Court of Justice of the European Communities (including Court of First Instance Decisions)

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 the offence of its own motion. I wish to clarify at the outset that, in the present case, the Court is not invited to rule on whether such a power of the national court is compatible with EU law. (10) The first question merely concerns the point at which information about the change has to be communicated to the accused person.

21.      As the answer to this question requires the interpretation of Directive 2012/13, I will begin by saying a few words about that directive and Article 6 thereof.

1.      Directive 2012/13 and Article 6 thereof

22.      Directive 2012/13 is one of the six ‘procedural rights’ or ‘Roadmap’ directives stemming from the 2009 Council Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. (11) The latter was approved by the European Council’s Stockholm Programme on the area of freedom, security and justice. (12) Those directives are based on the European Union’s competence under Article 82(2)(b) TFEU to enact minimum rules concerning the rights of individuals in criminal procedure. (13)

23.      The main justification for such common rules is the facilitation of mutual recognition of judicial decisions in criminal matters. (14) That is very clearly reflected in the preamble to Directive 2012/13. (15)

24.      Directive 2012/13 establishes common minimum rules relating to the right to information of suspects and accused persons in criminal proceedings. (16) The right to information in criminal proceedings is a fundamental aspect of the right to a fair trial, (17) as the trial can only be fair if people are aware of their rights. (18)

25.      Article 6 of Directive 2012/13, which is of concern for the present case, contributes to ensuring a fair trial by setting out rules regarding one aspect of the right to be informed. (19) It concerns the right of suspects or accused persons to know what they are being accused of. It reads 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.’

26.      Recital 27 of Directive 2012/13 specifies that persons accused of having committed a criminal offence should be given all the information on the accusation necessary to enable them to prepare their defence and to safeguard the fairness of the proceedings.

27.      Recital 29 of Directive 2012/13 additionally states that 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.

2.      Consideration of the first question

28.      Is it contrary to Article 6(4) of Directive 2012/13 to inform the accused person that the charges against him or her have changed only upon pronouncement of a judgment by which that person is convicted of those modified charges?

29.      The obvious answer is ‘yes’ because the accused person was not given the opportunity to defend himself or herself against the charges for which he or she was convicted. However, is the answer so obvious if the new and the original charges have the same constituent elements? Can one assume that, in such a situation, the accused person could not have defended himself or herself?

30.      The Czech Republic considers that Article 6(4) of Directive 2012/13 does not preclude a national law, such as that at issue, if the new legal classification is neither more severe nor surprising. It bases its argument on the wording of that provision, according to which suspects or accused persons only need to be informed of changes ‘where this is necessary to ensure the fairness of the proceedings’. At the hearing, the Czech Republic gave the example of the criminal offences of theft and robbery. As it explained, theft is usually defined as the appropriation of property belonging to someone else, and robbery generally denotes theft by use of force. If the original legal classification of the offence is robbery and that is then changed to theft, the court is not required to inform the accused person because robbery encompasses all of the constituent elements of theft so the opportunity to put forward a defence already existed. However, if the original legal classification of the offence is theft, it cannot be changed to robbery without informing the accused person and affording him or her the opportunity to put forward a defence, since theft does not contain all of the constituent elements of robbery.

31.      The Commission argues that a national law, such as that at issue, is precluded by Article 6(4) of Directive 2012/13. However, the Commission is of the view that, in a situation in which the constituent elements of the reclassified offence were already contained in the original offence, it would not be necessary to inform the accused person prior to the delivery of the judgment. In such a case, the accused person would not need to change his or her defence strategy. This is not, in the Commission’s view, the situation in the present case.

32.      Both the Czech Republic and the Commission rely on the case- law of the European Court of Human Rights (‘the ECtHR’). They state that the finding of an infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) is contingent on safeguarding the fairness of the proceedings, which is why account must be taken of whether the accused person had knowledge in the course of the proceedings of the possibility of a new legal classification. The interpretation of Article 6(4) of Directive 2012/13 and especially its wording ‘necessary to safeguard the fairness of the proceedings’ should be understood in a similar way.

33.      It is, therefore, necessary to begin by examining the pertinent case-law of the Court, under point (a) below, and of the ECtHR, under point (b) below.

(a)    Pertinent case-law of the Court

34.      The judgment in Kolev and Others (20) primarily concerned the interpretation of Article 6(3) of Directive 2012/13. The Court, sitting in Grand Chamber formation, held that the objective of Article 6 of Directive 2012/13 to allow for effective exercise of the rights of the defence and to ensure the fairness of the proceedings dictates that the accused person must receive detailed information on the charges at a point in time that enables that person to prepare his or her defence effectively. Of importance for the present case, the Court further held that such a requirement does not preclude the possibility that information in relation to the charges sent to the defence may be subject to later amendments, in particular regarding the legal classification of the alleged acts, as envisaged in Article 6(4) of Directive 2012/13. However, the Court emphasised that such amendments must be disclosed to the accused person or his or her lawyer at a point in time when they still have the opportunity to respond effectively, before the stage of deliberation. (21)

35.      In its judgment in Moro, (22) the Court repeated the aforementioned findings and held that the information about any change affecting the accusation relates not only to changes in the acts of which the person is accused, but also to the modification of the legal classification of those acts. That is necessary under Article 6(4) of Directive 2012/13 so that the accused person can exercise his or her rights of defence specifically and effectively. (23)

36.      Consequently, it seems to follow clearly from the Court’s case-law that, in circumstances where the criminal offence is reclassified, Article 6(4) of Directive 2012/13 requires the accused person to be informed of that reclassification at a point in time when that person has the opportunity to react to that new accusation and which must be before the stage of deliberation by the court.

37.      That case-law therefore lends support to the view that the national law at issue in the present case runs counter to Article 6(4) of Directive 2012/13. However, the Court has not been asked in any of those previous cases to rule on the question as to whether information about the reclassification of the criminal offence must be given to the accused person if the new legal classification is based on the same constituent elements as the original legal classification. It is therefore not possible to consider that the preceding case-law contains a conclusive answer for the purposes of the present case.

(b)    Pertinent case-law of the ECtHR

38.      As I have explained (see point 32 of this Opinion), both the Czech Republic and the Commission rely on the ECtHR’s case-law concerning Article 6(3)(a) ECHR, which provides for the right of the person concerned to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him or her.

39.      To start with, the ECtHR has held that Article 6(3)(a) ECHR affords the person the right to be informed not only of the cause of the accusation (that is to say, the acts he or she is alleged to have committed and on which the accusation is based), but also of the legal characterisation given to those acts. That is considered important for ensuring that the proceedings are fair. (24) Consequently, the scope of Article 6(3)(a) ECHR is assessed in the light of the more general right to a fair hearing guaranteed by Article 6(1) ECHR and of the person’s right to have adequate time and facilities for the preparation of his or her defence under Article 6(3)(b) thereof. (25)

40.      As for the changes in the accusation, the accused person must be duly and fully informed of them, and that person must also have the time and facilities necessary to react to them and organise his or her defence on the basis of any new information or allegation. (26) As the ECtHR has consistently held, if the courts have, when such a right is recognised in domestic law, the possibility of reclassifying the facts of which they have been duly seised, they must ensure that the accused person has had the opportunity to exercise his or her rights of defence on this issue in a concrete and effective manner. This implies that that person is informed in a detailed manner and in good time, not only of the material facts on which the accusation is based, but also of the legal classification given to these facts. (27)

41.      Based on those considerations, the ECtHR has found that an infringement of Article 6(3)(a) and (b) ECHR, taken together with Article 6(1) thereof, has occurred in situations where the criminal offence has been reclassified by a court and the accused person has not been given any opportunity to defend himself or herself against the new legal classification in a practical and effective way and in good time. (28) In particular, the ECtHR has emphasised that if the information is given when the person no longer has the opportunity to prepare his or her defence against the new charge and it is only through the court’s judgment that the person learned of the reclassification, then it is too late. (29)

42.      Furthermore, the fact that the reclassification concerns the application of a more lenient penalty has not been regarded as relevant by the ECtHR. (30)

43.      For example, in Pélissier and Sassi v. France, (31) the ECtHR, sitting in Grand Chamber formation, considered that there was an infringement of the ECHR where a court reclassified the criminal offence of criminal bankruptcy as that of aiding and abetting criminal bankruptcy in circumstances in which the accused persons were not informed of that charge. In that context, the ECtHR considered whether those persons ought to have been aware of the possibility that they might be convicted of the new charge. Having regard to the differences in the elements to be proved, the ECtHR found that that new charge of aiding and abetting did not constitute an element intrinsic to the initial accusation known to them from the beginning of the proceedings. While it was not for it to assess the merits of the defence that those persons could have relied on had they had the opportunity to make submissions on the new charge, the ECtHR nonetheless noted that it was plausible to argue that the defence would have been different. Consequently, in using a right afforded to it under national law to recharacterise the charge, the court should have given the accused persons the opportunity to prepare their defence against the new charge. Learning of the reclassification only through the judgment was too late.

44.      Similarly, the ECtHR found an infringement of the ECHR in Penev v. Bulgaria. (32) The ECtHR emphasised that the accused person could not have been aware that the court might return a verdict based on a new legal classification, that the elements of the old and new offences were different and that the elements of the new offence were never debated in the proceedings, as it was only through the court’s judgment that the person learned of the new legal classification. The ECtHR also rejected arguments that the legal classification of the offence was of little importance as long as the alternative conviction was based on the same facts, and reiterated that the ECHR requires that the accused person be informed in detail not only of the acts that that person is alleged to have committed, but also of the legal classification given to them.

45.      D.M.T. and D.K.I. v. Bulgaria (33) seems to be the most similar to the present case, as it involved the reclassification of the criminal offence from corruption to fraud. The ECtHR found an infringement of the ECHR, since at no time during the proceedings was the accused person informed of the change in classification; it was only through the court’s judgment that he learned of the new charges issued against him. According to the ECtHR, the accused person could not have anticipated such a reclassification, given that the elements of the two offences were different, and thus it was plausible that the defence would have been different.

46.      I find it important to note that, in those cases, there were differences in the constituent elements to be proved for the original and reclassified offences.

47.      In contrast, the ECtHR has found no infringement of the ECHR in situations where the accused person has been given an opportunity to react to the new legal classification of the criminal offence. (34) For example, this is the case where the accused person has been informed of the possibility of modification of the charges during the examination of the case by the competent court and had the opportunity to put forward arguments against the new charges before judgment was delivered. (35) That situation, however, differs from the one in the present case, in which the accused person would learn about the reclassification of the offence only after the judgment was delivered.

48.      In some cases, the ECtHR found no infringement of the ECHR where the accused person was regarded as being aware of the elements of the new legal classification and was able to defend himself or herself against the offence in the proceedings.

49.      In Salvador Torres v. Spain, (36) the ECtHR found no infringement of the accused person’s right under Article 6(3)(a) ECHR where the offence had been modified from simple embezzlement to that of simple embezzlement with the aggravating circumstance that he had taken advantage of the public nature of his position. The public nature of the accused person’s position was an element intrinsic to the original accusation and was thus known to him from the outset of the proceedings. The accused person, therefore, had the opportunity to address that issue in the proceedings.

50.      Likewise, in Marilena-Carmen Popa v. Romania, (37) the ECtHR found no infringement of the ECHR where the court changed the legal classification of the offence from continuous acts of forgery to a single act of forgery. The ECtHR found that the single act of forgery for which the person was convicted was an element intrinsic to the initial charge brought against her of continuous acts of forgery. Thus, it was known to the accused person from the outset of the criminal proceedings and she was able throughout those proceedings to express her views and submit comments and evidence in her defence with regard to every act of forgery of which she was accused. In those circumstances, the ECtHR took the view that the accused person must have been fully aware of the possibility that the domestic courts could find her guilty of the reclassified offence.

51.      Finally, for example, in Gea Catalán v. Spain, (38) the ECtHR found no infringement of the ECHR where the discrepancy complained of was the result of a clerical error committed by the public prosecutor, but the accused person had been duly informed of all of the components of the charge in the proceedings.

52.      Consequently, the foregoing case-law of the ECtHR can be classified into two groups. In the first group of cases, the constituent elements of the original offence and of the reclassified offence differed. In such cases, the ECtHR considered that the accused person did not have the opportunity to defend himself or herself prior to the delivery of the judgment convicting him or her of the reclassified offence. The present case seems to arise out of such a situation, but this is for the referring court to assess. The second group of cases are those in which the constituent elements of the original offence embrace all the constituent elements of the reclassified offence (like the Czech Republic’s example of theft and robbery referred to in point 30 of this Opinion). The ECtHR case-law seems to suggest that, in such situations, the accused person already had the opportunity to defend himself or herself and that his or her defence strategy would not be different. Therefore, informing the accused person only upon delivery of the judgment does not constitute an infringement of the ECHR.

(c)    How should the Court interpret Article 6(4) of Directive 2012/13?

53.      The Czech Republic and the Commission emphasised that, in interpreting Article 6(4) of Directive 2012/13, the Court should take a similar approach to that taken by the ECtHR in its case-law assessing alleged infringements of Article 6(3)(a) ECHR.

54.      Is that indeed the case?

55.      It is well established that secondary EU law, including Directive 2012/13, must be interpreted in conformity with the fundamental rights that bind the European Union. (39) On the basis of Article 52(3) of the Charter, those rights are also those guaranteed by the ECHR and the pertinent case-law of the ECtHR whenever Charter rights correspond to ECHR rights. In that regard, Directive 2012/13 states in recital 41 thereof that it respects fundamental rights and observes the principles recognised by the Charter, and more specifically that it seeks to promote the right to liberty, the right to a fair trial and the rights of the defence. Furthermore, recital 42 thereof states that the provisions of Directive 2012/13 that correspond to rights guaranteed by the ECHR should be interpreted and implemented consistently with those rights, as interpreted in the case-law of the ECtHR. (40)

56.      However, the obligation to interpret Directive 2012/13 in a way that is consistent with fundamental rights means that the rights contained in that directive cannot offer protection lower than that guaranteed by the Charter and the ECHR. It does not mean that the EU legislature cannot grant to accused persons rights that are more extensive. Furthermore, if secondary EU law provides for such rights that are more extensive, that does not automatically mean that the Charter standard is higher than that of the ECHR. It merely means that the legislative solution is even more beneficial than what is required under the standard of fundamental rights in the EU, below which, but not above which, the EU legislature cannot go.

57.      Therefore, even if the ECtHR case-law is to be interpreted as allowing the reclassification of the criminal offence without giving the accused person the opportunity to react to such a change in certain circumstances, this does not necessarily mean that Article 6(4) of Directive 2012/13 should be so interpreted.

58.      When interpreting secondary EU law, apart from taking into consideration fundamental rights protection as a minimum threshold, the Court also has to take into consideration the purpose of the legal act to be interpreted.

59.      As expressed in its preamble, (41) Directive 2012/13 aims at harmonising national laws with a view to enhancing mutual trust and consequently enabling mutual recognition in the area of judicial cooperation in criminal matters.

60.      That important purpose underlying Directive 2012/13 necessarily influences the method of its interpretation, in the same way as it influences the interpretation of other directives adopted on the basis of Article 82(2) TFEU. In Covaci, the first case in which the Court was invited to interpret Directive 2012/13, Advocate General Bot proposed that the ‘rules adopted on the basis of Article 82(2) TFEU must be interpreted in such a way that they are fully effective in so far as such an interpretation, which will strengthen the protection of the rights, will also strengthen mutual trust and accordingly facilitate mutual recognition’. (42) He further considered that, ‘reducing the scope of these rules by a literal reading of the provisions may stand in the way of mutual recognition and thus the construction of the area of freedom, security and justice’. (43)

61.      I agree with that position of Advocate General Bot. Common rules set by Directive 2012/13 must be interpreted in a manner which will best achieve the purpose of enhancing mutual trust. Such a goal favours simple solutions. However, the Court is bound by the limits of acceptable interpretation imposed by the wording of Article 6(4) of Directive 2012/13.

62.      In that light, it is necessary to consider what the possible interpretations of the wording ‘necessary to safeguard the fairness of the proceedings’ are in Article 6(4) of Directive 2012/13. If there is more than one option, as I believe there is, the Court should choose the option which best achieves the purpose of enhancing mutual trust.

63.      In my view, the wording of Article 6(4) of Directive 2012/13 leaves open (at least) two options.

64.      According to the first interpretive option, the fairness of proceedings is safeguarded in situations in which the constituent elements of the original and of the reclassified offence coincide, even if the accused person is not informed of the reclassification of the offence before the delivery of the judgment. That option reflects the case-law of the ECtHR. It rests on the premiss that, in such situations, a court can be satisfied that the accused person already had the opportunity to defend himself or herself and the defence strategy would not be different.

65.      It is understandable that such a case-by-case approach might seem acceptable in the case-law of the ECtHR. The ECtHR is entrusted with the task of assessing a posteriori whether the way in which particular criminal proceedings were conducted infringed ECHR-based rights. The ECtHR can, therefore, assess retroactively, taking into consideration all the circumstances of the particular case, whether or not a court which did not give the accused person an opportunity to raise a defence against the charges as reclassified infringed the ECHR.

66.      However, if Directive 2012/13 is to enhance mutual trust, this interpretive option has drawbacks. Such a case-by-case approach is based on the (subjective) assessment by a court that the accused person (and his or her lawyer) could not avail themselves of a different defence strategy. In my view, such a requirement imposed on a court to assess possible defence strategies in concrete cases is problematic, and might even be more likely to conflict with judicial impartiality than what the national court had in mind in the second question referred (see points 77 to 84 of this Opinion).

67.      In the circumstances of the present case, the constituent elements of the original and reclassified offences seem to be different, so that a national law allowing a court to inform the accused person about the reclassification of the offence only upon delivery of the judgment would not be consistent with Article 6(4) of Directive 2012/13, even under the first interpretive option. However, had the constituent elements of the two offences coincided, the first interpretative option would not preclude a national law which allows the accused person to be informed about the reclassification of the offence only upon delivery of the judgment. That means that, in the Czech example of theft and robbery (see point 30 of this Opinion), a court would have to conclude that the defence strategy would not be different. Imagine, however, that a person accused of robbery concentrated his or her defence on disproving the use of force because the person would be acquitted of the offence of robbery if that element were lacking. That person might not have focused on the element of the appropriation of someone else’s property. If the accused person knew that the offence was theft, greater emphasis might have been put on disproving that part of the accusation. Could a court conclude with any certainty that a different defence strategy would not be helpful to the accused person? Given the uncertainty related to this interpretive option, it will not usefully contribute to building trust that the courts in one Member State have regarding the practice of the courts in other Member States.

68.      One may even claim that Article 6(4) of Directive 2012/13 is superfluous if it only restates the law as it flows from the Charter and the ECHR. The rules under the first interpretive option already bind the Member States and their courts. I acknowledge that it cannot be denied that sometimes the mere expression in secondary EU law of the rules adopted by courts in the interpretation of fundamental rights might contribute to the visibility of those rules. (44) However, the second interpretive option leads to an even clearer rule and thus is more effective for enhancing mutual trust.

69.      The second interpretive option holds that, for the purposes of Article 6(4) of Directive 2012/13, informing the accused person that the offence was (or can be) reclassified in due time which allows for the reaction to the new offence is always ‘necessary to safeguard the fairness of the proceedings’. That is so notwithstanding that the accused person might have been aware that the reclassification of the offence was possible (45) and the fact that all of the constituent elements of the new offence are subsumed under the original offence.

70.      If such an interpretation were accepted, that would mean that a court which considers that the offence should be reclassified must give the accused person the opportunity to raise a new defence. Such a prolongation of the proceedings should not be a reason to reject the proposed interpretation, especially if weighed against the guarantee that the proceedings are fair.

71.      That interpretation of Article 6(4) of Directive 2012/13, even if it might prolong the proceedings, is much simpler in that it does not imply subjective assessments by a court. Rather, it imposes a clear rule: if a court considers it necessary to reclassify the offence, it must inform the accused person of the new accusation and allow them to react to the accusation as reclassified by raising a new defence.

72.      I find only one argument against the second interpretive option. That argument is based on the legislative history of Article 6(4) of Directive 2012/13. (46) One of the Council of the European Union’s institutional documents (47) seems to suggest that the Council sought to follow the approach taken in the ECtHR’s case-law. The Council, thus, proposed the recital, which is now recital 29, and which uses the expressions ‘substantially affected’ and ‘necessary to safeguard the fairness of the proceedings’ taken directly from the language of the ECtHR case-law.

73.      However, given that it is not certain that the wording ‘necessary to safeguard the fairness of the proceedings’ in Article 6(4) of Directive 2012/13 was kept in the final version of that directive as the reflection of the EU legislature’s intention to merely restate the right to information about the accusation as it has developed in the case-law of the ECtHR, it seems to me that there is no reason to give more weight to that argument than to the one based on the purpose of Directive 2012/13 to enhance mutual trust.

74.      Finally, I do not consider that the intention to merely restate the level of protection guaranteed by the ECHR can be deduced from recital 40 of Directive 2012/13, which explains that that directive only sets minimum rules. It is worth quoting that recital in full:

‘This Directive sets minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR as interpreted in the case-law of the European Court of Human Rights.’

75.      As is clear from that recital, the expression ‘minimum rules’ means that the Member States can set a higher level of protection than the one imposed by Directive 2012/13. It does not mean that the rules laid down in that directive have to be the lowest minimum possible. Its third sentence clearly explains that the ECHR as interpreted by the ECtHR sets the floor, including in situations not covered by Directive 2012/13. There is nothing to suggest from that recital that the rights granted by Directive 2012/13 could not be more extensive than those granted by the ECHR.

76.      On the basis of the reasons outlined above, I propose that the Court choose the second option when interpreting Article 6(4) of Directive 2012/13. Thus, that provision should be interpreted as precluding a national law which does not enable the accused person to put forward his or her defence against the reclassified offence after being informed of the reclassification. That interpretation is not affected by the fact that the new legal classification does not entail a more severe penalty.

B.      The second question

77.      If the Court answers the first question in the affirmative, which is what I propose, by its second question, the referring court essentially wishes to know whether the guarantees of judicial impartiality enshrined in the second paragraph of Article 47 of the Charter preclude a national law which allows a court to inform the accused person of a possible reclassification of the criminal offence when the initiative for that reclassification does not come from the public prosecutor.

78.      As I have already explained (see point 20 of this Opinion), this case does not concern the possibility that courts, as opposed to public prosecutors, reclassify the criminal offence in criminal proceedings. Rather, as one author explained, ‘it is quite possible that under domestic law a court is not bound by the legal qualification given to the incriminated conduct by the public prosecutor, but this only shifts the duty to inform from the latter to the former – if any such change is being envisaged, the court must inform the defence and adjourn the hearing to allow them to adapt their defence to the new accusation’.(48)

79.      The second question should, therefore, be understood as asking whether the obligation imposed on a national court to inform the accused person about the reclassification of the criminal offence runs counter to the requirement of judicial impartiality.

80.      The requirement of judicial impartiality, as a facet of judicial independence, (49) has two aspects. First, the members of the court must themselves be subjectively impartial, that is, none of its members may show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. Second, the court or tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect. (50)

81.      The referring court seems to be concerned about both aspects of impartiality.

82.      To my mind, the fact that the court informs the accused person that it has decided to reclassify or is considering reclassifying the criminal offence does not interfere with its impartiality. That is so, especially if the court, after announcing (the possibility of) reclassification of the offence, enables the accused person to raise a new defence.

83.      The understanding that the impartiality of the court is not affected by the mere fact that the court informs the accused person of the reclassification of the offence can be supported by the judgment of the ECtHR in Bäckström and Andersson v. Sweden. (51) In that judgment, the ECtHR considered that the intervention of a court to make the parties aware of the possibility of a change in the legal classification of the offence did not cast doubt on the court’s impartiality for the purposes of the right to a fair hearing under Article 6(1) ECHR.

84.      Without seeing the need to elaborate any further on this issue, I consider that the answer to be given to the second question is that the guarantees of judicial impartiality enshrined in the second paragraph of Article 47 of the Charter do not preclude a national law which allows a court to inform the accused person of a possible reclassification of the criminal offence, including when the initiative for such a reclassification does not come from the public prosecutor, but from the court.

IV.    Conclusion

85.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) as follows:

(1)      Article 6(4) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings precludes a national law which does not enable the accused person to put forward his or her defence against the reclassified offence after being informed of the reclassification. That interpretation is not affected by the fact that the new legal classification does not entail a more severe penalty.

(2)      The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union does not preclude a national law which allows a court to inform the accused person of a possible reclassification of the criminal offence, including when the initiative for such a reclassification does not come from the public prosecutor, but from the court.

1      Original language: English.

2      See European Commission, ‘Factsheet – Your rights if accused or suspected of criminal offences in the EU’, 2018, available at: https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/criminal-justice/rights-suspects-and-accused_en#documents.

3      Directive of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 142, p. 1).

4      According to the order for reference, the acts at issue were legally classified as a criminal offence under Article 302(1) and (2)(b), in conjunction with Article 301(3) and (1), of the Nakazatelen kodeks (Criminal Code; ‘the NK’), specifically corruption on the part of a police investigator by way of extortion in abuse of his or her office.

5      According to the order for reference, fraud under Article 209(2) of the NK (the provision mentioned by BK’s defence) occurs when the perpetrator causes material damage as a result of exploiting the error, inexperience or lack of knowledge of the victim who makes a disposal of assets.

6      In that respect, the referring court invokes Article 301(1)(2), in conjunction with Article 287(1), of the Nakazatelno protsesualen kodeks (Code of Criminal Procedure; ‘the NPK’). Article 301(1)(2) of the NPK states: ‘In reaching a verdict, the court examines and decides on the following questions: … whether the act is a criminal offence and how it is to be legally classified.’ Article 287(1) of the NPK states: ‘The public prosecutor’s office shall bring a new charge if, during the judicial inquiry, it finds grounds for substantially amending the statement of facts of the bill of indictment or for imposing a more severe penalty.’

7      In the order for reference, the referring court explains in more detail the rationale of that case-law. It seems that since, by law, the public prosecutor’s office is permitted to modify the legal classification of the offence if the new classification entails a more severe penalty, a court is not prevented from finding an accused person guilty on the basis of a different legal classification that the court considers of its own motion to be correct, provided that: (1) there is no substantial change in the details of the accusation; and (2) the new legal classification does not relate to an offence subject to a more severe penalty.

8      According to the order for reference, under Article 304b(1) of the NK, the exercise of undue influence occurs when the perpetrator demands or receives an advantage to which he or she is not entitled in return for exerting influence on the decision of a public official in connection with his or her official duties.

9      See, by analogy, judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 44 to 47), where the Court considered a situation involving the modification of the legal classification of the acts on which the accusation is based relative to a request for a negotiated (lesser) penalty under national law as relevant to the interpretation of Article 6(4), and not Article 6(1) to (3), of Directive 2012/13.

10      In its case-law, the European Court of Human Rights has indirectly accepted that a court has the possibility of reclassifying the criminal offence if national law so allows. See, for example, ECtHR, 25 March 1999, Pélissier and Sassi v. France (CE:ECHR:1999:0325JUD002544494, § 62); ECtHR, 11 December 2007, Drassich v. Italy (CE:ECHR:2007:1211JUD002557504, § 34); and ECtHR, 24 July 2012, D.M.T. and D.K.I. v. Bulgaria (CE:ECHR:2012:0724JUD002947606, § 75). In the judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraph 55), the Court referred to that case-law.

11      Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C 295, p. 1). See recitals 11 and 14 of Directive 2012/13. For a detailed discussion, see further, for example, Mitsilegas, V., EU Criminal Law, Second edition, Hart, 2022, in particular pp. 254 to 295.

12      European Council, ‘The Stockholm Programme – An open and secure Europe serving and protecting citizens’, point 2.4 (OJ 2010 C 115, p. 1). See recital 12 of Directive 2012/13.

13      See recital 9 of Directive 2012/13.

14      See, for example, Report from the Commission to the European Parliament and the Council on the implementation of [Directive 2012/13], Brussels, COM(2018) 858 final, 18.12.2018, point 1.1.

15      See, in that regard, recitals 3, 4 and 10 of Directive 2012/13.

16      See Article 1 of Directive 2012/13.

17      See judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraph 43).

18      See, for example, Sayers, D., ‘Article 48 (Criminal Law) – Presumption of Innocence and Right of Defence’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), The EU Charter of Fundamental Rights: A Commentary, Second edition, Hart, 2021, p. 1413, in particular p. 1444.

19      See judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraph 43), or, more recently, judgment of 21 October 2021, ZX (Regularisation of the indictment) (C‑282/20, EU:C:2021:874, paragraph 25).

20      See judgment of 5 June 2018 (C‑612/15, EU:C:2018:392).

21      See judgment of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, in particular paragraphs 95 and 96). See also judgment of 21 October 2021, ZX (Regularisation of the indictment) (C‑282/20, EU:C:2021:874, paragraph 29).

22      See judgment of 13 June 2019 (C‑646/17, EU:C:2019:489).

23      See judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, in particular paragraphs 52, 53, 56 and 70).

24      See ECtHR, 25 March 1999, Pélissier and Sassi v. France (CE:ECHR:1999:0325JUD002544494, §§ 51 and 52). The Court recognised that case-law of the ECtHR in the judgments of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraph 55); of 6 October 2021, Prokuratura Rejonowa Łódź-Bałuty (C‑338/20, EU:C:2021:805, paragraph 36); and of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraph 122).

25      See, for example, ECtHR, 25 March 1999, Pélissier and Sassi v. France (CE:ECHR:1999:0325JUD002544494, §§ 52 and 54); ECtHR, 7 January 2010, Penev v. Bulgaria (CE:ECHR:2010:0107JUD002049404, §§ 33 to 35); and ECtHR, 24 July 2012, D.M.T. and D.K.I. v. Bulgaria (CE:ECHR:2012:0724JUD002947606, §§ 73 to 75).

26      See, for example, ECtHR, 25 July 2000, Mattoccia v. Italy (CE:ECHR:2000:0725JUD002396994, § 61), and ECtHR, 26 June 2018, Pereira Cruz and Others v. Portugal (CE:ECHR:2018:0626JUD005639612, § 198).

27      See, for example, ECtHR, 11 December 2007, Drassich v. Italy (CE:ECHR:2007:1211JUD002557504, § 34), and ECtHR, 24 July 2012, D.M.T. and D.K.I. v. Bulgaria (CE:ECHR:2012:0724JUD002947606, § 75).

28      See, inter alia, ECtHR, 25 March 1999, Pélissier and Sassi v. France (CE:ECHR:1999:0325JUD002544494, §§ 55 to 63) (the court reclassified the offence of criminal bankruptcy as that of aiding and abetting criminal bankruptcy); ECtHR, 20 April 2006, I.H. and Others v. Austria (CE:ECHR:2006:0420JUD004278098, §§ 32 to 39) (the court reclassified the offence of rape under Section 201(2) of the Austrian Penal Code as that of rape under Section 201(1) of that code); ECtHR, 25 September 2008, Seliverstov v. Russia (CE:ECHR:2008:0925JUD001969202, §§ 16 to 24) (the court reclassified the offence of attempted bribe-taking as that of attempted large-scale fraud); ECtHR, 7 January 2010, Penev v. Bulgaria (CE:ECHR:2010:0107JUD002049404, §§ 37 to 45) (the court reclassified the offence of acting in excess of power as that of deliberately entering into a disadvantageous contract); ECtHR, 25 January 2011, Block v. Hungary (CE:ECHR:2011:0125JUD005628209, §§ 22 to 25) (involving ‘double’ reclassification in which the appellate court reclassified the offence of preparation to counterfeit money as that of forgery of public documents while warning of a possible reclassification as attempted aggravated fraud, and the higher court found the accused person guilty of attempted fraud and forgery); ECtHR, 24 July 2012, D.M.T. and D.K.I. v. Bulgaria (CE:ECHR:2012:0724JUD002947606, §§ 76 to 84) (the court reclassified the offence of passive corruption as that of fraud); and ECtHR, 7 November 2019, Gelenidze v. Georgia (CE:ECHR:2019:1107JUD007291610, §§ 35 to 38) (the court reclassified the offence of delivery of an unlawful court decision as that of abuse of office proposed by the prosecution during the appeal proceedings, which was also found to violate the principle of equality of arms).

29      See ECtHR, 25 March 1999, Pélissier and Sassi v. France (CE:ECHR:1999:0325JUD002544494, § 62); ECtHR, 12 April 2011, Constantin v. Romania (CE:ECHR:2011:0412JUD002117503, § 22); and ECtHR, 5 March 2013, Varela Geis v. Spain (CE:ECHR:2013:0305JUD006100509, § 54); see also ECtHR, 17 July 2001, Sadak and Others v. Turkey (No 1) (CE:ECHR:2001:0717JUD002990096, § 57) (finding that the accused persons were not informed of the new charge until the last day of the trial, just before the judgment was delivered, which was patently too late).

30      See, in that regard, ECtHR, 25 September 2008, Seliverstov v. Russia (CE:ECHR:2008:0925JUD001969202, § 19): ‘Furthermore, in so far as the Government argued that a more lenient provision had been applied, the Court considers that this fact is irrelevant to the case at hand since the thrust of the applicant’s complaint is not the severity of the punishment but the alleged breach of his right to be informed of the charges against him and his ability to prepare his defence and, in any event, the appeal court upheld the applicant’s imprisonment term.’

31      See ECtHR, 25 March 1999 (CE:ECHR:1999:0325JUD002544494, §§ 55 to 63).

32      See ECtHR, 7 January 2010 (CE:ECHR:2010:0107JUD002049404, §§ 37 to 45).

33      See ECtHR, 24 July 2012 (CE:ECHR:2012:0724JUD002947606, §§ 76 to 84).

34      Compare, in particular, ECtHR, 11 December 2007, Drassich v. Italy (CE:ECHR:2007:1211JUD002557504, §§ 36 to 43) (finding an infringement of the ECHR based on reclassification of the offence of simple corruption as corruption in judicial acts where the person was not informed at any stage of the procedure and had no opportunity to defend himself against the new charge), with ECtHR, 22 February 2018, Drassich v. Italy (No 2) (CE:ECHR:2018:0222JUD006517309, §§ 67 to 74) (finding no infringement of the ECHR where the proceedings were reopened in order to give the person the opportunity to defend himself against the reclassification of the offence).

35      See, for example, ECtHR, decision of 5 September 2006, Bäckström and Andersson v. Sweden, pp. 8 to 11 (distinguished in ECtHR, 24 July 2012, D.M.T. and D.K.I. v. Bulgaria (CE:ECHR:2012:0724JUD002947606, § 81)); ECtHR, 26 June 2018, Pereira Cruz and Others v. Portugal (CE:ECHR:2018:0626JUD005639612, §§ 204 to 209); ECtHR, decision of 26 February 2019, Ujlaki and Piskóti v. Hungary (CE:ECHR:2019:0226DEC000666814, §§ 19 to 21); and ECtHR, decision of 23 June 2020, Filimon v. Romania (CE:ECHR:2020:0623DEC005460014, §§ 34 to 43).

36      See ECtHR, 24 October 1996 (CE:ECHR:1996:1024JUD002152593, §§ 30 to 33).

37      See ECtHR, 18 February 2020 (CE:ECHR:2020:0218JUD000181411, §§ 36 to 49).

38      See ECtHR, 10 February 1995 (CE:ECHR:1995:0210JUD001916091, §§ 28 to 30).

39      As the Court has consistently held, the provisions of EU law must be interpreted in the light of fundamental rights, which form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter. See, for example, judgment of 21 December 2021, Bank Melli Iran (C‑124/20, EU:C:2021:1035, paragraph 70).

40      Recital 14 of Directive 2012/13 similarly explains: ‘This Directive builds on the rights laid down in the Charter, and in particular Articles 6, 47 and 48 thereof, by building upon Articles 5 and 6 ECHR as interpreted by the European Court of Human Rights.’

41      See recitals 1, 3 and 4 of Directive 2012/13.

42      Opinion of Advocate General Bot in Covaci (C‑216/14, EU:C:2015:305, point 33).

43      Opinion of Advocate General Bot in Covaci (C‑216/14, EU:C:2015:305, point 33).

44      It is possible to read recital 7 of Directive 2012/13 in that sense. That recital states: ‘Although all the Member States are party to the ECHR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.’

45      In the present case, the accused person might indeed be aware that the offence might be reclassified as fraud, given that he himself has offered such an option.

46      In the Commission’s original proposal, there was no provision corresponding to Article 6(4) of Directive 2012/13. See European Commission, Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings, Brussels, COM(2010) 392 final, 20 July 2010, proposed Article 6, p. 18. That provision was the result of an amendment proposed by the European Parliament. See European Parliament, Report on the proposal for a directive of the European Parliament and of the Council on the right to information in criminal proceedings, A7-0408/2011, 25 November 2011, proposed Article 6(3a); Council document 10114/1/11 REV 1, Brussels, 17 May 2011, pp. 5 to 7.

47      See Council document 14631/11, Brussels, 26 September 2011, pp. 4 and 5.

48      Trechsel, S., Human Rights in Criminal Proceedings, Oxford University Press, 2005, p. 195.

49      See, for example, judgments of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraphs 49 to 52), and of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 121 and 122).

50      See, for example, judgments of 4 December 2019, H v Council (C‑413/18 P, not published, EU:C:2019:1044, paragraph 55), and of 24 March 2022, Wagenknecht v Commission (C‑130/21 P, EU:C:2022:226, paragraph 16).

51      See ECtHR, decision of 5 September 2006, pp. 6 to 11.

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