Article 21 - Non-discrimination
Article 47 - Right to an effective remedy and to a fair trial
Article 48 - Presumption of innocence and right of defence
Article 51 - Field of application
Key facts of the case:
Preliminary ruling — Directives 2012/13/EU, 2013/48/EU and (EU) 2016/343 — Scope — Policing — Pre-trial criminal investigation by the public prosecution service — Special criminal procedure for the adoption of coercive medical measures — Committal to a psychiatric hospital under a non-criminal law — Effective judicial review of observance of the suspect or accused person’s right to information and right of access to a lawyer — Presumption of innocence — Vulnerable persons).
Outcome of the case:
On those grounds, I propose that the Court of Justice reply as follows to the Rayonen sad Lukovit (District Court, Lukovit, Bulgaria):
43) Against that background, the Rayonen sad Lukovit (District Court, Lukovit) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(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 an act representing a danger to the general public, fall within the scope of Directive 2012/13 on the right to information in criminal proceedings and Directive 2013/48 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) (Code of Civil Procedure, Bulgaria), 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 and Article 8 of Directive 2012/13 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 and Directive 2013/48 applicable to (pre-trial) criminal proceedings in the case where the national law, that is to say the Code of Criminal Procedure, 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 and Article 2(3) of Directive 2013/48 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 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 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 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 Code of Criminal Procedure?
(6) Does the concept of the presumption of innocence in Article 3 of Directive 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:
(a) 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 (4) of the Code of Criminal Procedure), or
(b) 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 and Article 8(2) in conjunction with Article 3(2) of Directive 2012/13, 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?’
89) Therefore, the vagaries of those proceedings cannot, ratione temporis, be examined in the light of Directive 2016/343. To that extent, nor is it possible to rely on Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), because it is not apparent that, before 1 April 2018, there were any criteria which would have made it possible to apply EU law, for the purposes of Article 51(1) of the Charter.
97) Question 7 has a sub-question in which the referring court refers to Article 21 of the Charter and asks whether the principle of non-discrimination precludes a court from having different powers depending on whether or not the accused is mentally healthy. Since, in my view, the condition of a person with a mental health disorder is not comparable to that of a person who is in full possession of his or her faculties, it is not possible to talk about discrimination due to the fact that specific procedural rules are laid down for the former. That does not prevent the safeguards which must be observed in accordance with the directives cited from applying to both types of person, as I have explained.