Nikolay Kolev and others*
On 4 April 2017, Advocate General Bot delivered his Opinion on case C-612/15 on procedural rights in criminal proceedings .
Mr. Kolev and Mr. Kostadinov were accused of having taken part in a criminal conspiracy as Bulgarian customs officers. They allegedly demanded bribes from drivers crossing the Turkish-Bulgarian border in order for them to avoid customs inspections. Following Articles 368 and 396 of the Bulgarian Code of Criminal Procedure, they brought proceedings to request the termination of the criminal proceedings, as the pre-trial investigation was not concluded within a two-year time limit.
The referring court essentially raises doubts as to the compatibility with EU law of these criminal procedure provisions, which require the national court to conclude the criminal proceedings owing to the failure to observe a pre-determined time-limit, even if the delay is attributable to the accused person and irrespective of the seriousness or complexity of the matter. In this context, it also refers several questions to the Court in relation to Directive 2012/13 on the right to information in criminal proceedings and to Directive 2013/48 on the right of access to a lawyer.
In his opinion, AG Bot first noted that the conduct of Mr. Kolev and Mr. Kostadinov may have affected the financial interests of the EU by depriving it of some of its own resources. In light of the Taricco judgment (C-105/14) he raises the question of whether the Bulgarian legislation at issue adequately fulfils the obligation under the Treaties which requires Member States to counter illegal activities affecting the financial interests of the EU through effective and deterrent measures and to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own financial interests.
The AG found that national provisions which, owing to the failure to comply with a pre-determined time limit, require the national court to conclude the criminal proceedings, even if the delay is caused by deliberate obstruction attributable to the accused person, were not compatible with EU law. He added that it is incumbent on the national court to give full effect to EU law by, where necessary, disapplying provisions of national law which have the effect of preventing the Member State concerned from fulfilling the obligations imposed on it by those provisions.
With respect to Directive 2012/13 on the right to information in criminal proceedings, the AG held that Article 6 of this Directive must be interpreted as not precluding a national practice which provides for the notification to the accused person of the information on the accusation after the indictment has been submitted to the court, in so far as the conduct of the proceedings during the hearing enables the accused person to be informed of and understand what he is being accused of and offers him reasonable time to discuss the evidence against him. He also found that Article 7(3) of Directive 2012/13 must be interpreted as not precluding a national practice which provides for access to the case materials to be granted, at the request of the parties, during the pre-trial investigation before the final indictment is drawn up. On the other hand, the national court must ensure that the accused person or his lawyer can have effective access to those materials in order to enable them to prepare an effective defence for that person.
Finally, in relation to Directive 2013/48 on the right of access to a lawyer, he concluded that Article 3(1) of this Directive must be interpreted as not precluding national legislation, such as the legislation at issue in the main proceedings, which provides that the national court is required to exclude from its proceedings the lawyer of a defendant who is representing or has represented another defendant if the defence of one of the defendants conflicts with that of the other and which provides that the court must appoint new defence lawyers to represent those defendants.
Case Number C-612/15
Name of the parties Criminal proceedings against Kolev and Others
Date of the judgement 2017-04-04
Court Court of Justice (ECJ)