delivered on 12 January 2023 (1)

Case C‑608/21

between

XN

(Request for a preliminary ruling from the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to information in criminal proceedings – Directive 2012/13/EU – Right of a person to be informed of the charges against him or her – Article 6(2) – Communication of the grounds for a detention order to the suspected or accused person – Period – Content)

‘But how can I be under arrest? And how come it’s like this?’‘Now you’re starting again,’ said the policeman, dipping a piece of buttered bread in the honeypot. ‘We don’t answer questions like that’. (2) These excerpts from the first scene of The Trial, the famous novel by Prague author Franz Kafka, depicts a society governed by an imaginary rule of law in which the authorities can deprive an individual of his or her personal freedom without informing that individual of the reasons for such a decision. Throughout this story, K. seeks to discover the reasons for his arrest (and subsequent conviction), but fails to do so.

Away from the inquisitorial excesses imagined by Kafka, the EU legislature has, in Article 6(2) of Directive 2012/13/EU, (3) codified the right of suspects or accused persons who have been arrested or detained to be informed of the reasons for their deprivation of liberty. By the present reference for a preliminary ruling, the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria) asks the Court to interpret that provision and thus to provide clarification as to the point in time at which those reasons must be communicated and as to the content of such a communication.

The legal framework

European Union law

Recitals 10, 14 and 28 and Articles 1, 2, 3, 4 and 6 of Directive 2012/13 and Article 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are relevant to the present case.

Bulgarian law

Article 72 of the Zakon za ministerstvoto na vatreshnite raboti (Law on the Ministry of the Interior) (DV No 53 of 27 June 2014), in the version applicable to the dispute in the main proceedings, provides:

‘(1) The police authorities may detain a person:

in respect of whom there is evidence that he or she has committed a criminal offence.

…

(4) The detained person has the right to challenge the legality of the detention before the Rayonen sad [(District Court)] in whose judicial district the authority has its seat. The court shall rule on the challenge without delay, and its ruling shall be subject to an appeal on a point of law before the competent Administrativen sad [(Administrative Court, Bulgaria)] in accordance with the Administrativnoprotsesualen kodeks [(Code of Administrative Procedure) (DV No 30 of 11 April 2006)].

(5) From the moment of his or her detention, the person shall have the right to defence counsel, and the detained person must also be informed of his or her right to waive that right to defence counsel and of the consequences thereof, as well as of his or her right to remain silent where the detention takes place on the basis of point 1 of paragraph 1.

…’

Under Article 73 of that law, a person detained under the conditions of points 1 to 4 of Article 72(1) thereof may not be subjected to any restrictions other than that imposed on the right to freedom of movement. The duration of his or her detention must not exceed 24 hours in such cases.

Article 74 of the Law on the Ministry of the Interior states:

‘(1) A written detention order [(zapoved)] shall be issued in respect of the persons referred to in Article 72(1).

(2) The detention order under paragraph 1 shall specify:

the name, function and place of employment of the police officer issuing the order;

the factual and the legal grounds for the detention;

data necessary for identifying the detained person;

the date and time of the detention;

the restriction of the person’s rights under Article 73;

his or her right to:

challenge the legality of the detention before the courts;

defence counsel from the moment of detention;

…

(3) The detained person shall complete a declaration stating that he or she is aware of his or her rights and that he or she intends to exercise or not exercise his or her rights under items b) to f) of point 6 of paragraph 2. The detention order shall be signed by the police officer and the detained person.

(4) The refusal or inability of the detained person to sign the detention order shall be confirmed by the signature of a witness.

…

(6) A copy of the detention order shall be provided to the detained person with signed confirmation of receipt.’

Under Article 22 of the Zakon za administrativnite narushenia i nakazania (Law on administrative offences and penalties) (DV No 92 of 28 November 1968), coercive administrative measures may be applied to prevent and bring an end to administrative offences and to prevent and eliminate their harmful effects.

Article 21(1) of the Code of Administrative Procedure, in the version applicable to the dispute in the main proceedings, reads as follows:

‘An individual administrative act is an express declaration of will, or a declaration of will expressed by an act or omission, of an administrative authority or other authority or organisation empowered to do so by law, of persons exercising public functions and of organisations providing public services, which creates rights or obligations or directly affects the rights, freedoms or legitimate interests of individual citizens or organisations, as well as the refusal to issue such an act.’

Article 145 of that code provides:

‘(1) The legality of administrative acts may be challenged before the courts.

(2) The following are open to challenge:

the original individual administrative act, including the refusal to issue such an act;

…’

Article 1 of the Ukaz No 904 za borba s drebnoto khuliganstvo (Decree No 904 on combating minor hooliganism) of 28 December 1963, in the version applicable to the dispute in the main proceedings, provides:

‘(1) The following administrative penalties shall be imposed for minor hooliganism where the person who committed the act has reached the age of 16:

detention for up to 15 days in a sub-unit of the Ministry of the Interior;

fine of between 100 and 500 leva (BGN) [(approximately EUR 51 to 256)].

(2) “Minor hooliganism” within the meaning of this Decree is improper conduct that manifests itself in the use of expletives, verbal abuse or other inappropriate utterances in a public place in the presence of a large number of people, with an offensive attitude and engaging in offensive behaviour towards citizens, the authorities or the public, or in a quarrel, brawl or other similar acts which disturb public order and the peace but which, on account of the low degree of danger posed to the public, do not constitute a criminal offence under Article 325 of the Criminal Code.’

The facts giving rise to the dispute, the main proceedings and the questions referred for a preliminary ruling

On 2 September 2020, RK, a police officer at the police headquarters for the second police district of the city of Sofia (Bulgaria), issued an order applying a coercive administrative measure, consisting of the detention of XN for a period of up to 24 hours, starting from 11.20 a.m. on 2 September 2020, on suspicion of having committed a criminal offence.

The order in question, bearing the signature of the police officer RK, sets out the grounds for XN’s detention as follows: ‘point 1 of Article 72(1) [of the Law on the Ministry of the Interior]’ and ‘disturbance of public order’. On the reverse side of the detention order, it was stated that XN was released at 11.10 a.m. on 3 September 2020, as confirmed by his signature. Immediately after XN was detained, he was subjected to a search of his person, which was recorded in a report, and he was also given a statement, for completion, informing him of his rights under Articles 72, 73 and 74 of the Law on the Ministry of the Interior.

On 3 September 2020, the Sofiyski Rayonen sad (District Court, Sofia), which is the referring court, was seised of an action brought by XN challenging the legality of the detention order issued.

In the course of the investigation of the case relating to that action, written reports of the police authorities dated 2, 3 and 4 September 2020 were submitted, in which it is alleged that, on 2 September 2020, at about 11.20 a.m., as a participant in protests in front of the Bulgarian Parliament building in the territory of the city of Sofia, XN attempted to break through the police cordon by beating the shields of the police officers with his hands and feet and making cynical remarks to them, as a result of which it was necessary to detain him. There is no evidence that the police officers’ written reports of 2 and 3 September were provided to XN for information purposes at the time of his detention.

In his written statement of 2 September 2020, XN claimed that he was present at the protests and that, when tensions escalated, he was pushed towards the police cordon by the crowd and then detained by the police officers of the Ministry of the Interior, who allegedly inflicted physical violence on him. He denies having disturbed public order.

Medical documents dated 2 September 2020 were submitted in the proceedings, showing that an examination conducted by a medical specialist found that XN had an open wound on his eyelid and around his eye.

On 8 September 2020, following an order issued by a public prosecutor of the District Public Prosecutor’s Office, Sofia, a police officer at the police headquarters for the second police district of Sofia drew up, in respect of XN, a legal act establishing minor hooliganism, which was subsequently submitted to the Sofiyski Rayonen sad (District Court, Sofia) for review and in which it was alleged that XN had committed an administrative offence under Article 1(2) of Decree No 904 on combating minor hooliganism. By decision of 8 September, issued by the Sofiyski Rayonen sad (District Court, Sofia), XN was found not guilty and was acquitted because the alleged administrative offence could not be proven. That judicial decision is final.

The referring court states that, in the main proceedings, it is called upon to examine the legality of the order issued by the police authority, which ordered XN’s actual detention for a period of up to 24 hours on suspicion of having committed a criminal offence.

It states that such detention of citizens for whom evidence exists that they have committed an offence constitutes a coercive administrative measure, within the meaning of Article 22 of the Law on administrative offences and penalties, which is in the nature of an individual administrative act having the purpose of preventing the person concerned from absconding or committing an offence.

The referring court notes that, under Article 74(2) of the Law on the Ministry of the Interior, the statement of the factual and legal grounds for detention is the main requirement of the order issued by a police authority. In that regard, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) interprets that provision in a corrective manner and holds that it is permissible for that information to be contained not in the written detention order, but in other accompanying documents (originating before or after that order), even if the latter are not provided to the person concerned at the time of the restriction of his or her freedom of movement. The referring court considers that that case-law, which was followed by the lower national courts, is consistent neither with Article 5(1)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights (‘the ECtHR’), nor with Article 6(2) or Article 8(1) of Directive 2012/13.

According to the referring court, account must be taken of the fact that the right of access to the file for persons having the status of ‘suspect’, set out in Article 7 of Directive 2012/13, has not been transposed into Bulgarian law and is therefore not guaranteed to those persons. Such access is guaranteed to ‘accused’ persons only under the Code of Criminal Procedure. Accordingly, in the absence of specific information on the factual and legal grounds for detention, and in the light of the fact that the right of access to the file containing those grounds is not guaranteed to him or her, a person suspected of having committed an offence is deprived of the possibility of organising in an adequate and effective manner his or her rights of defence and of challenging before a court the legality of the order for his or her detention.

The referring court also asks what elements should be included in the information concerning the criminal offence, for the purposes of Article 6 of Directive 2012/13, of which an arrested person is suspected.

In those circumstances, the Sofiyski Rayonen sad (District Court, Sofia) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is Article 8(1) of Directive [2012/13], read in conjunction with Article 6(2) thereof, to be interpreted as precluding national legislation which is applied in a corrective manner on the basis of settled case-law in the EU Member State concerned and under which it is permissible that information concerning the grounds for detaining a suspect, including information concerning the criminal offence of which he or she is suspected, is not contained in the written detention order, but in other accompanying documents (originating before or after that order) which are not provided to him or her immediately and of which the person can subsequently be informed in the event that he or she challenges the legality of the detention before the courts?

(2) Is Article 6(2) of Directive [2012/13] to be interpreted as meaning that, in order to ensure the effective exercise of the rights of the defence, the information concerning the criminal offence of which an arrested person is suspected must contain details regarding the time, place and manner of the commission of the offence, that person’s specific involvement in it and the consequent criminal nature of the offence?’

Analysis

The applicability of Directive 2012/13

As a preliminary point, it is necessary to take a position on the issue of the applicability of Directive 2012/13 in the present case.

It is apparent from the order for reference that, under Bulgarian law, detention pursuant to Article 72(1)(1) of the Law on the Ministry of the Interior constitutes a coercive administrative measure that is in the nature of an individual administrative act, which might suggest that the main proceedings should be classified as administrative and therefore fall outside the scope of Directive 2012/13.

According to Article 1 thereof, Directive 2012/13 lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them. Since I have no doubt that, when he was arrested and detained, XN was necessarily informed of the fact that the police authorities considered him to be a suspect, (4) I shall focus briefly on the question whether the proceedings which led to the present reference for a preliminary ruling are ‘criminal proceedings’ within the meaning of that article, with the result that Directive 2012/13 should apply in the present case.

In that regard, I note that detention implemented in accordance with Bulgarian law is directed, according to the referring court, at citizens for whom there is evidence that they have committed a criminal offence. While the liability of the person concerned is examined separately in criminal proceedings, detention can be ordered only if there is information indicating that an offence has been committed and justifying the suspicion that he or she is likely to have participated in it.

It is important to note, moreover, that, according to recital 14 of Directive 2012/13, that directive builds on the rights laid down in the Charter, and in particular Articles 6, 47 and 48 thereof, by building upon Articles 5 and 6 ECHR as interpreted by the ECtHR, and that the term ‘accusation’ in that directive is used to describe the same concept as the term ‘charge’ used in Article 6(1) ECHR. (5)

As the European Commission points out in its written observations, the Court has already confirmed, in the judgment in IS (Illegality of the order for reference), (6) that the rights conferred by Directive 2012/13 apply to a suspect who is arrested or detained, recalling the case-law of the ECtHR on the applicability of the safeguards deriving from the criminal law aspect of Article 6 ECHR, according to which a ‘criminal charge’ exists from the moment that an individual is officially notified by the competent authority of an allegation that he or she has committed a criminal offence, or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him or her. Thus, a person, such as XN in the present case, who has been arrested (or detained) on suspicion of having committed a criminal offence can be regarded as being ‘charged with a criminal offence’ and claim the protection of Article 6 ECHR’. (7)

It follows that Directive 2012/13 is applicable to the case in the main proceedings.

Substance

The first question

By its first question, the referring court asks, in essence, whether Article 8(1) of Directive 2012/13, read in conjunction with Article 6(2) thereof, must be interpreted as precluding national legislation, applied in accordance with the established legal practice in the Member State concerned, according to which the grounds for the detention of a suspect or accused person need not necessarily be stated in the written order for detention but may also be contained in other documents of which the person concerned will become aware only if he or she brings legal proceedings challenging the legality of that order.

Before beginning my analysis, it is important to recall that Article 8(1) of that directive requires that when information is provided to suspects or accused persons, in accordance with Articles 3 to 6 of that directive, this is noted using the recording procedure specified in the law of the Member State concerned. However, it is not clear to me from the case file that the interpretation of that provision is of any relevance to the answer to this question. In its forthcoming judgment, the Court should, therefore, in my view, reformulate this question by reference solely to Article 6(2) of Directive 2012/13.

Directive 2012/13 aims, 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. (8) Article 1 of that directive states, as noted above, that it lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them.

As the Court has already found, (9) a reading of Article 3 of Directive 2012/13 in conjunction with Article 6 thereof reveals that the right referred to in Article 1 of that directive encompasses at least two separate rights. First, in accordance with Article 3 of that directive, suspects and accused persons must be informed, at least, of certain procedural rights, namely the right of access to a lawyer, any entitlement to free legal advice and the conditions for obtaining such advice, the right to be informed of the accusation, the right to interpretation and translation and the right to remain silent. Where suspects or accused persons are arrested or detained, Article 4 of Directive 2012/13 requires Member States to provide them with a Letter of Rights setting out also certain additional procedural rights. Secondly, that directive establishes, in Article 6, rules concerning the right to information about the accusation.

Article 6(2) of Directive 2012/13, which is the subject matter of the first question referred, concerns the rule that suspects or accused persons who are arrested or detained are to be informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.

The specific purpose of that provision is to enable the persons concerned to challenge the lawfulness of their deprivation of liberty, and thus to protect themselves against arbitrary arrest or detention. This follows from the case-law of the ECtHR.

I would point out, in that regard, that, since Article 6(2) of Directive 2012/13 governs a condition for the lawfulness of the deprivation of liberty, its interpretation must necessarily be based on Article 6 of the Charter, concerning the right to liberty and security. The rights enshrined therein must, in accordance with the ‘homogeneity clause’ in Article 52(3) of the Charter, be given the same meaning and scope as the rights conferred by Article 5 ECHR. The ECtHR has consistently held that the competent authorities’ obligation to provide information under Article 5(2) ECHR (10) is intended to give arrested or detained persons the right to challenge the lawfulness of their deprivation of liberty before a court under Article 5(4) ECHR. (11)

As regards the point in time at which communication of information concerning the grounds for the arrest or detention must take place, the wording of Article 6(2) of Directive 2012/13 clearly does not contain any guidance. It is therefore necessary to ascertain whether any such guidance can be inferred from a systematic reading of that provision, taking into account the relationship between that provision and the other elements of the legal regime established by Article 6 of that directive.

Article 6(1) of Directive 2012/13 lays down the rule that suspects and accused persons are to be provided with information, promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence, about the criminal act they are suspected or accused of having committed. Recital 28 of that directive specifies that that information is to be provided at the latest before their first official interview by the police. Article 6(3) of that directive provides that, at the latest on submission of the merits of the accusation to a court, detailed information is to be provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person, while Article 6(4) thereof provides that suspects or accused persons are to be informed promptly of any changes in the information given where this is necessary to safeguard the fairness of the proceedings.

In the light of the subject matter of the question raised by the referring court, I shall examine the relationship between the first two paragraphs of Article 6 of Directive 2012/13.

Paragraph 1 of that provision lays down a general obligation to provide information on the criminal act, an obligation which must be discharged promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence. Paragraph 2 imposes an additional obligation on the competent authorities in the event of arrest or detention, which is not limited to the provision of information concerning the criminal act but extends more generally to the reasons for the arrest or detention. (12) Accordingly, it is not surprising that Article 6(2) makes no reference to the point in time at which the information contained therein must be communicated to the suspect or accused person, since the time criterion laid down in paragraph 1 also applies in the event of arrest or detention.

A systematic reading would therefore seem to indicate only that the competent authorities are required to inform the person concerned of the grounds for his or her arrest or detention as promptly as is necessary to permit him or her, if he or she so wishes, to challenge the lawfulness of his or her deprivation of liberty, so as to allow for an effective exercise of the rights of the defence and safeguard the fairness of the proceedings.

The same interpretative outcome is achieved by taking account of the settled case-law of the Court, which expresses the need to give practical effect to Article 6 of Directive 2012/13, in stating that, although the procedures whereby information about the prosecution is to be provided to the suspected or accused person are not governed by Directive 2012/13, those procedures cannot undermine the objective referred to, inter alia, in Article 6 thereof, which consists in enabling suspects or persons accused of having committed a criminal offence to prepare their defence and in safeguarding the fairness of the proceedings. (13)

Indeed, it could be argued that only the prompt provision of such information, at the time of or shortly after the deprivation of liberty, is likely to enable the arrested or detained person to assess his or her chances of effectively challenging the legality of the detention and to bring, where appropriate, an action challenging its legality.

By contrast, that objective could not be achieved if information concerning the grounds for the arrest or detention were provided only once the person concerned has brought such proceedings. It must be noted that, if the person arrested or detained was required to challenge the legality of an act in order to acquaint himself or herself with the grounds for it, that person would not have had time to assess the chances of success of his or her action or, where appropriate, to prepare it effectively. It is therefore not sufficient that the grounds in question can be inferred from the documents in the file of the court proceedings. (14)

The interpretation provided up to this point seems to me to be supported by the settled case-law of the ECtHR, initiated by the judgment in van der Leer v. the Netherlands, (15) according to which anyone entitled to take proceedings to have the lawfulness of his or her detention speedily decided cannot make effective use of that right unless he or she is promptly and adequately informed of the reasons relied on to deprive him or her of his or her liberty. (16)

The ECtHR, aware that the precise moment that such a ‘requirement of promptness’ arises cannot be identified in the abstract, has stated that the question whether such reasons were communicated sufficiently promptly to the arrested or detained person depends on the particular circumstances of the case.

However, it follows from that case-law that the arresting (or detaining) police authority is not obliged to provide the reasons in their entirety at the very moment of the arrest. (17) The time constraints imposed by the requirement to act quickly have been considered to be satisfied where the arrested (or detained) person was informed of the reasons for his or her deprivation of liberty within a period of a few hours, (18) whereas infringement of that requirement has invariably been found, to date, where that person had received such information after more than approximately one day. (19)

In the light of those considerations, I propose that the Court’s answer to the first question referred should be that Article 6(2) of Directive 2012/13, read in conjunction with Article 6(1) thereof, must be interpreted as precluding national legislation, applied in accordance with the established legal practice in the Member State concerned, according to which the grounds for the detention of a suspect or accused person need not necessarily be stated in the written order for detention but may also be contained in other documents of which the person concerned will become aware only if he or she brings legal proceedings challenging the legality of that order. Those grounds should be communicated to the detainee as promptly as is necessary to permit him or her, if he or she so wishes, to bring such proceedings, and in any event before the first official interview by the police.

The second question

By its second question, the referring court seeks to ascertain, in essence, whether Article 6(2) of Directive 2012/13 is to be interpreted as meaning that the information which must be communicated to an arrested or detained person should contain details regarding the time, place and manner of the commission of the offence, that person’s specific involvement in it and the consequent criminal nature of the offence, in order to guarantee that person the possibility of effectively challenging his or her deprivation of liberty and thus the effective exercise of his or her rights of defence.

In other words, the Court is asked about the content and detail of the reasons which must be given to the arrested or detained person under Article 6(2) of Directive 2012/13.

As I have explained above, that provision lays down an obligation to provide information additional to the general obligation set out in Article 6(1) of Directive 2012/13, and must therefore be read in conjunction with the latter provision. The wording of those provisions does not, however, allow the second question to be answered. It can only be inferred from the wording of those provisions that, first, those reasons must be provided in sufficient detail and, secondly, that those reasons must include, at the very least, the criminal act which the person concerned is suspected of having committed.

It is next necessary to take into account recital 28 of Directive 2012/13, which seems to me to be particularly illuminating as to the scope of the obligations to inform suspects or accused persons of the accusation against them contained in the first three paragraphs of Article 6 of that directive.

Since I shall be relying to a large extent on that recital in the following points, I should first recall that, although recitals, as a rule, have no binding legal force, (20) the Court has frequently drawn on them to interpret the provisions of an EU legal act.

That recital sets out, inter alia, the need for a description of the facts, including where known, time and place, relating to the criminal act that a suspect or accused person is suspected of having committed and the possible legal classification of the alleged offence, to be given in sufficient detail, taking into account the stage of the criminal proceedings when such a description is given, to safeguard the fairness of the proceedings and allow for an effective exercise of the rights of the defence.

This, in my view, offers some guidance as to the scope of the information obligation imposed on the competent authorities under Article 6 of Directive 2012/13.

First, the information to be communicated includes a description of the facts relating to the alleged criminal offence and the possible legal classification of such an offence, irrespective of the stage of the proceedings at which that communication takes place.

With regard to arrest or detention, it must be noted that, because of the many situations capable of justifying such measures of deprivation of liberty, any attempt exhaustively to list the information relevant to the ‘description of the facts’ is clearly doomed to fail. Nevertheless, it seems to me reasonable to take the view that any such description should include, in addition to the known time and place of the offence, the nature of the participation by the person concerned in that offence. (21) Moreover, the reference in the recital in question to the possible legal classification (22) must be interpreted as meaning that it is also necessary for the arrested or detained person to be informed of the provisional legal classification of the criminal offence which he or she is suspected of having committed.

In the absence of a communication containing such content, the practical effect of Article 6(2) of Directive 2012/13, read in conjunction with Article 6(1) thereof, could not be ensured. It is only communication of the factual and legal grounds for such arrest or detention which seems to me capable of enabling the person concerned and/or his or her defence counsel to understand why he or she is deprived of his or her liberty and thus, where appropriate, effectively to exercise his or her right to challenge the lawfulness of the arrest or detention and, in so doing, his or her rights of defence.

Secondly, the degree of detail of the information in question varies depending on the stage of the proceedings. In that regard, recital 28 of Directive 2012/13 expresses the requirement for a balance to be struck between the requirements involved, namely: the fairness of the proceedings and respect for the rights of the defence, on the one hand, and procedural requirements, on the other hand. Article 6 of Directive 2012/13 must therefore be understood as establishing a graduated obligation to provide information, the competent authority being required to provide an increasing level of detail with the approach of the stage of the judgment on the merits. Article 6(1) of that directive requires the provision of information concerning the criminal act, which also covers, in the event of arrest or detention, all the grounds for such arrest or detention for the purposes of Article 6(2) thereof, whereas Article 6(3) thereof requires detailed information at the stage of the judgment on the merits.

It is also clear from recital 28 that communication of the above information must not be detrimental to the proper conduct of ongoing investigations, which implies a prior assessment of the appropriateness of the degree of detail of that information. It cannot be ruled out that the competent authority may be in possession of information which cannot be disclosed to the arrested or detained person without prejudicing the progress of such an investigation. That authority is thus required to strike a fair balance in order to avoid such prejudice while ensuring that the person concerned is provided with sufficient information to enable him or her to understand the reasons for and effectively to challenge the legality of his or her deprivation of liberty. (23)

It follows, first, that the information required by Article 6(2) of Directive 2012/13, read in conjunction with Article 6(1) thereof, appears to lack the precision and completeness of that required by Article 6(3) thereof and, secondly, that that information relates to the same elements as those listed in Article 6(3) of that directive.

The interpretation I have just put forward seems to me to be fully supported by the case-law on Article 5(2) ECHR.

While it follows from that case-law that the question whether an arrested or detained person has received sufficient information to rely on the right to challenge the lawfulness of his or her deprivation of liberty must be assessed in the light of the particular circumstances of the case, the Court has nevertheless laid down certain principles intended to guide such an assessment. (24)

First, a reference to the legal basis for the deprivation of liberty does not, in itself, constitute sufficient information for the purposes of the right to be informed of the reasons for the arrest or detention. For example, in its judgment in Murray v. the United Kingdom, the ECtHR found an infringement of Article 5(2) ECHR on the basis that the police officer arresting Ms Murray had merely informed her of the provision of the criminal law under which her arrest was being made. (25) Similarly, in its judgment in Fox, Campbell and Hartley v. the United Kingdom, the ECtHR held that the information initially provided to those applicants by the police, according to which they were being arrested under a specific provision of the criminal law on suspicion of being terrorists, (26) was not compatible with that article.

Secondly, the person arrested or detained must be told, in simple, non-technical language that he or she can understand, the essential legal and factual grounds for his or her arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness. (27) Those grounds should include, in addition to the provisional legal classification of the alleged criminal offence, the nature of the arrested or detained person’s participation. It should be recalled, again with regard to the judgment in Fox, Campbell and Hartley v. the United Kingdom, that those applicants were informed at a later stage of their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations, which, together with the information previously provided, satisfied, according to the ECtHR, the requirements of Article 5(2) ECHR. (28) The ECtHR also found no infringement of that provision in the judgment in Gasiņš v. Latvia, in so far as the police had explained to the applicant that he was suspected of having committed the murder of J.O., that the murder had taken place on 20 May 2000 and that the offence was punishable under Article 116 of the Latvian Criminal Code. (29)

Thirdly, the competent authorities are not required to provide the person concerned with a full list of all the charges against him or her at the time of arrest (or detention), (30) since that degree of detail is required only at the time of disclosure of the charges brought against him or her. (31)

It is in the light of the above considerations that the referring court should interpret Article 74(2) of the Law on the Ministry of the Interior, according to which the detention order issued on the basis of Article 72(1)(1) of that law must contain certain information, including ‘the factual and the legal grounds for the detention’.

Accordingly, I propose that the Court’s answer to the second question referred should be that Article 6(2) of Directive 2012/13, read in conjunction with Article 6(1) of that directive, must be interpreted as meaning that the arrested or detained person must be given, without prejudice to the conduct of the ongoing investigation, all the information necessary to enable him or her effectively to challenge his or her deprivation of liberty and thus effectively to exercise his or her rights of defence. That information should contain, as the grounds for the arrest or detention, a description of the facts, including, where known, time and place, as well as the nature of the participation of that person in the offence which he or she is suspected of having committed and the legal classification provisionally adopted by the competent authority.

Conclusion

In the light of all the foregoing considerations, I propose that the Court answer as follows the questions referred by the Sofiyski Rayonen sad (District Court, Sofia, Bulgaria):

Article 6(2) 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, read in conjunction with Article 6(1) of that directive, must be interpreted as precluding national legislation, applied in accordance with the established legal practice in the Member State concerned, according to which the grounds for the detention of a suspect or accused person need not necessarily be stated in the written order for detention but may also be contained in other documents of which the person concerned will become aware only if he or she brings legal proceedings challenging the legality of that order. Those grounds should be communicated to the detainee as promptly as is necessary to permit him or her, if he or she so wishes, to bring such proceedings, and in any event before the first official interview by the police.

Article 6(2) of Directive 2012/13, read in conjunction with Article 6(1) of that directive, must be interpreted as meaning that the arrested or detained person must be given, without prejudice to the conduct of the ongoing investigation, all the information necessary to enable him or her effectively to challenge his or her deprivation of liberty and thus effectively to exercise his or her rights of defence. That information should contain, as the grounds for the arrest or detention, a description of the facts, including, where known, time and place, as well as the nature of the participation of that person in the offence which he or she is suspected of having committed and the legal classification provisionally adopted by the competent authority.

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(1) Original language: French.

(2) Kafka, F., The Trial, Penguin Modern Classics, London, 1963.

(3) Directive of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

(4) It should be noted that the fact, mentioned by the referring court, that the concept of ‘suspect’ is not recognised in Bulgarian law is not such as to raise doubts in that regard, since it is undoubtedly an autonomous concept of EU law, which does not depend, by definition, on national classifications.

(5) According to the first sentence of Article 6(1) ECHR: ‘in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

(6) Judgment of 23 November 2021 (C‑564/19, EU:C:2021:949, paragraph 121).

(7) ECtHR, 12 May 2017, Simeonovi v. Bulgaria (CE:ECHR:2017:0512JUD002198004, §§ 110 and 111).

(8) See recitals 10 and 14 of that directive.

(9) See, inter alia, judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 42 and 43).

(10) Article 5(2) ECHR reads as follows: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him’.

(11) That case-law dates back to the judgment of the ECtHR of 21 February 1990, van der Leer v. the Netherlands (CE:ECHR:1990:0221JUD001150985, § 28).

(12) That interpretation seems to me to be supported by the legislative history of Directive 2012/13, in so far as such an obligation to provide information to arrested or detained persons did not appear in the version of Article 6 of the Commission’s proposal which led to that directive and was added to the text of that provision only by the European Parliament. See Proposal for Directive …/…/EU of the European Parliament and of the Council on the right to information in criminal proceedings and Report on the proposal for a directive of the European Parliament and of the Council on the right to information in criminal proceedings (COM(2010) 392 final – C7-0189/2010 – 2010/0215(COD)).

(13) See, inter alia, judgment of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraph 128 and the case-law cited).

(14) The referring court also points out that, because of the absence of the concept of ‘suspect’ in Bulgarian law, arrested or detained persons do not have access to the materials of the case, as required by Article 7(1) of Directive 2012/13.

(15) ECtHR, 21 February 1990 (CE:ECHR:1990:0221JUD001150985).

(16) ECtHR, 12 April 2005, Shamayev and Others v. Georgia and Russia (CE:ECHR:2005:0412JUD003637802, § 413), and ECtHR, 17 September 2020, Grubnyk v. Ukraine (CE:ECHR:2020:0917JUD005844415, §§ 97 and 99).

(17) ECtHR, 30 August 1990, Fox, Campbell and Hartley v. the United Kingdom (CE:ECHR:1990:0830JUD001224486, § 40); ECtHR, 28 October 1994, Murray v. the United Kingdom (CE:ECHR:1994:1028JUD001431088, § 72); and ECtHR, 15 December 2016, Khlaifia and Others v. Italy (CE:ECHR:2016:1215JUD001648312, § 115).

(18) ECtHR, 30 August 1990, Fox, Campbell and Hartley v. the United Kingdom (CE:ECHR:1990:0830JUD001224486, § 42) (period of 7 hours), and ECtHR, 28 October 1994, Murray v. the United Kingdom (CE:ECHR:1994:1028JUD001431088, § 78) (period of 1 hour and 20 minutes).

(19) See, inter alia, ECtHR, 12 April 2005, Shamayev and Others v. Georgia and Russia

(CE:ECHR:2005:0412JUD003637802, § 416) (period of 4 days); ECtHR, 29 January 2008, Saadi v. the United Kingdom (CE:ECHR:2008:0129JUD001322903, § 84) (period of 76 hours); ECtHR, 2 October 2008, Rusu v. Austria (CE:ECHR:2008:1002JUD003408202, § 43) (period of 10 days); ECtHR, 15 December 2009, Leva v. Moldova (CE:ECHR:2009:1215JUD001244405, § 62) (period of more than 3 days); and ECtHR, 12 June 2012, Kortesis v. Greece (CE:ECHR:2012:0612JUD006059310, § 62) (period of 29 hours).

(20) See judgment of 25 November 2020, Istituto nazionale della previdenza sociale (Family benefits for long-term residents) (C‑303/19, EU:C:2020:958, paragraph 26 and the case-law cited).

(21) Except in the event that such information can be deduced from the factual context. See, in that regard, ECtHR, 17 September 2020, Grubnyk v. Ukraine (CE:ECHR:2020:0917JUD005844415, § 98).

(22) See, in that regard, the Spanish (‘posible’), English (‘possible’) and Italian (‘possibile’) language versions, as well as the Estonian (‘võimalik’, which corresponds to the French ‘éventuelle’).

(23) I would like to recall that, to my knowledge, the ECtHR has to date ruled only on the balance to be struck between a detained person’s right of access to his or her investigation file and the safeguarding of an important public policy objective, such as national security, the need to keep certain police methods secret or the protection of the fundamental rights of third parties. See, inter alia, ECtHR, 19 February 2009, A. and Others v. the United Kingdom (CE:ECHR:2009:0219JUD000345505).

(24) It should be noted that the case-law relating to Article 5(1)(c) ECHR, cited by the referring court and the Commission, is of at the very least limited relevance in determining what information must be provided to the arrested or detained person. In its judgment of 24 June 2014, Petkov and Profirov v. Bulgaria (CE:ECHR:2014:0624JUD005002708, §§ 46 and 47), the ECtHR stated that that article ‘requires that a person is detained on “reasonable suspicion” of having committed an offence. Such suspicion cannot be general and abstract … this means that there must be facts or information which would satisfy an objective observer that the person concerned may have committed a specific offence’. It seems clear that in that judgment, the ECtHR ruled only on the information which the competent authority must have in order to lawfully detain a person. Whilst it might be inferred from this that it is necessary that the information given to the arrested or detained person should be specific and not general or abstract, I do not consider that that observation adds anything to the considerations set out in the following points of this Opinion.

(25) ECtHR, 28 October 1994 (CE:ECHR:1994:1028JUD001431088, § 76).

(26) ECtHR, 30 August 1990 (CE:ECHR:1990:0830JUD001224486, § 41). See also ECtHR, 12 June 2012, Kortesis v. Greece (CE:ECHR:2012:0612JUD006059310, §§ 61 and 62).

(27) ECtHR, 30 August 1990, Fox, Campbell and Hartley v. the United Kingdom (CE:ECHR:1990:0830JUD001224486, § 40); ECtHR, 28 October 1994, Murray v. the United Kingdom (CE:ECHR:1994:1028JUD001431088, § 72); ECtHR, 15 December 2016, Khlaifia and Others v. Italy (CE:ECHR:2016:1215JUD001648312, § 115); and ECtHR, 25 January 2018, J.R. and Others v. Greece (CE:ECHR:2018:0125JUD002269616, §§ 123 and 124).

(28) ECtHR, 30 August 1990 (CE:ECHR:1990:0830JUD001224486, § 41).

(29) ECtHR, 19 April 2011 (CE:ECHR:2011:0419JUD006945801, § 54).

(30) ECtHR, 19 April 2011, Gasiņš v. Latvia (CE:ECHR:2011:0419JUD006945801, § 53).

(31) That follows from Article 6(3)(a) ECHR, as interpreted by the ECtHR. See, inter alia, ECtHR, 19 December 1989, Brozicek v. Italy (CE:ECHR:1989:1219JUD001096484, § 42).