Criminal proceedings against Nikolay Kolev and Others.
Date: 2018-06-05
41


Second, the referring court could decide to open the trial stage of the criminal proceedings despite the irregularities committed in the course of the pre-trial stage of those proceedings. However, the referring court is uncertain whether EU law precludes it from doing so.
46


It is clear from both the wording and the scheme of Article 267 TFEU that the preliminary ruling procedure presupposes that a dispute is actually pending before the national courts in which they are called upon to give a decision which is capable of taking account of the preliminary ruling given by the Court (judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 24).
50


In order to answer those questions, it must be noted that Article 325(1) TFEU requires the Member States to counter fraud and any other illegal activity affecting the financial interests of the Union through effective and deterrent measures (see, to that effect, judgments of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 37, and of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 30).
51


Under Article 2(1)(a) of Decision 2007/436, own resources of the European Union include, inter alia, Common Customs Tariff duties. Therefore, there is a direct link between the collection of revenue deriving from those duties and the availability to the EU budget of the corresponding resources. Any failure in the collection of the former potentially causes a reduction in the latter (see, by analogy, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 31 and the case-law cited).
52


Accordingly, in order to ensure the protection of the financial interests of the Union, the Member States are obliged to adopt the measures necessary to guarantee the effective and comprehensive collection of customs duties, an obligation which dictates that customs inspections may be properly carried out.
54


While the Member States have in that regard a freedom to choose the applicable penalties, which may take the form of administrative penalties, criminal penalties or a combination of the two, they must nonetheless ensure that cases of serious fraud or any other serious illegal activity affecting the financial interests of the Union in customs matters are punishable by criminal penalties that are effective and that act as a deterrent (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraphs 33 to 35 and the case-law cited; of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 20, and of 2 May 2018, Scialdone, C‑574/15, EU:C:2018:295, paragraphs 34 and 35).
55


The Member States must also ensure that the rules of criminal procedure permit effective investigation and prosecution of offences linked to such conduct.
64


As regards the consequences of that interpretation of Article 325(1) TFEU, it must be recalled that that article imposes on the Member States precise obligations, as to the result to be achieved, which are not subject to any condition regarding the application of the rules which that article lays down (judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 38 and the case-law cited).
65


The primary responsibility lies with the national legislature to adopt the measures necessary to meet those obligations. It is therefore for the national legislature, where required, to amend the legislation and to ensure that the procedural rules applicable to the prosecutions of offences affecting the financial interests of the European Union are not designed in such a way that there arises, for reasons inherent in those rules, a systemic risk that acts that may be categorised as such offences may go unpunished, and also to ensure that the fundamental rights of accused persons are protected.
66


For its part, the referring court must also, without waiting until the national legislation at issue is thus amended by legislation or by any other constitutional procedure, give full effect to those obligations by interpreting that legislation so far as at all possible in the light of Article 325(1) TFEU, as interpreted by the Court, or, as necessary, disapplying that legislation (see, to that effect, judgment of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 49).
67


In the event that, as appears to be the view of the referring court, a number of measures could conceivably give effect to the obligations at issue, it will be for that court to determine which of those measures to apply. In particular, it is for that court to decide whether it is necessary, to that end, to disregard all the requirements set out in Articles 368 and 369 of the Code of Criminal Procedure, or whether it is appropriate to extend the time limits imposed on the prosecutor by those articles with respect to bringing the pre-trial stage of the proceedings to an end and with respect to correcting any irregularities committed during that stage, or again whether, provided that the prosecutor has, in the particular case, submitted an indictment before the court within those time limits, the court must open the trial stage of the proceedings and itself cure those irregularities. In that regard, the referring court must however ensure that, at the various stages of proceedings, any deliberate and abusive obstruction on the part of the defence to the proper conduct and progress of those proceedings can be overridden.
68


In that context, and in light of the fact that the criminal proceedings at issue constitute an implementation of, in particular, Article 325(1) TFEU and, therefore, of EU law, within the meaning of Article 51(1) of the Charter (see, by analogy, judgment of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 21), the referring court must also satisfy itself that the fundamental rights guaranteed by the Charter to the accused persons in the main proceedings are respected. Those rights cannot be defeated by the obligation to ensure the effective collection of the Union’s resources (see, to that effect, judgments of 29 March 2012, Belvedere Costruzioni, C‑500/10, EU:C:2012:186, paragraph 23, and of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraphs 46 and 52).
70


In the second place, the referring court must, when it decides on the measures to be applied in this specific case in order to give full effect to Article 325(1) TFEU, protect the right of accused persons to have their case heard within a reasonable time.
71


In that regard, it must be stated that that right constitutes a general principle of EU law (see, to that effect, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 21), enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and in the second paragraph of Article 47 of the Charter with respect to the trial procedure. In criminal law, that right must be respected not only during the trial procedure, but also during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused (see, by analogy, ECtHR, 15 July 2002, Affaire stratégies et communications et Dumoulin v. Belgium, CE:ECHR:2002:0715JUD003737097, § 39, and ECtHR, 10 September 2010, McFarlane
v. Ireland, CE:ECHR:2010:0910JUD003133306, § 143).
72


In accordance with the Court’s settled case-law, the reasonableness of the length of proceedings cannot be determined by reference to a precise maximum limit determined in an abstract manner. It must be assessed in the light of all of the circumstances specific to each case, the importance of the case for the person concerned, its complexity or the conduct of the competent authorities and the parties, where such complexity or delaying tactics on the part of the defence may be deemed to justify a period that is prima facie too long (see, to that effect, judgments of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraphs 85 and 86, and of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraphs 99 and 100).
73


Accordingly, as the Advocate General stated, in essence, in point 91 of his Opinion, it is for the referring court to determine whether, in this specific case, the right of the individuals concerned to have their case heard within a reasonable time has been respected, taking into consideration not only the fact that the investigation in the main proceedings concerns eight individuals, accused of participation in a criminal undertaking that was active for slightly more than a year, but also the possibility that the delay that occurred might be due, in part, to the conduct of the defence.
74


It is also for the referring court to determine the specific measures that are to be taken in order to guarantee respect for that right, taking account of all the procedural remedies offered by national law, taken as a whole and interpreted in the light of EU law. In the event that, as stated in paragraph 67 of the present judgment, a number of approaches might conceivably be taken in order to give full effect to the obligations stemming from Article 325(1) TFEU, it is for that court to choose those which, of those various approaches, make it possible in the specific case to safeguard the fundamental right in question.
75


Further, it must be emphasised that the referring court cannot order the closure of the criminal proceedings, pursuant to the national legislation at issue in the main proceedings, solely on the ground that such closure would allegedly constitute the most favourable outcome for the accused persons in relation to the right of those persons to have their case heard within a reasonable time and to their rights of defence. While the national authorities and courts remain free to apply national standards of protection of fundamental rights, that is subject to the condition that, inter alia, the primacy, unity and effectiveness of EU law are not thereby compromised (see, to that effect, judgment of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 47 and the case-law cited).
82


For that purpose, it must be noted that, as stated in recital 14 and Article 1 of Directive 2012/13, the subject matter of that directive is the establishment of minimum standards to be applied in the field of information to suspects or accused persons.
87


In those circumstances, those provisions should be interpreted in the light of their context and their objective (see, to that effect, judgment of 20 December 2017, Spain v Council, C‑521/15, EU:C:2017:982, paragraph 158).
88


In that regard, it is apparent from recitals 10 and 14 of Directive 2012/13 that the aim of that directive is, by means of the establishment of common minimum rules governing the right to information in criminal proceedings, to increase the mutual confidence of the Member States in their respective criminal justice systems. As stated, in essence, in recital 14 and also in recital 41 of Directive 2012/13, to that end the directive builds on the rights laid down in, inter alia, Articles 47 and 48 of the Charter and seeks to promote those rights.
89


For that reason, as stated in recitals 27 and 28 of that directive and in Articles 6 and 7 thereof, it is precisely the objective of those provisions to allow for an effective exercise of the rights of the defence and to ensure the fairness of the proceedings (see, to that effect, with respect to Article 6, judgment of 22 March 2017, Tranca and Others, C‑124/16, C‑188/16 and C‑213/16, EU:C:2017:228, paragraph 38 and the case-law cited).
95


Further, that requirement does not preclude the possibility that information in relation to the charges sent to the defence may be the subject of later amendments, in particular as regards the legal classification of the alleged acts, or the possibility that new evidence may be added to the file in the course of argument. Such amendments and such evidence must however be disclosed to the accused person or his lawyer at a point in time when they still have the opportunity to respond effectively, before the stage of deliberation. That possibility is moreover envisaged in Article 6(4) of that directive, which provides that suspects or accused persons must be informed promptly of any changes in the information given in accordance with that article in the course of criminal proceedings where this is necessary to safeguard the fairness of the proceedings, and in Article 7(3) of that directive, which provides that where further material evidence comes into the possession of the competent authorities, access is to be granted to that evidence in due time to allow it to be considered.
96


In any event, in each of the situations described in paragraphs 92 and 93, paragraph 94 and in paragraph 95 of the present judgment and whenever the point in time when detailed information of the charges is provided and access to the case materials is granted, the person and his lawyer must have, inter alia, with due regard for the adversarial principle and the principle of equality of arms, sufficient time to become acquainted with that information and those case materials, and must be placed in a position to prepare the defence effectively, submit any observations and, when necessary, to make any application, such as an application for further investigation, that they are entitled to make under national law. As the Advocate General stated in point 101 of his Opinion, that requirement dictates that the case should, where necessary, be stayed and the case postponed to a subsequent date.
98


In that context, it is, however, for the court to achieve a fair balance between, on the one hand, respect for the rights of the defence, and, on the other, the need to guarantee the effectiveness of prosecution and punishment of offences affecting the financial interests of the European Union, and also the need to ensure that the proceedings are completed within a reasonable time, taking into account anything deliberately done by the defence to obstruct the due course of those proceedings.