Opinion of the Advocate General — ECLI:EU:C:2019:590
Date: 2019-07-10
Language of the case: Bulgarian
Subject matter: Justice and home affairs;Approximation of laws;Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-467/18 – 1 
Case C-467/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
17 July 2018 
Referring court:  
Rayonen Sad Lukovit (Bulgaria) 
Date of the decision to refer:  
17 July 2018 
Proceedings instituted at the request of:  
Rayonna prokuratura Lom 
Other party to the proceedings  
EP 
       
Subject matter of the main proceedings 
The subject matter of the main proceedings is the application by the Rayonna 
prokuratura Lom (District Public Prosecutor’s Office, Lom) for an order for the 
adoption of compulsory medical measures against EP, in particular commitment 
to a psychiatric hospital, on the ground that he is alleged to have killed his 
biological mother in the absence of criminal responsibility. 
Subject matter and legal basis of the reference for a preliminary ruling 
The request for a preliminary ruling is made pursuant to point (b) of the first 
paragraph of Article 267 TFEU. 
Questions referred 
1. Do the present proceedings for an order for the adoption of compulsory 
medical measures constituting a form of State compulsion in relation to persons 
who, according to the findings of the Public Prosecutor’s Office, have committed 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-467/18 
 
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an act representing a danger to the general public, fall within the scope of 
Directive 2012/13/EU on the right to information in criminal proceedings and 
Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings? 
2. Do the Bulgarian procedural provisions governing the special procedure for 
an order for the adoption of compulsory medical measures provided for in Article 
427 et seq. of the NPK (Nakazatelno-protsesualen kodeks, Bulgarian Code of 
Criminal Procedure), under which the court is not empowered to refer the 
proceedings back to the Public Prosecutor’s Office with the instruction to rectify 
the procedural errors committed in the course of the pre-trial procedure, but can 
either grant the application for an order for the adoption of compulsory medical 
measures or reject it, constitute an effective remedy, within the meaning of Article 
12 of Directive 2013/48/EU and Article 8 of Directive 2012/13/EU in conjunction 
with Article 47 of the Charter of Fundamental Rights of the European Union, 
which confers on persons the right to challenge before a court any infringements 
of their rights which may have been committed in the course of the pre-trial 
procedure? 
3. Are Directive 2012/13/EU and Directive 2013/48/EU applicable to (pre-
trial) criminal proceedings in the case where the national law, that is to say the 
Nakazatelno-protsesualen kodeks, does not recognise the legal concept of 
‘suspect’ and the Public Prosecutor’s Office does not formally regard the person 
in question as a defendant during the pre-trial procedure, since, on the assumption 
that the intentional, unlawful homicide forming the subject of the investigations 
was committed by that person in the absence of criminal responsibility, it 
institutes criminal proceedings without informing the person concerned and 
applies to the court for an order for the adoption of compulsory medical measures 
against that person? 
4. Is a person in relation to whom compulsory treatment has been applied for to 
be regarded as being ‘suspected’ within the meaning of Article 2(1) of Directive 
2012/13/EU and Article 2(3) of Directive 2013/48/EU in the case where, in the 
course of the first inspection of the crime scene and the initial investigative 
measures at the home of the victim and her son, a police officer, after identifying 
traces of blood on the son’s body, questioned him about his reasons for killing his 
mother and taking her body out into the street and, after the son had answered 
those questions, handcuffed him. If so, must the person in question be provided 
with information pursuant to Article 3(1) in conjunction with (2) of Directive 
2012/13/EU even at that stage, and how are the particular needs of that person to 
be taken into account, pursuant to paragraph 2, when information is provided to 
him in such circumstances, that is to say where the police officer was aware that 
the person in question suffered from a mental disorder? 
5. Are national rules such as those at issue, which effectively allow a person to 
be deprived of his liberty by being committed to a psychiatric hospital under a 
procedure provided for in the Zakon za zdraveto (Health Law) (a precautionary 
compulsory measure ordered where there is evidence that the person concerned 
EP 
 
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suffers from a mental illness and is at risk of committing a criminal offence, but 
not where an offence has already been committed), compatible with Article 3 of 
Directive (EU) 2016/343 on the strengthening of certain aspects of the 
presumption of innocence, in the case where the real reason for initiating the 
procedure is the offence on account of which criminal proceedings have been 
brought against the person committed for treatment, and does this circumvent the 
right, on arrest, to a fair trial which must satisfy the conditions laid down in 
Article 5(4) of the ECHR, that is to say a trial in which the court is empowered to 
review not only compliance with the rules of procedure but also the suspicion 
justifying the arrest and the lawfulness of the objective pursued by that measure, 
the court being obliged to carry out such a review in the case where the person in 
question was arrested under the procedure laid down in the Nakazatelno-
protsesualen kodeks? 
6. Does the concept of the presumption of innocence in Article 3 of Directive 
(EU) 2016/343 also include the presumption that persons lacking criminal 
responsibility did not commit the offence representing a danger to the general 
public of which they are accused by the Public Prosecutor’s Office, until such 
time as proof to the contrary is adduced in accordance with the rules of procedure 
(in criminal proceedings, with due regard for the rights of the defence)? 
7. Do national rules which confer on the adjudicating court different powers in 
relation to the examination as to the lawfulness of the pre-trial procedure which it 
must carry out ex officio, depending on whether: 
1)  the court examines an indictment from the Public Prosecutor’s Office in 
which the latter maintains that a particular mentally-healthy person has committed 
intentional, unlawful homicide (Article 249(1) in conjunction with (2) of the 
NPK), or 
2)  the court examines an application from the Public Prosecutor’s Office in 
which the latter maintains that the person concerned has committed intentional, 
unlawful homicide but that act does not constitute a criminal offence because the 
perpetrator suffers from a mental disorder, and by which it seeks a court order for 
the imposition by the State of compulsory treatment, 
afford vulnerable persons an effective remedy as stipulated in Article 13 in 
conjunction with Article 12 of Directive 2013/48/EU and Article 8(2) in 
conjunction with Article 3(2) of Directive 2012/13/EU, and are the different 
powers available to the court depending on the nature of the procedure, the latter 
being itself dictated by whether the mental health of the person identified as the 
perpetrator is such as to render him criminally responsible, compatible with the 
principle of non-discrimination laid down in Article 21(1) of the Charter? 
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EU legal provisions and case-law 
Directive 2012/13/ЕU of the European Parliament and of the Council of 22 May 
2012 on the right to information in criminal proceedings (OJ 2012 L 142, p.1), 
Article 2(1), Article 3(1) and (2), Article 8(2) 
Directive 2013/48/EU of the European Parliament and of the Council of 22 
October 2013 on the right of access to a lawyer in criminal proceedings and in 
European arrest warrant proceedings, and on the right to have a third party 
informed upon deprivation of liberty and to communicate with third persons and 
with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1), Articles 
2, 3, 12 and 13. 
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 
March 2016 on the strengthening of certain aspects of the presumption of 
innocence and of the right to be present at the trial in criminal proceedings (OJ 
2016 L 65, p. 1), Articles 3 and 10. 
Charter of Fundamental Rights of the European Union, Article 21(1), Articles 47 
and 48 
Provisions of national law 
Nakazatelen kodeks (Criminal Code, ‘NK’), Article 89 and Article 116(1), point 3 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘NPK’), Article 
54, Article 63(1), Articles 70, 94 and 219, Article 249(1) in conjunction with 
Article 248(1), point 3, Articles 427 and 428, Article 429(2), Articles 430 and 431 
Zakon za zdraveto (Health Law), Article 155, Article 146(1), points 1 and 2  
Zakon za izpalnenie na nakazaniata i zadarzhaneto pod strazha (Law on criminal 
prosecution and arrest), Article 147 in conjunction with Article 240 
Succinct presentation of the facts and procedure 
1 At 05.30 on 26 August 2015, the Rayonno upravlenie na politsiata (District Police 
Headquarters) in Lom received a report from an innocent bystander that a dead 
body had been found in the road in the village of Medkovets. 
2 Two police officers attended the scene of the crime and, having found the body of 
an old woman known to them both, CP, with an open head injury, proceeded to 
follow the traces of blood that led to her house, where, as the police officers knew, 
the victim had lived with her son, EP, who had suffered from a mental disorder for 
many years. The police officers were aware of this. 
EP 
 
5 
3 The police officers found EP, on whose legs traces of blood were visible, at 
approximately 06.00. They woke him up and asked him: ‘Why did [you] kill CP?’ 
EP replied: ‘Because she betrayed me. She betrayed me to the Serbian mafia’. The 
police officers asked him a further question: ‘Why did [you] drag the body out 
into the street?’ EP replied: ‘So that she wouldn’t be stinking in my yard’. 
4 Following those answers, the police officers put handcuffs on EP and, with the 
assistance of an out-of-hours GP service, took him to the psychiatric unit at the 
general hospital, to which he was admitted as an emergency patient. 
5 By decision of the Rayonen sad Lom (District Court, Lom, Bulgaria) of 12 
September 2015, EP was admitted to the Darzhavna psichiatrichna bolnitsa (State 
Psychiatric Hospital) for a period of six months to undergo compulsory treatment 
under the Health Law. Thereafter, and at the time of the reference for a 
preliminary ruling too, EP’s compulsory treatment was extended by a number of 
court orders made under that law, the risk of his committing criminal offences 
having been explained in all those orders by reference to the fact that he had killed 
his mother. 
6 The formal investigative procedure began at 07.20 on 26 August 2015 with the 
first investigative measure carried out by an investigating police officer from the 
District Police Headquarters, that is to say an urgent inspection of the crime scene, 
after EP had been questioned and arrested. This was later reported to the 
competent public prosecutor at the Okrazhna prokuratura (District Public 
Prosecutor’s Office). That report stated that pre-trial [investigative] proceedings 
had been instituted as a matter of urgency against EP in connection with the 
killing of his biological mother, a criminal offence under Article 116(1), point 3, 
of the NK. 
7 In the course of the investigations, acquaintances and relatives of EP were 
questioned as witnesses. They all stated that he suffered from a psychiatric illness, 
that he had been treated in hospital a number of times, and that his behaviour was 
sometimes aggressive and inappropriate. The relatives said that EP had attacked 
his mother on previous occasions. The police officer who had had the ‘preliminary 
conversation’ with EP and arrested him was questioned. 
8 An expert psychiatric report was ordered, two psychiatrists from the hospital in 
Lom having been tasked with producing it. According to that report, EP suffers 
from paranoid schizophrenia and, on 25 and 26 August 2015, was in a state of 
permanent disturbance of consciousness and not able to comprehend the nature 
and meaning of his act. That report states that EP talked repeatedly about the 
killing. EP was not informed of the report’s conclusion 
9 One of the experts associated with the report, the head of the psychiatric unit at 
the general hospital, was required, by court order having the force of res judicata 
as from 21 March 2015, to provide and monitor outpatient treatment for EP for a 
period of six months. The court-appointed psychiatrist did not comply with that 
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court order, and informed the court to that effect on 6 November 2015 after she 
had received an automatic letter of reminder concerning her obligations following 
the expiry of the six months. 
10 By decision of 7 July 2016, the competent public prosecutor at the District Public 
Prosecutor’s Office terminated the criminal proceedings on the ground that EP 
suffered from an illness preventing him from taking part in those proceedings. It 
was expressly noted that ‘the potential defendant has been committed for 
compulsory treatment and for that reason does not yet have a proper procedural 
status’. That being the reason for it, the public prosecutor did not serve the 
decision terminating proceedings on EP. 
11 In the course of an audit by the higher-ranking public prosecutor’s office, the 
Apelativna prokuratura Sofia (Public Prosecutor’s Office attached to the Appeal 
Court, Sofia), the District Public Prosecutor’s Office, Montana, was given binding 
instructions to reinstate the [criminal] proceedings. Those instructions were acted 
on in the form of the decision to reinstate proceedings of 29 December 2017. That 
decision addressed the continuation of EP’s compulsory treatment under the 
Health Law. 
12 By decision of 1 March 2018, the competent public prosecutor at the District 
Public Prosecutor’s Office, Montana, terminated the criminal proceedings on the 
ground that ‘the offence in question was a premeditated act committed by EP in 
the absence of criminal responsibility’, for which reason compulsory medical 
measures should be ordered. The point was made once again that ‘the offender has 
no proper status and no precautionary measures have been ordered’. On the public 
prosecutor’s express instruction, that decision was served only on the victim’s 
daughter. On 10 March 2018, having not been challenged, it acquired the force of 
res judicata. 
13 In the course of the investigations, the person identified as the perpetrator was not 
questioned once; he was not informed of the criminal proceedings instituted 
against him and was not [formally] regarded as a defendant; he was not assigned a 
duty defence counsel; and he was not given the opportunity to challenge the 
public prosecutor’s factual or legal findings. 
14 After the Rayonen sad Lom (District Court, Lom), to which the application had 
originally been made, had dismissed the proceedings on grounds of lack of 
jurisdiction, the judge-rapporteur at the Rayonen sad Lukovit (District Court, 
Lukovit) called into question the jurisdiction of the latter court before the 
Varhoven kasatsionen sad (Supreme Court of Cassation) on the ground that EP 
lived in the village of Medkovets, in the municipality of Lom, and his committal 
to the State psychiatric hospital in Karlukovo did not alter the jurisdiction of the 
court of his place of residence. At the same time, the aforementioned decision 
brought to the attention of the Varhoven kasatsionen sad (Supreme Court of 
Cassation) the fact that the risks posed by the conduct of the person identified by 
the public prosecutor as the perpetrator of the intentional, unlawful homicide had 
EP 
 
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been mitigated not by the compulsory measures provided for in the NPK but by a 
procedure under the Health Law which is not applicable to the present case. As a 
result, the person concerned had been denied all rights of defence, including the 
right to be made aware of the act of which he is accused, the right to take part in 
the proceedings, the right to be appointed a defence counsel in connection with 
such a charge, and the right to challenge the decision of the public prosecutor. 
15 By order not open to challenge, the Varhoven kasatsionen sad (Supreme Court of 
Cassation) decided that, since EP was actually living in hospital at the current 
time, jurisdiction lay with the Rayonen sad Lukovit (District Court, Lukovit). 
Without further justification, it held that the judge-rapporteur’s submissions in 
respect of the rights of defence of the person concerned were unfounded. 
Succinct presentation of the reasons for the reference 
16 Bulgarian criminal law confers on the Public Prosecutor’s Office the power to 
terminate criminal proceedings without allowing the case to proceed to trial, if it 
takes the view that the perpetrator lacks criminal responsibility. 
17 In such circumstances, the law makes no provision for any special procedural 
guarantees to ensure that the proceedings have been conducted with due regard for 
all the minimum standards for ensuring the defendant’s rights of defence which 
are in principle laid down in the NPK but only for persons who have been 
formally advised that they are considered to be ‘defendants’. 
18 The pre-trial procedure is conducted and overseen exclusively by the Public 
Prosecutor’s Office. Any judicial review of specific conduct on the part of the 
Public Prosecutor’s Office or of compulsory measures involving deprivation of 
liberty is contingent upon the ‘status as defendant’ of the person concerned. 
19 While the court decides whether or not to impose compulsory State measures on 
persons considered by the Public Prosecutor’s Office to have committed an 
offence representing a risk to the general public in the absence of criminal 
responsibility, it is nonetheless bound by the findings of the Public Prosecutor’s 
Office to the effect that the person concerned committed the offence and acted in 
the absence of criminal responsibility. 
20 The aforementioned conclusion is consistent with the settled view expressed in 
case-law and legal literature to the effect that a decision by a Public Prosecutor’s 
Office to terminate criminal proceedings which has not been challenged is not to 
be regarded as irrevocable and does not acquire substantive legal validity, since it 
can in principle be quashed by a higher-ranking Public Prosecutor’s Office and 
those proceedings can be reinstated. An unchallenged decision is nonetheless 
legally binding on all concerned once it has acquired the force of res judicata. 
This view has been put forward in the main proceedings by both the Public 
Prosecutor’s Office and counsel for the defence. 
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21 In the special procedure, the court is not empowered to examine whether the 
procedural rights of the person identified as the perpetrator have been 
safeguarded, even it finds that that person has not the subject of a fair process in 
which he was able to defend himself against the public prosecutor’s finding of fact 
that he committed the offence and suffers from a mental disorder, which finding 
gives rise to the legal consequence of a lack of criminal responsibility. 
22 Under the Health Law, the liberty of a person identified as the perpetrator of an 
offence can in principle be restricted on the sole ground that he suffers from a 
mental disorder. The purpose of that law is to forestall any hypothetical future risk 
of criminal offences being committed as a result of illness. Under the procedure 
provided for in the Health Law, only two conditions are examined: whether a 
mental disorder is present and whether this poses a significant risk. That 
procedure, adversarial it is true, is not applicable, however, in the case of a 
criminal offence which has already been committed and is being investigated 
under the procedure provided for in the NPK. 
23 Although there is a clear distinction between the circumstances in which a 
restriction of liberty is permissible under the Health Law and the circumstances in 
which such a restriction is permissible under the NPK, it is often the case in 
practice that, at the request of the Public Prosecutor’s Office, the liberty of 
persons suspected of being mentally ill is restricted under the procedure provided 
for in the Health Law on the essentially factual grounds that an investigation is 
being conducted into a criminal offence which has been committed by the person 
suffering from a mental disorder. 
24 It is only where a suspect suffers from a mental illness that the Public Prosecutor’s 
Office can effectively circumvent the requirement to arrest a person identified by 
it as the perpetrator of an offence in accordance with the procedure provided for in 
the NPK, and thus in observance of the guarantees as to the safeguarding of the 
rights enjoyed by the person concerned under that Code, and conduct 
investigations without informing that person that it is doing so. 
25 In proceedings seeking an order for the adoption of compulsory medical measures, 
the court cannot examine whether the person identified as the perpetrator of an 
offence benefited from the minimum standards applicable to his rights of defence 
in the pre-trial proceedings. This was the view expressed in the main proceedings 
by a chamber of the Varhoven kasatsionen sad (Supreme Court of Cassation) 
which gave a decision on this question in the course of a dispute relating to 
jurisdiction. That decision of the Varhoven kasatsionen sad (Supreme Court of 
Cassation) is binding on the lower courts only in relation to the court’s territorial 
jurisdiction. The grounds of decisions given by the supreme court nonetheless 
serve in practice as guidance which the lower courts take into account. 
26 In the present proceedings, the person concerned submits that his right to be made 
aware of the offence of which he is accused, his right to refuse to give evidence, 
his right to take part in the proceedings and his right to instruct a lawyer have been 
EP 
 
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infringed. In the absence of any procedural facility allowing it to do so, however, 
the court cannot afford him any protection, even though the alleged infringements 
of his rights of defence are clearly well founded. 
27 At the same time, in cases which the court proceedings are initiated on the basis of 
an indictment, the defendant’s rights are fully safeguarded during the pre-trial 
procedure, since the court examines ex officio whether this was the case. 
28 The court seised has doubts as to whether such rules are compatible with the 
principles set out in Article 47 of the Charter and Article 6 of the Convention for 
the Protection of Human Rights and Fundamental Freedoms (ECHR), which 
enshrine the right to a fair trial, and with Article 48(2) of the Charter, which 
guarantees respect for the rights of defence in the context of the restrictions 
admissible under Article 5 of the ECHR and recognised in the case-law of the 
European Court of Human Rights (ECtHR). 
29 Since the main proceedings are not purely criminal-law in nature, but comprise a 
special procedure the purpose of which is to impose compulsory treatment, albeit 
in consequence of the conduct of criminal proceedings, it is not sufficiently clear 
to the adjudicating court whether that procedure falls within the scope of the 
provisions of EU law which were adopted under Article 82(2) of the Treaty on the 
Functioning of the European Union and which govern the rights of individuals in 
criminal proceedings. 
30 If the first question be answered in the affirmative and the Court of Justice of the 
European Union (‘the Court of Justice’) adopts an interpretation to the effect that 
a procedure such as that in the main proceedings, in which an order is made for 
the imposition of compulsory medical measures, also falls within the within the 
scope of the provisions of law governing the minimum rights of individuals in 
criminal proceedings,  it would be relevant to the judgment to be given in the main 
action to ascertain whether the procedural powers available to the court in the 
main proceedings provide the person concerned with an effective remedy. 
31 If the Court of Justice adopts an interpretation to the effect that the rules contained 
in Article 427 et seq. of the NPK do not provide the person whose treatment has 
been applied for with an effective remedy, the court seised could apply by analogy 
the procedural guarantee available in general proceedings, an approach which is 
permissible even in criminal law, provided that this does not impose any 
obligations on citizens but affords them rights. 
32 The court seised takes the view that the interpretation of the individual provisions 
of EU law by the Court of Justice is relevant inasmuch as, where the [national] 
court, when examining an indictment in general proceedings, exercises its power 
to refer the proceedings back to the Public Prosecutor’s Office so that essential 
procedural errors restricting the rights of the defence can be rectified, it is obliged 
to provide an express description of the errors made. 
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33 One of the essential questions is the point from which a person is to be regarded as 
being ‘suspected’ within the meaning of EU law and whether certain forms of 
evidence (the witness statement of the police officer who questioned the person 
concerned before criminal proceedings were instituted, the appointment of a 
doctor acting as an expert witness providing the relevant psychiatric report who 
failed to fulfil [her] obligation to monitor the condition of the person concerned as 
an outpatient) are usable as proof of the offence, even though the ‘suspect’ was 
not granted a right to information or a right of access to a lawyer. 
34 In connection with the above question, account must be taken of the judgment of 
the ECHR of 18 March 2018 in Dimitar Mitev v. Bulgaria (Application No. 
34779/09), in which the Court assessed a confession made by the applicant 
outside the context of the [criminal investigation] proceedings which had a 
significant impact on the further course of those proceedings, just as in this case, 
where the public prosecutor did not question EP but relied on the confession he 
had made at the time of his arrest. The ECHR concludes that the failure to grant a 
right of access to a lawyer at the earliest opportunity led to a comprehensive 
breach of the principle of a fair trial, which constitutes a violation of Article 6 §§ 
1 and 3 ECHR. 
35 Of essential importance to the admissibility of the ongoing confinement of the 
person concerned within a psychiatric hospital is the answer to the question 
whether the compulsory treatment under the Health Law, which, crucially, was 
ordered, on the ground that that person was the perpetrator of the intentional, 
unlawful homicide forming the subject of the criminal investigations, before the 
criminal proceedings had been definitively concluded, infringes the presumption 
of innocence, and whether the fact that the arrest was made in accordance with the 
procedure prescribed by law is alone sufficient to ensure that Article 5(4) ECHR 
is observed and the arrest forms part of a fair procedure in which the court is 
empowered to review not only compliance with the rules of procedure but also the 
suspicion justifying the arrest and the lawfulness of the objective pursued by that 
measure, the court having an obligation to carry out such a review in the case 
where the person concerned was arrested in accordance with the procedure laid 
down in the Nakazatelno-protsesualen kodeks. 
36 Finally, it is important to the referring court to establish whether the concept of 
‘vulnerable person’ within the meaning of EU law also includes persons suffering 
from a mental illness who have been identified as perpetrators of an offence and, 
if so, whether, given that such persons are unlikely to have the capacity of 
criminal responsibility but their offences may still constitute grounds for their 
compulsory treatment in a psychiatric hospital, the guarantees laid down in the 
special procedure provided for in the NPK are sufficient to ensure observance of 
the fundamental rights enjoyed by such persons in the pre-trial procedure.