Kolev and others (Kolev II)

On 12 February 2020, the Fifth Chamber of the Court of Justice delivered its judgment in case C704/18, Kolev and Others (hereinafter ‘Kolev II’), which follows up on a previous judgment of the Court itself (Case C-612/15, Kolev and Others, Judgment of 5 June 2018 (Grand Chamber) hereinafter ‘Kolev I’).

The facts of the case were the following. Kolev and other Bulgarian customs officers were accused of having taken part in a criminal conspiracy. They allegedly demanded bribes from drivers crossing the Turkish-Bulgarian border in order for them to avoid customs inspections. After a complex pretrial phase in which the case was moved back and forth between the public prosecution service and the competent court, the defendants required the latter to apply Articles 368 and 369 of the Bulgarian Code of Criminal Procedure (hereinafter ‘the Bulgarian Code’). In essence and with some degree of simplification, these Articles provide that pretrial investigations cannot exceed a maximum duration of two years. Once two years have passed, the competent court could give one last opportunity to the public prosecutors to finalise their investigations, repair the potential infringements of procedural safeguards occurred, and eventually decide whether to halt the prosecution or bring the case for trial. If the prosecutors do not comply with the additional time limit granted by the court, if they do not remedy those infringements, or if they commit further infringements, the court would terminate the criminal proceedings. In the criminal proceedings against Kolev and the other co-defendants, the competent Bulgarian court could have terminated the criminal proceedings in accordance with these rules but, with an order of May 2015, it instead applied Article 249 of the Bulgarian Code, which allowed the court to terminate the trial phase and refer the case back to the prosecutor. The latter was therefore put in a position to remedy some infringements of procedural requirements that had occurred in the investigations concerning Kolev and the other co-defendants. Those infringements concerned the right to information and the right to access to the materials of the case, which are subject to the rules laid down in Directive 2012/13/EU. The Bulgarian appeal court ruled that the court of first instance should have closed the proceedings in accordance with Articles 368 and 369 of the Bulgarian Code, and referred the case back to that court. Before deciding on the matter, the first instance court lodged a request for preliminary ruling, from which the Kolev I case originated.

In Kolev I, the Court of Justice clarified – among the other issues – at which stage of the procedure detailed information on the charges should be provided to the accused person within the meaning of Article 6(3) of Directive 2012/13 (right to information about the accusation) (para. 99).

As for Article 7(3) of the Directive (right of access to the materials of the case), the Court of Justice ruled that ‘it is for the national court to ensure that the defence has been granted a genuine opportunity to have access to the case materials’, and provided explanations concerning the stage of the procedure at which such access should be granted (para. 100).

After Kolev I, the referring Bulgarian court stated that, in principle, it could not implement the above-mentioned principles laid down by the CJEU in Kolev I with regard to Directive 2012/13. The order of May 2015, in which that court had applied Article 249 of the Bulgarian Code – that is, it had closed the trial phase and referred the case back to the prosecutor –, had indeed become final in the meantime. Therefore, the Bulgarian court was not in a position to implement itself the operative part of the Kolev I judgement regarding the infringements of the rights to information and access to the case file, since the case had been sent back to the prosecutor. In order to overcome this obstacle, however, the Bulgarian court decided to set aside the national provision that prevents from modifying the decision to terminate the trial phase in accordance with Article 249 of the Bulgarian Code. This order of the Bulgarian court of first instance was annulled by the competent appeal court, which sent the case back to the referring court and requested it to terminate the trial phase and refer the case back to the prosecutor. The remitting court therefore claims to be in a position in which – despite the Kolev I judgment, which had empowered it to repair the violations of the defendants’ rights – it cannot remedy itself the procedural irregularities as it is forced to send the case back to the public prosecutor. The court thus requires the CJEU to clarify whether Article 267 TFEU can be interpreted in a way that in fact allows a national court not to apply a preliminary ruling in the main proceedings.

Before examining the question, the Court of Justice first rephrases it as follows: ‘the question referred must be understood as asking, in essence, whether, in the light of the Court’s interpretation of Article 6(3) and Article 7(3) of Directive 2012/13 in […] the Kolev judgment, Article 267 TFEU must be interpreted as precluding a provision of national law which obliges the referring court to comply with an injunction, imposed on it by a higher court, to refer the case in the main proceedings back to the prosecutor, following the termination of the trial phase of the criminal proceedings, so that procedural irregularities committed during the pretrial phase of those proceedings be remedied’ (para. 36).

After reminding the established principle according to which national courts are obliged to give full effect to the interpretation of EU law provided by the CJEU in judgements in preliminary ruling proceedings, the Court of Justice first notes that the Kolev judgement simply clarified the stage at which the defendants’ procedural safeguards shall be guaranteed. On the contrary, that decision did not specify which national authority should be in the position to defend and ensure such safeguards. This implies that not only national courts, but also national prosecutors, are required to act in a way that ensures a fair balance between the respect for the rights of the defence and the need to guarantee the effectiveness of the prosecution and punishment of offences affecting the Union’s budget. Therefore, the Court of Justice did not consider at all the potential compatibility of Article 249 of the Bulgarian Code with EU law.

Against this backdrop, the Court added that the decision in Kolev I does not lay down specific and detailed rules for the implementation of its principles concerning the rights to information and access to the case file. This is instead left to the procedural autonomy of Member States; hence the national rules that can help to remedy the occurred infringements shall not be less favourable than those governing similar domestic situations (principle of equivalence) and shall not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). As for the former, the Court argues that there is no indication whatsoever that the order of the Bulgarian appeal court to send the case back to the public prosecutor infringes the principle of equivalence. As for the principle of effectiveness, the CJEU notes that it is not competent to solve disagreements between national courts or national competent authorities. In any case, what it is of the essence is that the principle of effectiveness ensures an effective protection of individual rights derived from EU law. It follows from it that ‘the referring court cannot be required to comply with the injunction imposed on it by the appeal court to refer the case in the main proceedings back to the prosecutor if that injunction undermined the effectiveness of Article 6(3) and Article 7(3) of Directive 2012/13, as interpreted by the Court in the Kolev judgment’ (para. 53; emphasis added). The Court however adds that there is no element to believe that, should the case be referred back to the prosecutor, the exercise of the rights set out in Articles 6(3) and 7(3) of Directive 2012/13 and the effectiveness of these provisions would be undermined, as long as those rules are applied in accordance with the CJEU’s interpretation.

The Court therefore concludes that, in light of its interpretation of the Articles 6(3) and 7(3) of Directive 2012/13 set out in Kolev I, Article 267 TFEU must be interpreted as not precluding a provision of national procedural law which obliges the referring court in the case giving rise to that judgment to comply with an injunction, imposed on it by a higher court, to refer the case back to the prosecutor, after the termination of the trial phase of the criminal proceedings, for procedural irregularities committed during the pre-trial phase of those proceedings to be remedied, to the extent that those provisions of EU law, as interpreted by the Court in Kolev I, are respected in the context of the pre-trial phase of the criminal proceedings or in that of the subsequent trial phase thereof.