JUDGMENT OF THE COURT (Fourth Chamber)
25 May 2023 (*)
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2012/13/EU – Right to information in criminal proceedings – Article 6 – Right of a person to be informed of the charges against him or her – Article 7 – Right of access to case materials – Effective exercise of the rights of the defence – Article 6 of the Charter of Fundamental Rights of the European Union – Right to liberty and security – Communication of the grounds for detention of the suspect or accused person in a separate document – When that communication must be made)
In Case C‑608/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Sofiyski rayonen sad (Sofia District Court, Bulgaria) by decision of 17 September 2021, received at the Court on 29 September 2021, in the administrative criminal proceedings against
XN,
intervening party:
Politseyski organ pri 02 RU SDVR,
THE COURT (Fourth Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, L.S. Rossi, J.‑C. Bonichot, S. Rodin and O. Spineanu-Matei, Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having considered the observations submitted on behalf of:
– XN, by R. Rashkov, advokat,
– the European Commission, by M. Wasmeier and I. Zaloguin, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 12 January 2023,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 6(2) and Article 8(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 (OJ 2012 L 142, p. 1).
2 The request has been made in the context of proceedings concerning the legality of the detention order issued in respect of XN.
Legal framework
European Union law
3 Recitals 14, 22, 27 and 28 of Directive 2012/13 state:
‘(14) This Directive … lays down common minimum standards to be applied in the field of information about rights and about the accusation to be given to persons suspected or accused of having committed a criminal offence, with a view to enhancing mutual trust among Member States. This Directive builds on the rights laid down in the Charter [of Fundamental Rights of the European Union (“the Charter”)], and in particular Articles 6, 47 and 48 thereof, by building upon Articles 5 and 6 [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.
…
(22) 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 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. It should include basic information concerning any possibility to challenge the lawfulness of the arrest, obtaining a review of the detention, or requesting provisional release where, and to the extent that, such a right exists in national law. …
…
(27) Persons accused of having committed a criminal offence should be given all the information on the accusation necessary to enable them to prepare their defence and to safeguard the fairness of the proceedings.
(28) The information provided to suspects or accused persons about the criminal act they are suspected or accused of having committed should be given promptly, and at the latest before their first official interview by the police or another competent authority, and without prejudicing the course of ongoing investigations. A description of the facts, including, where known, time and place, relating to the criminal act that the persons are suspected or accused of having committed and the possible legal classification of the alleged offence should 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.’
4 Under Article 1 of Directive 2012/13, which is entitled ‘Subject matter’:
‘This Directive 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. It also lays down rules concerning the right to information of persons subject to a European Arrest Warrant relating to their rights.’
5 According to Article 2(1) of that directive:
‘This 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 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.’
6 Article 6 of that directive, headed ‘Right to information about the accusation’ provides in paragraphs 1 to 3:
‘1. Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided 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.
2. Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.
3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is 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.’
7 Article 7 of that directive, concerning the ‘Right of access to the materials of the case’, provides in paragraphs 1 and 2:
‘1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.
2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.’
8 Article 8 of Directive 2012/13, headed ‘Verification and remedies’, states in paragraph 1:
‘Member States shall ensure that when information is provided to suspects or accused persons in accordance with Articles 3 to 6 this is noted using the recording procedure specified in the law of the Member State concerned.’
Bulgarian law
9 Under Article 22 of the Zakon za administrativnite narushenia i nakazania (Law on administrative offences and penalties, DV No 92 of 28 November 1969):
‘Coercive administrative measures may be applied to prevent and bring an end to administrative offences and to prevent and eliminate their harmful effects.’
10 Article 23 of that law is worded as follows:
‘The cases in which coercive administrative measures may be applied, their nature, the authorities applying them and the manner in which they are applied, as well as the procedure for challenging them, shall be regulated in the relevant law or decree.’
11 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 in the main proceedings (‘the Law on the Ministry of the Interior’), provides:
‘(1) The police authorities may detain a person:
1. 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, Bulgaria)] 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)].
(5) From the moment of his or her detention, the person shall have the right to a lawyer, and the detained person must also be informed of his or her right to waive that right to a lawyer 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.
…’
12 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.
13 Article 74 of the Law on the Ministry of the Interior states:
‘(1) A written detention order shall be issued in respect of the persons referred to in Article 72(1).
(2) The detention order under paragraph 1 shall specify:
1. the name, function and place of employment of the police officer issuing the order;
2. the factual and the legal grounds for the detention;
3. data necessary for identifying the detained person;
4. the date and time of the detention;
5. the restriction of the person’s rights under Article 73;
6. his or her right to:
(a) challenge the legality of the detention before the courts;
(b) a lawyer 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.’
14 Article 21(1) of the Administrativnoprotsesualen kodeks (Code of Administrative Procedure, DV No 30 of 11 April 2006), in the version applicable in the main proceedings provides:
‘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.’
15 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:
1. the original individual administrative act, including the refusal to issue such an act;
…’
16 Article 1 of Ukaz No 904 za borba s drebnoto huliganstvo (Decree No 904 on combating minor hooliganism) of 28 December 1963 (DV No 102 of 31 December 1963), in the version applicable 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:
1. detention for up to 15 days in a sub-unit of the Ministry of the Interior;
2. a fine of between 100 and 500 [Bulgarian leva (BGN) (approximately EUR 50 to EUR 255)].
(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, in 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 dispute in the main proceedings and the questions referred for a preliminary ruling
17 On 2 September 2020, RK, a police officer at the police headquarters for the second police district of the Department of Internal Affairs of the Capital (Bulgaria), issued an order applying a coercive administrative measure against XN to detain him for up to 24 hours on suspicion of having committed a criminal offence.
18 That order, bearing the signature of RK, set out the legal and factual grounds for XN’s detention in the following terms: ‘point 1 of Article 72(1) of the Law on the Ministry of the Interior’ and ‘disturbance of public order’. XN refused to sign the said order. On the reverse side thereof, it was stated that XN was released at 11.10 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 Sections 72 to 74 of the Law on the Ministry of the Interior.
19 On 3 September 2020, XN challenged the legality of the detention order before the Sofiyski rayonen sad (Sofia District Court, Bulgaria), which is the referring court.
20 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 was stated that, on 2 September 2020, at about 11.20, as a participant in protests in front of the Narodno Sabranie (Bulgarian Parliament building), 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.
21 It has not been established that the police officers’ written reports of 2 and 3 September 2020 were provided to XN for information purposes during his detention.
22 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 before being detained by the police officers of the Ministry of the Interior, who allegedly inflicted physical violence on him. He denies having disturbed public order.
23 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 charging XN with ‘minor hooliganism’, which was subsequently submitted for review to the Sofiyski rayonen sad (Sofia District Court), and in which it was alleged that XN, by perpetrating the acts described in paragraph 20 above, had committed the administrative offence provided for in Article 1(2) of Decree No 904 of 28 December 1963 in the version applicable to the dispute in the main proceedings.
24 By decision of 8 September 2020, the Sofiyski rayonen sad (Sofia District Court) found XN not guilty and acquitted him because the alleged offence could not be proven. That judicial decision is final.
25 The referring court states that, in the context of the main proceedings, it must examine the legality of the detention order relating to XN.
26 It states that such detention of persons 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.
27 According to national case-law, for the purpose of adopting such a measure, it is not necessary to have gathered undisputed evidence categorically and unmistakably establishing that the person in question has committed an offence within the meaning of the Criminal Code, such evidence having to be adduced in the context of criminal proceedings and not in that of administrative proceedings. It is sufficient that there is ’information’, written or oral, indicating that an offence has been committed and justifying the suspicion that the person concerned has probably participated in it.
28 The referring court notes that, under point 2 of 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 condition for the validity of the order issued by a police authority. In that regard, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) interprets that provision as meaning that it is permissible for such information to be contained not in the written detention order, but in other accompanying documents drawn up beforehand or afterwards, even if these are not communicated to the person concerned at the time of the restriction of his or her freedom of movement.
29 The referring court considers that that case-law of the Varhoven administrativen sad (Supreme Administrative Court) does not comply with Article 6(2) and Article 8(1) of Directive 2012/13 or Article 5(1)(c) ECHR, as interpreted by the European Court of Human Rights.
30 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’, as 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 Nakazatelno protsesualen kodeks (Code of Criminal Procedure).
31 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 detained person suspected of having committed a criminal offence is deprived of the possibility of organising his or her rights of defence in an adequate and effective manner and of challenging the legality of the order for his or her detention before a court.
32 The referring court also questions the scope and level of detail of the information concerning the criminal conduct for which an arrested person is detained which should be communicated to that person under Article 6 of Directive 2012/13.
33 In those circumstances, the Sofiyski rayonen sad (Sofia District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice 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?’
Consideration of the questions referred
The applicability of Directive 2012/13
34 The referring court points out that, under Bulgarian law, detention on the basis of point 1 of Article 72(1) of the Law on the Ministry of the Interior, such as that at issue in the main proceedings, constitutes a coercive administrative measure, which amounts to an individual administrative act. Furthermore, according to that court, the liability of a person for the offence for which he or she has been detained is examined separately in the context of criminal proceedings. Having regard to those points, it is necessary to determine whether Directive 2012/13 is applicable to the main proceedings.
35 As stated in Article 1 thereof, Directive 2012/13 defines rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them.
36 In addition, under Article 2(1) thereof, that directive applies from the time at which persons are made aware 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, the sentencing and resolution of any appeal.
37 In the present case, it is apparent from the reference for a preliminary ruling that the detention order at issue in the main proceedings refers to ’point 1 of Article 72(1) of the Law on the Ministry of the Interior’ and ’disturbance of public order’ as the factual and legal grounds for that detention. That provision provides for the detention of persons in respect of whom there is evidence that they have committed an offence. Furthermore, it follows from the remarks of the referring court that the offence that XN was suspected of having committed falls within the scope of the Criminal Code.
38 Moreover, irrespective of the information which was actually transmitted to XN by the national police authorities, it must be considered that, by virtue of his arrest and detention, XN was informed that he was suspected of having committed a criminal offence, so that that condition for the application of Directive 2012/13, laid down in Article 2(1) thereof, is satisfied.
39 It follows from these considerations that that directive is applicable to the case in the main proceedings.
The first question
40 By its first question, the referring court asks, in essence, whether Article 6(2) and Article 8(1) of Directive 2012/13 are to be interpreted as precluding the application of national legislation under which the grounds for the detention of persons suspected or prosecuted for a criminal offence, including information relating to the criminal act they are suspected or accused of having committed, may be set out in documents other than the order for detention and which are communicated to such persons only in the event that he or she challenges the legality of the detention before the courts.
41 It should be noted at the outset that, having regard to the subject matter of this question, there is no need to interpret Article 8(1) of Directive 2012/13. That provision requires that information provided to suspects or accused persons in accordance with Articles 3 to 6 of that directive be noted using the recording procedure specified in the law of the Member State concerned. However, it is not apparent from the reference for a preliminary ruling that that information recording requirement is relevant to the answering of that question.
42 For the purposes of interpreting Article 6(2) of Directive 2012/13, account must be taken not only of the terms of that provision but also of its context and the objective pursued by the legislation of which it forms part (judgment of 2 March 2023, Staatsanwaltschaft Graz (the Düsseldorf tax office for criminal tax matters), C‑16/22, EU:C:2023:148, paragraph 25 and the case-law cited).
43 As regards, first, the wording of Article 6(2), it provides that Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed. That provision thus gives no indication as to when the reasons for detention must be communicated.
44 As regards, secondly, the context of Article 6(2) of Directive 2012/13, it should be noted that the first sentence of Article 6(1) provides that Member States must inform suspects or accused persons of the criminal act they are suspected or accused of having committed. The second sentence states that that information shall be provided ‘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.
45 In that respect, it follows from recital 28 of the directive that such persons should be provided with information about the criminal act they are suspected or accused of having committed ‘promptly’, and at the latest before their first official interview by the police or another competent authority.
46 As the Advocate General pointed out in point 41 of his Opinion, Article 6(1) of Directive 2012/13 lays down a general obligation to provide information on the criminal act, along with the additional obligation to provide information laid down in Article 6(2) of that directive, where the suspect or accused person is arrested or detained, relating to the reasons for his or her arrest or detention. The link between those two provisions leads to the conclusion that the time requirement in Article 6(1), according to which the suspect or accused person must be informed ‘promptly’ of the criminal act he or she is suspected or accused of having committed, also applies in the case of an arrest or detention within the meaning of Article 6(2).
47 As regards, thirdly, the objective pursued by Directive 2012/13, it follows from a joint reading of Article 1 and recitals 14 and 27 of that directive that, by laying down minimum standards for the provision of information to persons suspected or accused of a criminal offence, its objective is to enable them to prepare their defence and to safeguard the fairness of the proceedings (see, to that effect, judgment of 28 January 2021, Spetsializirana prokuratura (Letter of rights), C‑649/19, EU:C:2021:75, paragraph 58).
48 The prompt communication of the criminal act which suspects or accused persons are suspected or accused of having committed, as provided for in Article 6(1) of Directive 2012/13, helps ensure that objective, as it allows such persons to prepare their defence effectively.
49 Where suspects or accused persons are arrested or detained, the objective of ensuring the fairness of the proceedings and the effective exercise of the rights of the defence requires, moreover, as is clear from recital 22 of Directive 2012/13, that those persons are able effectively to challenge the lawfulness of their arrest or detention, to obtain a review of the detention or to apply for provisional release where, and in so far as, the right to such release exists in the Member State concerned. To that end, the reasons for their arrest or detention must be made available to them promptly. That is why Article 6(2) of Directive 2012/13 provides for the communication of those grounds, and why Article 7(1) of that directive requires that documents which are essential for the purpose of such an effective challenge to the lawfulness of the arrest or detention be made available to the arrested or detained person or his or her lawyer.
50 Moreover, Directive 2012/13 does not regulate the manner in which the information referred to in Article 6 thereof must be communicated to the suspect or accused person. However, those procedures cannot undermine the objective referred to in that article (see, to that effect, judgment of 23 November 2021, IS (Unlawfulness of the order for reference), C‑564/19, EU:C:2021:949, paragraph 128 and the case-law cited), in particular that underlying paragraph 2 of that article, referred to in the preceding paragraph of the present judgment.
51 It follows that, provided that the objective pursued by Article 6(2) of Directive 2012/13 is fulfilled, information relating to the reasons for the arrest or detention of suspects or accused persons, including the criminal act which they are suspected or accused of having committed, may be communicated to them in documents other than the detention order.
52 The fact that that document, in itself, does not contain sufficient information on the reasons for the detention does not prevent arrested or detained persons from effectively challenging the lawfulness of their arrest or detention, provided that the information contained in other documents drawn up by the competent authorities and communicated to those persons enables them to understand the reasons for it.
53 Furthermore, it is already clear from the considerations set out, in particular, in paragraphs 46 and 49 of the present judgment, that the information referred to in Article 6(2) of Directive 2012/13 must be communicated promptly to arrested or detained persons in order to achieve the objective pursued by that provision. As the Advocate General pointed out in point 44 of his Opinion, it follows that such persons must be informed of the reasons for their arrest or detention as soon as possible, that is to say, at the time of or shortly after the deprivation of liberty.
54 Therefore, it is important that the detention order or documents other than the detention order which contain the necessary information on the reasons for the arrest or detention are communicated to the arrested or detained persons as soon as possible. The precise time of that communication may, however, be determined according to the specific circumstances surrounding the deprivation of liberty.
55 Such an interpretation of Article 6(2) of Directive 2012/13 is supported by the case-law of the European Court of Human Rights relating to Article 5 ECHR, which is expressly referred to in recital 14 of Directive 2012/13. Indeed, that court has already ruled that 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 their liberty (ECtHR, 12 April 2005, Shamayev and Others v. Georgia and Russia, CE:ECHR:2005:0412JUD003637802, § 413).
56 Furthermore, that court held that paragraph 2 of Article 5 ECHR contains the basic guarantee that anyone arrested should know the reasons for his or her arrest. As part of the system of protection offered by that article, paragraph 2 thereof requires that such a person be informed, in simple and non-technical language that he or she can understand, of the legal and factual grounds for his or her arrest so that he or she can challenge its lawfulness before a court under paragraph 4 of that article. Whilst that information must be conveyed ‘promptly’, it need not be related in its entirety by the arresting officers at the very moment of the arrest. Whether the content and promptness of the information conveyed have been sufficient is to be assessed in each case according to its special features (ECtHR, 15 December 2016, Khlaifia and Others v. Italy, CE:ECHR:2016:1215JUD001648312, § 115).
57 As regards the specific circumstances of the dispute in the main proceedings, it must be observed that the objective pursued by the obligation laid down in Article 6(2) of Directive 2012/13, to inform suspects and accused persons of the reasons for their detention, which is to enable the person concerned to challenge the lawfulness of the deprivation of his or her liberty in an effective manner, cannot be achieved where information concerning the reasons for that detention is provided only after that person has lodged an appeal to challenge the lawfulness of his or her detention. It is important that the person in question should not be forced to challenge the legality of the detention order in order to be able to ascertain the reasons for it, since in such a case he or she would not be able to prepare his or her appeal effectively or assess its chances of success.
58 It follows from the foregoing considerations that the answer to the first question is that Article 6(2) of Directive 2012/13 must be interpreted as not precluding the application of national legislation according to which the grounds for the detention of persons suspected or accused of having committed a criminal offence, including information relating to the criminal act which they are suspected or accused of having committed, may be set out in documents other than the detention order. However, that provision precludes that such information be given to such persons only in the event that they challenge the legality of the detention before the courts and not at the time of the deprivation of liberty or within a short period after it has begun.
The second question
59 By its second question, the referring court asks, in essence, whether Article 6(2) of Directive 2012/13 is to be interpreted as requiring that the reasons for detention communicated to persons suspected or accused of having committed a criminal offence must contain information relating to the time, place and manner of the commission of the offence, that person’s specific involvement in it and the consequent legal nature of the offence.
60 Like the assessment in paragraph 46 of the present judgment, it should be noted that the qualitative criterion laid down in Article 6(1) of Directive 2012/13, according to which information must be provided ’in such detail as is necessary’, must also apply in the case of arrest or detention within the meaning of Article 6(2).
61 In that regard, recital 28 of that directive states that a description of the facts, including, where known, time and place, relating to the criminal act that the persons are suspected or accused of having committed and the possible legal classification of the alleged offence should 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.
62 Thus, in order to guarantee the objective pursued by Article 6(2) of Directive 2012/13, all the information necessary to enable the detained person effectively to challenge the lawfulness of his or her detention must be communicated to him or her.
63 In particular, he or she must first be provided with a description of the relevant facts, known to the competent authorities, relating to the criminal offence which he or she is suspected or accused of having committed. As the Advocate General pointed out in point 58 of his Opinion, that description should contain, in addition to the known time and place of the events, the nature of the participation of the person concerned in that offence.
64 Secondly, it is also necessary to include in that communication the legal classification provisionally adopted by the competent authorities of the criminal offence which the person concerned is suspected or accused of having committed, since that classification is such as to enable the person concerned or his or her lawyer to better understand the reasons for the detention and, where appropriate, effectively to challenge its legality before the competent court.
65 However, it is important to note that, as is clear from recital 28 of Directive 2012/13, the level of detail of the information referred to in the two preceding paragraphs must be adapted according to the stage of the criminal proceedings in order not to prejudice the progress of an ongoing investigation, while ensuring that the arrested or detained person is provided with sufficient information to understand the reasons for his or her arrest or detention and to be able, where appropriate, effectively to challenge the lawfulness of that arrest or detention.
66 The case-law of the European Court of Human Rights on Article 5 ECHR, cited in paragraphs 55 and 56 of the present judgment, corroborates the above interpretation of Article 6(2) of Directive 2012/13, since it requires that the reasons for the arrest or detention be communicated to a sufficient degree (ECtHR, 12 April 2005, Shamayev and Others v. Georgia and Russia, CE:ECHR:2005:0412JUD003637802, § 413) and contain the legal and factual grounds for the deprivation of liberty, so that the person concerned can challenge its lawfulness before a court under paragraph 4 of Article 5 (ECtHR, 15 December 2016, Khlaifia and Others v. Italy, CE:ECHR:2016:1215JUD001648312, § 115).
67 The European Court of Human Rights further considers that, in the context of Article 5(1)(c) ECHR, the reasoning of the detention order is a relevant element in determining whether or not the detention of a person is to be regarded as arbitrary. Thus, in the context of the first limb of that provision, which allows for the lawful detention of a person where there are reasonable grounds for suspecting that he or she has committed an offence, that court held that the absence of any grounds in the judicial authorities’ decisions authorising detention for a long period of time was incompatible with the principle of protection against arbitrariness enshrined in Article 5(1). Conversely, it has found that an applicant’s detention on remand could not be said to have been arbitrary if the competent court gave certain grounds justifying the continued detention of the person concerned, unless the reasons given were extremely brief and did not refer to any legal provision which would have permitted the applicant’s detention (ECtHR, 22 October 2018, S., V. and A. v. Denmark, CE:ECHR:2018:1022JUD003555312, § 92 and the case-law cited).
68 However, Article 5(2) ECHR does not require the competent authorities to provide the person concerned, at the time of arrest, with a full list of all the charges against him or her (ECtHR, 19 April 2011, Gasiņš v. Latvia, CE:ECHR:2011:0419JUD006945801, § 53).
69 In the present case, the referring court explains that, under points 2 to 4 of Article 74(2) of the Law on the Ministry of the Interior, the detention order must contain, among other things, the factual and legal grounds for the detention, the identification data of the person detained and the date and time of detention.
70 It should be noted that these elements are, a priori, likely to ensure that the detainee is adequately informed, since they enable him or her to understand the reasons for his or her detention and, where appropriate, effectively to challenge its legality.
71 It is, however, for the national court to verify that the information provided in each specific case is sufficiently complete, as indicated in paragraphs 63 to 65 of the present judgment.
72 In that respect, it is clear from the information provided by the referring court that the detention order issued against XN sets out the legal and factual grounds for that detention in the following terms: ‘point 1 of Article 72(1) of the Law on the Ministry of the Interior’ and ‘disturbance of public order’. However, that information alone does not appear to be sufficient to comply with the requirements of Article 6(2) of Directive 2012/13, since it did not allow XN effectively to challenge the legality of the order.
73 The national court also points out that, under Bulgarian law, access to the case materials, as referred to in Article 7 of Directive 2012/13, is guaranteed only to persons with the status of ’accused persons’. Thus, an arrested or detained person who is not formally placed under that status cannot have access to documents held by the competent authorities relating to the case in question.
74 In that regard, it should be recalled that Article 7(1) requires that documents which are essential for the purpose of effectively challenging the lawfulness of the arrest or detention be made available to an arrested or detained person, or to his or her lawyer, thus supplementing the obligation to provide information laid down in Article 6(2) of Directive 2012/13. Article 7(1) applies to any person arrested or detained at any stage of the criminal proceedings and, therefore regardless of the legal status conferred on that person by national law.
75 In the absence of sufficient information in the detention order concerning the reasons for detention, as required by Article 6(2) of Directive 2012/13, and in the absence of access to documents which are essential for the purposes of effectively challenging the lawfulness of his or her arrest or detention provided for in Article 7(1) of that directive, a person who, like XN, is detained on suspicion of having committed a criminal offence is deprived of sufficient information to be able effectively to challenge the lawfulness of his or her detention.
76 It follows from the foregoing considerations that Article 6(2) of Directive 2012/13 must be interpreted as requiring that the reasons for the detention of persons suspected or accused of having committed a criminal offence must include all the information necessary to enable them effectively to challenge the lawfulness of their detention. While taking account of the stage of the criminal proceedings so as not to prejudice the progress of an ongoing investigation, that information must contain a description of the relevant facts known to the competent authorities, including the known time and place of the facts, the nature of the actual participation of those persons in the alleged offence and the legal classification provisionally adopted.
Costs
77 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1. 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
must be interpreted as not precluding the application of national legislation according to which the grounds for the detention of persons suspected or accused of having committed a criminal offence, including information relating to the criminal act which they are suspected or accused of having committed, may be set out in documents other than the detention order. However, that provision precludes that such information be given to such persons only in the event that they challenge the legality of the detention before the courts and not at the time of the deprivation of liberty or within a short period after it has begun.
2. Article 6(2) of Directive 2012/13
must be interpreted as requiring that the reasons for the detention of persons suspected or accused of having committed a criminal offence must include all the information necessary to enable them effectively to challenge the lawfulness of their detention. While taking account of the stage of the criminal proceedings so as not to prejudice the progress of an ongoing investigation, that information must contain a description of the relevant facts known to the competent authorities, including the known time and place of the facts, the nature of the actual participation of those persons in the alleged offence and the legal classification provisionally adopted.
[Signatures]