Case C‑660/21
Procureur de la République
v
K.B.
and
F.S.
(Request for a preliminary ruling
from the tribunal correctionnel de Villefranche-sur-Saône)
Judgment of the Court (Grand Chamber), 22 June 2023
(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Directive 2012/13/EU – Articles 3 and 4 – Obligation for the competent authorities to inform suspects and accused persons promptly of their right to remain silent – Article 8(2) – Right to invoke a breach of that obligation – National legislation prohibiting the trial court from raising such a breach of its own motion – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union)
1. Fundamental rights – Right to an effective remedy and to a hearing – Rights of the defence – Affirmed both by the Charter of Fundamental Rights and by the European Convention on Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that convention
(Charter of Fundamental Rights of the European Union, Art. 47, first and second paras, Arts 48(2) and 52(3))
(see paragraphs 41, 45)
2. Judicial cooperation in criminal matters – Right to information in criminal proceedings – Directive 2012/13 – Obligation for the competent authorities to inform suspects and accused persons promptly of their right to remain silent – Right to invoke a breach of that obligation – National legislation prohibiting the trial court from raising such a breach of its own motion – Whether permissible – Conditions – Practical and effective opportunity for those persons to have access to a lawyer – Right of access to the file and to invoke that breach within a reasonable period of time
(Charter of Fundamental Rights of the European Union, Art. 47, first and second paras, Arts 48(2) and 51(1); European Parliament and Council Directives 2012/13, Arts 3(1)(e), 4(1) and 8(2), 2013/48, Arts 3 and 9(1) and 2016/1919)
(see paragraphs 40, 43, 44, 46, 48, 53, operative part)
Résumé
On 22 March 2021, K.B. and F.S. were questioned by police officers and arrested in the act of committing theft of fuel.
The French court before which criminal proceedings were brought against K.B. and F.S. found that certain investigative acts had been carried out, and certain self-incriminating statements taken, before K.B. and F.S. had been informed of their rights, contrary to the national law (1) transposing Articles 3 and 4 of Directive 2012/13. (2) Owing to the delay in placing them in custody and informing them of their rights, in particular the right to remain silent, that court considered that the right not to incriminate oneself had been infringed. In those circumstances, the vehicle search, the suspects’ detention in custody and all the consequential acts should, in principle, be annulled. However, in French criminal law, (3) pleas of procedural invalidity, such as breach of the obligation to inform a person of the right to remain silent at the time when that person is placed in custody, must be raised by the person concerned or that person’s lawyer before any defence on the merits. Neither the suspects nor their lawyer raised a plea of invalidity alleging breach of that obligation before putting forward a defence on the merits.
Furthermore, the referring court states that, according to the Cour de cassation (Court of Cassation, France), trial courts are prohibited from raising of their own motion a plea of invalidity of the procedure, apart from lack of jurisdiction, since, as in the present case, the accused person, who has the right to be assisted by a lawyer when he or she appears or is represented before a trial court, can plead such invalidity before mounting a defence on the merits, and, moreover, can do so on appeal if he or she did not appear or was not represented at first instance.
In that context, the referring court asked the Court of Justice whether the prohibition on it raising of its own motion a breach of an obligation such as the obligation, laid down in Articles 3 and 4 of Directive 2012/13, to inform suspects and accused persons promptly of their right to remain silent, is compatible with EU law.
In its judgment, the Court, sitting as the Grand Chamber, replies that Articles 3 and 4 and Article 8(2) of Directive 2012/13, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), do not preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities to inform suspects or accused persons promptly of their right to remain silent, where those suspects or accused persons have not been deprived of a practical and effective opportunity to have access to a lawyer, (4) if necessary having obtained legal aid, (5) and where they, like their lawyers, if any, have had a right of access to their file and the right to invoke that breach within a reasonable period of time.
Findings of the Court
The Court recalls that Directive 2012/13 (6) is based on the rights set out, inter alia, in Articles 47 and 48 of the Charter and seeks to promote those rights with regard to suspects or accused persons in criminal proceedings. The right to remain silent is safeguarded not only by Article 48 of the Charter, relating to the presumption of innocence and right of defence, but also by the second paragraph of Article 47 of the Charter, relating to the right to a fair hearing.
Article 3(1)(e) and (2) and Article 4(1) and (2) of Directive 2012/13 lay down an obligation, for the competent authorities of the Member States, to inform suspects or accused persons promptly of their rights, in particular the right to remain silent. In any event, that information must be provided at the latest before the first official interview of the suspect or accused person by the police or by another competent authority.
Under Article 8(2) of Directive 2012/13, Member States must ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with that directive. Since that provision is particularly intended to be applied in a situation in which information about the right to remain silent has been given late, suspects or accused persons or their lawyers must be able to challenge that failure of communication.
The provision referred to above, however, specifies neither the procedure under and time limits within which suspects and accused persons, and their lawyers, if any, may invoke a breach of the obligation to inform such suspects and accused persons promptly of their right to remain silent, nor the possible procedural consequences of a failure to invoke such a breach, such as the power, for the trial court in a criminal case, to raise such a breach of its own motion with a view to the annulment of the procedure. Member States thus have some leeway to establish that procedure and those consequences.
Nevertheless, when implementing Article 3(1)(e), Article 4(1) and Article 8(2) of Directive 2012/13, the Member States must, in accordance with Article 51(1) of the Charter, ensure that the requirements arising both from the right to an effective remedy and to a fair hearing laid down in the first and second paragraphs of Article 47 of the Charter, and the rights of defence laid down in Article 48(2) of the Charter, to which specific expression is given by those provisions of Directive 2012/13, are respected.
In that regard, the Court notes that, according to the explanations given by the French Government, French criminal law (7) allows suspects or accused persons and also their lawyers, if any, to invoke at any time, between their being placed in custody and the submission of the defence on the merits, any breach of the obligation to inform suspects or accused persons promptly of their right to remain silent, and it should be made clear that both suspects and accused persons as well as their lawyers have a right of access to the file and, in particular, to the record of notification of the custodial measure and the associated rights.
It is open to the Member States, by virtue of the leeway given to them by Directive 2012/13, to limit the time within which such a breach may be invoked to the stage preceding submission of the defence on the merits. In particular, the prohibition on the trial court raising that breach of its own motion with a view to the annulment of the procedure respects, in principle, the rights affirmed by the Charter, as long as the suspects, the accused persons or their lawyers had a practical and effective opportunity to invoke the breach concerned and had a reasonable period of time within which to do so as well as access to the file.
However, that conclusion applies only in so far as, throughout the period within which those persons could invoke an infringement of Article 3(1)(e) and Article 4(1) of Directive 2012/13, they – practically and effectively – had the right of access to a lawyer, as laid down in Article 3 of Directive 2013/48 and as facilitated by the system of legal aid provided for by Directive 2016/1919.
The fact that suspects and accused persons must be offered a practical and effective opportunity under national law to consult a lawyer does not however preclude them, if they waive that opportunity, from having, in principle, to bear the possible consequences of that waiver where it has been given in accordance with Directive 2013/48. In that regard, the suspect or accused person must have been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right of access to a lawyer and the possible consequences of waiving it, and the waiver must be given voluntarily and unequivocally.
Lastly, the Court notes that, under the case-law of the European Court of Human Rights, where a procedural defect has been identified, it falls to the domestic courts to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 of the European Convention on Human Rights. (8) Thus, where a suspect has not been informed in due time of the privilege against self-incrimination and the right to remain silent, it is necessary to assess whether, notwithstanding that failure, the criminal proceedings as a whole can be considered fair, taking into account a series of factors, including whether the statements taken without such information having been given formed an integral or significant part of the probative evidence, and the strength of the other evidence in the case. (9)