ZX

On 21 October 2021, the Tenth Chamber of the Court rendered a judgement concerning procedural remedies for errors and omissions in the content of the indictment . ZX was subject to criminal proceedings in Bulgaria for possession of fake money knowing that it was counterfeit. However, during the criminal proceedings, the court identified some errors and omissions in the indictment, namely some evidence was not accurately recorded, the legal characteristics of the act were not fully described, and there were errors in the statement of the provisions of Bulgarian criminal law that were allegedly infringed. The referring court pointed that these errors had to be remedied either by amending immediately the charges or by referring the case back to the prosecutor. However, no basis under Bulgarian Criminal Law allowed to do so.

The referring court thus asked the Court whether Bulgarian law which does not provide for any procedural remedy for errors and omissions in the content of the indictment which prejudice the right of the accused person to know what he or she is accused of, after the end of the first hearing in a criminal case (pre-trial hearing), is compatible with Article 6(3) of Directive 2012/13 and Article 47 of the Charter. Secondly, in case of a negative answer, whether Directive 2012/13 and Article 47 of the Charter are to be interpreted as requiring an interpretation of national law that allows the prosecution service to remedy errors and omissions in the indictment at the hearing, or instead whether those provisions require that the prohibition in law on referring the case back to the public prosecution service to draft a new indictment be disapplied.

Regarding the first question, such legislation was deemed as not complying with Article 6(3) of Directive 2012/13 or Article 47 of the Charter since, after that hearing, the absence of a procedural mechanism for remedying the defects in the indictment prevents the accused person from knowing, in sufficient detail, the charges brought against him or her, which may impede the effective exercise of the rights of defence.

On the second question, the Court of Justice – after calling upon the principle of proecedural authonomy of the Member States – explained that the principle of the primacy of EU law requires the national courts to interpret, as far as possible, their domestic law in a manner consistent with EU law; and only where it is impossible to give a consistent interpretation, they should disapply any national provision which is contrary to a provision of EU law with direct effect.

Therefore, in the case at hand the Court decided that Article 6(3) of Directive 2012/13 and Article 47 of the Charter must be interpreted as requiring the referring court to give an interpretation of the national rules on the amendment of the indictment, as far as possible in a manner consistent with that law, so as to enable the prosecutor to remedy errors and omissions in the content of the indictment at the trial, while at the same time actively and genuinely safeguarding the rights of defence of the accused person. On the contraryonly if the referring court considers that such an interpretation is not possible, it should disregard the national provision prohibiting the suspension of court proceedings and refer the case back to the public prosecutor in order for the latter to draw up a new indictment