Case C-807/26, Bonarri – reclassified in the judgment, too late to bargain
The Court of Justice has already held that EU law does not oblige Italy to reopen negotiated penalties when an offence is reclassified at trial. The Corte suprema di cassazione now asks about the case where the accused learns of the reclassification only from the judgment.
Facts
KH is the defendant in criminal proceedings that have reached the Corte suprema di cassazione. The question describes national legislation that allows a criminal court ruling on the substance of the case to give the act a legal classification different from the one set out in the accusation, without informing the accused in advance, even where the new classification was foreseeable. The consequence the court points to is procedural: the new classification made alternative procedures available, but the time limit for requesting them had expired by that stage of the proceedings. The court asks whether Article 6(4) of Directive 2012/13/EU and the second paragraph of Article 48 of the Charter preclude that legislation. (Bonarri is a fictitious name given by the Court.)
Question Referred
Must Article 6(4) 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 the second [paragraph] of Article 48 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding the application of national legislation which allows a criminal court ruling on the substance of the case to give the act at issue a different legal classification to that set out in the accusation, without informing the accused person in advance and in good time for him or her to prepare an effective defence, even if that different classification were foreseeable for the accused person, with the result, in particular, that he or she is refused access to alternative procedures, which became possible only because of the new classification of the offence, but which can no longer be requested by the accused person because the relevant time limit, at that stage of the proceedings, has already expired.
Sources
OJ notice C/2026/5209 (EUR‑Lex) · Case file on CURIA · Directive 2012/13/EU · Moro, C‑646/17 (ECLI:EU:C:2019:489)
Comment
Article 6(3) of the Directive requires that, at the latest when the merits are submitted to a court, the accused be given detailed information on the accusation, “including the nature and legal classification of the criminal offence”; Article 6(4) requires that the accused be “informed promptly of any changes in the information given … where this is necessary to safeguard the fairness of the proceedings”. In Moro (C‑646/17, ECLI:EU:C:2019:489) the Court read these provisions as allowing later amendments to the legal classification, provided they are disclosed “at a point in time when they still have the opportunity to respond effectively, before the stage of deliberation”. On the facts of Moro, where the defendant had been told of the reclassification during the trial, it held that Article 6(4) and Article 48 of the Charter do not preclude national legislation allowing a negotiated penalty to be requested where the acts are modified “but not where the legal classification of the acts to which the accusation relates has been modified”.
Bonarri reverses the facts that made Moro easy. There, the information was given in time and the only question was whether a procedural benefit had to follow from it; the Court said no (para. 63). Here, on the referring court’s description, the information was not given at all before the judgment. That goes to the core of Article 6(4) as Moro itself described it: information about a change in legal classification must allow the accused “to exercise his or her rights of defence specifically and effectively” (para. 56). A reclassification that first appears in the judgment appears after the deliberation stage, which Moro treated as the outer limit.
Two points will shape the answer. The first is the clause “even if that different classification were foreseeable”: the Court will have to say whether foreseeability can take the place of the information that Article 6(4) requires to be given. The second is the consequence. Moro establishes that the Directive does not itself create a right to alternative procedures. If the Court finds a breach here, it will have to say whether the breach reaches the procedural options the accused lost through not being informed.