48.

In the dispute in the main proceedings, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is a national law compatible with the obligation of a Member State to provide for the effective prosecution of criminal offences by customs officials if that law provides for criminal proceedings brought against customs officials — for participation in a conspiracy to commit corruption offences while performing their professional duties (accepting bribes for non-performance of customs inspections), and for specific bribery offences and concealment of bribes received — to be terminated, without the court having examined the charges brought, under the following conditions: (a) two years have elapsed since the accused was charged; (b) the accused has lodged a request for the pre-trial investigation to be concluded; (c) the court has given the prosecutor a period of three months to conclude the pre-trial investigation; (d) during that period, the prosecutor has committed ‘infringements of essential procedural requirements’ (failure properly to notify a supplementary charge, failure to disclose the investigation file, contradictory indictment); (e) the court has given the prosecutor a further period of one month to remedy those ‘infringements of essential procedural requirements’; (f) the prosecutor has failed to remedy the ‘infringements of essential procedural requirements’ within that time limit — albeit that the infringements committed within the first three-month period and the failure to remedy them within the subsequent one-month period are attributable both to the prosecutor (failure to remove contradictions in the indictment; failure to take real action for most of those periods) and also to the defence (breach of the duty to cooperate with respect to notification of the charge and inspection of the investigation file due to the hospitalisation of the accused and claims regarding the lawyers’ other professional commitments); (g) the accused has acquired a subjective right to the termination of the criminal proceedings on account of the failure to remedy the ‘infringements of essential procedural requirements’ within the prescribed periods? (2) If the answer [to the first question] is in the negative, which part of the abovementioned legislation should the national court disapply in order to ensure that EU law is applied effectively: (a) termination of the criminal proceedings once the one-month period has expired; or (b) categorisation of the abovementioned defects as ‘infringements of essential procedural requirements’; or (c) protection of the subjective right arising in the first question under (g) if there is a possibility that that infringement may be remedied effectively in the court proceedings? (a) Should the decision to disapply national rules providing for the termination of criminal proceedings be determined by: (i) the prosecutor’s being granted an additional period of time to remedy the ‘infringement of essential procedural requirements’ equal to the period during which he was, objectively, precluded from doing so because of obstacles attributable to the defence; (ii) the court’s establishing in the case of (i) above that the obstacles are the result of an ‘abuse of law’, and (iii) if the answer to question 2(a)(i) is in the negative, the court’s establishing that national law provides sufficient guarantees that the pre-trial investigation will be completed within a reasonable time? (b) Is the decision not to categorise the abovementioned defects in accordance with national law as ‘infringements of essential procedural requirements’ compatible with EU law, that is to say: (i) Would the right under Article 6(3) of Directive 2012/13 for the defence to be provided with detailed information on the accusation be adequately safeguarded: – if that information was provided after the actual submission of the merits of the accusation [(also referred to below as ‘the indictment’)] to a court but before examination of the indictment by the court, or if, at an earlier stage, prior to submission of the indictment to the court, the defence was provided with full information about the essential elements of the accusation (as in Mr Hristov’s case); – in the event that the answer to question 2(b)(i), first indent, is in the affirmative, if that information was provided after the actual submission of the indictment to a court but before the court had examined it, and the defence had, at an earlier stage, been provided with partial information about the essential elements of the accusation prior to submission of the indictment to the court, the provision of only partial information being attributable to obstacles on the part of the defence (as in the case of Mr Kolev and Mr Kostadinov), and – if the information was contradictory as regards the way in which the demand for a bribe was actually expressed (at one point it is stated that another defendant expressly demanded the bribe, while Mr Hristov indicated his dissatisfaction, by grimacing, when the person undergoing the customs inspection offered too little money, whereas elsewhere it is asserted that Mr Hristov explicitly and specifically demanded a bribe)? (ii) Would the right under Article 7(3) of Directive 2012/13 for the defence to be granted access to case materials ‘at the latest upon submission of the merits of the accusation to the judgment of a court’ be adequately safeguarded in the main proceedings if the defence had access to the essential part of the materials at an earlier stage and was given the opportunity to inspect the materials but, because of various obstacles (illness, professional commitments), and in reliance on national law which requires at least three days’ notice to be given of the availability of materials for inspection, did not avail itself of that opportunity? Must a further opportunity for inspection be given once those obstacles are removed and subject to at least three days’ notice being given? Is it necessary to establish whether the obstacles referred to did, objectively, exist or constitute an abuse of law? (iii) Does the legal requirement laid down in Article 6(3) and Article 7(3) of Directive 2012/13 (‘at the latest on submission of the merits of the accusation to a court’/‘at the latest upon submission of the merits of the accusation to the judgment of a court’) have the same meaning in both provisions? What does that requirement mean: prior to the actual submission of the merits of the accusation to [the judgment of] a court, or at the latest on their submission to the court, or after their submission to a court but before the court has taken steps to examine the merits of the accusation? (iv) Does the legal requirement to provide information on the accusation to the defence and access to the materials of the case in such a way as to ensure that ‘the effective exercise of the rights of the defence’ and ‘the fairness of the proceedings’ can be safeguarded in accordance with Article 6(1) and Article 7(2) and (3) of Directive 2012/13 have the same meaning in both provisions? Would that requirement be met: – if the detailed information on the accusation was provided to the defence after submission of the indictment to a court but before any steps had been taken to examine its merits and the defence had been given sufficient time for preparation, incomplete and partial information on the accusation having been provided at an earlier stage; – if the defence was granted access to all the case materials after submission of the indictment to a court but before any steps had been taken to examine its merits, and the defence had been given sufficient time for preparation, access to the majority of the case materials having been given to the defence at an earlier stage, and – if the court adopted measures to guarantee to the defence that all statements given by the defence after studying the detailed indictment and all the case materials would have the same effect as they would have had if those statements had been given to the prosecutor before submission of the indictment to the court? (v) Would ‘the fairness of the proceedings’ in accordance with Article 6(1) and (4) and ‘the effective exercise of the rights of the defence’ in accordance with Article 6(1) of Directive 2012/13 be safeguarded if the court decided that judicial proceedings should be commenced in respect of a definitive charge that is contradictory as regards the way in which the demand for a bribe was expressed, but then gave the prosecutor an opportunity to remove those contradictions and enabled the parties to exercise fully those rights which they would have had if the charge had been filed without any such contradictions? (vi) Would the right of access to a lawyer enshrined in Article 3(1) of Directive 2013/48/EU be adequately safeguarded if, during the pre-trial investigation, the lawyer was given the opportunity to appear in order to be notified of the provisional charge and to be given full access to all case materials, but failed to appear due to professional commitments and in reliance on national law requiring at least three days’ notice to be given? Is it necessary for a new time limit of at least three days to be imposed once those commitments have been met? Is it necessary to establish whether the reason for the non-appearance is valid or whether there has been an abuse of law? (vii) Would the infringement during the pre-trial investigation of the right of access to a lawyer enshrined in Article 3(1) of Directive 2013/48 have an effect on the ‘practical and effective exercise of rights of defence’ if, after submission of the indictment to the court, the court granted the lawyer full access to the final and detailed indictment and to all the case materials, and then adopted measures to guarantee to the lawyer that all statements made by him after studying the detailed indictment and all the case materials would have the same effect as they would have had if those statements had been made to the prosecutor before submission of the indictment to the court? (c) Is the subjective right of the accused to have the criminal proceedings terminated (under the above conditions) compatible with EU law, notwithstanding the fact that the ‘infringement of essential procedural requirements’ which the prosecutor has failed to remedy may be fully remedied as a result of measures taken by the court in the judicial proceedings, so that ultimately the legal position of the accused is identical to that which he would have had if the infringement had been remedied in due time? (3) Can more favourable national rules on the right to a trial within a reasonable time, the right to information and the right of access to a lawyer be applied if they — in conjunction with other circumstances (the procedure described at point 1) — would result in the termination of the criminal proceedings? (4) Is Article 3(1) of Directive 2013/48 to be interpreted as authorising the national court to exclude from the court proceedings a lawyer who has represented two of the accused, one of whom has given a statement regarding matters that are prejudicial to the interests of the other, who has not given a statement? If this question is to be answered in the affirmative, would the court be safeguarding the right of access to a lawyer in accordance with Article 3(1) of Directive 2013/48 if, having allowed a lawyer who has simultaneously represented two defendants with conflicting interests to take part in the proceedings, it appointed new, different defence lawyers to represent each of those defendants?’