RR and JG (Gel des biens de tiers)

On 12 May 2022, the Eighth Chamber of the Court rendered a judgement concerning the interpretation of Directive 2014/42 on the freezing and confiscation of instrumentalities and proceeds of crime.

In the course of a search of the vehicle of RR driven by WE, national authorities found narcotics and thus seized the vehicle of RR. Likewise, during a search in the premise of JG carried out in the context of criminal proceedings against a gang for drug trafficking, national authorities found and seized two mobile phones and a sum of money. In both cases, the Public Prosecutor did not bring charges against RR and JG, nevertheless their assets continued to be subject of seizure as alleged instrumentality of a crime (seizure of property in the possession of a third party). Subsequently, RR and JG brought a request before the Special Criminal Court of Bulgaria for return of their property.

Against this background, the Special Criminal Court referred to the CJEU three questions for a preliminary ruling: it asked, first, whether Directive 2014/42 preclude a national law pursuant to which a person whose property has been seized as an alleged instrumentality or as alleged proceeds of a criminal offence and has been frozen, is not entitled to apply to the court during the trial stage of the criminal proceedings for the return of that property; secondly, whether the said Directive must be interpreted as precluding a national law which does not permit the confiscation of an ‘instrumentality’ which is the property of a third party who is not involved in the criminal offence; and if the previous question is answered in the negative, whether this Directive should be interpreted as granting a third party whose property has been frozen and may be confiscated as an instrumentality the right to participate in the proceedings which may result in confiscation, and the right to challenge the confiscation decision in court.

As regards the first question, the CJEU stated that Article 8 of Directive 2014/42 requires the Member States to accord a number of safeguards to the persons affected by the measures laid down in the said Directive. In the light of the textual, contextual and teleological interpretation of the aforementioned provision, the Court held that bona fide third parties whose property has been seized as alleged instrumentality of a criminal offence should be considered as ‘persons affected by the measures’ provided for under Directive 2014/42 in case where their property could be subject to possible subsequent confiscation, and therefore they should have the right to an effective remedy and a fair trial during the trial stage of the criminal proceedings in order to uphold their rights.

As far as the second question is concerned, the Court stated that Article 4 of Directive 2014/42 on ‘Confiscation’ does not clarify whether the confiscated property should necessarily belong to the convicted person, and therefore in interpreting the provision in question, it is necessary to consider the context in which it occurs and the objectives pursued by the rules of which it is part. Taking into account Article 6 of the said Directive which explicitly allows for the confiscation of proceeds of crime which belong to third parties, a contrario it follows that only the property of the suspect or accused persons can be subject to confiscation of instrumentalities of crime. Be that as it may and insofar as national law does not allow for the confiscation of bona fide third parties, the Court reminded its settled case law that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court.