CJEU Case C-612/15 / Opinion

Criminal proceedings against Nikolay Kolev and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU Case C-612/15 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Article 325 TFEU — Fraud or any other illegal activities affecting the financial interests of the European Union in customs matters — Effectiveness of prosecution — Closure of criminal proceedings — Reasonable time — Directive 2012/13/EU — Right of a person to be informed of the charges against him — Right of access to case materials — Directive 2013/48/EU — Right of access to a lawyer.

    Outcome of the case:

    In the light of all the foregoing considerations, I propose that the Court give the following answer to the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria):

    1. Article 325 TFEU, Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, and Article 2(2) and Article 3(2) of the Protocol drawn up on the basis of Article K.3 of the Treaty on European Union on the protection of the European Communities’ financial interests must be interpreted as precluding provisions of national law such as Articles 368 and 369 of the NPK which, owing to the failure to comply with a pre-determined time limit, require the national court to conclude the criminal proceedings, even if the delay is caused by deliberate obstruction attributable to the accused person. It is incumbent on the national court to give full effect to EU law by, where necessary, disapplying provisions of national law which have the effect of preventing the Member State concerned from fulfilling the obligations imposed on it by those provisions.
    2. Article 6(3) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings must be interpreted as not precluding a national practice which provides for the notification to the accused person of the information on the accusation after the indictment has been submitted to the court, in so far as the conduct of the proceedings during the hearing enables the accused person to be informed of and understand what he is being accused of and offers him reasonable time to discuss the evidence against him.
    3. Article 7(3) of Directive 2012/13 must be interpreted as not precluding a national practice which provides for access to the case materials to be granted, at the request of the parties, during the pre-trial investigation before the final indictment is drawn up. On the other hand, the national court must ensure that the accused person or his lawyer can have effective access to those materials in order to enable them to prepare an effective defence for that person.
    4. Article 3(1) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer must be interpreted as not precluding national legislation, such as the legislation at issue in the main proceedings, which provides that the national court is required to exclude from its proceedings the lawyer of a defendant who is representing or has represented another defendant if the defence of one of the defendants conflicts with that of the other and which provides that the court must appoint new defence lawyers to represent those defendants.
  • Paragraphs referring to EU Charter

    87) There is no room for deviation in this matter. The principle of proportionality, which is a general principle of law recognised by the Charter of Fundamental Rights of the European Union, is also a fundamental freedom which must be applied, here, from that supplementary perspective.


    92) I would add that an excessively short period for investigation would be likely to result in the investigation being focused primarily on the evidence against the defendants at the expense of what might be exonerating evidence or evidence capable, by its explanation of motives or conduct, of reducing the severity of the punishment, thereby preventing the severity of the penalty from being disproportionate to the offence, as recommended by Article 49(3) of the Charter of Fundamental Rights on the principle of proportionality.