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 — Judicial cooperation in criminal matters — Directive 2013/48/EU — Article 3(2) — Right of access to a lawyer — Circumstances in which the right of access to a lawyer must be guaranteed — Non-appearance — Derogations from the right of access to a lawyer — Article 47 of the Charter of Fundamental Rights of the European Union — Right to effective judicial protection.
Outcome of the case:
On those grounds, the Court (Second Chamber) hereby rules:
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, and in particular Article 3(2) thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation, as interpreted by national case-law, according to which the exercise of the right of access to a lawyer may, at the pre-trial stage, be delayed because the suspect or accused person has failed to appear following a summons to appear before an investigating judge until the national arrest warrant issued against the person concerned has been executed.
1) This request for a preliminary ruling concerns the interpretation of Article 3(2) 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 (OJ 2013 L 294, p. 1), and of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
...
3 Recitals 4, 6, 19 and 30 to 32 of Directive 2013/48 state:
‘(4) The implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States trust in each other’s criminal justice systems. The extent of the mutual recognition is very much dependent on a number of parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards necessary to facilitate the application of the principle of mutual recognition.
…
(6) Mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities, but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied. Strengthening mutual trust requires detailed rules on the protection of the procedural rights and guarantees arising from the Charter, the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950,] and the [International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966 and which entered into force on 23 March 1976]. It also requires, by means of this Directive and by means of other measures, further development within the [European] Union of the minimum standards set out in the Charter and in the [European Convention for the Protection of Human Rights and Fundamental Freedoms].
(19) Member States should ensure that suspects or accused persons have the right of access to a lawyer without undue delay in accordance with this Directive. In any event, suspects or accused persons should be granted access to a lawyer during criminal proceedings before a court, if they have not waived that right.
(30) In cases of geographical remoteness of the suspect or accused person, such as in overseas territories or where the Member State undertakes or participates in military operations outside its territory, Member States are permitted to derogate temporarily from the right of the suspect or accused person to have access to a lawyer without undue delay after deprivation of liberty. …
(31) Member States should be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase when there is a need, in cases of urgency, to avert serious adverse consequences for the life, liberty or physical integrity of a person. … Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.
(32) Member States should also be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings, in particular to prevent destruction or alteration of essential evidence, or to prevent interference with witnesses. … Any abuse of this derogation would in principle irretrievably prejudice the rights of the defence.’
18) Therefore, that court raises the question of the scope of the right of access to a lawyer provided for in that directive. In particular, it has doubts as to whether that case-law complies with Article 3(2) of that directive and Article 47 of the Charter.
19) In those circumstances, the Juzgado de Instrucción n. 4 de Badalona (Court of Preliminary Investigation No 4, Badalona) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 47 of the [Charter] and, in particular, Article 3(2) of Directive [2013/48] be interpreted as meaning that the right of access to a lawyer may justifiably be delayed where the suspect or accused fails to appear when first summoned by the court and a national, European or international arrest warrant is issued, and that the assistance of a lawyer and the entering of an appearance by the lawyer in the proceedings may be delayed until the warrant is executed and the suspect is brought to court by the police?’
21) By its question, the referring court asks, in essence, whether Directive 2013/48, and in particular Article 3(2) thereof, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation, as interpreted by national case-law, according to which the exercise of the right of access to a lawyer may, at the pre-trial stage, be delayed because the suspect or accused person has failed to appear following a summons to appear before an investigating judge until the national arrest warrant issued against the person concerned has been executed.
29) As regards the right of access to a lawyer provided for by Directive 2013/48, read in the light of Article 47 of the Charter, it should, first of all, be stated that, according to the information in the request for a preliminary ruling, the referring court seeks to ascertain whether the exercise of that right may be delayed because the suspect or accused person has failed to appear. On the other hand, that request does not concern the content of the right of access to a lawyer under that directive, including the elements mentioned in Article 3(3) thereof.
36) That said, it is necessary, next, to determine whether Directive 2013/48, read in the light of Article 47 of the Charter, allows Member States to derogate from the right of access to a lawyer, which must thus, in principle, be guaranteed to a suspect who has been summoned to appear before an investigating judge, on account of that person’s failure to appear.
44) As regards the objectives of Directive 2013/48, it is apparent from recitals 4 and 6 of that directive that the directive seeks, inter alia, to implement the principle of mutual recognition of decisions in criminal matters, which presupposes that Member States trust in each other’s criminal justice systems. The aims of that directive include the promotion of the right to be advised, defended and represented laid down in the second paragraph of Article 47 of the Charter and of the rights of the defence guaranteed by Article 48(2) of the Charter (judgment of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 104).
47) Lastly, it should be added that the interpretation of Article 3(2) of Directive 2013/48 to the effect that the exercise of the right of access to a lawyer cannot be delayed because a suspect or accused person has failed to appear following a summons to appear is consistent with the requirements arising from the fundamental right to effective judicial protection enshrined in Article 47 of the Charter.
48) In the light of the foregoing, the answer to the question referred is that Directive 2013/48, and in particular Article 3(2) thereof, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation, as interpreted by national case-law, according to which the exercise of the right of access to a lawyer may, at the pre-trial stage, be delayed because the suspect or accused person has failed to appear following a summons to appear before an investigating judge until the national arrest warrant issued against the person concerned has been executed.
49) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.
