prokuratura Lom (19.9.2019) the CJEU ruled on the scope of three of the directives on procedural rights in criminal
proceedings, being Directive 2012/13 on the right to information, Directive
2013/48 on the right of access to a lawyer and Directive 2016/343 on the
presumption of innocence and the right to be present at the trial.
As regards the directives
on the right to information and on access to a lawyer, the CJEU stated that these
Directives also apply to proceedings for
the committal to a psychiatric hospital of a person who committed a criminal
offence, provided that such a measure was justified not only on therapeutic
grounds but also on safety grounds. The CJEU came to this conclusion by relying
inter alia on the case-law of the ECHR
on Article 5 of the Convention (right to liberty and security), which also
covers deprivations of liberty resulting from psychiatric or medical care
measures. After recalling that Art. 6 of the EU-Charter corresponded to Art. 5 of
the Convention and therefore, by virtue of Art. 52(3) of the Charter, had to be
interpreted having regard to that case-law of the ECHR, the CJEU concluded: “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.” (§ 46)
Thus, through this new
case-law the concept of “criminal
proceedings” – and the fair-trial guarantees which go with it – are being
extended, for the purpose of the said directives, to “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” (§ 41). Moreover, the court
dealing with a request for such a committal must have the power to verify that the procedural rights covered by those directives were respected in
proceedings prior to those before that court (§ 63).
In simple terms, the
procedure for the committal to a psychiatric hospital with a “penal purpose” (§
71) is being assimilated with standard criminal proceedings on the ground that both
can lead to a deprivation of liberty coming under the scope of Articles 5 of
the Convention and 6 of the Charter.
By contrast, the CJEU
ruled in the same judgment that the Directive on the presumption of innocence –
and indeed EU law as such – did not apply to a procedure for the committal to a
psychiatric hospital which had a purely therapeutic purpose and was implemented
independently of any criminal proceedings (§ 66).
As a result of this case-law, domestic authorities dealing with procedures for the committal to a psychiatric hospital which are governed by any of the above-mentioned directives will now have to combine the safeguards laid down in those directives with the requirements under Art. 5 of the Convention relating to the deprivation of liberty of persons of unsound mind, as they have been recapitulated by the ECHR in the cases of Stanev v. Bulgaria (17.1.2012) and Rooman v. Belgium (31.1.2019). While those requirements to some extent draw on the fair-trial guarantees laid down in Art. 6 of the Convention, they cover many more aspects of the committal than just the rights of the defence.
Finally, as regards the substance of the rights at stake in the present case, it is perhaps worth noting that in relation to the right to information in criminal proceedings as enshrined in Directive 2012/13, the CJEU ruled that the relevant information was to be provided “as soon as possible” and “at the latest, before [the persons concerned] are first officially questioned by the police” (§ 53). This would appear to be in slight contrast with the requirement flowing from Simeonovi v. Bulgaria (ECHR 12.5.2017) according to which this information is to be provided immediately (§ 119).