)] and, in the case of dangerous narcotics or analogues thereof, to a term of imprisonment of between one and six years and a fine of between BGN 2 000 and BGN 10 000 [(approximately EUR 1 020 and EUR 5 115)]. …’

The NPK

11 Article 381 of the Nakazatelno protsesualen kodeks (Code of Criminal Procedure), in the version applicable to the case in the main proceedings (‘the NPK’), entitled ‘Agreement for settlement of the case in a pre-trial procedure’, provides:

‘(1) At the end of the investigation, on the proposal of the prosecutor or the lawyer, an agreement may be drawn up between them to settle the case. …

…

(4) The agreement may determine the penalty under the conditions referred to in Article 55 of the NK, even in the absence of exceptional or numerous extenuating circumstances.

(5) The agreement shall be in written form and include a consensus on the following questions:

1. Was an act committed, was it committed by the accused person and was it wrongful, does the act constitute a criminal offence and what is its legal classification?

2. What should the nature and level of the penalty be?

…

(6) The agreement shall be signed by the prosecutor and the lawyer. The accused person shall sign the agreement if he or she accepts it, after declaring that he or she waives the right to have his or her case tried according to the ordinary procedure.

(7) Where the proceedings are directed against several persons or concern several offences, the agreement may be concluded by some of those persons or for some of those offences.

…’

12 Article 383 of the NPK, entitled ‘The consequences of the agreement for settlement of the case’, provides, in paragraph 1 thereof:

‘The agreement approved by the court has the force of a conviction that has become final.’

13 Under Article 384 of the NPK, entitled ‘Agreement for settlement of the case in the course of judicial proceedings’:

‘(1) In accordance with the conditions and detailed rules set out in this chapter, the court of first instance may approve an agreement for settlement of the case negotiated after the opening of the judicial proceedings, but before the conclusion of the judicial investigation phase.

…

(3) In such cases, the agreement [for settlement of the case] shall be approved only once the consent of all the parties [to the proceedings] has been obtained.’

14 Article 384a of the NPK, entitled ‘Decision on an agreement entered into with one of the accused or for one of the offences’, provides:

‘(1) When, after the opening of the judicial proceedings, but before the conclusion of the judicial investigation phase, an agreement has been entered into with one of the defendants or for one of the offences, the court shall stay the proceedings.

(2) Another court formation shall give a ruling on the agreement entered into …

(3) The formation of the court referred to in paragraph 1 shall continue to examine the case after a ruling has been given on the agreement.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

15 On 25 March 2020, the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria), brought charges against 41 persons, including SD and PT before the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), the referring court, for directing, and/or participating in, a criminal organisation which sought to enrich itself through the distribution of drugs. PT is charged with having participated in that criminal group and for possession of drugs with intent to distribute, under Article 321(2) and (3)(2) and Article 354a(1) of the NK.

16 On 19 August 2020, the case was referred back to the...