Official Journal of the European Union

Series C

C/2023/197

(Case C-209/22, (1) Rayonna prokuratura Lovech, TO Lukovit (Personal search))

(Reference for a preliminary ruling - Judicial cooperation in criminal matters - Right to information in criminal proceedings - Directive 2012/13/EU - Right of access to a lawyer in criminal proceedings - Directive 2013/48/EU - Scope - National legislation which does not refer to the concept of a suspect - Preliminary stage of the criminal proceedings - Coercive measure of personal search and seizure - Retrospective authorisation by the court having jurisdiction - Lack of judicial review of measures to obtain evidence - Articles 47 and 48 of the Charter of Fundamental Rights of the European Union - Effective exercise of the rights of defence of suspects and of accused persons during the judicial review of measures to obtain evidence)

(C/2023/197)

Language of the case: Bulgarian

Referring court

Party in the main criminal proceedings

other party: Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit

Operative part of the judgment

1.Article 2(1) 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, and Article 2(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 in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, must be interpreted as meaning that those directives apply to a situation in which a person, in respect of whom there is information to the effect that he or she is in possession of illicit substances, is subject to a personal search and seizure of those substances. The fact that national law does not recognise the concept of ‘suspect’ and that that person has not been officially informed that he or she is an ‘accused person’ is irrelevant in that regard.

2.Article 8(2) of Directive 2012/13 and Article 12(1) of Directive 2013/48, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national case-law according to which a court seised, under the applicable national law, of an application for retrospective authorisation of a personal search and the subsequent seizure of illegal substances, carried out during the preliminary stage of criminal proceedings, does not have jurisdiction to examine whether the rights of the suspect or accused person, guaranteed by those directives, were respected on that occasion, provided, first, that that person is able subsequently to establish, before the court hearing the substance of the case, any infringement of the rights arising from those directives, and, secondly, that that court is then required to draw conclusions from such an infringement, in particular as regards the inadmissibility or the probative value of the evidence obtained in those circumstances.

3.Article 3 of Directive 2013/48 must be interpreted as not precluding national legislation that provides that a suspect or accused person may, during the preliminary stage of criminal proceedings, be subject to a personal search and the seizure of illicit goods, without that person having the right of access to a lawyer, provided that it follows from the examination of all the relevant circumstances that such access is not necessary in order for that person to be able to exercise his or her rights of defence practically and effectively.

(1) OJ C 213, 30.5.2022

ELI: http://data.europa.eu/eli/C/2023/197/oj

ISSN 1977-091X (electronic edition)