Kolev a.o.

On 5 June 2018, the Court of Justice (Grand Chamber) delivered its judgment in case C-612/15, on the interpretation of Article 325 TFEU, Directive 2012/13 on the right to information in criminal proceedings, and of Directive 2013/48 on the right of access to a lawyer 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.

With respect to Article 325 TFEU, the Court first recalled, in light of its judgments in the Taricco and M.A.S. and M.B. cases, that the Member States must, in order to guarantee the effective and comprehensive collection of customs duties, provide for the application of penalties that are effective and that act as a deterrent in cases of contravention of the EU customs legislation. The Member States must also ensure that the rules of criminal procedure permit effective investigation and prosecution of offences linked to such conduct.

It found the national legislation at issue in the main proceedings is liable to impede the effectiveness of criminal prosecution and the punishment of acts that may be categorised as serious fraud or other serious illegal activity affecting the financial interests of the Union, contrary to Article 325(1) TFEU. It specified that it is for the national courts to give full effect to Article 325(1) TFEU, by disapplying that legislation, where necessary, while also ensuring respect for the fundamental rights of the persons accused.

As regards Directive 2012/13 on the right to information in criminal proceedings, and, more precisely, when that disclosure of detailed information on the charges and when access to material evidence, both incriminatory and exculpatory, that is in the possession of the competent authorities, are to occur, the Court noted that Article 6(3) and Article 7(3) of Directive 2012/13 make no reference to a precise time.

As these provisions aim at allowing for an effective exercise of the rights of the defence and to ensure the fairness of the proceedings, the person accused must receive detailed information on the charges and have the opportunity to acquaint himself with the case materials in due time, at a point in time that enables him to prepare his defence effectively. More precisely, that objective and the proper conduct of proceedings presuppose, as a general rule, that disclosure should take place, and that the opportunity to have access to the case materials should be afforded, no later than the point in time when the hearing of argument on the merits of the charges in fact commences before the court that has jurisdiction to give a ruling on the merits.

The Court nevertheless specified that in the event of any failure to meet that requirement, there is nothing in Directive 2012/13 that precludes the court from taking the measures necessary to correct that failure, provided that the rights of the defence and the right to a fair trial are duly protected.

The Court ruled that Article 6(3) of Directive 2012/13 must be interpreted as not precluding the disclosure of detailed information on the charges to the defence after the lodging before the court of the indictment that initiates the trial stage of proceedings, but before the court begins to examine the merits of the charges and before the commencement of hearing of argument before the court, and after the commencement of that hearing but before the stage of deliberation, where the information thus disclosed is the subject of subsequent amendments, provided that all necessary measures are taken by the court in order to ensure respect for the rights of the defence and the fairness of the proceedings.

It further ruled that Article 7(3) of that directive must be interpreted as meaning that it is for the national court to be satisfied that the defence has been granted a genuine opportunity to have access to the case materials, such access being possible, in some cases, after the lodging before the court of the indictment that initiates the trial stage of the proceedings, but before that court begins to examine the merits of the charges and before the commencement of any hearing of argument by that court, and after the commencement of that hearing but before the stage of deliberation where new evidence is placed in the file in the course of proceedings, provided that all necessary measures are taken by the court in order to ensure respect for the rights of the defence and the fairness of the proceedings.

With respect to Directive 2013/48 on the right of access to a lawyer in criminal proceedings, building on the ECtHR case law on the right of access to a lawyer that is laid down in Article 6(3) ECHR, the Court held that while such right implies that it should be open to the person concerned to use a lawyer of his own choice, that possibility is not, however, absolute.

The Court noted that the objective of the national legislation at issue in the main proceedings is to safeguard the right of accused persons to an effective defence and that it is essential that a lawyer have no conflict of interest if the effectiveness of the rights of the defence is to be protected.

The Court concluded that Article 3(1) of Directive 2013/48 must be interpreted as not precluding national legislation that requires a national court to dismiss the lawyer instructed by two accused persons, against their wishes, on the ground that there is a conflict of interest between those persons and, further, as not precluding the court from allowing those persons to instruct a new lawyer or, when necessary, itself naming two court-appointed lawyers, to replace the first lawyer.