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CJEU Case C-646/17/ Opinion

Criminal proceedings against Gianluca Moro

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
05/02/2019

Introduction

  1. Mr Moro (‘the Defendant’) was charged with the criminal offence of handling the proceeds of crime, namely stolen gold jewellery. During the trial hearing, the Defendant confessed that it was in fact him who had stolen that jewellery. Following his confession, he was informed that the acts of which he was accused could be reclassified and the charge could thus be modified to the criminal offence of theft.
  2. The Defendant subsequently applied for a negotiated penalty, known under Italian law as ‘patteggiamento’. That application was rejected because, under the Codice di procedura penale (Code of Criminal Procedure), a request for the application of that procedure must in principle be submitted before the trial proceedings begin, at least in cases in which a mere legal reclassification of the act occurs, as opposed to a change in facts.
  3. The Tribunale di Brindisi (District Court, Brindisi, Italy) has doubts as to whether such national provisions comply with EU law provisions concerning the rights of the defence of accused persons, and in particular with a number of provisions of Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings (Directive 2012/13). Apart from the need to ascertain the exact scope of the specific obligations flowing from the right to be informed promptly of any change to the accusation, as enshrined in that directive, the transversal issues raised in the present case are: what exactly is the scope of application of that directive as a whole? What role does the EU Charter play in interpreting such procedural rights?

Conclusion

In the light of the preceding analysis, I suggest that the Court reply as follows to the Tribunale di Brindisi (District Court, Brindisi, Italy):

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings and Article 48(2) of the Charter of Fundamental Rights of the European Union does not preclude procedural rules such as the ones at issue in the main proceedings that allow the accused person to request a negotiated penalty after the beginning of the trial only if there is a change to the accusation that is of a factual nature, and not when the change is of a legal nature.