CJEU Joined Cases C-845/19 and C-863/19 / Judgment

Criminal proceedings against DR and TS
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Third Chamber)
Type
Decision
Decision date
21/10/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:864
  • CJEU Joined Cases C-845/19 and C-863/19 / Judgment

    Key facts of the case:

    Requests for a preliminary ruling from the Apelativen sad - Varna.

    Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/42/EU – Freezing and confiscation of instrumentalities and proceeds of crime in the European Union – Scope – Confiscation of illegally obtained assets – Economic benefit derived from a criminal offence which has not been the subject of a conviction – Article 4 – Confiscation – Article 5 – Extended confiscation – Article 6 – Confiscation from a third party – Conditions – Confiscation of money allegedly belonging to a third party – Third party having no right to appear as a party in the confiscation proceedings – Article 47 of the Charter of Fundamental Rights of the European Union.

     

    Outcome of the case:

    On those grounds, the Court (Third Chamber) hereby rules:

    1. Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union must be interpreted as meaning that the possession of narcotics for the purposes of their distribution comes within its scope, even though all the elements inherent in the commission of that offence are confined within a single Member State.

    2. Directive 2014/42 must be interpreted as meaning that it not only provides for the confiscation of property constituting an economic benefit derived from the criminal offence in respect of which the perpetrator has been convicted, but also provides for the confiscation of property belonging to that perpetrator in respect of which the national court hearing the case is satisfied that it derives from other criminal conduct, in compliance with the safeguards provided for in Article 8(8) of that directive and on condition that the offence in respect of which its perpetrator has been convicted is among those listed in Article 5(2) of that directive and that that offence is liable to give rise, directly or indirectly, to economic benefit within the meaning of the same directive.

    3. Article 8(1), (7) and (9) of Directive 2014/42, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which allows for the confiscation, in favour of the State, of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that person having the right to appear as a party in the confiscation proceedings.

  • Paragraphs referring to EU Charter

    1) These requests for a preliminary ruling concern the interpretation of Article 2 of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ 2014 L 127, p. 39) and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    ...

    24) In those circumstances, the Apelativen sad – Varna (Court of Appeal, Varna) decided to stay the proceedings and to refer the following questions, which are worded identically in Cases C‑845/19 and C‑863/19, to the Court of Justice for a preliminary ruling:

    ‘(1) Are [Directive 2014/42/EU] and [the Charter] applicable with respect to a criminal offence consisting of possession of narcotics for the purpose of distribution thereof, committed by a Bulgarian citizen in the territory of the Republic of Bulgaria, and where the potential economic proceeds are also realised and located in [Bulgaria]?

    (2) Should the answer to the first question be in the affirmative, how should the concept of “economic advantage derived … indirectly from a criminal offence” in Article 2(1) of [Directive 2014/42] be understood, and can a sum of money, found in and confiscated from the home of the convicted person and his family and from a car driven by him, constitute such an advantage?

    (3) Is Article 2 of [Directive 2014/42] to be interpreted as precluding a legal provision such as that of Article 53(2) of [the NK], which does not provide for the confiscation of an “economic advantage derived … indirectly from a criminal offence”?

    (4) Is Article 47 of [the Charter] to be interpreted as precluding a national legal provision such as that of Article 306(1)(1) of [the NPK], which allows for the confiscation for the benefit of the State of a sum of money in respect of which it is claimed that it belongs to a person other than the person who committed the criminal offence, without that third party being able to take part in those proceedings in his or her own right and having direct access to the courts?’

    ...

    72) By its fourth question, the referring court asks, in essence, whether Article 47 of the Charter must be interpreted as precluding national legislation which allows for the confiscation, in favour of the State, of property which is claimed to belong to a person other than the perpetrator of the criminal offence at issue, without that person having the right to appear as a party in the confiscation proceedings.

    73) It should be recalled that the Charter’s scope of application, so far as concerns action of the Member States, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law (judgment of 14 January 2021, Okrazhna prokuratura – Haskovo and Apelativna prokuratura – Plovdiv, C‑393/19, EU:C:2021:8, paragraph 30 and the case-law cited).

    74) In the present case, it is apparent from the orders for reference that Article 53(2)(b) of the NK was inserted by the Zakon za izmenenie i dopalnenie na nakazatelnia kodeks (Law amending and supplementing the Criminal Code) (DV No 7 of 22 January 2019) and that the aim of that law was to implement Directive 2014/42 in Bulgarian law, within the meaning of Article 51(1) of the Charter. Thus, in adopting that law, the Bulgarian legislature was required to observe the fundamental rights enshrined in Article 47 of the Charter.

    75) Under the first and second paragraphs of Article 47 of the Charter, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and, in particular, is entitled to a fair hearing. In addition, the fundamental rights referred to in Article 47 are reaffirmed by Directive 2014/42 itself, Article 8(1) of which provides that Member States are to take the necessary measures to ensure that the persons affected by the measures provided for under that directive have the right to an effective remedy and to a fair trial in order to uphold their rights.

    ...

    85) In the light of the foregoing considerations, the answer to the fourth question is that Article 8(1), (7) and (9) of Directive 2014/42, read in conjunction with Article 47 of the Charter, must be interpreted as precluding national legislation which allows for the confiscation, in favour of the State, of property which is claimed to belong to a person other than the perpetrator of the criminal offence, without that person having the right to appear as a party in the confiscation proceedings.