Provisional text
OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 11 April 2024 (1)
Case C‑15/24 PPU [Stachev] (i)
CH
v
Sofiyska rayonna prokuratura
(Request for a preliminary ruling from the Sofiyski rayonen sad (District Court, Sofia, Bulgaria))
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Directive 2013/48/EU – Right of access to a lawyer in criminal proceedings – Waiver of that right by an illiterate person)
I. Introduction
1. The Sofiyski rayonen sad (District Court, Sofia, Bulgaria) asks six questions of the Court of Justice on the interpretation, in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), 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)
II. The dispute in the main proceedings, the request for a preliminary ruling and the procedure before the Court
2. CH is a Bulgarian national who has no command of the Bulgarian written language. He has a criminal record.
3. On 16 December 2022, CH was arrested on suspicion of having committed robbery on 2 and 14 December 2022. After he was brought to a police station, he signed a declaration waiving his right to be represented by a lawyer. Under Bulgarian law, the signatures of a police officer and an independent witness are required in order to prove an illiterate person has waived that right. It appears that neither of those conditions was met. (3) During the police interrogation that ensued in the absence of a lawyer, CH admitted to having committed the second robbery and indicated the location of the items stolen on that occasion. In the course of a live identification exercise carried out later that same day, the victim of the second robbery identified CH as the perpetrator.
4. On 17 December 2022, the victim of the first robbery identified CH as the perpetrator in the course of a second live identification exercise carried out in the absence of a lawyer. The Sofiyska rayonna prokuratura (Sofia Public Prosecutor, Bulgaria) thereafter charged CH with the offences of having committed robbery on 2 and 14 December 2022. Since, under Bulgarian law, a person accused of having committed a criminal offence is required to have legal representation, a lawyer was appointed to represent him.
5. On 19 December 2022, CH appeared before the Sofiyski rayonen sad (District Court, Sofia), which ordered that he be placed in detention pending his trial. On 29 December 2022, the Sofiyski gradski sad (Sofia City Court) confirmed that order.
6. On 13 June 2023, the Sofiyski rayonen sad (District Court, Sofia) rejected CH’s application to relax that custodial measure. The Sofiyski gradski sad (Sofia City Court) confirmed that order on 22 June 2023.
7. On 18 August 2023, the Sofiyski rayonen sad (District Court, Sofia) decided to release CH from custody, subject to his being required to report periodically to the police authorities at his place of residence. It did so on the ground that it was impossible to know whether, at the time of his arrest, CH had voluntarily and knowingly waived his right to be represented by a lawyer since he was illiterate and his purported waiver had not been signed by a witness. In those circumstances, the Sofiyski rayonen sad (District Court, Sofia) concluded that the subsequent police investigation was unlawful, with the consequence that evidence obtained thereby could not be used to prosecute CH.
8. On 7 September 2023, the Sofiyski gradski sad (Sofia City Court) set aside that decision and ruled that CH should remain in pre-trial detention. It found that, although no lawyer had assisted CH between the time of his arrest and the time of his being charged, the evidence that the police had collected in the course of their investigation did not appear to have been obtained unlawfully.
9. On 2 October 2023, the Sofiyski rayonen sad (District Court, Sofia) again decided to release CH, subject to the requirement that he report periodically to the police authorities at his place of residence. On 7 November 2023, the Sofiyski gradski sad (Sofia City Court) again set that decision aside and ruled that CH must remain in pre-trial detention.
10. The criminal proceedings against CH are pending before the Sofiyski rayonen sad (District Court, Sofia). That court doubts whether the police authorities had respected CH’s right of access to a lawyer in the period following his arrest and before he was charged with having committed the two robberies. It asks whether Directive 2013/48 entitles a national court, when it rules upon pre-trial coercive measures, to assess whether the evidence against an accused person had been obtained in breach of his or her right of access to a lawyer. The Sofiyski rayonen sad (District Court, Sofia) has doubts as to whether Article 3(6)(b) of Directive 2013/48, which allows Member States to temporarily derogate from the right of access to a lawyer in exceptional circumstances at the pre-trial stage but which has not been transposed into Bulgarian law, has direct effect. It also wonders whether Article 9(1) of Directive 2013/48 is respected where a suspect, who is illiterate and claims that he or she was unaware of the content of the document that he or she signed, makes a written waiver of his or her right of access to a lawyer. Finally, the Sofiyski rayonen sad (District Court, Sofia) wishes to know if the waiver of the right to be assisted by a lawyer at the time of a suspect’s arrest absolves the police authorities from the duty to inform him or her of the right of access to a lawyer prior to carrying out further investigative acts.
11. The Sofiyski rayonen sad (District Court, Sofia) accordingly decided to stay the proceedings before it and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Are national legislation and case-law, on the basis of which the court examining whether there is reasonable suspicion that an accused person was involved in the alleged criminal offence, with a view to adopting or enforcing an appropriate restraint measure, is deprived of the possibility of assessing whether, at the time that person was a suspect and his or her right of free movement was restricted by the police authorities, evidence was gathered in breach of his or her right of access to a lawyer under [Directive 2013/48], compatible with Article 12(2) of that directive, in conjunction with Article 47(1) of the [Charter]?
(2) Is the requirement of respect for the rights of the defence and the fairness of the proceedings within the meaning of Article 12(2) of [Directive 2013/48] satisfied if, in establishing its inner conviction, the court examining whether the restraint measure is appropriate takes into consideration evidence which was gathered in breach of the requirements of that directive at the time the person was a suspect and his or her right of free movement was restricted by the police authorities?
(3) Does the exclusion by the court examining whether the restraint measure is appropriate, despite instructions to the contrary from a higher court, of evidence gathered in breach of [Directive 2013/48] have negative effects on the requirements laid down in Article 12(2) of [Directive 2013/48] in conjunction with Article 47(1) and (2) of the [Charter] concerning the fairness of the proceedings, and does it cast doubt on the impartiality of the court?
(4) Does the possibility provided for in Article 3(6)(b) of [Directive 2013/48], in exceptional circumstances at the pre-trial stage, of temporarily derogating from the right of access to a lawyer where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings have direct […] effect in the EU Member State concerned, where that provision has not been transposed into its national law?
(5) Are the safeguards provided for in Article 9(1)(a) and (b) in conjunction with recital 39 of [Directive 2013/48] respected if a suspect makes a waiver in writing of the right of access to a lawyer, but the suspect is illiterate and was not informed of the possible consequences of waiving that right, and subsequently claims before the court that he or she had not been aware of the content of the document signed by him or her at the time of the restriction of his or her right of free movement by the police authorities?
(6) Does a waiver of the right to be assisted by a lawyer under the provisions of [Directive 2013/48], made by a suspect at the time of his or her detention, exempt the authorities from the obligation to inform him or her, immediately prior to performing each further investigative action with his or her participation, of the right of access to a lawyer and of the possible consequences of waiving that right?’
12. As CH has been in detention since 16 December 2022 and the request for a preliminary ruling raises questions in an area covered by Title V of Part Three of the Treaty on the Functioning of the European Union, the Sofiyski rayonen sad (District Court, Sofia) also requested, in its decision to refer of 11 January 2024, that the Court determine its reference for a preliminary ruling under the urgent preliminary ruling procedure set out in Article 107 of the Rules of Procedure of the Court of Justice.
13. By decision of 25 January 2024, the Court granted that request.
14. The written observations filed on behalf of CH state that he had nothing to add to the order for reference. The European Commission lodged written observations, presented oral argument and replied to the questions put by the Court at the hearing on 11 March 2024.
III. Assessment
15. Article 82(2)(b) TFEU furnishes the legal basis for Directive 2013/48. That provision empowers the European Union to adopt directives that establish minimum rules concerning the rights of individuals in criminal procedures, notwithstanding differences between the legal traditions and systems of the Member States. Article 1 of Directive 2013/48 thus promulgates minimum rules concerning the rights of suspects and accused persons in criminal proceedings, in particular the right of access to a lawyer, without prejudice to the principles of subsidiarity and proportionality. (4) Member States may provide for a higher level of protection. (5)
A. Admissibility
16. The referring court’s first, second and third questions seek an interpretation of Directive 2013/48 in the light of Article 47 of the Charter in a context in which CH is in pre-trial detention by order of the Sofiyski gradski sad (Sofia City Court).
17. Article 267 TFEU provides that a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. (6) There must therefore be such a connecting factor between the dispute before a national court and the interpretation of EU law sought that the latter is objectively required to enable the referring court to rule upon that dispute. (7)
18. National courts define the factual and legal context in which they refer questions on the interpretation of EU law to the Court. The Court does not determine the accuracy of those findings, such that the questions of interpretation asked enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling only where it is quite obvious that the interpretation of EU law that the national court seeks bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to that question. The Court’s function in preliminary rulings is to assist in the administration of justice in the Member States, not to deliver advisory opinions on general or hypothetical questions. (8)
19. It appears from the Court’s file that, following the order of the Sofiyski gradski sad (Sofia City Court) of 7 November 2023 to maintain CH in pre-trial detention, on 20 November 2023, the referring court decided, of its own motion, to refer questions for a preliminary ruling to the Court. (9) Both the minutes of the hearing that took place on that date before the referring court and the order for reference suggest that, when the referring court took that decision, it was not seised of a request to amend the coercive measure that the Sofiyski gradski sad (Sofia City Court) had taken with respect to CH. Although Article 270(1) of Nakazatelno-protsesualen kodeks (10) (Code of Criminal Procedure) provides that an amendment of a coercive measure may be raised at any time prior to a trial, in the absence of an application on behalf of an accused person, the national court has no jurisdiction to amend a coercive measure of its own motion. (11) At the time it delivers its final ruling on the substance of the allegations, a national court has, nevertheless, jurisdiction to take appropriate decisions with regard to any coercive measures that were adopted with respect to the accused person. (12)
20. I further observe that fresh applications to amend coercive measures under Article 270(1) of the Code of Criminal Procedure may be made only where the person accused can show that his or her circumstances have changed. (13) The order for reference contains no indication that there was any change in CH’s circumstances in the 13 days that elapsed between the delivery of the order of the Sofiyski gradski sad (Sofia City Court) and the referring court’s decision to make the present reference. It thus appears that, by means of that order for reference, the Sofiyski rayonen sad (District Court, Sofia) seeks to invite the Court to review the compatibility with EU law of an order of an appellate court in circumstances where the referring court has no jurisdiction, under national law, to amend or revise that order.
21. Since the referring court is not seised of an application to amend, due to a change in circumstances, the coercive measure that the Sofiyski gradski sad (Sofia City Court) adopted, the first, second and third questions are clearly hypothetical. For that reason, I advise the Court to dismiss those questions as inadmissible. I nevertheless propose to examine them here with a view to assisting the Court in the event that it should decide otherwise.
B. Substance
1. The first, second and third questions
22. By the first, second and third questions, the referring court asks, in essence, whether Article 12(2) of Directive 2013/48, read in the light of Article 47 of the Charter, requires that a national court seised of an application to amend a coercive measure during the pre-trial stage of criminal proceedings has jurisdiction to assess whether evidence has been obtained in breach of the right of access to a lawyer, notwithstanding any instructions to the contrary emanating from an appellate court.
23. The Commission recalls that Directive 2013/48 lays down minimum rules. By Article 12(1) of that directive, suspects or accused persons are to have an effective remedy under national law in the event of a breach of their rights under that directive. In the absence of detailed rules at EU level, it is for the domestic legal system of each Member State to establish such rules, provided that the principles of equivalence and effectiveness are respected. The Commission thus considers that Directive 2013/48 does not allow a court automatically to reject the disputed evidence as inadmissible and suggests that it conduct a balancing exercise.
24. It follows from recitals 4 and 6 thereof that Directive 2013/48 seeks to implement the principle of mutual recognition of decisions in criminal matters, a principle which is based upon the trust that Member States have in each other’s criminal justice systems. The aims of that directive include promoting the right to be advised, defended and represented as laid down in the second paragraph of Article 47 of the Charter and the rights of the defence that Article 48(2) of the Charter guarantees. (14) Directive 2013/48 nonetheless lays down minimum rules to vindicate suspects’ and accused persons’ rights to access a lawyer in criminal proceedings. (15) That is consonant with the fact that, in the current state of EU law, criminal procedures are predominantly a matter for Member States to regulate. (16)
25. Article 12(1) of Directive 2013/48 requires Member States to provide effective remedies under national law in the event of a breach of the rights that that directive confers. Having regard to its clear, unconditional and precise terms, that provision also appears to preclude any national measure that would impede access to an effective remedy in the event of any breach of those rights. (17) Article 12(1) of Directive 2013/48 nevertheless provides that the right to challenge a possible breach of the rights the directive confers is to be afforded in accordance with national legal procedures. It accordingly does not purport to determine how such a breach is to be alleged, how it is to be proved or the point in time at which the truth of such allegations is to be determined. (18)
26. Article 12(2) of Directive 2013/48 provides that Member States are to ensure that, in the assessment of evidence obtained in breach of the right to a lawyer in criminal proceedings, the rights of the defence and the fairness of those proceedings are respected. In so far as Article 2(4) of Directive 2013/48 states that that directive is to apply where a suspect or accused person is deprived of his or her liberty, irrespective of the stage of the criminal proceedings, it provides clear support for the proposition that Article 12(2) of Directive 2013/48 may be relied upon throughout the duration of criminal proceedings.
27. Recital 50 of Directive 2013/48 provides that the obligation to ensure that the rights of the defence and the fairness of the proceedings are respected should be without prejudice to national rules or systems regarding the admissibility of evidence. That obligation does not prevent Member States from maintaining a system under which all existing evidence may be adduced before a court, ‘without there being any separate or prior assessment as to [its] admissibility’. (19) That recital thus confirms the EU legislature’s intention to afford Member States a margin of discretion to adopt specific procedures for that purpose.
28. It follows that the principle of the procedural autonomy of the Member States applies without prejudice to the limits that EU law lays down. (20) In the absence of EU rules, it is for the domestic legal system of each Member State to delimit the jurisdiction of courts and tribunals and to lay down detailed procedural rules that govern actions that safeguard the rights that individuals derive from EU law. Detailed procedural rules for that purpose must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render excessively difficult or impossible in practice the exercise of rights conferred by EU law (principle of effectiveness). (21)
29. So far as the principle of effectiveness is concerned, EU law does not require Member States to establish remedies other than those that exist under national law, unless it is apparent from the overall scheme of a national legal system that there is no legal remedy that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law. (22)
30. It follows that EU law does not preclude a Member State from limiting the judicial review of evidence relied upon to adopt coercive measures at the pre-trial stage of the proceedings if, subsequently, the court hearing the substance of the criminal charge is in a position to verify that the rights of the accused person, to which Directive 2013/48 refers, read in the light of Article 47 and Article 48(2) of the Charter, have been respected. (23)
31. The order for reference suggests that, according to the Sofiyski gradski sad (Sofia City Court), as a matter of Bulgarian law, when it was seised of the request to amend coercive measures adopted in the course of the pre-trial stage of proceedings under Article 270(1) of the Code of Criminal Procedure the referring court had no jurisdiction to investigate the circumstances in which the evidence against the accused person had been obtained. In view of the conclusion that I reach in point 30 of the present Opinion, Article 12 of Directive 2013/48 does not preclude rules and national case-law to that effect, provided that a court that adjudicates on the substance of the charges against an accused person is in a position to assess the existence of a breach of the rights that Directive 2013/48 protects and can draw any consequences that may result from such a breach, particularly as regards the admissibility or the probative value of the evidence obtained in such circumstances. (24)
32. On the contrary assumption that, under Bulgarian law, when it is seised of an application under Article 270 of the Code of Criminal Procedure, the referring court has jurisdiction to investigate the circumstances in which evidence against the accused person was obtained, it must exercise that jurisdiction in a manner that complies with Article 12 of Directive 2013/48, thereby ensuring the rights of the defence.
33. The order for reference is unfortunately unclear on that point of Bulgarian law. It seems to assert that the order of the Sofiyski gradski sad (Sofia City Court) of 7 September 2023 decided that the referring court had no jurisdiction to entertain the question as to whether there had been any breach of the right of access to a lawyer. Interestingly, the referring court does not make the same claim with respect to the order of the Sofiyski gradski sad (Sofia City Court) of 7 November 2023, which appears to have ruled on the merits of the application to amend the coercive measure, thus implicitly conceding that the referring court had jurisdiction to make its order.
34. In view of the foregoing, I propose that the Court answer the first, second and third questions such that Article 12(2) of Directive 2013/48, read in the light of Article 47 of the Charter, does not require a national court seised of an application to amend a coercive measure during the pre-trial stage of criminal proceedings to have jurisdiction to assess whether evidence has been obtained in breach of the right of access to a lawyer, provided that the court adjudicating on the substance of the criminal charge is in a position to assess the existence of such a breach and to draw all of the consequences that may result therefrom, in particular as regards the admissibility or the probative value of any evidence obtained in such circumstances. In the exercise of any jurisdiction to make that assessment at the pre-trial stage of criminal proceedings, a national court must comply with Article 12 of Directive 2013/48.
2. The fourth question
35. The referring court’s fourth question asks if Article 3(6)(b) of Directive 2013/48 has direct effect.
36. The Commission submits that that question should receive a negative answer.
37. In accordance with well-established case-law, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, individuals may rely upon those provisions before national courts against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed therefor, or has done so incorrectly. (25) It follows that reliance on a provision of a directive that is insufficiently clear, precise and unconditional to have direct effect may not, solely on the basis of EU law, lead a Member State’s court to disapply a provision of national law. (26) It is also settled case-law that a directive cannot, of itself, impose obligations on an individual and cannot, as such, be relied on against an individual before a national court. (27)
38. Article 3(6)(b) of Directive 2013/48 provides that, in exceptional circumstances and at the pre-trial stage only, Member States may temporarily derogate from the right of access to a lawyer where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings, to the extent justified in the particular circumstances of the case.
39. Recital 38 of Directive 2013/48 obliges Member States to set out clearly, in their national law, the grounds and criteria upon which they may apply such temporary derogations and to make restricted use thereof. Article 8 of Directive 2013/48 sets out the general conditions for applying the temporary derogations to which Article 3(6) thereof refers. Such temporary derogations must be proportionate and strictly limited in time. They may be authorised only by a reasoned decision taken on a case-by-case basis by a judicial authority or other competent authority, provided the latter decisions are subject to judicial review.
40. It follows that Member States cannot have recourse to a temporary derogation from the right of access to a lawyer to the detriment of an individual where they have not adopted detailed rules in order to make use of the possibility afforded by Article 3(6) of Directive 2013/48. (28)
41. I therefore propose that the Court answer the fourth question by holding that Article 3(6)(b) of Directive 2013/48 does not have direct effect.
42. Whilst it is a matter for the referring court to assess, I observe that it is of the view that Article 3(6)(b) of Directive 2013/48 has not been transposed into Bulgarian law. In those circumstances, national courts cannot rely on Article 3(6)(b) of Directive 2013/48 to limit the rights that Directive 2013/48 confers on individuals. I would add that, in any event, nothing in the Court’s file indicates the presence of any exceptional circumstances that required immediate action on the part of the police authorities.
3. The fifth question
43. By its fifth question, the referring court seeks to ascertain whether Article 9 of Directive 2013/48 is to be interpreted to the effect that an illiterate suspect may waive his or her right of access to a lawyer provided that he or she is given clear and sufficient information about the content of that right and the possible consequences of its waiver in a manner that, in view of his or her individual circumstances, he or she is capable of understanding.
44. The Commission submits that Article 9 of Directive 2013/48 contains a number of guarantees to ensure that, as a result of waiving the right of access to a lawyer, a suspect or accused person does not involuntarily make self-incriminating declarations or provide self-incriminating evidence. The right of access to a lawyer is essential to ensure equality of arms, notably at the time of a suspect’s or accused person’s arrest when, due to the complex nature of criminal procedures, he or she is particularly vulnerable. CH’s illiteracy makes him a vulnerable person for the purposes of Article 13 of Directive 2013/48. (29)
45. Without prejudice to national law that requires the presence or the assistance of a lawyer, Article 9(1) of Directive 2013/48 envisages a waiver of the right of access to a lawyer in criminal proceedings. In those circumstances, Member States must ensure that the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of that right and the consequences of such a waiver. Any waiver must be voluntary and given unequivocally. Recital 39 of Directive 2013/48 observes that, when providing information about the content of the right of access to a lawyer and the possible consequences of its waiver, account should be taken of suspects’ and accused persons’ specific conditions, including their age and mental and physical condition. A suspect’s illiteracy is thus a relevant circumstance that national authorities must take into account when they provide the information that Article 9(1) of that directive requires. Article 13 thereof implicitly supports that interpretation, since it requires that the needs of vulnerable persons (30) be taken into account without preventing them from deciding to waive the right of access to a lawyer. (31)
46. Although national law must offer suspects and accused persons a practical and effective opportunity to consult a lawyer should they waive that opportunity in compliance with the conditions laid down in Article 9 of Directive 2013/48, they are not precluded from bearing the possible consequences of that waiver. (32)
47. Article 9(1) of Directive 2013/48 requires that, for a waiver to be effective, the possible consequences thereof must be explained to a suspect or accused person in simple and understandable language. It follows that, in the absence of the communication of such explanations, an effective waiver cannot be given. In the present case, it appears from the order for reference that, whilst the referring court considers that CH was never informed of the consequences of waiving his right of access to a lawyer, the Sofiyski gradski sad (Sofia City Court) takes the opposite view. That seemingly disputed issue of fact is ultimately for the national courts to determine.
48. Article 9(2) of Directive 2013/48 provides that a waiver can be made in writing or orally under the procedures laid down by the law of the relevant Member State. Directive 2013/48 itself does not attach any formal conditions to the making of a waiver, such conditions being a matter for regulation by national law. The existence of a breach of a formal condition that national law requires for a waiver to be valid, such as a stipulation that a witness attest to or sign a waiver, and the consequences of such a breach are matters of national law that are for national courts to ascertain.
49. I therefore propose that the Court answer the fifth question by interpreting Article 9 of Directive 2013/48 to mean that an illiterate suspect or accused person may waive his or her right of access to a lawyer provided that he or she is given clear and sufficient information about the content of that right and the possible consequences of its waiver in a manner that, in view of his or her individual circumstances, he or she is capable of understanding.
4. The sixth question
50. By its sixth question, the referring court asks whether Article 9(3) of Directive 2013/48 requires Member States to inform a suspect or accused person who waives the right of access to a lawyer that he or she can revoke that waiver at any point prior to the competent authorities carrying out an investigative action that involves his or her participation.
51. The Commission suggests that that question should receive an affirmative answer.
52. Article 9(3) of Directive 2013/48 provides that Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings, and that they are informed of that possibility. Such a revocation has effect from the moment that it is made.
53. The requirement that suspects or accused persons are to be informed of the possibility to revoke a waiver subsequently at any point during the criminal proceedings could be met by so informing them at the time that they waive that right. Such an approach appears to imply that once a suspect or accused person has waived his or her right, it is thereafter a matter for him or her to decide whether to assert the right to revoke it.
54. It follows from Article 3(1) of Directive 2013/48, read in combination with Article 2(1) thereof, that the right of access to a lawyer in criminal proceedings seeks to ensure that a suspect or accused person can exercise his or her rights of defence practically and effectively until the conclusion of the criminal proceedings. When one takes account of the voluntary nature of a waiver under Article 9(1)(b) of Directive 2013/48, together with the necessity to protect the particular needs of vulnerable suspects and accused persons in the application of that directive, as Article 13 thereof requires, it is clear that a reading of Article 9(3) of Directive 2013/48 along the lines described in point 53 of the present Opinion runs contrary to the aim and scheme of its provisions. In such circumstances, an interpretation of Article 9(3) of that directive that imposes an obligation on the Member States to ensure that suspects and accused persons, in particular vulnerable persons, are regularly informed of their right to revoke a waiver that they have freely given until the conclusion of any criminal proceedings is to be preferred.
55. Since the necessity to provide that information exists in order to allow persons accused or suspected of having committed crimes to exercise their rights of defence practically and effectively, that requirement is to be satisfied in a practical, rather than formal, manner. (33) Member States cannot limit themselves to informing a suspect or accused person of the possibility to revoke a waiver at the time that he or she gave it, particularly where the suspect or accused person is a vulnerable person. It does not necessarily follow that Member States must remind a suspect or accused person of the possibility to revoke a waiver before each step in the investigation of an alleged crime that involves his or her participation. The necessity to remind a suspect or accused person depends on the nature and the objective importance of the investigative action envisaged, seen in the light of all the relevant circumstances. I therefore suggest that, when interpreting Article 9(3) of Directive 2013/48, the Court adopt the following test. At each point in time when there are objective grounds to believe that a suspect or accused person, who has waived the right of access to a lawyer, may be substantially impeded in his or her defence as a consequence of that waiver, Member States must take reasonable steps to ensure that he or she is informed of his or her right to revoke that waiver.
56. I therefore propose that the Court answer the sixth question to the effect that Article 9(3) of Directive 2013/48 must be interpreted to mean that, where a suspect or accused person waives his or her right of access to a lawyer, Member States must take reasonable steps to ensure that he or she is informed of the right to revoke that waiver at each point in time when, as a consequence of that waiver, there are objective grounds to believe that the suspect or accused person may be substantially impeded in his or her defence.
IV. Conclusion
57. In the light of the foregoing, I propose that the Court answer the questions that the Sofiyski rayonen sad (District Court, Sofia, Bulgaria) referred for a preliminary ruling by order of 11 January 2024 as follows:
(1) The first, second and third questions should be dismissed as inadmissible.
(2) Article 3(6)(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 does not have direct effect.
(3) Article 9 of Directive 2013/48 must be interpreted as meaning that an illiterate suspect or accused person may waive his or her right of access to a lawyer provided that he or she is given clear and sufficient information about the content of that right and the possible consequences of its waiver in a manner that, in view of his or her circumstances, he or she is capable of understanding.
(4) Article 9(3) of Directive 2013/48 must be interpreted as meaning that where a suspect or accused person waives his or her right of access to a lawyer, Member States must take reasonable steps to ensure that he or she is informed of the right to revoke that waiver at each point in time when, as a consequence of that waiver, there are objective grounds to believe that the suspect or accused person may be substantially impeded in his or her defence.