Judgment of the Court (Third Chamber) of 19 September 2019

ECHR

3 Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), that article being headed ‘Right to liberty and security’, provides:

‘1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

1. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

…’

European Union law

Bulgarian law

17 Article 427 et seq. of the Nakazatelno protsesualen kodeks (Code of Criminal Procedure), in the version in force on the date of the events in the main proceedings, provide for a special procedure enabling a court to order, on the proposal of the Public Prosecutor’s Office, compulsory medical measures against an individual who, in a state of insanity, has committed an act that represents a danger to society.

18 Article 427 of the Code of Criminal Procedure provides:

‘(1)

A proposal for the adoption of compulsory medical measures shall be made by the district Public Prosecutor’s Office, …

(2)

Before making the proposal, the Public Prosecutor’s Office shall order that an expert report be obtained and shall instruct the investigating body to evaluate the person’s behaviour before and after the act was committed and to assess whether the person represents a danger to society.’

19 It is clear from the procedure outlined in Articles 428 to 491 of that code that the proposal by the Public Prosecutor’s Office is examined by the district court of the place of residence of the person concerned, which, after a hearing, gives a ruling by order of a single judge, which is then open to appeal.

20 In addition, Article 155 et seq. of the Zakon za zdraveto (Health Law) establish a special procedure for obtaining an order for the compulsory admission to a medical facility of a person suffering from a mental disorder representing a danger to himself or others.

The first, third and fourth questions

35 By its first, third and fourth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directives 2012/13 and 2013/48 must be interpreted as applying to judicial proceedings, such as those provided for by the national legislation at issue in the main proceedings, which authorise, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, and, if so, at what point in time must the person concerned be informed of the rights conferred on him by Directive 2012/13.

36 The purpose of both Directive 2012/13 and Directive 2013/48 is to establish minimum rules on certain rights of suspects and accused persons in criminal proceedings. Directive 2012/13 concerns more specifically the right to information about rights and Directive 2013/48 relates to the right to have access to a lawyer, the right to inform a third party of the deprivation of liberty, and the right of persons deprived of liberty to communicate with third parties and the right to communicate with consular authorities.

37 Furthermore, it is clear from the recitals of those directives that they are based to that end on the rights set out in, inter alia, in Articles 6, 47 and 48 of the Charter and seek to promote those rights with regard to suspects or accused persons in criminal proceedings.

38 The respective scope of those directives is defined in almost identical terms in Article 2 of each of those directives. In essence, it is clear from those provisions that the directives apply from the time when persons are informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which ‘is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal’.

39 It is true that neither Directive 2012/13 nor Directive 2013/48 contain express provisions to the effect that the criminal proceedings they govern also include a procedure that may result in a measure of committal to a psychiatric hospital, such as that provided for in Article 427 et seq. of the Code of Criminal Procedure.

40 However, that absence of express provisions does not mean that such a procedure for the committal to a psychiatric hospital is excluded from the scope of those directives on the ground that it does not lead to the imposition of a ‘sentence’.

41 In that regard, as the Advocate General pointed out, in essence, in points 61 and 62 of his Opinion, the wording of Article 2(1) of Directive 2012/13 and the similar wording of Article 2(1) of Directive 2013/48 allow, on the contrary, the concept of ‘criminal proceedings’, within the meaning of those directives, to be regarded as also covering proceedings for committal to a psychiatric hospital which, although they do not lead to a ‘sentence’ in the strict sense, nevertheless result in a measure involving a deprivation of liberty, provided that such a measure is justified not only on therapeutic grounds but also on safety grounds, in respect of persons who have committed acts constituting a criminal offence, but whose mental state, at the time of the acts punishable under criminal law, justifies their being the subject of a measure of committal to a psychiatric hospital rather than a criminal penalty, such as a prison sentence.

42 Since Article 6 of the Charter, concerning the right to liberty and security, guarantees rights corresponding to those guaranteed by Article 5 ECHR, which concerns the same right, Article 52(3) of the Charter requires that Article 6 be given the same meaning and scope as that given to Article 5 ECHR, as interpreted by the case-law of the European Court of Human Rights. Account must therefore be taken of Article 5(1) ECHR for the purpose of interpreting Article 6 of the Charter (see, to that effect, judgment of 12 February 2019, TC , C‑492/18 PPU, EU:C:2019:108, paragraph 57 ).

43 Under Article 5(1)(e) ECHR, ‘everyone has the right to liberty and security. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … the lawful detention … of persons of unsound mind’.

44 That provision has been construed by the European Court of Human Rights as laying down a positive obligation on the State to protect the liberty of individuals within its jurisdiction. Otherwise, there would be a sizeable lacuna in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons (ECtHR, 17 January 2012, Stanevv. Bulgaria, No 36760/06, CE:ECHR:2012:0117JUD003676006, § 120).

45 It follows that measures involving a deprivation of liberty, such as the psychiatric or medical care measures at issue in the main proceedings, are covered by Article 5 ECHR and, consequently, by Article 6 of the Charter.

46 Accordingly, in the light of the right to liberty and security guaranteed by Article 6 of the Charter, Directives 2012/13 and 2013/48 cannot be interpreted as excluding from their scope judicial proceedings in which an order may be made for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence.

47 That interpretation is supported by the fact that the European Union legislature took care, in Article 3(2) of Directive 2012/13, to impose on Member States the obligation to ensure that the information provided pursuant to the right to information about rights is ‘given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons’. Recital 26 of that directive expressly refers to the situation of persons who cannot understand the content or meaning of the information provided to them by the competent authorities because of their mental state. Persons of unsound mind must therefore be considered vulnerable persons for the purposes of that provision since, because of a serious mental disorder, they may not be capable of understanding the information provided to them about their rights.

48 Similarly, Article 13 of Directive 2013/48 requires Member States, in the implementation of that directive, to take into account ‘the particular needs of vulnerable suspects and vulnerable accused persons’. Although recital 51 of that directive refers to persons ‘in a potentially weak position’ and to ‘any potential vulnerability that affects their ability to exercise the right of access to a lawyer and to have a third party informed upon deprivation of liberty’, without explicitly stating that that position of vulnerability may result from their mental state, it must nevertheless be held, having regard to the purpose of that directive, that persons of unsound mind also fall within the category of vulnerable persons referred to in Article 13 thereof.

49 Since Directive 2012/13 applies to a procedure such as that set out in Article 427 et seq. of the Code of Criminal Procedure, the referring court also asks at what point in time a suspect is required to be informed of his rights in accordance with Article 3 of that directive.

50 In order to be effective, the communication of rights must take place at an early stage of the proceedings. It is evident from Article 2 of that directive that the directive applies ‘from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence’. Article 3 of that directive also provides that ‘Member States shall ensure that suspects or accused persons are provided promptly with information concerning … procedural rights … in order to allow for those rights to be exercised effectively’.

51 As noted in recital 19 of Directive 2012/13, the right to be informed of one’s rights aims to safeguard the fairness of criminal proceedings and to guarantee the effectiveness of the rights of the defence, from the first stages of those proceedings. As is clear from point 24 of the Commission Proposal for a Directive of 20 July 2010 (COM(2010) 392 final), which led to Directive 2012/13, the period immediately following the deprivation of liberty is when there is the greatest risk of improper extraction of confessions, so that ‘it is essential that a suspected or accused person is informed of his rights promptly, i.e. without delay after his arrest and in the most effective way’.

52 Recital 19 of Directive 2012/13 also makes clear that the right to be informed of one’s rights must be observed ‘at the latest before the first official interview of the suspect or accused person by the police’. Furthermore, under recital 22 of Directive 2012/13, ‘where suspects or accused persons are arrested or detained, information about applicable procedural rights should be given by means of a written Letter of Rights drafted in an easily comprehensible manner so as to assist those persons in understanding their rights. Such a Letter of Rights should be provided promptly to each arrested person when deprived of liberty by the intervention of law enforcement authorities in the context of criminal proceedings’.

53 It follows from the above that persons suspected of having committed a criminal offence must be informed as soon as possible of their rights, from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police.

54 In the light of those considerations, the answer to the first, third and fourth questions is that Directives 2012/13 and 2013/48 must be interpreted as applying to judicial proceedings, such as those provided for in the national legislation at issue in the main proceedings, which authorise, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society. Directive 2012/13 must be interpreted as meaning that persons suspected of having committed a criminal offence must be informed as soon as possible of their rights from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police.

The second and seventh questions

55 By its second and seventh questions, which it is appropriate to examine together, the referring court asks, in essence, whether the right to an effective remedy guaranteed by Article 47 of the Charter, and by Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a procedure authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, on the ground that that legislation does not enable the court with jurisdiction to verify that the procedural rights covered by those directives were respected in proceedings prior to those before the court, which were not subject to such judicial review.

56 As regards, first, the interpretation of Directive 2012/13, it should be noted that Article 8(2) of that directive requires that ‘suspects or accused persons, or their lawyers, have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive’.

57 Having regard to the importance of the right to an effective remedy, protected by Article 47 of the Charter, and to the clear, unconditional and precise wording of Article 8(2) of Directive 2012/13, the latter provision precludes any national measure which impedes the exercise of effective remedies in the event of a breach of the rights protected by that directive.

58 The same interpretation must be given, secondly, to Article 12 of Directive 2013/48, pursuant to which ‘suspects or accused persons in criminal proceedings … shall have an effective remedy under national law in the event of a breach of the rights under this Directive’.

59 According to the Court’s settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 4(3) TEU and Article 288 TFEU to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (judgment of 7 August 2018, Smith , C‑122/17, EU:C:2018:631, paragraph 38 and the case-law cited).

60 To fulfil that obligation, the principle of interpretation in conformity with EU law requires the national authorities to do everything within their power, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that EU law is fully effective and achieving an outcome consistent with the objective pursued by it (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others , C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 117 , and of 8 May 2019, Praxair MRC , C‑486/18, EU:C:2019:379, paragraph 37 and the case-law cited).

61 However, the principle of interpretation of national law in conformity with EU law has certain limits. Thus the obligation on a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem (judgment of 7 August 2018, Smith , C‑122/17, EU:C:2018:631, paragraph 40 and the case-law cited).

62 It is for the national court to determine whether it is able to interpret national legislation in conformity with EU law. In that regard, it appears from the request for a preliminary ruling that the referring court considers that, despite there being no legal remedy making it possible, in an application for committal to a psychiatric hospital under Article 427 et seq. of the Code of Criminal Procedure, to verify the lawfulness of the criminal proceedings preceding that application, it could apply by analogy ordinary criminal procedure in order to carry out such a check and protect the rights of the person concerned.

63 It follows that Article 47 of the Charter, Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for judicial proceedings authorising, on therapeutic and safety grounds, the committal to a psychiatric hospital of persons who, in a state of insanity, have committed acts representing a danger to society, in so far as that legislation does not enable the court with jurisdiction to verify that the procedural rights covered by those directives were respected in proceedings prior to those before the court, which were not subject to such judicial review.

The fifth question

64 By its fifth question, the referring court asks, in essence, whether the protection of the right to liberty and security, referred to in Article 6 of the Charter, first, and the right to be presumed innocent, as set out in Article 3 of Directive 2016/343, second, must be interpreted as precluding national legislation, such as that set out in Article 155 et seq. of the Health Law, at issue in the main proceedings, which authorises the committal to a psychiatric hospital of a person on the ground that there is a risk that, in view of his state of health, he represents a danger to himself or others, in so far as that legislation does not enable the court hearing such an application for committal to verify that that person has been afforded procedural safeguards in parallel criminal proceedings to which he is subject.

65 It is clear from Articles 1 and 2 of Directive 2016/343 that its purpose and scope are limited exclusively to criminal proceedings.

66 Accordingly, because of its therapeutic purpose, a procedure for the committal to a psychiatric hospital, such as that provided for in this case by Article 155 et seq. of the Health Law, when implemented independently of any criminal proceedings, including in order to prevent danger to the person concerned or to others, does not fall under criminal proceedings within the scope of Directive 2016/343.

67 Moreover, there is nothing in the file submitted to the Court to suggest that a procedure for compulsory committal to a psychiatric hospital for therapeutic purposes, such as that established by the Health Law, constitutes an application of EU law and that, in accordance with Article 51(1) of the Charter, the fundamental rights guaranteed by that article must be respected by the Member State in question when such a procedure is implemented.

68 The answer to the fifth question is therefore that Directive 2016/343 and Article 51(1) of the Charter must be interpreted as meaning that neither that directive nor that provision of the Charter apply to judicial proceedings for the committal to a psychiatric hospital for therapeutic purposes, such as those provided for in Article 155 et seq. of the Health Law, at issue in the main proceedings, on the ground that there is a risk that, in view of his state of health, the person concerned represents a danger to himself or others.

The sixth question

69 By its sixth question, the referring court asks, in essence, whether the principle of the presumption of innocence, referred to in Article 3 of Directive 2016/343, must be interpreted as requiring, in a procedure for the committal to a psychiatric hospital, on therapeutic and safety grounds, of persons who, in a state of insanity, have committed acts representing a danger to society, such as that at issue in the main proceedings, that the Public Prosecutor’s Office provides proof that the person whose committal is sought is the perpetrator of acts deemed to constitute such a danger.

70 It must be noted that, in accordance with Article 15 thereof, Directive 2016/343 entered into force on 31 March 2016 and that, in accordance with Article 14(1) thereof, the period prescribed for transposition of that directive expired on 1 April 2018. That directive therefore applies ratione temporis to the proceedings pending before the referring court.

71 Furthermore, it is admittedly true that the purpose of a procedure such as that at issue in the main proceedings is not to determine the guilt of the person concerned, but to decide on his compulsory committal to a psychiatric hospital. However, since the reasons stated for that measure of deprivation of liberty are not just therapeutic grounds, but also safety grounds, it must be accepted, as held previously with regard to Directives 2012/13 and 2013/48, that such a procedure falls, on account of its penal purpose, within the scope of Directive 2016/343. Directive 2016/343 therefore applies to a procedure such as that provided for in Article 427 et seq. of the Code of Criminal Procedure.

72 Article 3 of Directive 2016/343 requires Member States to ensure that suspects and accused persons are presumed innocent until proved guilty according to law. That obligation must be respected by the competent authorities in a procedure for committal to a psychiatric hospital, such as that at issue in the main proceedings. In accordance with Article 6 of that directive, the Public Prosecutor’s Office bears the burden of proof for establishing that the criteria laid down by law for authorising the committal of a person to a psychiatric hospital are met.

73 Where, at the end of earlier criminal proceedings, it has been definitively established that that person committed, in a state of insanity, acts constituting a criminal offence, it is not, as such, contrary to the principle of the presumption of innocence set out in Article 3 of Directive 2016/343 for the Public Prosecutor’s Office to rely on those factors in support of its application for committal of that person to a psychiatric hospital.

74 However, in a situation such as that at issue in the main proceedings, those considerations are without prejudice to review by the court hearing the case of whether the procedural rights covered by Directives 2012/13 and 2013/48 were respected in the earlier proceedings, which were not subject to such judicial review, as held earlier in paragraph 63 of the present judgment.

75 The answer to the sixth question is therefore that the principle of the presumption of innocence referred to in Article 3 of Directive 2016/343 must be interpreted as requiring, in judicial proceedings for the committal to a psychiatric hospital, on therapeutic and safety grounds, of persons who, in a state of insanity, have committed acts representing a danger to society, such as that at issue in the main proceedings, that the Public Prosecutor’s Office provides proof that the person whose committal is sought is the perpetrator of acts deemed to constitute such a danger.