Article 47 - Right to an effective remedy and to a fair trial
Article 48 - Presumption of innocence and right of defence
Key facts of the case:
Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Directive 2012/13/EU – Articles 3 and 4 – Obligation for the competent authorities to inform suspects and accused persons promptly of their right to remain silent – Article 8(2) – Right to invoke a breach of that obligation – National legislation prohibiting the trial court from raising such a breach of its own motion – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Articles 3 and 4 and Article 8(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, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that they do not preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities, under Articles 3 and 4 of that directive, to inform suspects or accused persons promptly of their right to remain silent, where those suspects or accused persons have not been deprived of a practical and effective opportunity to have access to a lawyer in accordance with Article 3 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, if necessary having obtained legal aid as provided in Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, and where they, like their lawyers, if any, have had a right of access to their file and the right to invoke that breach within a reasonable period of time, in accordance with Article 8(2) of Directive 2012/13.
1) This request for a preliminary ruling concerns the interpretation of Articles 3 and 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 (OJ 2012 L 142, p. 1), Article 7 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1) and Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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3) Recitals 3, 4, 10, 14, 19 and 36 of Directive 2012/13 are worded as follows:
(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, 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 at Rome on 4 November 1950,] as interpreted by the European Court of Human Rights. …
25) In those circumstances, the tribunal correctionnel de Villefranche-sur-Saône (Criminal Court, Villefranche-sur-Saône) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Articles 3 (Right to information about rights) and 4 (Letter of Rights on arrest) of [Directive 2012/13] and Article 7 (Right to remain silent) of [Directive 2016/343], in conjunction with Article 48 (Presumption of innocence and right of defence) of the [Charter] be interpreted as precluding the prohibition on the national court raising of its own motion a violation of the rights of the defence as guaranteed by those directives, more specifically in so far as it is prohibited from raising of its own motion, with a view to the annulment of the procedure, a failure to give notification of the right to remain silent at the time of the arrest or a late notification of the right to remain silent?'
30) Secondly, it is clear from recital 14 of Directive 2012/13 that it is based on the rights set out, inter alia, in Articles 47 and 48 of the Charter and seeks to promote those rights with regard to suspects or accused persons in criminal proceedings (see, to that effect, judgment of 19 September 2019, Rayonna prokuratura Lom, C‑467/18, EU:C:2019:765, paragraph 37).
31) However, while the question referred for a preliminary ruling refers only to Article 48 of the Charter relating to the presumption of innocence and right of defence, it must be recalled that the Court has previously ruled that the right to remain silent is safeguarded not only by that article but also by the second paragraph of Article 47 of the Charter relating to the right to a fair hearing (see, to that effect, judgment of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraph 45). Therefore, that question must also be examined in the light of the latter provision of the Charter.
32) In those circumstances, the referring court must be considered to be asking, in essence, whether Articles 3 and 4 and Article 8(2) of Directive 2012/13, read in the light of Articles 47 and 48 of the Charter, must be interpreted as meaning that they preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities, under Articles 3 and 4 of that directive, to inform suspects or accused persons promptly of their right to remain silent.
37) In that respect, it must be noted that, having regard to the importance of the right to an effective remedy, protected by the first paragraph of Article 47 of the Charter, Article 8(2) of Directive 2012/13 precludes any national measure which impedes the exercise of effective remedies in the event of a breach of the rights protected by that directive (judgment of 19 September 2019, Rayonna prokuratura Lom, C‑467/18, EU:C:2019:765, paragraph 57).
40) It must nevertheless be recalled that, when implementing Article 3(1)(e), Article 4(1) and Article 8(2) of Directive 2012/13, the Member States must, in accordance with Article 51(1) of the Charter, ensure that the requirements arising both from the right to an effective remedy and the right to a fair hearing laid down in the first and second paragraphs of Article 47 of the Charter, and the rights of defence laid down in Article 48(2) of the Charter, to which specific expression is given by those provisions of Directive 2012/13, are respected (see, to that effect, judgment of 1 August 2022, TL (Absence of an interpreter and of translation), C‑242/22 PPU, EU:C:2022:611, paragraph 42).
41) It should be added that, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’), which does not preclude EU law from affording more extensive protection. When interpreting the rights guaranteed by the first and second paragraphs of Article 47 and Article 48(2) of the Charter, the Court must, therefore, take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (see, to that effect, judgments of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraph 37 and the case-law cited, and of 9 March 2023, Intermarché Casino Achats v Commission, C‑693/20 P, EU:C:2023:172, paragraphs 41 to 43). Recital 14 of Directive 2012/13 expressly mentions, moreover, the fact that that directive builds upon, inter alia, Article 6, as interpreted by that court.
43) It is open to the Member States, by virtue of the leeway given to them by Directive 2012/13, to limit the time within which such a breach may be invoked to the stage preceding submission of the defence on the merits. In particular, the prohibition on the trial court raising that breach of its own motion with a view to the annulment of the procedure must be regarded as respecting, in principle, the right to an effective remedy and the right to a fair hearing enshrined in the first and second paragraphs of Article 47 of the Charter, as well as the rights of defence enshrined in Article 48(2) of the Charter, as long as the suspects, the accused persons or their lawyers had a practical and effective opportunity to invoke the breach concerned and had a reasonable period of time within which to do so as well as access to the file.
45) That interpretation of those provisions of Directive 2012/13, read in the light of Articles 47 and 48 of the Charter, is supported by the case-law of the European Court of Human Rights on Article 6 ECHR, that court having previously held that the particularly vulnerable position of the accused at the investigation stage for the preparation of the criminal proceeding can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself or herself (ECtHR, 27 November 2008, Salduz v. Turkey, CE:ECHR:2008:1127JUD003639102, § 54).
49) It follows from the above that national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities, under Articles 3 and 4 of Directive 2012/13, to inform suspects or accused persons promptly of their right to remain silent cannot be considered to undermine Articles 47 and 48 of the Charter where those suspects or accused persons have not been deprived of a practical and effective opportunity to have access to a lawyer in accordance with Article 3 of Directive 2013/48, if necessary having obtained legal aid as provided in Directive 2016/1919, and where they, like their lawyers, if any, have had a right of access to their file and the right to invoke that breach within a reasonable period of time, in accordance with Article 8(2) of Directive 2012/13.
53) In the light of all of the foregoing reasons, the answer to the question raised is that Articles 3 and 4 and Article 8(2) of Directive 2012/13, read in the light of Articles 47 and 48 of the Charter, must be interpreted as meaning that they do not preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities, under Articles 3 and 4 of that directive, to inform suspects or accused persons promptly of their right to remain silent, where those suspects or accused persons have not been deprived of a practical and effective opportunity to have access to a lawyer in accordance with Article 3 of Directive 2013/48, if necessary having obtained legal aid as provided in Directive 2016/1919, and where they, like their lawyers, if any, have had a right of access to their file and the right to invoke that breach within a reasonable period of time, in accordance with Article 8(2) of Directive 2012/13.
