Opinion of the Advocate General — ECLI:EU:C:2023:249
Date: 2023-03-23
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;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Bulgaria

Request for a preliminary ruling from the Rayonen sad Lukovit (Bulgaria) lodged on 18 March 2022 – Criminal proceedings (Case C-209/22) Language of the case: Bulgarian Referring court Rayonen sad Lukovit Party to the main proceedings Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit Questions referred Do factual situations in which coercive measures in the form of personal search and seizure were carried out against a natural person believed by the police to be in possession of narcotics during the investigation of an offence relating to the possession of narcotics come within the scope of Directive 2013/48/EU 1 on the right of access to a lawyer in criminal proceedings and 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 and of Directive 2012/13/EU 2 on the right to information in criminal proceedings? If the first question is answered in the affirmative, what is the status of such a person within the meaning of the Directives if national law does not recognise the legal concept of ‘suspect’ and the person has not been formally ‘accused’ by official notification, and must such a person be granted the right to information and access to legal counsel? Do the principle of legality and the prohibition of arbitrary actions allow a national provision such as Article 219(2) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, Bulgaria; ‘the NPK’), which provides that the investigating authority may formally accuse a person in the record of the first investigative act against him or her, if national law does not recognise the legal concept of ‘suspect’ and the rights of defence under national law arise only from the time at which the person is formally ‘accused’, which in turn is at the discretion of the investigating authority, and does such a national procedure impair the effective exercise and the essence of the right of access to a lawyer under Article 3(3)(b) of Directive 2013/48/EU? Does the principle of practical effectiveness of EU law permit a national practice under which the judicial review of coercive measures to obtain evidence, including personal search and seizure during criminal investigation proceedings, does not allow for a review of whether a sufficiently serious breach has been committed of the fundamental rights of suspects and accused persons guaranteed by Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, Directive 2013/48/EU and Directive 2012/13/EU? Does the principle of the rule of law permit national legislation and case-law according to which the court is not authorised to review the act of formally accusing a person, when it is precisely and exclusively this formal act that determines whether a natural person is granted the rights of defence when coercive measures are taken against that person for purposes of investigation? ____________ 1 OJ 2013 L 294, p. 1. 1 OJ 2012 L 142, p. 1.