Opinion of the Advocate General — ECLI:EU:C:2022:580
Date: 2022-07-14
Language of the case: Portuguese
Subject matter: Justice and home affairs;Approximation of laws;Area of freedom, security and justice
Procedure: Preliminary reference - urgent procedure
Origin: Portugal

Summary C-242/22 PPU – 1 
Case C-242/22 PPU 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
6 April 2022 
Referring court: 
Tribunal da Relação de Évora – Secção Criminal – 2.ª Subsecção 
(Portugal) 
Date of the decision to refer: 
8 March 2022 
Appellant: 
TL 
Other party to the proceedings: 
Estado Português 
      
Subject matter of the main proceedings 
Appeal brought in criminal proceedings by TL before the Tribunal da Relação de 
Évora (Court of Appeal, Évora, Portugal) against the order of the Tribunal Judicial 
da Comarca de Beja (District Court, Beja, Portugal) dismissing TL’s application 
for review of the nullity derived from the failure to appoint an interpreter and the 
lack of translation (TL is a Moldovan national who does not understand or speak 
Portuguese) at the time of the coercive measure of a declaration of identity and 
residence, the summons to appear in court to be heard under Article 495(2) of the 
Código de Processo Penal (Code of Criminal Procedure; ‘CPP’), and the 
notification of the order revoking the suspension of execution of the sentence. 
Subject matter and legal basis of the request for a preliminary ruling 
This request for a preliminary ruling concerns the interpretation of Articles 1 to 3 
of Directive 2010/64/EU of the European Parliament and of the Council of 
20 October 2010 on the right to interpretation and translation in criminal 
EN 
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proceedings (OJ 2010 L 280, p. 1) and Article 3 of 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). 
Question referred for a preliminary ruling 
‘Is it possible to interpret Articles 1 to 3 of [Directive 2010/64/EU] and Article 3 
of [Directive 2012/13/EU] of the European Parliament and of the Council, alone 
or in conjunction with Article 6 of the ECHR, as meaning that they do not 
preclude a provision of national law which imposes a penalty of relative nullity, 
which must be pleaded, for failure to appoint an interpreter and to translate 
essential procedural documents for an accused person who does not understand 
the language of the proceedings, and which permits the rectification of that type of 
nullity owing to the passage of time?’ 
Provisions of European Union law relied on 
Directive 2010/64/EU of the European Parliament and of the Council of 
20 October 2010 on the right to interpretation and translation in criminal 
proceedings: Articles 1 to 3. 
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 
2012 on the right to information in criminal proceedings: Articles 3 and 6. 
Provisions of national law relied on 
Código de Processo Penal (Code of Criminal Procedure; ‘CPP’): Article 92(1) and 
(2), Article 120(1), (2)(c), and (3)(a) and (d), Article 122 and Article 196. 
‘Article 92 
Language of acts and appointment of interpreter 
1. The Portuguese language shall be used in both written and oral procedural 
acts; failure to do so shall result in nullity. 
2. Where a person who has no knowledge or command of the Portuguese 
language must take part in proceedings, a suitable interpreter shall be appointed, at 
no cost that person, including where the person presiding over the act or any of the 
participants in the proceedings have knowledge of the language used by that 
person. 
… 
Article 120 
TL 
 
3 
Nullity which must be pleaded 
1. Any nullity other than that referred to in the previous article must be pleaded 
by the persons concerned and shall be subject to the rules laid down in this and the 
following article. 
2. In addition to the nullity provided for in other statutory provisions, the 
following constitute nullity which must be pleaded: 
… 
c) Failure to appoint an interpreter, in cases where the law deems it mandatory. 
… 
3. The nullity referred to in the previous paragraphs must be pleaded: 
a) In the event of the nullity of an act at which the person concerned is present, 
before that act is concluded. 
… 
d) In the case of special proceedings, at the start of the hearing. 
Article 122 
Effects of a declaration of nullity 
1. Nullity shall lead to the invalidity of the act in which it occurs and of all acts 
which flow from and may be affected by it. 
2. A declaration of nullity shall determine which acts must be regarded as 
invalid and, where necessary and possible, shall direct that those acts be 
repeated … 
3. When a court makes a declaration of nullity, it shall order the preservation of 
all acts which may be excluded from the effects of such nullity. 
Article 196 
Declaration of identity and residence 
… 
3. The declaration must state that [the person under investigation] has been 
informed: 
a) about the obligation to appear before the competent authority or to remain at 
that authority’s disposal where the law stipulates this or where the person has been 
duly summoned for that purpose; 
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b) about the obligation not to change residence or be absent from that residence 
for more than five days without notifying a new residence or the place where he 
may be located; 
c) that subsequent notifications will be effected by ordinary post to the address 
indicated in paragraph 2, unless the person under investigation notifies another 
address by request delivered or sent by certified post to the registry of the court in 
which the proceedings are being heard at that time; 
d) that failure to comply with the provisions of the previous paragraphs will 
legitimise his representation by a lawyer in all the procedural acts in which he is 
entitled or required to participate in person, and the holding of the trial in his 
absence …; 
e) that, if he is convicted, the declaration of identity and residence will cease to 
produce effects only when the punishment is terminated.’  
Provisions of international law relied on 
Convention for the Protection of Human Rights and Fundamental Freedoms, done 
at Rome on 4 November 1950 (‘ECHR’): Article 6(3). 
Succinct presentation of the facts and procedure in the main proceedings 
1 TL is of Moldovan nationality and does not understand or speak Portuguese. On 
10 July 2019, TL was placed under judicial investigation. The relevant record was 
drawn up in Portuguese and translated into Romanian, the official language of 
Moldova. On the same date, the coercive measure of a declaration of identity and 
residence (‘DIR’) was adopted against him, in accordance with Article 196 of the 
CPP, and his address was stated in the relevant document. 
2 TL was not provided with a translation of the DIR into Romanian, the official 
language of Moldova, and no interpreter was appointed when TL was officially 
placed under investigation and when he provided the DIR. At the trial, TL was 
assisted by a lawyer, and an interpreter, who swore to carry out her duties 
faithfully, was appointed to translate the proceedings at the trial. 
3 By judgment given on 11 July 2019, which became final on 26 September 2019, 
TL was sentenced, with the imposition of concurrent punishments, for the 
offences of resisting and coercing an official, contrary to Article 347(2) of the 
Criminal Code, reckless driving of a motor vehicle, contrary to Articles 291(a) 
and (b) and 69(1)(a) of the Criminal Code, and driving without legal authorisation, 
contrary to Article 3(1) and (2) of Decree-law No 2/98, to a single punishment of 
three years’ imprisonment, the execution of which was conditionally suspended 
for three years, to an additional punishment of a ban on driving motor vehicles for 
TL 
 
5 
a period of 12 months, and to a fine of 80 days, at a daily rate of EUR 6, in the 
total amount of EUR 480. 
4 A number of attempts by the Direção-Geral de Reinserção e Serviços Prisionais 
(Directorate General of Rehabilitation and Prison Services; ‘DGRSP’) to contact 
TL at the address stated in the DIR were unsuccessful, and there is no notification 
of change of address in the case file. 
5 Following a decision of 7 January 2021, TL was, on 12 January 2021, issued with 
a summons, pursuant to Article 495(1) and (2) of the CPP, sent by ordinary post 
with a certificate of delivery through the letterbox to the address in the DIR, to 
appear in court in order to be heard in relation to the breach of the duties, rules of 
conduct and obligations which were imposed on him in the judgment referred to. 
On 6 April 2021, the summons was sent again, setting a new date, to the same 
address, by ordinary post with a certificate of delivery through the letterbox. The 
summonses were in Portuguese. TL failed to appear in court on the date indicated. 
6 On 9 June 2021, an order was made revoking the suspension of execution of the 
sentence imposed on TL and it was decided to issue a warrant for arrest and 
imprisonment. That order was notified to TL’s lawyer and to TL, by ordinary post 
with a certificate of delivery through the letterbox, at the address stated in the 
DIR, on 25 June 2021, and it became final on 20 September 2021. The order was 
notified to TL in Portuguese but he was not provided with the relevant translation 
into the official language of Moldova, which is Romanian. 
7 On 30 September 2021, TL was arrested for the purpose of serving a three-year 
prison sentence. The warrant was executed at his new address. TL has been in 
prison since that date. 
8 On 11 October 2021, TL appointed a lawyer in the proceedings. Subsequently, he 
applied to the Tribunal Judicial da Comarca de Beja, Juízo de Competencia 
Genérica de Cuba (District Court, Beja, Court of General Jurisdiction, Cuba; ‘the 
lower court’) for a review of the nullity derived from the failure to appoint an 
interpreter and the failure to provide a translation of the following procedural acts: 
– Provision of Declaration of Identity and Residence (DIR). 
– Summons to be heard in person, under Article 495(2) of the CPP, in connection 
with the necessary conditions for revocation of the suspension of the prison 
sentence imposed on him in the proceedings.  
– Notification of the order adopted, revoking the suspension of execution of the 
sentence. 
9 By order of 20 November 2021, the lower court dismissed the application lodged 
by TL, arguing that, since the failure to appoint an interpreter and the lack of a 
translation of the procedural documents in question constitute relative nullity 
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which must be pleaded, that nullity was rectified by the failure to plead it within 
the statutory periods laid down in Article 120(3)(a) and (d) of the CPP. 
10 TL disagreed with that judgment and he therefore brought an appeal before the 
Tribunal da Relação de Évora (Court of Appeal, Évora; ‘the referring court’), 
claiming that the judgment under appeal should be quashed and replaced by 
another judgment declaring that the order placing him under judicial investigation, 
the DIR, the order revoking suspension of the execution of the sentence and the 
notification of that order are non-existent, and a declaration that all subsequent 
procedural documents are ineffective. 
Essential arguments of the parties in the main proceedings 
Arguments put forward by TL 
11 TL submits that, as regards the hierarchy of sources of law, the majority view in 
national academic legal writing and case-law is that the ECHR occupies an 
intermediate position between the Constitution of the Portuguese Republic (‘the 
Constitution’) and ordinary laws. Accordingly, although the ECHR is applicable 
in domestic Portuguese law with infra-constitutional force, it has, pursuant to 
Article 8(2) of the Constitution, greater force than ordinary laws and therefore, in 
the event of conflict with the CPP, the ECHR takes precedence. 
12 The measures and minimum rules laid down in the ECHR, which are applied by 
European Union courts, were the basis for Directives 2010/64 and 2012/13. Thus, 
Directive 2010/64, which was published in the Official Journal of the European 
Union on 26 October 2010 and in respect of which the period for transposition in 
Portugal expired on 27 October 2013, has been directly applicable in that Member 
State since 28 October 2013, and therefore, in the light of the material date, it is 
applicable to this case. 
13 The fact that Portugal has not transposed that directive does not mean that it is not 
in force in the Portuguese and European Union legal systems, regard being had to 
the principle of conforming interpretation. According to the case-law of the Court 
of Justice, even if such conforming interpretation is not possible, a directive may 
be directly applicable without having been transposed, provided that the 
transposition period has elapsed, the directive confers rights and the wording of 
the provision conferring those rights is sufficiently clear, precise and 
unconditional, as occurs in this case. Thus, despite the fact that it has not been 
transposed in Portugal, all the conditions are fulfilled for Directive 2010/64 to be 
directly effective in national law and to produce direct effect, specifically vertical 
direct effect, so that its direct applicability may be relied on before any court of 
the Union. 
14 Accordingly, it is essential to define clearly the applicability and the guarantee of 
the right to an interpreter throughout the proceedings, since that right was 
TL 
 
7 
available to TL only at the trial. As regards the translation of procedural 
documents, Directive 2010/64 clearly sets out a list of documents which must be 
translated, which are defined as ‘minimum rights’, similar to Article 6(3) of the 
ECHR, expressed as a minimum number of documents which EU law considered 
it appropriate and reasonable to stipulate. 
15 In that connection, in the judgment of 12 October 2017, Sleutjes (C-278/16, 
EU:C:2017:[757]), the Court of Justice held that ‘Article 3 of Directive 2010/64 
must be interpreted as meaning that a measure, such as an order provided for in 
national law for imposing sanctions in relation to minor offences and delivered by 
a judge following a simplified unilateral procedure, constitutes a “document 
which is essential”, within the meaning of Article 3(1) of that directive, of which a 
written translation must, in accordance with the formal requirements laid down in 
that provision, be provided to suspected or accused persons who do not 
understand the language of the proceedings in question, for the purposes of 
enabling them to exercise their rights of defence and thus of safeguarding the 
fairness of the proceedings.’ 
16 The Portuguese legislation on criminal procedure contains no provision laying 
down a similar list of minimum rights or documents that must be translated; nor 
does it stipulate the documents which must be translated as a minimum. However, 
the Portuguese State and Portuguese courts are directly required to respect that 
right to the translation of essential documents, and have the obligation to order, as 
a general rule, the translation of ‘any decision depriving a person of his liberty, 
any charge or indictment, and any judgment’, together with the additional 
documents stipulated by Article 3(3) of that directive. 
17 Accordingly, the following procedural documents should have been translated: the 
order placing TL under judicial investigation, the DIR, the order revoking the 
suspension of execution of the sentence, on the ground that it is a decision 
imposing a penalty and depriving a person of his liberty, and the notification of 
that order; those translations were not carried out. 
18 In addition, the judgment of 12 October 2017, Sleutjes (C-278/16, 
EU:C:2017:[757]) held that where a decision imposing a penalty ‘… is addressed 
to an individual only in the language of the proceedings in question even though 
the individual has no command of that language, that individual is unable to 
understand what is alleged against him, and cannot therefore exercise his rights of 
defence effectively if he is not provided with a translation of that order in a 
language which he understands.’ 
19 On the other hand, Directive 2012/13 on the right to information in criminal 
proceedings has been directly applicable in Portugal since 2 June 2014 and is also 
applicable to the present proceedings in the light of the material date. 
20 An accused person’s right to information in a language which he understands is a 
practical and effective right, as stated in the judgment of the European Court of 
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Human Rights of 19 December 1989 in the case of Kamasinski v. Austria; 
therefore, it is not sufficient for the judicial authorities merely to appoint an 
interpreter and instead there must be some subsequent supervision of the 
performance of the interpreter’s duties. 
21 Article 6[(3)](a) and (e) of the ECHR provide that an accused person has, as a 
minimum, the right ‘to be informed promptly, in a language which he understands 
and in detail, of the nature and cause of the accusation against him’ and ‘to have 
the free assistance of an interpreter if he cannot understand or speak the language 
used in court.’ 
22 Given that the legal provisions are clear and exhaustive, guaranteeing that the 
accused person must have an interpreter and translations from the start to the end 
of the proceedings, the usual practice of appointing an interpreter only at the trial, 
as occurred in this case, is not sufficient. 
23 Since the appellant’s rights to interpretation, to the translation of procedural 
documents and to information under those directives have been breached, the 
duties and obligations imposed on the Portuguese State, including Portuguese 
courts, by those directives have also been breached. 
24 In view of the fact that TL is a foreign citizen who has no knowledge or command 
of Portuguese, an interpreter should be appointed for him for any procedural act at 
which he is present, in particular where he is informed of his rights and 
obligations, as stipulated by Article 92(2) of the CPP. 
25 In order to be held responsible for the failure to comply with the obligations to 
which he was subject by virtue of the DIR, TL should have been aware of those 
obligations, which was absolutely not the case since no translation was provided 
to him. Indeed, there is no certainty that TL had even the minimum understanding 
of the meaning of those obligations and duties, much less that he was in a position 
to plead the nullity derived from the failure to appoint an interpreter and the lack 
of translation of a number of procedural documents before the order revoking the 
suspension of execution of the sentence became final. 
26 Therefore, the order placing TL under judicial investigation and the DIR, together 
with other later procedural documents, including the notification of the order 
revoking the suspended sentence, cannot have any procedural relevance, in view 
of the appellant’s fundamental right of defence and of the constitutional right to a 
fair trial, which is only possible if he is provided with the proper opportunities to 
defend himself without being placed, directly or indirectly, at a disadvantage in 
relation to the parties on the opposing side, particularly the Public Prosecutor’s 
Office as the prosecuting authority. 
27 None of the grounds of nullity pleaded by the appellant, namely, the failure to 
appoint an interpreter and to provide translations of the order placing him under 
judicial investigation, the DIR, the order revoking the suspension of execution of 
the sentence and the notification of that order, are capable of rectification (see the 
TL 
 
9 
judgment of the Tribunal da Relação de Évora (Court of Appeal, Évora, Case 
No 55/2017.9GBLGS.EI). 
28 Accordingly, inter alia, the order placing the appellant under judicial 
investigation, the DIR, the order revoking the suspension of execution of the 
sentence and the notification of that order should have been translated into the 
appellant’s mother tongue. Furthermore, the appellant should have had an 
interpreter from the time when he was placed under judicial investigation and 
provided the DIR, who should have been appointed by the police or the Public 
Prosecutor’s Office at the time of his arrest or, at least, when he was required to 
sign the documents presented to him by the authorities, so that it could be ensured 
that he understood the obligations he was entering into as a result of the DIR. 
29 Under current criminal procedural legislation, the DIR is an essential document 
which falls within the scope of Article 3(1) of Directive 2010/64 and which, 
therefore, must be translated into the language of origin of the person under 
investigation, since it is the document which sets out the obligations laid down in 
Article 196(3) of the CPP. 
30 Moreover, given that the Portuguese State has a positive obligation to perform 
certain acts, the failure to perform those acts is solely the responsibility of the 
Portuguese State and, therefore, the procedural nullity pleaded cannot be treated 
as rectifiable, in the absence of a challenge by the person to whom the act is 
addressed, especially because that nullity is attributable to the judicial authorities. 
Furthermore, the obligations imposed on the judicial authorities require derogation 
from all provisions of national law that are contrary to the provisions of the 
directives cited, which lay down a common body of Community rules, including a 
system for pleading nullity aimed at correcting omissions attributable to the State. 
31 Accordingly, the procedural documents at issue in this case – namely, the order 
placing the appellant under judicial investigation, the DIR, the order revoking the 
suspension of execution of the sentence imposed on the appellant, and the relevant 
notification of that order – are non-existent, because they are invalid from the 
outset, and therefore, in so far as those documents are incapable of producing 
legal effects, they must be declared null and void and be drawn up again, which 
means the annulment of any subsequent acts. 
32 The assertion that the appellant’s right to be heard was safeguarded because he 
was represented by a court-appointed lawyer throughout the proceedings is also 
challenged. In addition to the fact that the lawyer appointed did not represent him 
at the formal procedure to place him under judicial investigation or when he gave 
the DIR, that lawyer merely assisted the appellant at the trial and at the hearing 
referred to in Article 495(2) of the CPP, and with the application for payment by 
instalments of the fine imposed on him. The lawyer did not state her view in 
advance on any decision which might personally affect the appellant and left all 
the rulings seriously affecting his fundamental rights to become final. In that 
connection, it cannot be said that the appellant’s right to be heard was exercised 
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through his court-appointed lawyer and therefore that right granted to him under 
the CPP was also breached. 
33 The unsuccessful attempts by the authorities to contact the appellant in order to 
implement the conditional suspension of execution of the sentence – which was 
the only ground for revocation of that suspension – and the fact that the appellant 
did not actually receive the summonses to appear before the court for the purposes 
of Article 495(2) of the CPP and the order revoking the suspension of execution of 
the prison sentence were due to the appellant’s change of address, and the 
appellant submits that he did not receive those notifications because he had ceased 
living at the address on the DIR and that, since the DIR had not been translated, he 
did not know that he had to notify the court of that change of address. 
Reasoning in the order of the Tribunal Judicial da Comarca de Beja (District 
Court, Beja), which dismissed the appellant’s application 
34 The lower court did not accept the arguments put forward by TL and instead 
upheld the arguments advanced by the Public Prosecutor’s Office in its opinion, 
on which the lower court based the order under appeal dismissing the appellant’s 
application, on the grounds that the failure to appoint an interpreter and the lack of 
a translation of the procedural documents concerned amount to relative nullity and 
that this should, therefore, have been pleaded within the statutory period, from 
which it followed that that nullity had already been rectified on the date on which 
the order was adopted. 
35 The court ruled that the failure to appoint an interpreter and to provide translations 
for an accused person who does not understand or does not speak Portuguese, at 
the time when that person is placed under judicial investigation and notified of the 
order made under Article 495 of the CPP, constitutes relative nullity which must 
be pleaded, as provided for in Article 120(1)(c) of the CPP. 
36 In accordance with Article 120(3)(a) and (d) of the CPP, nullity resulting from the 
failure to provide a translation of the order placing a person under judicial 
investigation and of the order adopted under Article 495 of the CPP is deemed to 
be rectified where that nullity was not pleaded at the time when the person was 
placed under judicial investigation, at the start of the trial or, at the latest, before 
the decision revoking suspension of a prison sentence imposed on the accused 
becomes final. 
37 The lower court further states that it is aware of the wording of both Directive 
2010/64 on the right to interpretation and translation in criminal proceedings and 
Directive 2012/13 on the right to information in criminal proceedings. 
38 Although, generally, a directive only produces effects from the date of its 
transposition, according to the case-law of the Court of Justice, a directive which 
has not been transposed or which has been transposed incorrectly may have a 
particular direct effect (vertical direct effect) and individuals may rely on the 
TL 
 
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directive before a national court in the following cases: a) where the directive was 
not transposed into national law or was transposed incorrectly; b) where the 
provisions of the directive are unconditional and sufficiently clear and precise; c) 
where the provisions of the directive confer rights on individuals; and d) where 
the deadline for transposition has expired. 
39 However, the lower court does not consider that, in the light of that EU 
legislation, national law has been directly and expressly repealed, in particular 
Article 120(1)(c) of the CPP, which provides that nullity resulting from the failure 
to appoint an interpreter, in the situations where the law regards this as mandatory, 
may be rectified; such nullity must be pleaded within the periods stipulated in 
Article 120(3). 
40 The court considers that the general and abstract adoption of such an interpretation 
(whereby national law is repealed), without attributing any practical effect to 
Article 120(1)(c) of the CPP, is unlawful and incompatible with the principles of 
the European Union which are binding on the Portuguese State (and on the 
courts), in particular the principle of conforming interpretation, as TL contends. 
41 In the light of those considerations, the court believes that failure to provide 
translations and failure to appoint an interpreter for a foreign accused person who 
does not understand Portuguese, whether for the purposes of notification of the 
obligations derived from the DIR or notification of the order revoking suspension 
of the prison sentence, constitute relative nullity which must be pleaded, in 
accordance with Article 120(1)(c) of the CPP. Such nullity must be pleaded in the 
terms set out in Article 120(3)(a) and (d) of the CPP, which sets out the time 
limits for that purpose; once those time limits have passed, the nullity is deemed 
to be rectified. 
42 In addition, TL was present at the trial – a suitable interpreter was assigned to him 
and he was assisted by a lawyer – where he was able fully to exercise his right of 
defence, where the offences with which he was charged were presented to him, 
and where he was notified of the final judgment (all those procedural acts were 
orally translated at the trial). 
43 The accused person’s right to be heard was safeguarded in the proceedings: TL 
was duly and lawfully notified of all decisions and orders adopted, he was 
represented at all times throughout the proceedings by a lawyer, who was duly and 
lawfully served with all the procedural documents drawn up (judgment, decisions 
directing that TL be summoned to be heard and order revoking suspension of the 
prison sentence). 
44 All the decisions and orders adopted in the proceedings became final because they 
were not the subject of any appeal or claim, and therefore any (possible) nullity 
arising in the course of the proceedings is now considered to be rectified. 
Accordingly, for the reasons stated, the lower court dismissed TL’s application for 
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review of the nullity pleaded on the ground that there was no legal basis for that 
application. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
45 Directives 2010/64 and 2012/13 have not been transposed into Portuguese law and 
the periods for transposition of the directives have expired; those periods ended on 
27 November 2013 and 2 June 2014, respectively. 
46 Taking into account the arguments put forward by TL, the issues to be examined 
and decided on are the following: 
a) It must be determined whether Directives 2010/64 and 2012/13 are 
applicable in domestic law by means of ‘vertical direct effect’, thereby prevailing 
and taking precedence over national law, or, in the alternative, in the absence of 
vertical direct effect, by means of the interpretation of national law in accordance 
with the ‘principle of conforming interpretation’ (as laid down in the judgment of 
13 November 1990, Marleasing, C-106/89, EU:C:1990:395, paragraph 8). 
b) In either case – vertical direct effect or conforming interpretation – it will 
then be necessary to determine whether the procedural documents whose validity 
the appellant disputes – the order placing him under judicial investigation, the 
DIR, the summons for the purposes of Article 495(2) of the CPP and the 
notification of the order revoking the suspension of execution of the prison 
sentence – are covered by the term ‘essential documents’ used in Article 3 of 
Directive 2010/64, for the purpose of safeguarding the ‘minimum rights’ set out in 
Article 6(3) of the ECHR, and whether, in relation to those procedural documents, 
the rights to interpretation and translation referred to in Articles 1 to 3 of that 
directive and Article 3(1)(d) of Directive 2012/13 should have been guaranteed. 
c) If the answer to the previous question is in the affirmative, it will be 
necessary to determine the legal-procedural consequences of the failure to appoint 
an interpreter and the failure to provide translations of those documents and, 
accordingly, to determine whether the interpretation of Article 120(3) of the CPP 
adopted by the lower court is compatible with the application of those directives; 
according to that interpretation, the nullity flowing from the failure to provide 
translations of the document placing TL under judicial investigation as an accused 
person, the DIR, the summons for the purposes of Article 495(2) of the CPP and 
the notification of the order revoking the suspension of the sentence is rectifiable 
because it was not pleaded when TL was placed under judicial investigation, at the 
start of the trial or before that order became final. 
47 The referring court asks whether the interpretation of Article 120(3) of the CPP 
proposed by the lower court is compatible with the application of those directives; 
according to that interpretation, the nullity flowing from the failure to provide 
translations and the failure to appoint an interpreter for the purposes of provision 
of the DIR, issuing the summons to the convicted person to appear before the 
TL 
 
13 
court pursuant to Article 495(2) of the CPP, and notification of the order revoking 
the suspension of execution of the prison sentence is rectified because it was not 
pleaded within the periods stipulated by that article. 
48 This case concerns the application of European Union law and the issue which 
arises is determination of the appropriate procedural penalty for invalid criminal 
procedural documents governed by provisions contained in EU legal acts. 
Accordingly, compliance with the objectives pursued by the directives concerned 
is considered to be imperative because the Member States have a duty to apply EU 
law within their own legal systems ‘while respecting their specific characteristics’, 
in accordance with Article 291 TFEU. That premiss is based on the principles of 
good faith within the Community, sincere cooperation and the overall coherence 
of the EU legal system, and it follows that infringements of EU legal provisions 
must be still penalised if the aim is to protect the attainment of the objectives 
pursued by the provisions that have been breached. 
49 The referring court takes the view that the mandatory nature of the application of 
the provisions of directives, in this case as a result of vertical direct effect, in the 
light of the principle of the primacy of EU law, means that all provisions of 
national law that are contrary to the provisions of those EU acts must be 
disapplied. However, in the opinion of the referring court, in view of the nature of 
the case before it, it is necessary to establish whether the rules on the rectification 
of nullity laid down by Article 120(3) of the CPP, as applied in the judgment 
under appeal, are really incompatible with the provisions of the directives that it is 
claimed should apply or whether those rules and provisions may co-exist. 
50 In the European Union legal system, as expressly provided for in Article 267 of 
the TFEU, where a question of interpretation of EU law is raised in a case pending 
before a court or tribunal of a Member State, that court or tribunal may or must – 
depending on whether or not there is any judicial remedy against its decisions – 
bring the matter before the Court of Justice of the European Union. In the present 
case, regard being had to the fact that, pursuant to Article 400(1)(c) of the CPP, no 
ordinary appeal may lie against the decision to be adopted, the referring court is 
required, pursuant to Article 267 TFEU, to submit the question set out above to 
the Court of Justice for a preliminary ruling. 
51 Furthermore, since there is an obligation to refer, none of the circumstances in 
which, according to the case-law of the Court of Justice, the national court is 
exempt from making such a reference are present in this case, because the 
directives which it is claimed should apply are not clear in themselves and nor is 
there any clarification of those directives in the case-law of the Court of Justice, as 
regards, specifically, the effect of those directives on the question formulated. 
Accordingly, none of the exemptions from the requirement to seek a preliminary 
ruling laid down by the case-law apply. 
52 It is also important to note that the fourth paragraph of Article 267 TFEU 
expressly provides that ‘if such a question is raised in a case pending before a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-242/22 PPU 
 
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court or tribunal of a Member State with regard to a person in custody, the Court 
of Justice of the European Union shall act with the minimum of delay.’ In view of 
the fact that the appellant in this case has been in prison since 30 September 2021 
pursuant to the order revoking the suspension of execution of the prison sentence 
imposed on him, and since the appeal disputes the validity of that order, it is 
appropriate to ask that this request for a preliminary ruling be dealt with under the 
expedited or urgent procedure, in accordance with Article 105 et seq. of the Rules 
of Procedure of the Court of Justice and Article 23a of the Statute of the Court of 
Justice. 
53 In the light of the foregoing considerations, and on the grounds set out, the 
Criminal Chamber of the Tribunal da Relação de Évora (Court of Appeal, Évora) 
decides: 
1. To refer the question set out above to the Court of Justice for a preliminary 
ruling. 
2. To ask that the request for a preliminary ruling be dealt with under the 
expedited or urgent procedure in accordance with the fourth paragraph of 
Article 267 TFEU, Article 105 et seq. of the Rules of Procedure of the Court of 
Justice, and Article 23a of the Statute of the Court of Justice.