Judgment;Summary — ECLI:EU:C:2022:376
Date: 2022-05-12
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

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:  
8 October 2020 
Referring court:  
Spetsializiran nakazatelen sad (Bulgaria) 
Date of the decision to refer:  
8 October 2020  
Applicants:  
RR 
JG 
      
Subject matter of the main proceedings 
Application by third parties, made during the trial stage of the criminal 
proceedings, for the return of property seized as evidence  
Subject matter and legal basis of the reference 
Interpretation of Article 4(1) of Directive 2014/42/EU in conjunction with 
Article 2(3) and Article 8 thereof and of Article 17 of the Charter of Fundamental 
Rights of the European Union 
The reference is made on the basis of Article 267 TFEU. 
Questions referred for a preliminary ruling 
Does Article 8 of 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? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-505/20 
 
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Is 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 
but who has made that property available to the accused for the latter’s permanent 
use in such a way that, from the perspective of the relationship between them, it is 
the accused who exercises the rights of ownership, in line with Article 4(1) of 
Directive 2014/42 in conjunction with Article 2(3) thereof and Article 17 of the 
Charter? 
If the [second] question is answered in the negative: Do the second sentence of 
Article 8(6) and Article 8(7) of Directive 2014/42 establish an obligation to 
interpret the national law 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 to challenge the confiscation 
decision in court? 
Legal provisions and case-law of the European Union relied on 
Directive 2014/42/ЕU of the European Parliament and of the Council of 3 April 
2014 on the freezing and confiscation of instrumentalities and proceeds of crime 
in the European Union (OJ 2014 L 127, p. 39), in particular Article 2(3), 
Article 4(1), the second sentence of Article 8(6), and Article 8(7) 
Charter of Fundamental Rights of the European Union, in particular Article 17 
Provisions of national law relied on 
Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’), in 
particular Article 111, Article 301(1)(11), Article 306(1)(4), and Article 412(1) 
Nakazatelen kodeks (Criminal Code, ‘the NK’), Article 53 
Summary of the facts and proceedings 
1 Third parties who are not parties to the trial applied to the referring court for the 
return of their property that had been seized during the pre-trial stage. Ms RR 
applied for the return of an Audi A6 passenger vehicle; Mr JG applied for the 
return of two telephones and an amount of cash. 
2 On 15 January 2019, the police stopped an Audi A6 driven by Mr WE for a check. 
Ms RR, the vehicle owner, was also in the vehicle. A significant quantity of 
narcotic substances—almost 5 kilograms of marijuana and approx. 200 grams of 
cocaine—was found in the vehicle. The vehicle was seized and both persons were 
formally charged. Both stated that Ms RR had not known about the narcotic 
substances. They stated that they were cohabitants and had a child in common and 
that, although Ms RR owned the vehicle, Mr WE was in fact its sole user. 
RR AND JG 
 
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3 On an unspecified date, Ms RR filed an application for the return of the seized 
vehicle; that application was examined by the public prosecutor’s office on 
30 April 2019 and was rejected. Ms RR did not challenge the rejection in court. 
4 On 17 January 2020, the public prosecutor’s office terminated the criminal 
proceedings against Ms RR on the ground that she was not involved in 
transporting the narcotic substances. It took the view that Mr WE was in fact the 
sole user of the vehicle and that he alone had transported the narcotic substances, 
without Ms RR’s knowledge. 
5 The vehicle continued to be held as evidence. 
6 On 3 August 2019, the court authorised a search of Mr JG’s flat as part of criminal 
proceedings against an organised narcotics gang. This was carried out on 7 August 
2019. Two telephones and BGN 5 700 (approximately EUR 2 900) and EUR 295 
in cash were found during the search and seized. 
7 Mr JG was subsequently neither charged nor heard as a witness. 
8 On 4 September 2019, Mr JG applied for the return of the items seized. He 
provided proof of the lawful origin of the cash. On 20 September 2019, the public 
prosecutor’s office rejected the application on the ground that the telephones were 
about to be examined by an expert. Mr JG challenged the rejection, citing the 
lawful origin of the cash. The rejection was upheld by the court on 18 October 
2019. 
9 The telephones were then examined by an expert on 19 January 2020; following 
this examination, the public prosecutor’s office did not claim that Mr JG was 
involved in criminal offences. Mr JG was not heard as a witness. 
10 The telephones and cash continued to be held as evidence. 
11 An indictment was prepared and filed with the court on 28 August 2020 for the 
hearing on the merits. No charges were brought against Mr JG or Ms RR. Their 
names do not appear in the indictment. Mr WE was charged with possession of 
the narcotic substances found in the Audi passenger vehicle with the intention of 
distributing them. 
12 On 28 August 2020, Ms RR applied for the return of the vehicle on the ground 
that she needed it for the care of her child. 
13 On 17 September 2020, Mr JG applied for the return of the cash and the two 
telephones, arguing that they were unrelated to the subject matter of the 
proceedings and had been obtained lawfully. 
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Principal arguments of the parties to the main proceedings 
14 The public prosecutor’s office argues that there is no corresponding procedural 
rule for the return of this property in national law. It would therefore be a 
procedural defect to order its return. However, in its view, the defect would be 
minor. It consents to the return of the property to Mr JG (two telephones and 
cash), but not to the return of the car to Ms RR. 
15 Most of the representatives of the accused persons (the latter numbering 41) have 
made no comments. Some have agreed to the return of these items. However, a 
few point out that there is no legislative provision under which the application 
could be granted. 
16 Ms RR’s lawyer was the only representative of the affected persons to appear. He 
stated that, although the law does not provide a procedural rule for the return of 
her vehicle, Ms RR nevertheless insists that it should be returned, since she did 
not know that it was being used to transport narcotic substances. 
Brief summary of the grounds for the request for a preliminary ruling 
National legislation 
17 Property seized as evidence remains under the effective control of the authorities 
in whose jurisdiction the crime is prosecuted. They keep it not only as evidence 
but also as property that may be confiscated. This property is ‘frozen’ within the 
meaning of Article 2(5) of Directive 2014/42. 
18 In the pre-trial stage of the criminal proceedings, the person affected (the owner or 
another person with a legal interest) has a remedy to uphold his or her rights. The 
owner can apply to the public prosecutor’s office for the return of the property 
seized. The public prosecutor’s office grants the application if it accepts that it is 
unnecessary to keep the property and that it has not been obtained unlawfully. 
New grounds for the rejection of an application for return have been added by the 
case-law, namely the possibility of these items being confiscated as the object, 
instrumentality, or proceeds of the criminal offence. The person affected is 
protected by an additional remedy against the rejection of an application for return 
by the public prosecutor’s office, since he or she can bring a legal challenge. The 
court’s decision is final. 
19 The person affected has no legal remedy to protect his or her rights during the trial 
stage of the proceedings. He or she cannot demand a decision on the return of 
property seized from the court hearing the case. When delivering the judgment 
(the decision on the guilt and the punishment), the court must also decide on the 
items of evidence of its own motion. If the court decides that the property must be 
returned to the person affected, that will not be done until the judgment has 
become res judicata. If the court does not decide on this matter in the judgment, 
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the person affected can request a separate decision. In that case, the court will 
deliver a separate decision. 
20 The law provides for the confiscation of the instrumentality for the benefit of the 
State. An instrumentality is considered to be anything used to commit the crime. 
The passenger vehicle used to transport narcotic substances is a particular 
example of such an instrumentality. The instrumentalities are confiscated only if 
they ‘belong’ to an accused person who is pronounced guilty. According to the 
case-law, the expression ‘belong to the offender’, which is interpreted narrowly, 
means that the item is the property of the offender. Consequently, in view of the 
facts of the main case, if the accused is not the owner of the passenger vehicle he 
used to transport the narcotic substances, that vehicle cannot be confiscated. The 
vehicle must be returned to the owner. 
21 An instrumentality that is not the property of an accused person who has been 
found guilty cannot be confiscated under the national law. Hence, only an accused 
person whose instrumentality is confiscated has a remedy to uphold his or her 
rights within the general remedies afforded to accused persons. 
22 Since property owned by a third party and used as an instrumentality cannot be 
confiscated, the national law provides no remedy to protect that third party, such 
as participation in the proceedings before the court delivers a decision on the 
confiscation, or a remedy against that decision. Nor are such protective remedies 
provided for the few cases in which the property of a third party can be 
confiscated. 
23 If a person is not guilty of the crime, but is responsible for its damaging 
consequences as a result of a particular connection with the accused, he or she can 
participate in the trial stage of the proceedings as a defendant under civil law. He 
or she can thus participate fully, since the law affords him or her all legal means 
for the full protection of his or her rights. The law restricts the scope of a 
defendant under civil law to the party against whom the injured party has brought 
a civil action. As yet, the case-law has not applied this provision to third parties 
who own property that could be seized as an instrumentality. 
24 That being said, a broader interpretation could lead to the assumption that a person 
who may be liable to the State with his or her assets for the consequences of the 
criminal offence committed by the accused can participate in the proceedings as a 
defendant under civil law. Given, in particular, that the confiscation of an item 
owned by a certain person and used as an instrumentality by the accused is 
permitted, and is a result of a particular relationship between them [the third party 
and the accused] with regard to this item, the third party must be afforded 
remedies to uphold his or her rights in such a case. The possible confiscation of 
his or her item may be used as a basis for granting the person affected the status of 
‘defendant under civil law’, which would provide him or her with full remedies to 
uphold his or her rights. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-505/20 
 
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Admissibility of the questions 
25 Under Article 3(g) and (h) of Directive 2014/42, the Directive is applicable here, 
since the national criminal proceedings concern criminal acts connected with 
organised crime and drug trafficking. 
26 Article 7 of Directive 2014/42 in conjunction with Article 2(5) thereof allows 
Member States to provide appropriate measures in their national law to freeze 
property with a view to possible subsequent confiscation. The national provision 
for the seizure of certain items after a search constitutes such freezing, since the 
items seized remain under the control of the authorities charged with conducting 
the criminal proceedings (‘temporarily assuming … control of property’ under 
Article 2[(5)] of the directive), including for the purpose of confiscation by means 
of the judgment on the merits of the case. 
Question 1 
27 Seizure affects the owners of items seized in the proceedings, as they cannot use 
these items for a considerable period of time. The safeguards under Article 8(1) 
and (4) of the directive, namely a legal means to apply for the return of the 
property or to bring a challenge before the court, and the safeguard under 
Article 8(3), namely the annulment of the decision on the confiscation if that 
confiscation is not legally permissible, should therefore also apply to them. 
28 National law affords this right to the persons affected, but only during the pre-trial 
stage of the proceedings. At that stage, they can first apply to the public 
prosecutor’s office, which is responsible for the investigations; if their application 
for return is rejected they can then challenge the rejection before the court. 
However, the national provisions do not afford this right to the persons affected 
during the trial stage of the proceedings. They cannot apply to the court for the 
return of the items seized in this case. They must wait for the judicial decision on 
the merits, in which the court also decides of its own motion on the return of the 
items; if it does not do so, they must file a specific application for a separate 
decision. In any case, even if the court grants their application, they must wait 
until the judgment becomes res judicata before they actually receive the items. 
That can often take several years. 
29 That being the case, the question arises whether the absence of a remedy for the 
persons affected by the seizure to uphold their rights during the trial stage of the 
criminal proceedings is in line with Article 8(1) and (4) of the Directive, as well as 
whether the protection they receive after the conclusion of the judicial 
proceedings is sufficiently effective. That protection exists only after the judicial 
proceedings have been concluded, in so far as the property seized cannot be 
returned until a final decision has been delivered on the guilt of the accused and 
the punishment. 
30 Furthermore, the question arises whether this national regime is compatible with 
Article 8(3) of the Directive, given that the property continues to be frozen even 
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when it is absolutely clear that subsequent confiscation is not permissible. This 
can be concluded beyond doubt from the nature of the charge, if it does not assert 
that the items are instrumentalities or proceeds of the criminal offence. It can also 
be concluded beyond doubt from a judgment ordering the return of the items to 
the person affected. In fact, the return of the items is postponed until the decision 
becomes res judicata only because of challenges related to other matters (for 
example the guilt or the punishment). 
The relevance of the answer to the first question. 
31 In the specific case of Mr JG, two telephones and an amount of cash were seized 
from him (and therefore frozen for the purposes of possible confiscation), the 
former as possible instrumentalities and the latter as possible proceeds of the 
criminal offence. No charges were brought against him subsequently. The public 
prosecutor’s office does not allege that Mr JG’s items are in any way related to 
criminal offences committed by other persons. In view of the charges brought, the 
items seized from him (cash and two telephones) are therefore neither 
instrumentalities nor proceeds of the crime. There can therefore be no doubt that 
they must be returned to him. The referring court will be able to make an 
immediate decision on the return of the property on the basis of the Court of 
Justice’s decision, while this will not be possible for several years if national law 
is applied. 
32 With regard specifically to Ms RR, the charges state that her car was used as an 
instrumentality of the criminal offence. It is therefore possible that it will be 
confiscated. The second question relates to this possibility. 
Question 2 
33 This question aims to establish the lawfulness of the provision of national law 
according to which the confiscation of the ‘instrumentality’ in accordance with 
Article 4(1) of the directive in conjunction with Article 2(3) thereof is dependent 
on the accused’s ownership of that instrumentality. Hence, property not owned by 
the accused cannot be confiscated, irrespective of the relationship between the 
owner and the accused with regard to the instrumentality. 
34 If the charges are proved, the vehicle in question will have been used as an 
instrumentality of the criminal offence. This raises the question of how important 
ownership of the instrumentality is for determining whether it can be confiscated 
(in the event of a conviction). 
35 More particularly, Article 4(1) of the Directive requires the instrumentality to be 
confiscated, without specifying whether this should be done if it is the property of 
a third party. 
36 The national law adopted to implement this requirement assumes that only an item 
that is the property of the accused can be confiscated as an instrumentality. It 
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therefore establishes a further condition for confiscation, which is not included in 
the directive. 
37 The referring court has no doubt that such a further condition must be applied to 
uphold the rights of third parties acting in good faith. In particular, an item used as 
an instrumentality, which the accused does not own but has used only in a specific 
case, must not be confiscated. With that in mind [the court] regards the national 
condition that the instrumentality ‘belongs’ to the accused as consistent with EU 
law, in so far as it is not only an admissible but also a necessary derogation from 
the provisions of Article 4(1) of the directive. 
38 However, it has doubts about whether or not understanding the term ‘belong’ only 
as a right of ownership will render the provisions of the directive ineffective. It 
therefore asks whether this narrow interpretation of national law is consistent with 
Article 4(1) of the directive. 
39 In the second place, the referring court is unsure whether a broader interpretation 
of the national term ‘belong’ would comply with EU law. According to such an 
interpretation, the term could also apply to an instrumentality that is the property 
of a third party, but over which the accused has a level of control that is equivalent 
to ownership. More specifically, if the instrumentality belonged to a third party, 
who made it available to the accused for his or her permanent use in such a way 
that, from the perspective of the relationship between them, the ownership rights 
effectively belong to the accused, would that be an impediment to confiscation? 
40 In this situation, would there be an infringement of Article 17 of the Charter, in so 
far as the owner had voluntarily transferred the actual use of the item to the 
accused already before it was confiscated? 
41 Conversely, a narrow interpretation of the requirement to ‘belong to the offender’ 
would result in an infringement of the directive. If the accused were convicted, the 
instrumentality—the vehicle—would be returned to Ms RR, who might allow 
Mr WE to use it again, according to the relationship between them. That would be 
contrary to recital 30, which precludes legal mechanisms which allow the 
convicted person to continue using items of property that were instrumentalities 
but were not confiscated. 
42 It should be noted once again that Ms RR was not involved in the criminal 
offences and is a third party acting in good faith. Under national law, if the 
decision goes against Ms RR, the referring court must adopt the facts set out in the 
decision of the public prosecutor’s office terminating the criminal proceedings 
against her. There is therefore a formal procedural impediment to establishing any 
degree of involvement on the part of Ms RR and confiscating her vehicle on the 
basis of that involvement. 
Question 3 
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43 If the answer of the Court of Justice of the European Union to the second question 
is that the vehicle owned by Ms RR can be confiscated as an instrumentality, the 
question arises as to what remedies she enjoys. It is open to question, in particular, 
whether the referring court must enable her to participate in the criminal 
proceedings, in which it will be discussed whether Mr WE used her vehicle as an 
instrumentality and whether her relationship with Mr WE with regard to the 
vehicle is such that the vehicle can be confiscated, irrespective of the fact that she 
is the owner. These proceedings may conclude with a decision on the confiscation 
of the vehicle. 
44 No such possibility is provided under the national law – primarily because there is 
no provision for the confiscation as an instrumentality of an item not owned by the 
accused. 
45 That is the reason for the third question of the referring court, namely whether it is 
obliged to interpret the national law as meaning that it must provide such a 
remedy. This can be done by interpreting the national legal concept of ‘defendant 
under civil law’ more broadly so that it covers persons who have civil law liability 
in connection with a criminal offence on account of a particular connection 
between their property and the accused. 
46 To this end, the Court of Justice of the European Union must in the first place 
clarify whether third parties whose item, owned by them, has been frozen and may 
be confiscated as an instrumentality are protected under Article 8 of the directive. 
47 In the second place, the scope of this protection must be defined. It is beyond 
doubt that the person affected has a right to challenge any confiscation that may 
be ordered– second sentence of Article 8(6) of the Directive. 
48 That being the case, the question arises whether this person has the right to 
participate in the proceedings in person before the confiscation is ordered. On the 
one hand, Article 8(6) provides for the communication of a confiscation order that 
has already been issued. It can be inferred from this that third parties affected by a 
confiscation decision can participate in the proceedings only where they decide to 
challenge the decision once it has been issued. 
49 On the other hand, the wording of Article 8(7) of the Directive gives the person 
affected the right of access to a lawyer throughout the confiscation proceedings 
relating to the determination of the instrumentality. It can therefore be presumed 
that the referring court must inform Ms RR already at the beginning of the 
proceedings, so that she can uphold her rights fully, including the right to instruct 
a lawyer.