DR and TS

On 21 October 2021, the Third Chamber of the Court of Justice of the European Union rendered a judgement concerning the confiscation of property in the context of criminal proceedings.

On 21 February 2019, in the city of Varna (Bulgaria), DR and TS were in possession, without authorisation and with a view to their distribution, of highly dangerous narcotics. They were convicted of that offence and sentenced to imprisonment. In the frame of pre-trial proceedings, national authorities carried out searches in their premises, where both were living with their family, and discovered a sum of money in both premises. Following the criminal conviction of the persons concerned, the Regional Public Prosecutor’s Office asked the Regioanl Court to confiscate the sum of money at issue. Before the court, DR stated that the sum of money found in his premise belonged to his grandmother and that the latter had obtained it under a bank loan. DR’s grandmother did not take part in the proceedings before the first instance court, since Bulgarian law does not permit her, as a party distinct from the perpetrator of the offence concerned, to take part in those proceedings. Nor was she heard as a witness. TS claimed that the money belonged to his sister and mother; the latter was heard as a witness concerning the sum of money at issue. The regional court of Varna refused to authorise the confiscation as the charge for which both DR and TS were convicted for, did not ‘generate an economic benefit’. It held that, although there is evidence, namely witness statements, that the persons concerned had been selling narcotics, the conditions laid down in law for confiscation in favour of the State were not met though.

The Public Prosecutor’s Office of Varna brought an appeal against this judgement before the referring Court, arguing that the first instance court had not applied Article 53(2) of the Criminal code in the light of Directive 2014/42. The persons concerned do not share the Public Prosecutor Office’s view and argue that only material property which is directly derived from the offence of which the concerned persons have been convicted may be confiscated.

The Court of Appeal of Varna thus asked the Court four preliminary questions; namely: whether Directive 2014/42 is applicable to possession of narcotics for the purpose of distribution in Bulgaria and where the potential economic proceeds are also realised and located in Bulgaria; if the first question is answered positively, what would be the interpretationof the concept of ‘economic advantaged derived from a criminal offence’; whether the directive should be understood as precluding a legal provision which does not provide for the confiscation of an ‘economic advantage derived … indirectly from a criminal offence’; and whether Article 47 of the Charter of Fundamental Rights of European Union should be interpreted as precluding a national legal provision which allows for the confiscation for the benefit of the State of a sum of money in respect of which it is claimed that it belongs to a person other than the person who committed the criminal offence, without that third party being able to take part in those proceedings in his or her own right and having direct access to the courts.

Regarding the first question, the Court ruled that Directive 2014/42 must be interpreted as meaning that the possession of narcotics for the purposes of their distribution comes within its scope, even though all the elements inherent in the commission of that offence are confined within a single Member State.

The Court, assessing jointly the second and third question, further held that Directive 2014/42 must be interpreted as meaning that it not only provides for the confiscation of property constituting an economic benefit derived from the criminal offence in respect of which the perpetrator has been convicted, but also provides for the confiscation of property belonging to that perpetrator in respect of which the national court hearing the case is satisfied that it derives from other criminal conduct. In the latter case, the offence in respect of which its perpetrator has been convicted should be among those listed in Article 5(2) of that directive and should be liable to give rise, directly or indirectly, to economic benefit within the meaning of the same directive. In addition, the person concerned must have an effective possibility to challenge the circmstances of the case including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct.

The Court then moved to the last question on the compatibility of national law with the Charter. In this regards, the Court ruled that Article 8(1), (7) and (9) of Directive 2014/42, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which allows for the confiscation, in favour of the State, of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that person having the right to appear as a party in the confiscation proceedings.