Request for a preliminary ruling from the Sąd Rejonowy we Włocławku (Poland) lodged on 17 August 2023 – Criminal proceedings against K.P
(Case C-530/23, Baralo 1 )
Language of the case: Polish
Referring court
Sąd Rejonowy we Włocławku
Party to the main proceedings
K.P
Questions referred
Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 18, 19, 24 and 27, of 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 1 proceedings, in conjunction with Articles 3(2)(a) and (c) and 3(3)(a) 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, 2 interpreted in the light of Sections 6, 7, 11, and 13 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, 3 be interpreted as introducing a directly effective and mandatory rule which makes it impermissible to carry out an act involving the questioning of a vulnerable person without the participation of a defence counsel where the factual conditions for granting legal aid are met, if, at the same time, the authority conducting pre-trial proceedings fails to grant legal aid (including emergency or provisional legal aid) without undue delay and before the person concerned [a vulnerable person in concreto] has been questioned by the police, another law enforcement authority or a judicial authority, or before specific investigative or evidence-gathering acts have been carried out?
Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 18, 19, 24 and 27, of 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, in conjunction with Article 1(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 Sections 6, 7, 11, and 13 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, notwithstanding the factual conditions for carrying out immediate identification, be interpreted as meaning that the failure to identify a potential vulnerability or recognise a person as vulnerable and the inability to challenge the assessment of their potential vulnerability and to grant such a person legal aid without undue delay, is not permissible in any event in cases concerning offences punishable by a restriction of liberty and the circumstances of the failure to identify and provide a public defence counsel must be expressly stated in the decision, which is in principle open to challenge, to proceed to questioning in the absence of a lawyer?
3. Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 18, 19, 24 and 27, of 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, in conjunction with Article 1(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 Section 3, paragraph 7, of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, be interpreted as meaning that that the failure of a Member State to introduce a presumption of vulnerability in criminal proceedings must be interpreted as preventing a suspect from benefiting from the safeguard laid down in Article 9 of 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, interpreted in the light of Section 11 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, and consequently that the authorities administering justice are obliged to apply the provisions of the directive directly in such a situation?
4. If the answer to at least one of Questions 1, 2, or 3 is in the affirmative, are the provisions of the two directives referred to in the questions to be interpreted as precluding provisions of national law such as:
(a) the second sentence of Article 301 of the Code of Criminal Procedure, under which a suspect is to be questioned with the participation of the appointed defence counsel only at his or her request and the failure of the defence counsel to appear for the questioning of the suspect is not to block questioning;
(b) Article 79(1)(3) and (4) of the Code of Criminal Procedure, under which an accused person (suspect) must have a defence counsel in criminal proceedings if there is reasonable doubt as to whether his or her capacity to recognise the significance of the offence or control his or her behaviour was not, at the time that offence was committed, disabled or significantly restricted and if there is reasonable doubt as to whether the state of his or her mental health allows him or her to take part in the proceedings or conduct the defence in an independent and reasonable manner?
5. Does Article 3(2)(a), in conjunction with Article 3(3)(b), of 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, in conjunction with the principle of the primacy and direct effect of directives, require the authorities conducting pre-trial proceedings, the courts and any State authorities to disregard provisions of national law which are incompatible with the directive, such as those listed in Question 4, and consequently – on account of the expiry of the implementation period – to replace the abovementioned national rule with the directly effective rules of the directive?
6. Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 19, 24 and 27, of 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, be interpreted as meaning that in the absence of a decision to grant, or in the event of a failure to grant, legal aid to a vulnerable person or a person who is presumed to be vulnerable under Section 3, paragraph 7, of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (2013/C 378/02), and subsequently on account of the conduct of investigative acts with the participation of such person by a police or other law enforcement authority, including acts which cannot be repeated before the Court, the national court hearing the case in criminal proceedings, and also any other State authorities administering justice (and thus an authority conducting pre-trial proceedings) are obliged to disregard the provisions of national law which are incompatible with the directive, such as those referred to in Question 4, and consequently – on account of the expiry of the implementation period – to replace the abovementioned national rule with the directly effective rules of the directive, even where that person, after the investigation (or prosecution) has been completed and the public prosecutor has brought an indictment before the Court, has appointed a defence counsel of his or her choice?
7. Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 19, 24 and 27, of 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, in conjunction with Article 1(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 Sections 6, 7, 11, and 13 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, be interpreted as meaning that a Member State is obliged to ensure that the vulnerability of a suspect is immediately identified and recognised, and legal aid is granted to suspects or accused persons in criminal proceedings who are presumed to be vulnerable persons, and that that assistance is mandatory even where the competent authority does not ask an independent expert to examine the degree of vulnerability, the needs of the vulnerable person and the appropriateness of any measures taken or envisaged against the vulnerable person until the independent experts’ examination has been properly carried out?
8. If the answer to Question 7 is in the affirmative, are the abovementioned provisions of the directive and the Commission recommendation to be interpreted as precluding national legislation such as Article 79(1)(3) and (4) of the Code of Criminal Procedure, under which an accused person must have a defence counsel in criminal proceedings only if there is reasonable doubt as to whether his or her capacity to recognise the significance of the offence or control his or her behaviour was not, at the time that offence was committed, disabled or significantly restricted and if there is reasonable doubt as to whether the state of his or her mental health makes allows him or her to take part in the proceedings or conduct the defence in an independent and reasonable manner?
9. Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 19, 24 and 27, of 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, in conjunction with Article 1(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 Sections 6, 7, 11, and 13 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, be interpreted as meaning that the competent authorities (public prosecutor’s office, police) should, at the latest before the first questioning of a suspect by the police or another competent authority, immediately identify and recognise the vulnerability of the suspect in criminal proceedings and ensure that legal aid or emergency (provisional) aid is granted to him or her and derogate from questioning the suspect until such time as legal aid or emergency is established or emergency (provisional) aid is granted to that person?
10. If the answer to Question 9 is in the affirmative, must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 19, 24 and 27, of 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, in conjunction with Article 1(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 Sections 6, 7, 11, and 13 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, be interpreted as imposing on Member States an obligation to set out clearly in their national law the reasons and criteria for any derogation from the immediate identification and recognition of the vulnerability of a suspect in criminal proceedings and to ensure that legal aid or emergency (provisional) aid is granted to him or her, and any derogations should be proportionate, limited in time and not infringe the principle of a fair trial, and should take the form of a procedural decision authorising a temporary derogation, against which, in principle, the party should have the right to request a judicial review?
11. Must the second paragraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, in conjunction with Articles 3(2)(a) and 3(3)(b) 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, in conjunction with Article 1(2) and recital 27, and in conjunction with Article 8 of 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, be interpreted as meaning that where the judicial authority does not grant legal aid and specify the reasons for deciding not to grant legal aid to a person who is presumed to be vulnerable (in accordance with Recommendations 7 and 11 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings), such a person has a right to an effective remedy, and the arrangement in national procedural law set out in Article 344a of the Code of Criminal Procedure, requiring that the case be referred back to the public prosecutor for the purpose of:
(a) the authority conducting pre-trial proceedings identifying and recognising the vulnerability of the suspect in criminal proceedings;
(b) enabling the suspect to consult his or her defence counsel before questioning;
(c) questioning the suspect in the presence of defence counsel with audiovisual recording of the questioning itself; and
(d) enabling the defence counsel to familiarise him or herself with the case file and submit any requests for evidence by the vulnerable person and a lawyer appointed officially or a lawyer appointed by the suspect;
should be regarded as such?
12. Must Article 4 of the Charter of Fundamental Rights of the European Union, in conjunction with Articles 6(1) and 2 of the Treaty on European Union and Article 6(3) of the Treaty on European Union, in conjunction with Article 3 of the Convention for the protection of human rights and fundamental freedoms, done in Rome on 4 November 1950, as subsequently amended by Protocols Nos 3, 5 and 8 and supplemented by Protocol No 2, in conjunction with the presumption of vulnerability under Recommendation 7 of Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, be interpreted as meaning that the questioning of a suspect by a police officer or other person authorised to carry out an investigative act under psychiatric hospital conditions without regard to the state of uncertainty and under conditions of particularly limited freedom to state views and specific mental vulnerability, and in the absence of a lawyer, constitutes inhuman treatment and as such completely disqualifies such a procedural act of questioning as contrary to the fundamental rights of the European Union?
13. If the answer to Question 12 is in the affirmative, must the provisions referred to in Question 12 be interpreted as empowering (or obliging) a national court hearing a case in criminal proceedings – coming within the scope of 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, in conjunction with Recommendation 7 of the Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings and the scope 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 –, and also any other criminal authorities carrying out procedural acts in the case, to disregard provisions of national law which are incompatible with the directive, including in particular Article 168a of the Code of Criminal Procedure, and consequently – on account of the expiry of the implementation period – to replace the abovementioned national rule with the directly effective rules of the directive, even where that person, after the investigation (or prosecution) has been completed and the public prosecutor has brought an indictment before the Court, has appointed a defence counsel of his or her choice?
14. Must Articles 2(1)(b), 4(5) and 9, in conjunction with recitals 19, 24 and 27, of 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, in conjunction with Articles 3(2)(a), (b) and (c) and 3(3)(b) 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, in conjunction with the second subparagraph of Article 19(1) TEU and the principle of effectiveness in European Union law, be interpreted as meaning that the public prosecutor, when acting at the pre-trial stage in criminal proceedings, is obliged to act in full compliance with the requirements of Directive 2016/1919 having direct effect and thus to ensure that a suspect or accused person covered by the protection of the above directive in the proceedings is afforded effective legal protection 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;
(c) without undue delay after deprivation of liberty (that is to say also a stay in a psychiatric hospital) and, if necessary, the public prosecutor is obliged to disregard any orders of superior prosecutors if he or she is satisfied that complying with them would prejudice the effective protection of a suspect presumed to be vulnerable, including that person’s right to a fair trial or to any other right conferred on him or her by Directive 2016/1919, in conjunction with Directive 2013/48/EU?
15. If the answer to Question 14 is in the affirmative, must the second subparagraph of Article 19(1) TEU laying down the principle of effective legal protection, in conjunction with Article 2 TEU, in conjunction with the principle of respect for the rule of law, as interpreted in the case-law of the Court of Justice (see judgment of 27 May 2019 in Case C-508/18), and the principle of judicial independence established in second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, as interpreted in the case-law of the Court of Justice (see judgment of 27 February 2018, Associação Sindical dos Juizes Portugueses, C-64/16, EU:C:2018:l17), be interpreted as meaning that those principles, in view of the possibility of the Public Prosecutor General or higher-ranking public prosecutors issuing binding instructions to lower-level prosecutors obliging lower-ranking prosecutors to disregard directly effective EU rules or impede the application thereof, preclude national legislation stating that the prosecutor’s office is to be directly dependent on an executive authority, that is to say the Minister for Justice, and also preclude the existence of national rules which limit the independence of the public prosecutor in the application of EU law, in particular:
(a) Articles 1(2), 3(1)(1) and (3), 7(1) to (6) and (8), and 13(1) and (2) of the Ustawa z dnia 28 stycznia 2016 roku Prawo o prokuraturze (Law of 28 January 2016 on the Public Prosecutor’s Office), which state that the Minister for Justice, who is also the Public Prosecutor General and the highest authority of the public prosecutor’s office, has the right to issue instructions which are binding on lower-ranking public prosecutors also to the extent that they restrict or impede the direct application of EU law?
____________
1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
1 OJ 2017 L 91, p. 40.
1 OJ 2013 L 294, p. 1.
1 OJ 2013 C 378, p. 8.