# EUR-Lex - 52014DC0224 - EN

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# 52014DC0224

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2013 Report on the Application of the EU Charter of Fundamental Rights /* COM/2014/0224 final */**

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1. 
Introduction

The Charter of Fundamental Rights of the
European Union (the Charter) is addressed, first and foremost, to the EU
institutions. It complements national systems and does not replace them. Member
States are subject to their own constitutional systems and to the fundamental
rights set out in these. Member States need only have regard to the Charter
when their national measures implement EU law, as stipulated in Article 51 of
the Charter.

This report highlights the role of the Court of
Justice of the European Union (the Court) in implementing the Charter,
especially as regards the most recent development of its case law on the
Charter’s applicability in Member States.

The report also gives an account of how the EU
institutions have respected and promoted fundamental rights, under the scrutiny
of the Court, in all their initiatives, including developing new legislation
and policies, and enforcement actions.

Finally, the report draws attention to the
importance of the European Convention on Human Rights (ECHR) and to the
progress made on the EU’s accession to this instrument.

Detailed information on the application of the
Charter, illustrating concrete problems faced by individuals, is provided by
the Staff Working Document annexed to this report (Annex 1). Progress on
implementing the 2010-2015 Strategy for equality between women and men is
presented in a separate annex (Annex 2).

2. 
Applicability of the Charter to the Member
States

National judges are increasingly aware of the
Charter’s impact, and they seek guidance from the Court[1] on its application and
interpretation under the preliminary rulings procedure[2].

To determine whether a situation falls within
the scope of the Charter, as defined in its Article 51, the Court examines, in
particular, whether the relevant national legislation is intended to implement
a provision of EU law, the nature of the legislation, whether it pursues
objectives other than those covered by EU law, and also whether there are
specific rules of EU law on the matter or which may affect it[3].

Three recent cases are good examples of
situations where the Court held that the Member States were not implementing
EU law, and thus where the Charter did not apply.

First, in Pringle[4], the Court held that
when Member States established a permanent crisis resolution mechanism for the
Eurozone countries, they were not implementing EU law. The Treaties do not
confer any specific competence on the EU to establish such a mechanism.
Consequently, Member States were not implementing EU law within the meaning of
Article 51, and the Charter did not apply.

Second, in Fierro
and Marmorale[5],
the Court examined Italian legislation which requires a deed of sale of real
estate to be annulled if the real estate was modified without regard to town
planning laws. Such automatic annulment hampers the exercise of the right to
property (Article 17[6]).
The Court declared the case inadmissible as there was no link between national
laws on town planning and EU law.

Third, in Cholakova[7], the Court
examined a situation where the Bulgarian police had arrested Mrs Cholakova because
she had refused to present her identity card during a police check. The Court
held that, as Mrs Cholakova had not shown an intention to leave Bulgarian
territory, the case was of a purely national nature. The Court held that it was
not competent to deal with the case and declared it inadmissible.

There are currently three situations in which
it is clear that the application of the Charter is triggered.

First, ‘implementing EU law’ covers a Member State’s legislative activity and judicial and administrative practices when
fulfilling obligations under EU law. This is the case, for instance,
when Member States ensure effective judicial protection for safeguarding rights
which individuals derive from EU law, as they are obliged to do under Article
19 (1) TEU. The Free Movement Directive[8]
permits Member States to restrict the freedom of movement of EU citizens on
grounds of public policy, public security or public health. The Court held in
the ZZ case that the basis for such a refusal must be disclosed to
the person concerned.[9]
In this case, the grounds for a decision refusing entry into the UK were not disclosed for reasons of national security. The Court confirmed that a person
has the right to be informed of the basis for a decision to refuse entry, as the
protection of national security cannot deny the right to a fair hearing,
rendering the right to redress ineffective (Article 47).

Second, the Court established that the Charter
applies when a Member State authority exercises a discretion that is
vested in it by virtue of EU law. In Kaveh Puid[10] the Court
confirmed its previously established case-law[11]
and held that a Member State must not transfer an asylum seeker to the Member
State initially identified as responsible if there are substantial grounds for
believing that the applicant would face a real risk of being subjected to
inhuman or degrading treatment, in violation of Article 4 of the Charter.

Finally, national measures linked to the
disbursement of EU funds under shared management may constitute implementation
of EU law. In Blanka Soukupová[12],
the Court held that in implementing Council Regulation 1257/1999 on support for
rural development from the European Agricultural Guidance and Guarantee Fund Member States are required to respect the principles of equal treatment and
non-discrimination, enshrined in Articles 20, 21(1) and 23 of the Charter. When
providing early retirement support for elderly farmers, Member States are
required to ensure equal treatment between women and men, and to prohibit any
discrimination on grounds of gender.

A much debated judgment in 2013 on the applicability
of the Charter was the Åkerberg Fransson judgment[13]. This ruling is an
important step in the on-going process to clarify the interpretation of Article
51 of the Charter.

The Court was asked to clarify whether cases of
national law which meet objectives laid down in EU law also amount to
situations where EU law is being ‘implemented’ within the meaning of Article 51
of the Charter. The case was referred to the Court for a preliminary ruling by
a District Court in Sweden, which was uncertain whether criminal proceedings
for tax evasion in the context of VAT declarations could be brought against a
defendant if an administrative tax penalty had already been imposed upon him
for the same act of providing false information. Such proceedings were to be
examined in relation to the ne bis in idem principle (the principle that
a person should not be punished twice for the same offence), enshrined in
Article 50 of the Charter, even though the underlying national legislation for
these administrative penalties and criminal proceedings had not been adopted to
transpose EU law.

The Court pointed to the fact that under EU
law, the Member States have an obligation to ensure the collection of all the
VAT due, to counter illegal activities affecting the financial interests of the
EU, and to take the same measures to counter fraud affecting the financial
interests of the EU as they take to counter fraud affecting their own
interests.[14]

The EU’s own resources include revenue from applying
a uniform rate to the harmonised VAT assessment bases determined according to
EU rules. There is therefore a direct link between the collection of VAT revenue
in compliance with the relevant EU law, and the availability to the EU budget
of the corresponding VAT resources. Any lacuna in the collection of VAT revenue
at a national level potentially impacts on the EU budget. The Court held that, ‘[s]ince
the fundamental rights guaranteed by the Charter must (...) be complied with
where national legislation falls within the scope of European Union law,
situations cannot exist which are covered in that way by European Union law
without those fundamental rights being applicable. The applicability of
European Union law entails applicability of the fundamental rights guaranteed
by the Charter’[15].
According to the Court, the national law in this context was ‘designed to
penalise an infringement of [the] directive and [was] therefore intended to
implement the obligation imposed on the Member States by the Treaty to impose
effective penalties for a conduct prejudicial to the financial interests of the
European Union.’[16]

As to the outcome of the case, the Court
observed that the principle of preventing a person from being punished twice
for the same offence does not preclude a Member State from imposing, for the
same acts, a combination of tax penalties and criminal penalties, as long as
the tax penalty is not criminal in nature.

3. 
Actions to Promote the Effective Implementation
of the Charter

Fundamental rights are promoted through all EU
policies. Where the EU has competence to act, the Commission proposes EU
legislation that gives concrete effect to the rights and principles enshrined
in the Charter. The Commission also takes active measures to promote the
Charter and enforces the respect of EU law through infringement procedures
against Member States.

The respect of the Charter by the institutions
themselves is scrutinised by the Court, which checks the compliance of EU acts
with the Charter.

3.1. 
EU legislation

The Commission ensures and thoroughly checks
that all legislative proposals respect and promote fundamental rights.
It follows this approach throughout the legislative process, from the proposal
itself, to its discussion during negotiations between the EU institutions and
its final adoption.

3.1.1. 
Legislative proposals

In the field of criminal law, the Commission
proposed five legal measures to further promote the Procedural Rights Agenda
and strengthen the foundation for European criminal justice policy. These
measures include three proposals for Directives on:

· 
strengthening certain aspects of the presumption
of innocence and of the right to be present at trial during criminal proceedings
(Articles 48 and 47);

· 
special safeguards for children suspected or
accused in criminal proceedings (Articles 24 and 49);

· 
provisional legal aid for suspects or people
accused of crimes who have been deprived of liberty and legal aid in European
arrest warrant proceedings (Article 47(3)).

The measures also include two Recommendations,
on procedural safeguards for vulnerable people suspected or accused in criminal
proceedings and on the right to legal aid for suspects or people accused of a
crime during criminal proceedings (Article 47)[17].

The need for criminal law measures to be grounded
in strong EU-wide standards for procedural rights and victims’ rights, in line
with the Charter, is central to strengthening the principle of mutual trust on
which judicial cooperation is based.

The Commission has also ensured effective
protection for professional legal privilege within the EU’s money laundering
legislation. The proposed Anti-Money Laundering Directive of February
2013 imposes an obligation to report suspicions of money laundering or
terrorist financing to the authorities in a number of professional activities.
However, considering the crucial importance of the right of defence (Article
48), the proposed Directive requires Member States not to apply this obligation
to lawyers under certain circumstances, for instance in relation to information
received in the course of ascertaining the legal position of a client.[18]

Furthermore, the Commission has ensured a means
of redress for workers when exercising their right of free movement
in the EU. This legislative proposal[19]
aims, inter alia, to introduce a legal obligation for Member States to
provide EU mobile  workers with appropriate means of redress at national level
(Article 47).

In September 2013, the Commission proposed a Regulation
on indices used as benchmarks in financial instruments and financial
contracts.[20]
Thereby it aimed to subject benchmarks, provided by market players in the
financial sector, to clearer standards and supervision. It envisaged giving
competent authorities checking and enforcement powers, including access to data
transfers upon request. The Commission assessed the impact of the proposal on
several rights protected by the Charter: protection of personal data (Article
8), right to freedom of expression and information (Article 11) and freedom to
conduct a business (Article 16).

In its proposal for a Regulation establishing
rules for the surveillance of the external sea borders in the context of
operational cooperation coordinated by Frontex[21],
adopted in April 2013, the Commission ensured that any measures taken during
surveillance operations coordinated by Frontex must be in full respect of
fundamental rights and the principle of non-refoulement, which entails
that no refugee should be returned to any country where he or she is likely to
face the death penalty, torture or other inhuman or degrading treatment or
punishment (Article 19(2)). Before disembarkation in a third country, Member
States must take into account the general situation in that country to ensure
that it is not engaged in practices in violation of the principle of non-refoulement,
the persons intercepted or rescued must be identified, and their personal
circumstances must be assessed.

3.1.2. 
Inter-institutional negotiations with important
fundamental rights aspects

2013 has been an important year for the right
to protection of personal data. In light of this year’s revelations about global
surveillance programmes potentially monitoring all citizens’ communication, the
EU institutions needed to make progress on their negotiations on a new data
protection standard.[22]
In October 2013, the European Parliament’s LIBE Committee supported the
Commission’s proposal.[23]
The aim of the reform is to put individuals back in control of their data by
updating their rights (Article 8). Explicit consent, the right to be forgotten,
the right to data portability and the right to be informed of personal data
breaches are key elements. They will help to close the growing rift between
citizens and the companies with which they share their data, willingly or
otherwise.

In order to promote the freedom to conduct a
business, enshrined in Article 16 of the Charter, the Commission made a
proposal in 2012 to modernise the rules on cross-border insolvency.[24] During the
negotiations, which made real progress in 2013, the impact of this proposal on
minority creditors’ rights to an effective remedy (Article 47) and to property (Article
17) was thoroughly considered.

3.1.3. 
Implementation of the Charter through measures
adopted by the EU legislative and by the Commission

In the field of procedural rights, the
Directive on the right of access to a lawyer and the right to have a third
party informed upon deprivation of liberty was adopted[25]. With this landmark
legislation, all suspects are guaranteed the right to be advised by a lawyer
from the earliest stages of proceedings until their conclusion (Articles 47 and
48).

The European Parliament and the Council adopted
the recast Dublin Regulation[26]
which guarantees effective remedy to applicants on appeals against transfer
decisions, thus ensuring full effect of the right of an asylum seeker to remain
on the territory and reducing the risk of ‘chain refoulement’ (Article
19(2)). It also incorporates the Court’s case law providing for an asylum
seeker not to be sent to a Member State where there is a serious risk of
violation of his/her fundamental rights. In such a case, another Member State is to assume responsibility without delay, in order not to jeopardise the
asylum seeker’s quick access to justice.

The European Parliament and the Council also
adopted the Asylum Procedures Directive[27]
and the Reception Conditions Directive[28].
The former reinforces guarantees safeguarding the fundamental right to asylum,
in particular, by strengthening the right to access asylum procedures (Articles
18 and 19), whereas the latter includes improved and clearer standards to more
effectively safeguard the fundamental right to dignity, especially as regards
vulnerable asylum seekers and further harmonises the rules on detention, laying
down clear and restrictive grounds, conditions for detention, and guarantees
for detainees (Articles 1, 4, 6, 7, 18, 21, 24, and 47).

As regards victims’ rights, a Regulation on
mutual recognition of protection measures in civil matters[29] establishes a
simple and rapid mechanism to recognise protection measures ordered in a Member State in civil matters. People protected by such measures (mostly women who have
restraining orders against someone) can thus be assured that the order obtained
in their home country will have the same standing wherever they are in the EU.

The 2014 European elections will be the
first to be held under the Lisbon Treaty, which has strengthened the powers of
the European Parliament. In its recommendation of March 2013[30], the Commission
invited political parties to endorse a candidate for European Commission
President in the next European elections, and to display their European
political party affiliation. The recommendation aims to promote the right to vote,
enshrined in Article 39 of the Charter, by informing voters about the issues at
stake in these elections, encouraging a Europe-wide debate, and ultimately
improving voter turnout.

3.2. 
Measures promoting fundamental rights

Large companies across the EU continue to be predominantly
led by men. In order to achieve substantive equality between women and men on
corporate boards, in accordance with Article 23 of the Charter, the Commission
proposed a Directive last year to improve the gender balance of non-executive
directors of companies listed on stock exchanges[31]. The European
Parliament passed its resolution on the proposed Directive[32] at first reading, in
November 2013, confirming a broad consensus on increasing women’s
representation on corporate boards and largely endorsing the Commission’s
approach to redressing the current imbalance.

Another area where the EU continues to
reinforce protection of equality rights and promote the adoption of positive
measures is that of Roma integration. Major progress was achieved in
2013 on an EU-wide approach to tackle the exclusion of Roma. A Council
Recommendation[33]
was adopted unanimously in December 2013. Member States committed to improving the
economic and social integration of Roma communities. Throughout the process, Roma
themselves were included in discussions at the highest decision-making levels.

3.3. 
EU enforcement action

The Commission exercised its role as guardian
of the Treaties and took action to ensure that Member States enforce EU
legislation that gives concrete effect to the Charter.

Following analysis of national implementation
of the Visa Code[34]
on the right to appeal against a visa refusal/annulment/revocation, the
Commission raised a number of questions on the compatibility of national
legislation with the provisions of the Visa Code and of the Charter. It
concluded that the right to an effective remedy, enshrined in Article 47 of the
Charter, requires that an appeal against a visa refusal, annulment or
revocation, includes access to a judicial body, as only or last instance of
appeal. Letters of Formal Notice were sent to several Member States.

In 2012[35]
the Court ruled that the sudden, radical lowering of the retirement age for
judges, prosecutors and notaries in Hungary did not comply with Directive
2000/78, which ensures that the principle of non-discrimination recognised in
Article 21 of the Charter is fully respected in the field of employment.
Following a fruitful dialogue with the Commission, Hungary adopted a law in
March 2013, which provides solutions to all issues raised and correctly and
completely implements the Court’s judgment.

Finally, as regards data protection, the
Commission monitored Austria’s implementation of the Court’s 2012 ruling[36] on the lack of
independence of the data protection supervisory authority. Austria amended its data protection legislation and ensured that the member of the
authority who manages its day-to-day business is only subject to supervision by
its Chair, and that the authority is no longer part of the Federal Chancellery
but has its own budget and staff.

3.4. 
Control of the Court over the EU institutions

The EU institutions’ regard to the Charter is scrutinised
by the Court, which delivered several judgments to ensure that the EU
institutions act in line with the Charter. These judgments also related to how
well EU legislation and decisions addressed to individuals comply with the
Charter.

The EU can issue penalties or restrictive
measures which might impact on the fundamental rights of the person to whom
these are issued. In the Kadi II[37]
appeal judgment, the Court clarified certain procedural rights of persons
suspected of association with terrorism, including the right to good
administration, the right to an effective remedy and the right to a fair trial
(Articles 41 and 47). The Court ensured the protection of fundamental rights
and freedoms whilst recognising the imperative need to combat international
terrorism. Mr Kadi’s assets had been frozen by the Commission, implementing
a decision by the UN Sanctions Committee, as part of a UN Security Council resolution.
The Court stated that, since no information or evidence had been produced by
the Commission to substantiate the allegations that Mr Kadi was involved in
activities linked to international terrorism (allegations he strongly denied),
those allegations did not justify the adoption, at EU level, of restrictive
measures against him.

The EU institutions in a number of cases,
irrespective of the existence of UN Security Council resolutions, have adopted
decisions and regulations freezing the funds of persons and bodies who the EU
institutions have identified as being involved in nuclear proliferation. Some
of the persons and bodies concerned brought actions seeking to annul these
decisions. In a series of judgments[38],
the General Court annulled actions by the EU institutions towards several of
the applicants. It found that the EU institutions had not produced enough
evidence to justify the measures taken, and that, in certain cases, the EU
institutions had breached the obligation to give reasons and disclose evidence.

In Besselink[39], the General Court
gave effect to the right of access to documents, enshrined in Article 42
of the Charter, and it annulled in part the Council decision refusing access to
a document on the EU’s accession to the ECHR. The Court held that the Council
made an error of assessment in refusing access to one of the negotiating
directives it had adopted. The position reflected in this document had already
been communicated to the negotiating parties. Therefore its disclosure could
not jeopardise the climate of confidence between the negotiating parties.

While these decisions were addressed to
individuals, legislative acts of the EU addressed to the Member States are also
scrutinised by the Court.

The Court reviewed the compatibility of the Framework
Decision on the European Arrest Warrant[40]
(EAW) with Articles 47 and 48 of the Charter. The Court was asked if a
Member State could make the surrender of a person convicted in absentia
conditional upon the conviction being open to review in the issuing Member
State, in order to avoid any adverse effects on the right to a fair trial and
the rights of the defence as guaranteed by the constitution of the Member State
surrendering the person in question[41].
The Court held that the Framework Decision on the EAW was fully compatible with
the Charter. To make the surrender of a person subject to a condition not
provided for under the Framework Decision would undermine the principles of
mutual trust and recognition that that decision purports to uphold, and would
compromise its effectiveness.

4. 
Role of the ECHR

The mere fact that the Charter only applies
when Member States are implementing EU law does not mean that there is a gap in
the protection of fundamental rights. Individuals have recourse to national
remedies and, after having exhausted these, they can lodge an application to
the European Court of Human Rights, in line with the ECHR, to which all EU
Member States are a party.

The Treaty of Lisbon imposed an obligation on
the EU to accede to the ECHR. In April 2013, the draft agreement on the EU’s accession
to the ECHR was finalised, which is a milestone in the accession process. As a
next step, the Commission has asked the Court to give its opinion on the draft
agreement.

5. 
Conclusion

In 2013 the Court dealt with a large number of
cases concerning the Charter’s applicability at national level. This highlights
the Charter’s increasing interaction with national legal systems. In this
context, the Åkerberg Fransson judgment plays an important role in
further defining the Charter’s application in the Member States by national
judges, even though the case law in this respect is still evolving and likely
to be continuously refined.

National judges are key actors in giving
concrete effect to the rights and freedoms enshrined in the Charter, as they
directly ensure that individuals obtain full redress in cases where fundamental
rights within the scope of EU law have not been respected.

EU institutions have made significant efforts
to ensure the consistent application of the Charter’s provisions since it
gained legally binding force as primary EU law. Any impact on fundamental
rights needs to be carefully considered during legislative procedures,
especially at the stage of elaborating final compromise solutions. A strong inter-institutional
commitment is required to achieve this goal.

EU legal acts can also be challenged before the
Court for any infringements of fundamental rights. The Court’s scrutiny extends
to Member States as well, but only where they implement EU law. Outside that
area, Member States apply their own national fundamental rights systems. This
is a clear and deliberate choice made by the Member States when designing the
Charter and the Treaty.

The EU institutions must go further than merely
respecting the legal requirements following from the Charter. They must
continue fulfilling the political task of promoting a fundamental rights
culture for all, citizens, economic actors and public authorities alike. The
fact that the Commission has received more than 3 000 letters from the
general public regarding the respect of fundamental rights indicates that
individuals are aware of their rights and demand respect for them. The
Commission supports their endeavours.

[1]               For an overview of the applications for preliminary
rulings submitted to the Court in 2013 which refer to the Charter, see appendix
II..

[2]               See Article 267 TFEU.

[3]               CJEU, C-309/96 Annibaldi 18.12.1997, §§ 21 to
23, and C‑40/11 Iida, 8.11.2012, § 79.

[4]               CJEU, C-370/12, Thomas Pringle, 27.11.2012.

[5]               CJEU, C-106/13, Francesco Fierro and Fabiana
Marmorale v Edoardo Ronchi and Cosimo Scocozza, 30.5.2013.

[6]               Subsequent articles referred to in brackets are
Charter articles.

[7]               CJEU, C-14/13, Gena Ivanova Cholakova, 6.6.2013.

[8]               Directive 2004/38/EC, OJ 2004 L 158, p. 77.

[9]               CJEU, C-300/11 ZZ v Secretary of State for the
Home Department, 4.6.2013.

[10]             CJEU, C-4/11 Bundesrepublik Deutschland v Kaveh Puid,
14.11.2013.

[11]             CJEU, joined cases C-411/10 and C-493/10, NS v
Secretary of State for the Home Department, 21.12. 2011.

[12]             CJEU, C-401/11 Blanka Soukupová, 11.04.2013.

[13]             CJEU, C-617/10, Åklagaren v Hans Åkerberg Fransson,
26.2.2013.

[14]             Ibid., § 26.

[15]             Ibid., § 21.

[16]             Ibid., § 28.

[17]             COM(2013) 821, 822 and 824, 27.11.2013, and COM(2013) 8178
and 8179, 27.11.2013.

[18]             CJEU, C-305/05 Ordre des barreaux
francophones et germanophone, 26.6.2007.

[19]             COM(2013) 236 final, 26.4.2013.

[20]             COM(2013) 641 final, 18.09.2013.

[21]             COM(2013) 197 final, 12.04.2013.

[22]             COM(2012) 11 final, 25.01.2012 and
COM(2012) 10 final, 25.01.2012.

[23]             European Parliament, Document no. A7-0403/2013.

[24]             COM(2012) 744 final, 12.12.2012.

[25]          Directive
2013/48/EU, OJ L 294.

[26]             Regulation 604/2013, OJ L 180, p. 31.

[27]             Directive 2013/32/EU, OJ L 180.

[28]             Directive 2013/33/EU, OJ L 180, 29.6.2013, p. 96.

[29]             Regulation 606/2013, OJ L 181.

[30]             Recommendation 2013/142/EU, OJ L 79, p. 29.

[31]             COM(2012)
614 final, 14.11.2012

[32]             European
Parliament, Document no A7-0340/2013.

[33]             Council recommendation on effective Roma integration
measures in the member states, 9.12.2013.

[34]             Regulation 810/2009, OJ L 243.

[35]             CJEU, C-286/12, Commission v Hungary, 6.11.2012.

[36]             CJEU, C-614/10 Commission v Austria, 16.10.2012.

[37]             CJEU, C-584/10 P Commission and Others v Kadi
(Kadi II), Appeal Case against T-85/09 Kadi v Commission (Kadi I),
18.7.2013.

[38]             General Court, joined cases T-35/10 and T-7/11 Bank
Melli Iran; Case T-493/10 Persia International Bank plc; joined
cases T-4/11 and T-5/11 Export Development Bank of Iran; T-12/11 Iran
Insurance Company; T-13/11 Post Bank Iran; T-24/11 Bank Refah
Kargaran; T-434/11 Europäisch-Iranische Handelsbank AG; joined cases
T-42/12 and T-181/12 Naser Bateni; T-57/12 Good Luck Shipping,
and case T-110/12 Iranian Offshore Engineering & Construction Co. v
Council, 6.9.2013.

[39]             General Court, T-331/11 Besselink v Council,
12.9.2013.

[40]             Framework Decision 2002/584/JHA as amended by Framework
Decision 2009/299/JHA, OJ 2009 L 81, p. 24.

[41]             CJEU, C-399/11 Stefano Melloni v Ministerio
fiscal, 26.2.2013.