VW (Droit d'accès a un avocat en cas de non-comparution) (Judicial cooperation in criminal matters - Right of access to a lawyer - Opinion) [2019] EUECJ C-659/18

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(Request for a preliminary ruling from the Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona, Spain))

(Judicial cooperation in criminal matters — Directive 2013/48/EU — Article 2 — Scope — Article 3 — Right of access to a lawyer — Failure to appear when summoned — National arrest warrant — Temporary derogations — Article 8 — Circumstances in which the assistance of a lawyer may be delayed)

1. The origins of the profession of advocate can be traced back to ancient Greece and Rome. (2) However, the entitlement of persons subject to criminal proceedings to assistance from a lawyer as a matter of right is a relatively modern innovation, dating back to the 18th and 19th centuries. (3)

2. Nowadays, the right of access to a lawyer (also referred to in some jurisdictions as the right to counsel) in criminal proceedings is considered a key component of the rights of the defence and, more broadly, of the right to a fair trial. (4) It is, inter alia, enshrined in Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union (‘the Charter’), in Article 6(3)(c) of the European Convention on Human Rights (‘the ECHR’), and in Article 14(3)(b) of the International Covenant on Civil and Political Rights. (5)

3. The present case invites the Court to shed light on the scope of the right of access to a lawyer under 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. (6) The particular question referred to the Court can be summarised as follows: can the right of access to a lawyer be delayed until the suspect appears before the court in person if, having previously been summoned by that court to appear, and having failed to do so, a (national) arrest warrant has been issued against him?

‘(12) This Directive lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant … In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the [ECtHR], which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer. That case-law provides, inter alia, that the fairness of proceedings requires that a suspect or accused person be able to obtain the whole range of services specifically associated with legal assistance. In that regard, the lawyers of suspects or accused persons should be able to secure without restriction, the fundamental aspects of the defence.

(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. …

(38) Member States should clearly set out in their national law the grounds and criteria for any temporary derogations from the rights granted under this Directive, and they should make restricted use of those temporary derogations. Any such temporary derogations should be proportional, should be strictly limited in time, should not be based exclusively on the type or the seriousness of the alleged offence, and should not prejudice the overall fairness of the proceedings. …’

‘This Directive lays down minimum rules concerning the rights of suspects and accused persons in criminal proceedings and of persons subject to proceedings pursuant to Framework Decision 2002/584/JHA (“European arrest warrant proceedings”) to have access to a lawyer …’

‘This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies 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 offence, including, where applicable, sentencing and the resolution of any appeal.’

7. Under the terms of Article 3 of Directive 2013/48 (‘The right of access to a lawyer in criminal proceedings’):

‘1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.

2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

(a) before they are questioned by the police or by another law enforcement or judicial authority;

(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;

(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;

(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. …;

(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:

5. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty.

6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:

(a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;

(b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.’

8. Article 8(1) of Directive 2013/48 (‘General conditions for applying temporary derogations’) provides:

‘1. Everyone has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may due process be denied.

2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to a defence and to the assistance of a lawyer; to be informed of the charges against them; to a public trial without undue delay and with full guarantees; to the use of evidence appropriate to their defence; not to incriminate themselves; not to plead guilty; and to the presumption of innocence. …’

10. Article 118(1) of the Ley de Enjuiciamiento Criminal (‘Law on Criminal Procedure’), as amended in 2015 and currently in force, states:

‘Anyone accused of a punishable offence may exercise the right of defence, by taking part in proceedings, from the moment when he is informed of the existence of the proceedings, or he has been placed under arrest or made the subject of any other precautionary measures, or an order has been made for him to be charged, and to this end he shall be informed without undue delay of the following rights:

(d) The right freely to appoint a lawyer, without prejudice to Article 527(1)(a).

‘1. In the situations provided for in Article 509 a person who is detained or imprisoned may be deprived of the following rights where justified by the circumstances of the case:

(d) The right for him or his lawyer to access the proceedings, except for those elements that are essential in order to be able to challenge the lawfulness of the detention.’

12. The defendant in the main proceedings (‘the Defendant’) was the subject of a roadside check by the police of Badalona (Spain). Suspecting that the Albanian driving licence presented by the Defendant was not authentic, the police filed a report on the Defendant on 20 April 2018 regarding alleged offences of driving without a licence and forgery of a public document. On 19 May 2018, an expert report on the driving licence in question confirmed the document to be a forgery.

13. By order of 11 June 2018, the Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona, Spain) before which the criminal proceedings against the Defendant were brought, decided to hear the accused assisted by a lawyer. A lawyer was therefore assigned to him. Several attempts to summon the Defendant were unsuccessful because his whereabouts were unknown. Ultimately, on 27 September 2018, a warrant was issued for his arrest and for him to be brought before the court.

14. On 16 October 2018, a fax was received from a lawyer seeking to enter an appearance in the proceedings on behalf of the Defendant and requesting that subsequent procedural measures be communicated to her. Her appointment by the Defendant and the consent of the lawyer previously assigned to him were included as attachments. The lawyer also asked for the arrest warrant to be suspended, stating that her client wished to appear before the court voluntarily.

15. However, since the Defendant did not appear when first summoned and is still subject to an arrest warrant, the Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona) wonders whether, in conformity with Article 118 of the Law on Criminal Procedure, the Defendant’s right of access to a lawyer may be delayed until the warrant is executed.

16. As outlined by the referring court, and not contradicted on this point by the Spanish Government in its submissions, the relevant national provisions have been interpreted by the national courts as making the right of access to a lawyer subject to the requirement for the suspect to appear in person. That means that such a right may be refused when the suspect is absent or cannot be located. According to the referring court, that principle was first established in judgment No 87/1984 of the Tribunal Constitucional (Constitutional Court, Spain) of 27 July 1984 (7) and, notwithstanding the amendment of Article 118 of the Law on Criminal Procedure following the transposition of Directive 2013/48 into national law, it remains applicable to date. According to that case-law, the requirement for the suspect to appear in person is reasonable and would not have a significant impact on the rights of the defence. In essence, the presence of the accused person is required given that it may be necessary to clarify the facts. Moreover, an absence that persists at the conclusion of the investigation would give rise to an obstruction of justice in so far as the hearing and the delivery of the judgment could not take place. A continuous absence would therefore have the effect of paralysing the proceedings.

17. The referring court harbours doubts as to the compatibility of those national provisions, as interpreted by the national courts, with Article 3(2) of Directive 2013/48 and Article 47 of the Charter. The Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona) therefore decided to stay the proceedings and to refer the following question to the Court 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?’

18. Written observations in these proceedings have been submitted by the Spanish Government and the European Commission.

19. By its question, the referring court essentially asks whether Directive 2013/48, and in particular Article 3(2) thereof, interpreted in the light of Article 47 of the Charter, precludes a national provision or judicial practice interpreting that provision according to which, where the suspect fails to appear when first summoned by the court and a national arrest warrant is issued, the right of access to a lawyer may be delayed until the warrant is executed and the suspect appears before the court.

20. To answer that question, it is necessary, in the first place, to determine whether Directive 2013/48 applies to circumstances such as those in the main proceedings (A). Next, the scope of the right of access to a lawyer will be analysed (B). Finally, I shall turn to the potential temporal derogations contained in Directive 2013/48 (C).

22. First, questions referred by national courts to this Court enjoy a presumption of relevance. (8) Thus, although it may not be immediately apparent how certain legal issues are necessarily relevant in view of all the facts of a case before a national court, unless, in a rather extraordinary set of circumstances, that presumption of relevance is rebutted, (9) this Court will provide in good faith an answer to the question posed.

23. Second, in doing so, national law and its interpretation by national courts will be taken as a fact stated by the referring court, as potentially further clarified by the intervening parties. In the present case, the national rule in question appears to be primarily a jurisprudential construct. In their submissions, the Spanish Government adds references to more recent case-law of the Tribunal Constitucional (Constitutional Court) on the matter. (10) While that government underlines the fact that in its understanding of that line of case-law, the delay in granting the right of access to a lawyer is not automatic, it essentially confirms that such a delay is indeed possible, but constitutes a necessary and proportionate limitation to the right of defence. (11)

24. The scope of Directive 2013/48 is defined in Article 2(1) thereof in the following terms: ‘This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. …’

25. In the light of the information included in the case file, it appears that, in the case at issue in the main proceedings, all conditions laid down in that provision are satisfied.

26. First, in view of the time when the facts of the case took place, and of Article 15 of Directive 2013/48, there is no doubt that Directive 2013/48 is applicable ratione temporis.

27. Second, Directive 2013/48 applies ratione personae. The Defendant is clearly considered a ‘suspect’ for the purposes of Article 2(1) of Directive 2013/48 before the national authorities. He is suspected of having committed two offences and, for that reason, he has been summoned to appear before a court. A national arrest warrant has been issued against him. Whether or not that warrant has been executed in the meantime is not relevant: suspects and accused persons are entitled to a lawyer once ‘they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty’.

28. Third, the issue is the applicability of Directive 2013/48 ratione materiae. On the one hand, it is undisputed that the proceedings before the referring court are of a criminal nature. This Court has also confirmed that, for the directives guaranteeing minimal standards in criminal proceedings, (12) such as Directive 2013/48, to be applicable, there is no requirement for a cross-border dimension in the individual case before the national court. (13)

29. On the other hand, the Spanish Government questions whether the Defendant has been ‘made aware by the competent authorities’ in the sense of Article 2(1) of Directive 2013/48 of the fact that he is suspected of having committed some criminal offences. Indeed, he has, more than once, been officially summoned to appear and give evidence, assisted by a lawyer. However, since that summons was said to be unsuccessful because the Defendant’s whereabouts were unknown, the Spanish Government takes the view that the Defendant has not yet been officially informed of his status as a suspect by the authorities and, consequently, the provisions of Directive 2013/48 have not been triggered.

31. In my view, the focus of Article 2(1) of Directive 2013/48 is on the nature of the information, not on the mode of communication of that information. What matters is that there was indeed an official decision or other procedural step as required by national law made by the competent authorities, addressed towards the person in question, seeking to inform him that he is to be treated as a suspect or accused person. Conversely, that provision does not require that information to be conveyed in a specific manner. It expressly states that such a decision, once made by the competent authorities, may reach that person ‘by official notification’, but also ‘otherwise’.

32. I would assume that Article 2(1) thus seeks to strike a balance between the rights of the defence of individuals, on the one hand, and the need to protect the integrity and efficiency of criminal investigations, on the other. This is why that provision does not require Member States to guarantee a right of access to a lawyer before the competent authorities have decided to take the formal step of informing the suspect or accused person of his status, even if there is an ongoing investigation concerning that person. Thus, information obtained by the suspect or accused person concerning the existence of a criminal investigation against him, for example, through a leak or an unofficial channel, prior to any official communication made by the competent authorities, would not satisfy the condition of Article 2(1) of Directive 2013/48.

33. However, once the authorities have formally acted, seeking to inform the person in question of the fact that he is being treated as a suspect or accused person, the manner in which that person becomes aware of that fact is of limited relevance to whether or not he has objectively obtained that status under the directive. For instance, I fail to see why a suspect that becomes aware of his status through the press, television, or the internet, after having noticed or being alerted to official declarations made by the competent authorities and reported or captured by any of those media, should be deprived of his right of access to a lawyer, even if any formal notifications made by the authorities to him in person were unsuccessful. There are a variety of circumstances in which an official notification might fail to reach its recipient. A number of those circumstances may even be unrelated to a willingness on the part of the suspect to evade official service and the proceedings. In all those situations, the competent authorities clearly voiced their intention to treat the person in question as a suspect or accused person, which the person in question was made aware of otherwise than by official notification.

34. That said, I wish to stress that this reading of the moment when Directive 2013/48 begins to apply in no way authorises or mandates disregard for the applicable national criminal procedural rules on the service of documents in criminal proceedings, in particular those relating to compulsory service of written documents. However, in view of the potential variety of national rules of criminal procedure in that regard, it is only natural that an overarching EU instrument chooses as its trigger point a factual situation (when a person actually becomes aware of his new status), and not compliance with a formal requirement under national law.

35. Such a reading of Article 2(1) of Directive 2013/48 also seems to be more in line with the case-law of the ECtHR, according to which the right of access to a lawyer does not depend on an official notification by the authorities, but must be guaranteed from the moment when the position of a person is significantly affected. (14)

36. In the case at hand, it is undisputed that (i) the Defendant had become a suspect in a criminal investigation, (ii) the competent authorities made various attempts to inform him of the proceedings, and (iii) the letter from the Defendant’s lawyer was received by those authorities after the issuance of the formal summons.

37. It would thus appear that, as a matter of fact, the Defendant indeed became aware of the criminal investigation otherwise than by official notification. Therefore, pursuant to Article 2(1), such a situation falls within the scope of Directive 2013/48.

38. The next issue that should be addressed is whether a national provision or judicial practice that permits the national authorities, where the suspect fails to appear when summoned by a court and a national arrest warrant is issued, to delay the right of access to a lawyer until the warrant is executed, is consistent with Article 3 of Directive 2013/48.

39. Article 3(1) of Directive 2013/48 lays down the basic principle that suspects and accused persons ‘have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively’. (15)

40. That principle is fleshed out, with respect to the moment in the procedure from which the right must be granted, in Article 3(2) of Directive 2013/48. According to that provision, the right of access to a lawyer should be granted ‘without undue delay’. (16) It then goes on to specify that, in any event, access should be granted from the earliest of a list of four specific points in time.

41. For what is relevant in the present proceedings, it suffices to point out that, according to subparagraph (a) of that list, suspects and accused persons must have the right of access to a lawyer ‘before they are questioned by the police or by another law enforcement or judicial authority’. In addition, under subparagraph (d) of that list, that right must be granted where those persons ‘have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court’.

42. It seems to me that a case such as that at issue in the main proceedings falls squarely under the situation envisaged in subparagraph (d), if not also under that envisaged in subparagraph (a). Indeed, the Defendant was summoned to appear before the referring court — if my understanding of the applicable national law is correct — in order to hear the charges against him and/or be questioned by the authorities. It was precisely the Defendant’s failure to appear despite the summons that led the referring court to wonder whether the national provision or judicial practice at issue is compatible with EU law.

43. It is true that, as the Spanish Government points out, the exact content of the right of access to a lawyer is not exhaustively defined in Directive 2013/48 and is largely governed by national law. In particular, Article 3(3) of the directive only requires lawyers to be allowed to participate in a number of procedural activities, none of which was, according to that government, undertaken in the case of the Defendant.

44. However, on the facts of this case, I fail to see how a summons to appear before a court in order to be questioned and, later, an arrest warrant, would not fall, from the very moment when they are carried out, under Article 3(3)(b), pursuant to which ‘Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned’. The very purpose of both measures is to question the person concerned.

45. It is certainly true that this particular procedural step of questioning before the court had not yet taken place when the national court made the request for a preliminary ruling in the present case. But it would also appear that, under the national judicial practice, it is possible to refuse to allow the lawyer chosen by the suspect or accused person to appear on behalf of that person for the purposes of questioning before the court. (17)

46. As to the structural question raised by the Spanish Government, it is unlikely that the list contained in Article 3(3) of Directive 2013/48 captures in a closed and exhaustive manner all the elements of the concept of the right of access to a lawyer. As stated in the recitals to Directive 2013/48, suspects and accused persons must, in principle, be able ‘to obtain the whole range of services specifically associated with legal assistance’ (recital 12) and ‘freely to contact, consult and be assisted by a lawyer’ (recital 27). In turn, their lawyers ‘should be able to secure without restriction, the fundamental aspects of the defence’ (recital 12). (18) These terms clearly reflect what is provided for in the second paragraph of Article 47 of the Charter, according to which ‘everyone shall have the possibility of being advised, defended and represented’. (19)

47. In this context, subparagraphs (a) to (c) of Article 3(3) of the directive look much more like a mere illustration of what is certainly covered by the right of access to a lawyer than a closed list.

48. In addition, the interpretation of Directive 2013/48 put forward by the Spanish Government would be at variance with the case-law of the ECtHR. That court has consistently stated that the fact that a defendant, in spite of having been properly summoned, does not appear in court, cannot, even in the absence of an excuse, justify depriving him of his right to be defended by counsel. (20) Such an interpretation would, therefore, not only contravene the general minimal guarantee provided for in Article 52(3) of the Charter, but would also go against the will of the EU legislature as specifically expressed by the legal instrument in question. According to recital 12, Directive 2013/48 ‘build[s] upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the [ECtHR], which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer’.

49. Therefore, pursuant to Article 3(2) and (3) of Directive 2013/48, a suspect in a situation such as that at issue in the main proceedings must, in principle, enjoy the right of access to a lawyer. That said, it remains to be examined whether Directive 2013/48 permits Member States to derogate from those guarantees in circumstances such as those at issue in the main proceedings.

50. Article 3(5) and (6) of Directive 2013/48 provides for three sets of circumstances in which Member States may temporarily derogate from the principles illustrated above.

51. It is an exhaustive list. Member States may not, in their national laws, provide for derogations other than those set out in Directive 2013/48. If Member States were at liberty to add other derogations, the right of access to a lawyer enshrined in Article 3 might remain largely ‘on paper’. Indeed, to the extent that the directive does not provide for any criteria, principles or limits in that regard, Member States would have unfettered discretion in reducing the scope and reach of Article 3. Far from achieving minimum harmonisation, (21) Directive 2013/48 would thus be at risk of bringing about only illusory harmonisation. (22)

53. There is, first of all, no dispute that the Defendant does not find himself in the situations envisaged either in Article 3(5) or in Article 3(6)(a) of Directive 2013/48. The former derogation concerns cases in which ‘the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty’, whereas the latter derogation applies where ‘there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person’.

54. It is, likewise, highly unlikely that the circumstances in the case at hand correspond to those envisaged by Article 3(6)(b) of Directive 2013/48, which concerns situations in which ‘immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings’.

55. To begin with, I fail to see why action by the authorities in a case such as that of the Defendant would be so urgent that it could not be delayed under any circumstance (‘immediate action … is imperative’). More importantly, it is unclear how depriving suspects of access to a lawyer unless they appear could contribute to preventing ‘substantial jeopardy to criminal proceedings’.

56. Although Directive 2013/48 does not define the concept of ‘substantial jeopardy’ to the proceedings, it does give some examples in recital 32, where it refers to ‘destruction or alteration of essential evidence’ and ‘interference with witnesses’. In the light of those examples, Article 3(6)(b) of Directive 2013/48 should be interpreted as requiring the existence of a credible risk that, without urgent action, the procedure will be irremediably or significantly compromised. However, a mere delay in the procedure, in and of itself, does not necessarily entail that risk. Therefore, the simple fact that proceedings are hindered and slowed down until the suspect appears before the court (voluntarily or when the arrest warrant is executed) cannot, in my view, be regarded as constituting ‘substantial jeopardy’ within the meaning of that provision.

57. I obviously do not underestimate the importance of criminal proceedings being carried out effectively, avoiding undue delays and being completed within a reasonable time. However, that principle applies to all criminal proceedings and, as far as I can see, there is no element which justifies a particular urgency in proceedings such as those in the case before the referring court. Article 3(6)(b) of Directive 2013/48 cannot be interpreted as permitting a delay in granting the right of access to a lawyer each time the suspect or accused person obstructs the swift progress of the proceedings. That would significantly enlarge the scope of the derogation, in a manner that goes against both the wording and the objective of the provision.

58. Nor can the ‘substantial jeopardy’ be identified in the fact, suggested by the Spanish Government, that the presence of the suspect before the referring court might be necessary to clarify the facts. It should be recalled that a suspect or accused person enjoys the right to remain silent and not to incriminate himself. (23) Further, the Member States’ authorities are under a duty to ensure that suspects and accused persons in a situation such as that of the Defendant are informed promptly of, inter alia, their right to remain silent. (24)

59. Against that backdrop, I am somewhat puzzled by the central argument of the Spanish Government. On the one hand, that government claims that the delay in allowing access to a lawyer is necessary for the proper and swift course of criminal proceedings, because it may be crucial to obtain statements from the person in question and/or a potential clarification of the facts. On the other hand, even if compelled to appear, that person is not obliged to say a word, and the competent authorities must inform him of this, even in the absence of his lawyer.

60. At this juncture, the stated aim of such a national judicial practice ceases to resemble anything crucial to the (normal) conduct of (normal) criminal proceedings. Put bluntly, it begins to look much more like a ‘bargaining chip’ to compel appearance before the court or a ‘reward’ for cooperative suspects.

61. In my view, such logic would be inconsistent not only with the provisions of the directive analysed above, but also with the rights enshrined in Articles 47 and 48 of the Charter (the right to an effective remedy and to a fair trial, and the presumption of innocence and the rights of the defence, respectively). (25) I am certainly not denying the general traction of the moral principle ‘no cookies for the bad guys’. The issue is rather that the supply of the specific cookie in question in the present case is, by virtue of the rather clear wording of Article 3(2) of the directive and the Charter rights just mentioned, non-negotiable.

62. Moreover, I would emphasise that the derogations provided for in Directive 2013/48 must be construed narrowly. This principle is borne out by recital 38, according to which Member States should make ‘restricted use’ of the temporary derogations. It also stems very clearly from the wording of Article 3(5) and (6), according to which those derogations may be applied only in ‘exceptional circumstances’. (26) I have strong doubts that the fact that a suspect has failed to appear before a court despite being summoned may be regarded as giving rise to ‘exceptional circumstances’.

63. Furthermore, Article 8(1) of Directive 2013/48 requires the temporary derogations to, inter alia, ‘be proportionate and not go beyond what is necessary’, ‘be strictly limited in time’ and ‘not prejudice the overall fairness of the proceedings’. (27) Even if a measure such as the one in the main proceedings were considered permissible under Article 3(6)(b) of Directive 2013/48, quod non, it is difficult to see how it would meet all three of those criteria.

64. In the light of the above, none of the temporary derogations provided for in Directive 2013/48 is applicable in a situation such as that at issue in the main proceedings. The fact that, as the Spanish Government points out, the derogation in question is not applied automatically but only on a case-by-case basis does not detract from the fact that, on the face of it, that derogation does not correspond to any of those included in Directive 2013/48. Although it cannot be ruled out that some specific cases in which the national provision or judicial practice at issue is applied to particularly serious and urgent cases could satisfy the requirements of Article 3(6)(b) of Directive 2013/48, the fact remains that its particularly broad scope of application, as demonstrated by the present case, cannot be reconciled with the letter and spirit of Directive 2013/48.

65. In the light of the foregoing, I take the view that, under Directive 2013/48, the right of access to a lawyer may not be delayed until an arrest warrant is executed and the suspect is brought to court on the ground that a suspect failed to appear when summoned by a court.

66. I propose that the Court answer the question referred for a preliminary ruling by the Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona, Spain) as follows:

– 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, interpreted in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, precludes a national provision or judicial practice according to which, where the suspect fails to appear when first summoned by the court and a national arrest warrant is issued, the right of access to a lawyer may be delayed until the warrant is executed and the suspect appears before the court.

2 See, for example, Timberlake, E.W., ‘Origin and Development of Advocacy as a Profession’, Virginia Law Review, Vol. 9, No 1, 1922, pp. 25 to 40.

3 Summers, S.J., Fair Trials — The European Criminal Procedural Tradition and the European Court of Human Rights, Hart Publishing, Oxford, 2007, especially pp. 61 to 96.

4 For example, according to established case-law of the European Court of Human Rights (‘the ECtHR’), ‘the right of everyone charged with a criminal offence to be effectively defended by a lawyer … is one of the fundamental features of a fair trial’. See, inter alia, ECtHR, judgments of 13 October 2009, Dayanan v. Turkey (CE:ECHR:2009:1013JUD000737703, § 30), and of 23 May 2019, Doyle v. Ireland (CE:ECHR:2019:0523JUD005197917, § 67).

5 Adopted on 16 December 1966 by the United Nations General Assembly (United Nations Treaty Series, Vol. 999, p. 171).

8 See, recently, judgment of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 16 and the case-law cited).

9 See, for example, order of 5 September 2019, Eli Lilly and Company (C‑239/19, not published, EU:C:2019:687).

10 Judgments No 149/1986 of 26 November 1986 (ES:TC:1986:149); No 198/2003 of 10 November 2003 (ES:TC:2003:198); No 132/2011 of 18 July 2011 (ES:TC:2011:132); and No 24/2018 of 5 March 2018 (ES:TC:2018:24).

11 Thus indirectly confirming the statements made by the referring court (above, at point 16 of this Opinion) to the effect that although the national Law on Criminal Procedure was amended in 2015, the judicial practice has apparently remained unchanged.

12 The Court has recently confirmed that point with regard to 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) (see judgment of 13 June 2019, Moro, C‑646/17, EU:C:2019:489, paragraphs 29 to 37), the relevant provisions of which have essentially the same wording as the corresponding provisions of Directive 2013/48.

13 For an overview of the instruments in question, see my Opinion in Moro (C‑646/17, EU:C:2019:95, points 27 to 54).

14 See, especially, ECtHR, judgments of 19 February 2009, Shabelnik v. Ukraine (CE:ECHR:2009:0219JUD001640403, § 57), and of 18 February 2010, Zaichenko v. Russia (CE:ECHR:2010:0218JUD003966002, § 42).

17 I must admit that this is another puzzling element of the present case, namely why a judge, concerned about the efficiency and speed of proceedings, could not simply consent to the change in legal representation as soon as the person summoned appears in court assisted by a different lawyer of his choice. In that connection, it must be borne in mind that, according to Article 6(3)(c) of the ECHR, an accused person must have the right to defend himself ‘through legal assistance of his own choosing’. However, it could also be suggested that, in general, there are procedural acts that a lawyer could carry out on behalf of his client even before that client appears for questioning in person (such as inspecting the case file, communicating and consulting with the client, or being present at any other procedural acts that may take place at that stage).

20 See, to that effect, ECtHR, judgments of 22 September 1994, Pelladoah v. the Netherlands (CE:ECHR:1994:0922JUD001673790, § 40), and of 21 January 1999, Van Geyseghem v. Belgium (CE:ECHR:1999:0121JUD002610395, § 34).

22 The exhaustiveness of the list is also confirmed by the legislative history of the directive (for an overview, see Cras, S., ‘The Directive on the Right of Access to a Lawyer in Criminal Proceedings and in European Arrest Warrant Proceedings’, Eucrim, Issue 1, 2014, pp. 40 to 41) and suggested by legal scholarship (see, for example, Flore, D., Droit Pénal Européen, 2nd ed., Larcier, Brussels, 2014, p. 404; Klip, A., European Criminal Law — An Integrative Approach, 3rd ed., Intersentia, Cambridge, 2016, p. 263; and Covolo, V., ‘Judicial protection of the right to access a lawyer in the Member States’, in Allegrezza, S., Covolo, V. (eds), Effective Defence Rights in Criminal Proceedings, Wolters Kluwer/CEDAM, Milan, 2018, pp. 487 to 493).

23 See recital 32 of Directive 2013/48. See also 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).

25 In this context, it should be pointed out that, according to recital 12, Directive 2013/48 ‘promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof’. In that regard, see judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 37).

26 That criterion is also found in the case-law of the ECtHR. According to well-established case-law of that court, the right of access to a lawyer may only be limited for ‘compelling reasons’. See, for example, ECtHR, judgment of 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102, § 55). Recently, the ECtHR has made clear that the ‘criterion of compelling reasons is a stringent one: having regard to the fundamental nature and importance of early access to legal advice … restrictions on access to legal advice are permitted only in exceptional circumstances …’. See, ECtHR, judgment of 13 September 2016, Ibrahim and Others v. the United Kingdom (CE:ECHR:2016:0913JUD005054108, § 258). Emphasis added.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> VW (Droit d'accès a un avocat en cas de non-comparution) (Judicial cooperation in criminal matters - Right of access to a lawyer - Opinion) [2019] EUECJ C-659/18_O (07 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C65918_O.html Cite as: EU:C:2019:940, ECLI:EU:C:2019:940, [2019] EUECJ C-659/18_O

Court of Justice of the European Communities (including Court of First Instance Decisions)