EP (Rayonna prokuratura Lom)

On 19 September 2019, the Third Chamber of the Court of Justice delivered its judgment in the EP – Rayonna prokuratura Lom case, where the Court was called to interpret the field of application and a few provisions of some Directives on procedural safeguards in criminal proceedings, and namely: Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, and Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

Directive 2012/12/EU on the right to information; Directive 2013/48/EU on the right of access to a lawyer; and Directive (EU) 2016/343 on the presumption of innocence and the right to be present at the trial.

The request for a preliminary ruling comes from a Bulgarian Court that is required to decide on the criminal proceedings concerning EP. EP’s mother was killed in Bulgaria in August 2015 and EP was responsible for this crime. However, EP murdered his mother while being in a state of mental disorder (paranoid schizophrenia). For this reason, he was admitted to a psychiatric hospital a few days after the murder upon decision of a Bulgarian district court and on the basis of the Bulgarian Health Law. At the same time, criminal proceedings were initiated for the same facts, but the public prosecutor’s office decided to discontinue the case as EP could not be held liable due to his mental state. Upon request of the public prosecutor, the competent Bulgarian court is instead required to order, according to Articles 427ff of the Bulgarian Code of Criminal Procedure (CCP), EP’s committal to a psychiatric hospital. Before doing so, the Bulgarian court requires the Court of Justice to answer some questions. Therefore, as clarified by the AG his Opinion, two types of intervention occurred concurrently in this case: a) ‘that relating to the application of the Health Law (Article 155 et seq.), pursuant to which the […] District Court […] decided at the outset that EP should be admitted to a psychiatric hospital’; and b) that corresponding to the criminal proceedings instituted by the public prosecution service; following the discontinuance of those proceedings, the referring court […] is required to give a final decision on committal under the [CCP]’ (para. 50 of the Opinion by AG Campos Sánchez Bordona).

The Court of Justice reduces the questions to four. First, the Bulgarian court asks whether Directives 2012/13 and 2013/48 must be interpreted as applying to judicial proceedings that authorise, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in state of insanity, have committed acts representing a danger to society and, if so, at what point in time must the person concerned be informed of the rights conferred on him or her by Directive 2012/13. While conceding that, prima facie, the two Directives do not seem applicable to judicial proceedings such as those governed by Articles 427ff of the Bulgarian CCP, the Court argues that, upon closer inspection, they shall instead apply to these procedures as well. The concept of ‘criminal proceedings’ for the purpose of these Directives, indeed, should be ‘regarded as also covering proceedings for committal to a psychiatric hospital which, although they do not lead to a “sentence” in the strict sense, nevertheless result in a measure involving a deprivation of liberty, provided that such a measure is justified not only on therapeutic grounds but also on safety grounds, in respect of persons who have committed acts constituting a criminal offence, but whose mental state, at the time of the acts punishable under criminal law, justifies their being the subject of a measure of committal to a psychiatric hospital rather than a criminal penalty, such as a prison sentence’ (para. 41; emphasis added). The Court notes that measures involving a deprivation of liberty such as psychiatric or medical care measures are covered by Article 5 ECHR on the right to liberty and security and, consequently, by Article 6 of the Charter on the same right and by Directives 2012/13 and 2013/48. Further arguments that support this conclusion flow from the references of the two Directives to ‘vulnerable suspects and accused persons’. As far as the point in time in which the persons concerned must be informed of the rights conferred on them by Directive 2012/13, the Court underlines that the communication, in order to be effective, must take place at an early stage of the proceedings. Therefore, Directive 2012/13 must be interpreted as meaning that persons suspected of having committed a crime ‘must be informed as soon as possible of their rights from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police’ (para. 54; emphasis added).

Second, the referring court asks whether the right to an effective remedy as enshrined in Article 47 of the Charter, Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48 is compatible with Articles 427ff of the Bulgarian CCP. According to Bulgarian law, the competent court that shall order the committal to psychiatric hospitals of persons who committed a crime in an unsound state of mind cannot verify whether, during the initial investigation, the person concerned was granted the minimum procedural guarantees for the exercise of his or her right of defence. In the light of the importance of the right to an effective remedy in EU law in general (cf. Article 47 of the Charter), and in the Directives at hand more in particular, the Court concludes for the incompatibility between EU law and national legislation if ‘that legislation does not enable the court with jurisdiction to verify that the procedural rights covered by those directives were respected in proceedings prior to those before the court, which were not subject to such judicial review’ (para. 63). In the proceedings before the referring court, it will be for the latter to assess whether this principle applies to Bulgarian legislation since the same court mentions that it should be possible to apply, by analogy, ordinary criminal procedure in order to protect the rights of the person concerned.

Third, the referring court doubts of the compatibility with EU law, and more precisely with Article 6 of the Charter (right to liberty and security) and Article 3 of Directive 2016/343 (right to be presumed innocent), of Articles 155ff of the Bulgarian Health Law, which do not allow the court that decides on the committal of a person to a psychiatric hospital to verify that that person has been afforded procedural safeguards in parallel criminal proceedings to which he or she is subject. The Court of Justice deals rather quickly with this question, as it argues that the Directive does not apply to the proceedings governed by Articles 155ff of the Health Law because they have a therapeutic purpose and do not fall within the notion of ‘criminal proceedings’. Likewise, as nothing suggests that such procedures constitute application of EU law pursuant to Article 51(1) of the Charter, the Charter does not apply either.

Finally, the referring court asks whether, in proceedings such as those governed by Articles 427ff of the Bulgarian CCP, the presumption of innocence (Article 3 of Directive 2016/343) requires that the public prosecutors provide proof that the person whose committal to a psychiatric hospital is sought is the perpetrator of acts deemed to constitute danger to society. The Court replies in the affirmative. It ought to be noticed that the AG had argued that the Directive at hand does not apply ratione temporis to the main proceedings, since the Member States were not obliged to comply with the Directive until 1 April 2018, while those proceedings were definitely discontinued on 1 March 2018. By looking at the date of the entry into force (31 March 2016), rather than at the deadline for the implementation of the Directive (1 April 2018), the Court of Justice takes the opposite view. That said, the Court first underlines that Directive 2016/343 – akin to Directive 2012/13 and 2013/48 (see above) – applies to procedures such as those provided for by Articles 427ff of the Bulgarian CCP, since they lead to deprivation of liberty on safety grounds. The Court then adds that the public prosecutors, in accordance with Article 6 of the Directive on the burden of proof, bears such burden for establishing that the criteria laid down by law for authorising the committal of a person to a psychiatric hospital are met.