Judgment;Summary — ECLI:EU:C:2025:322
Date: 2025-05-08
Language of the case: Polish
Court formation: Second Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-530/23 – 1 
Case C-530/23 [Barało]i 
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: 
17 August 2023 
Referring court: 
Sąd Rejonowy we Włocławku (Poland) 
Date of the decision to refer: 
17 August 2023 
Criminal proceedings against: 
KP 
Subject matter of the main proceedings 
Criminal proceedings against a person undergoing psychiatric treatment, 
suspected of possessing narcotic drugs and driving a vehicle under the influence 
of such drugs. 
Subject matter and legal basis of the request 
Interpretation of EU law on procedural safeguards relating to access to a lawyer 
afforded to a vulnerable person – Compatibility of provisions of national law with 
EU law – Power or obligation to disregard provisions of national law which are 
incompatible with directives – Direct applicability of a directive – Power or 
obligation to disregard, in criminal proceedings, evidence obtained in breach of 
provisions of directives – Obligations of the public prosecutor in the context of 
effective legal protection – Compatibility with EU law of provisions conferring on 
the Minister for Justice the power to issue binding instructions to public 
prosecutors – Article 267 of the Treaty on the Functioning of the European Union  
      
i This case has been given a fictitious name which does not correspond to the real name of any of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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Questions referred for a preliminary ruling 
1. 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 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, 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 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[?] 
2. 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 
BARAŁO 
 
3 
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 behavior 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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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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[?] 
BARAŁO 
 
5 
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 
behavior 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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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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 
BARAŁO 
 
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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: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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(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 dependant 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[?] 
Provisions of international law cited 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘ECHR’): Articles 3 and 6(3)(b) and (c) 
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Provisions of European Union law cited 
1. Treaty on European Union: Articles 2, 6, 9, and 19(1). 
2. Charter of Fundamental Rights of the European Union: Articles 4 and 47. 
3. 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 (OJ 
2016 L 297, p. 1; ‘Directive 2016/1919’): recitals 18, 19, 24, and 27; 
Articles 2(1)(b) and (c) and (2), 4(5), 8 and 9. 
4. Commission Recommendation of 27 November 2013 on procedural 
safeguards for vulnerable persons suspected or accused in criminal proceedings 
(OJ 2013 C 378, p. 8; ‘Commission Recommendation’): recitals 1, 6, 7, 11 and 
13; paragraphs 4, 7, 11 and 13. 
5. 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 (OJ 2013 L 294, p. 1; 
‘Directive 2013/48’): recitals 50 and 51; Article 3. 
Provisions of national law cited 
1. Constitution of the Republic of Poland: Articles 7, 9, and 42(2). 
2. Ustawa z dnia 6 czerwca 1997 r. – Kodeks karny (Law of 6 June 1997 
establishing the Criminal Code) (‘the Criminal Code’): Articles 1(1) and 31(1) 
and (2). 
3. Ustawa z dnia 6 czerwca 1997 r. – Kodeks postępowania karnego (Law of 
6 June 1997 establishing the Code of Criminal Procedure) (‘the Code of Criminal 
Procedure’): Articles 6, 7, 16, 71, 79(1)(3) and (4), 79(3), 81(1), 81a(2) and (3), 
137, 147(1), (2) and (2b), 168a, 171(1), (5) and (7), 175(1), 245(1), 298(1), 300(1) 
and (4), 301, 313(1), 321, 326(1) and (2), 344a(1) and (2), 437(1) and (2), and 
463(1). 
4. Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law 
of 27 July 2001 on the system of the ordinary courts), Dz.U. 2001, No 98, item 
1070, as amended (‘Law on the system of the ordinary courts’): Articles 9, 9a, and 
53 c. 
5. Ustawa z dnia 28 stycznia 2016 r. – Prawo o prokuraturze (Law of 
28 January 2016 on the Public Prosecutor’s Office), Dz. U. 2016, item 176, as 
amended: Articles 1, 3, 7, 13, and 106. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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Case-law of the European Court of Human Rights in Strasbourg 
1. Judgment of 27 November 2008 in Salduz v. Turkey 
(ECLI:CE:ECHR:2008:1127JUD003639102) – paragraphs 50, 51, 54, 55, 60, 62 
and 72; 
2. Judgment of 31 March 2009 in Płonka v. Poland 
(ECLI:CE:ECHR:2009:0331JUD002031002) – paragraphs 34, 35, 41 and 42;  
3. Judgment of 13 September 2016 in Ibrahim and Others v. United Kingdom 
(ECLI:CE:ECHR:2016:0913JUD005054108) – paragraphs 249, 253 to 255, 257, 
258, 261 and 271 to 274; 
4. Judgment of 9 November 2018 in Beuze v. Belgium 
(ECLI:CE:ECHR:2018:1109JUD007140910). 
Succinct presentation of the facts and procedure in the main proceedings 
1 Criminal proceedings before the referring court are pending against K. P., who is 
accused: 
– (a) on 22 July 2022, acting contrary to the Ustawa o przeciwdziałaniu 
narkomanii (Law on combating drug addiction), of possessing a narcotic drug 
in the form of cannabis in a gross amount of 8.50 grams and a psychotropic 
substance in the form of amphetamine in a gross amount of 33.83 grams, that is 
to say an offence under Article 62(1) of the Law of 29 July 2005 on combating 
drug addiction; 
– (b) on 21 July 2022 at about 23.55, being under the influence of a substance 
having a similar effect to alcohol and having amphetamine in his blood in a 
concentration of 156.2 ng/ml, of driving a passenger vehicle, that is to say an 
offence under Article 178a(1) of the Criminal Code. 
2 K.P. was stopped at 00.05 by police officers who, a moment earlier just before 
midnight, had become interested in the technical condition of the vehicle which he 
was driving but, after speaking to K.P., drove off. At the moment prior to being 
stopped, K.P. was outside the vehicle, was nervous, and spoke in a confused 
manner. When requested by the police officers, he handed over the plastic bags in 
his possession containing white powder and a dried green substance. After being 
stopped, he was taken to hospital, where blood was taken from him to be tested 
for narcotic drugs. 
3 On the morning of 22 July 2022, a search of K.P.’s home was carried out in his 
absence. Without K.P.’s participation an analysis of the video surveillance of the 
streets on which he may have driven was also carried out in the further course of 
the proceedings. 
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4 An examination by testing equipment showed that the substances handed over by 
K.P. were cannabis and amphetamine, respectively. At 12.15 on 22 July 202, he 
was charged with an offence under Article 62(1) of the Law on combating drug 
addiction. 
5 K.P was instructed about the right to be assisted by a defence counsel of his 
choice and the possibility of being assisted by a public defence counsel on account 
of his financial situation. He was also instructed about the right to make 
statements, remain silent, and refuse to respond to questions. The record of the 
questioning made no mention of present or past mental disturbances. 
6 K.P completely denied having committed the alleged offence. He remained silent 
and refused to sign the record or familiarise himself with the case file at the end of 
the investigation. The questioning was not recorded in audiovisual form. No 
defence counsel participated in the questioning. The investigating authority did 
not ask the court to appoint a defence counsel. K.P was released from detention at 
12.31 on 22 July 2022. 
7 An examination of the blood taken showed an amphetamine concentration (156.2 
ng/ml) classified by the expert as a state of ‘being under the influence of a 
substance having a similar effect to alcohol’. 
8 In August 2022, a police officer issued an order supplementing the charges with 
an offence under Article 178a(1) of the Code of Criminal Procedure, which, 
however, was not immediately read out to K.P. The psychiatric doctor interviewed 
testified that the severity of the symptoms of mental illness prevented K.P. from 
taking part in the judicial acts. 
9 The medical records obtained by the public prosecutor show that K. P. had been in 
psychiatric hospitals several times since 2021, including on 22 July 2022 and 
between 8 August and 30 September 2022, on account of mental and psychotic 
disorders. 
10 The order setting out supplementary charges was read to K.P. on 14 October and 
he was interviewed without defence counsel being present under psychiatric 
hospital conditions. He was given identical instructions as during the first 
questioning. The act of questioning was not recorded in audiovisual form. K.P. 
denied committing the alleged offences and remained silent, but did request to be 
acquainted with the case file at the end of the investigation and given the grounds 
for the charges in writing. Those grounds were served on his mother on 
27 October 2022. 
11 K.P. left the psychiatric hospital on 20 October 2022. On 23 November 2022, an 
expert issued an opinion on the substances handed over K. P. when he was 
stopped. 
12 On 2 December 2022, K.P. reported to the police for the purpose of familiarising 
himself with the file, but declined to do so. At that time, he did not have a defence 
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counsel of his choice or one officially appointed. He did not make any requests for 
evidence. 
13 On 15 December, the indictment against K.P., drawn up by a police officer and 
approved by the public prosecutor, was lodged with the Sąd Rejonowy we 
Włocławku (District Court, Włocławek). On 17 January 2023, the authorisation 
which K.P. had granted to a lawyer to defend him was submitted.  
14 By order of 28 February 2023, the court, pursuant to Article 344a(1) of the Code 
of Criminal Procedure, referred the case to the prosecutor of the District 
Prosecutor’s Office in Włocławek for the purpose of supplementing the 
investigation by questioning K.P. in the presence of a defence counsel and 
obtaining expert psychiatrists’ opinions as to K.P.’s mental health at the time of 
the offences and during the proceedings. 
15 On 3 March 2023, an appeal against that order was lodged by the prosecutor, 
arguing that the evidence did not need to be supplemented and that the medical 
records obtained did not provide grounds for K.P. to be examined by experts to 
determine the state of his mental health. 
16 On 29 March 2023, the Sąd Okręgowy we Włocławku (Regional Court, 
Włocławek) set aside the order of 28 February 2023 and referred the case back to 
the Sąd Rejonowy we Włocławku. 
17 The referring court notes that that the superior of the District Prosecutor in 
Włocławek, who is a party to the proceedings in the case against K.P. as a public 
prosecutor, is the Public Prosecutor General, who is also the Minister for Justice, 
with the Public Prosecutor General directing the activities of the prosecutor’s 
office personally or through subordinates, issuing orders, guidelines and 
instructions. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
Reasoning for Questions 1, 2, 3, 5, 6, 7, 9 and 10 
18 The case before the referring court concerns a suspect/accused person who has 
been treated in psychiatric wards in several hospitals in the past. In the acts 
relating to the pre-trial proceedings, from the first questioning to the indictment, 
he was not provided with a defence counsel. His needs as a person presumed to be 
vulnerable were not identified and he was not given the opportunity to challenge 
the assessment in that respect. He was also questioned while on a psychiatric 
hospital ward. The acts relating to the questioning were not recorded in 
audiovisual form. No specialist opinion on the suspect’s mental health was 
obtained, that is to say it was not established whether he was able to recognise the 
significance of the offence or control his behaviour at the time it was committed, 
and whether he was in any way able to participate the proceedings and conduct his 
defence in an independent and reasonable manner. 
BARAŁO 
 
13 
19 Thus, the suspect was deprived of the minimum standards of protection to which 
he is entitled under Directives 2016/1919 and 2013/48 because those directives 
were not implemented correctly and comprehensively in the Polish legal order. 
20 The referring court notes that, with regard to vulnerable persons (and persons who 
have previously been diagnosed with mental disorders should certainly be 
regarded as such), Directive 2016/1919 reinforces the nature of the provisions of 
Directive 2013/48 as a safeguard. That means that, with regard to such persons, 
the authorities conducting pre-trial proceedings are not only obliged to recognise 
the particular situation of the suspect and assess it properly in accordance with the 
requirements of Directive 2016/1919, but also to ensure that such persons, in 
accordance with Directive 2013/48, have access to a lawyer at such time and in 
such a way that they can genuinely and effectively exercise their rights of defence 
prior to their questioning by the police or other law enforcement or judicial 
authorities and at the time when the law enforcement or other competent 
authorities are carrying out investigative or other evidence-gathering acts. 
21 The provisions of national criminal procedural law do not specify when and in 
what form the identification (and also preliminary assessment) of the suspect’s 
needs should take place of set out a priori arrangements for provisional 
(emergency) legal aid for the suspect. Under Article 79(1)(3) and (4) of the Code 
of Criminal Procedure, the accused person 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 behavior was not, 
at the time the offence was committed, disabled or significantly restricted 
(subparagraph 3) 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 (subparagraph 4). However, the 
listed cases of mandatory defence are in no way supported by the requirement 
established by national procedural rules that such a situation should be 
immediately identified and assessed by the authority conducting pre-trial 
proceedings, and under Article 79(3) of the Code of Criminal Procedure, in the 
cases referred to in Article 79(1)(3) and (4) of the Code of Criminal Procedure, 
the participation of the defence counsel is in principle mandatory only at the stage 
of proceedings before the court. 
22 On the other hand, carrying out the act of identifying and granting even 
emergency legal aid to a suspect, in particular before the first questioning in pre-
trial proceedings, is – in view of the referring court – a requirement laid down by 
Directives 2016/1919 and 2013/48. However, that requirement is not implemented 
in the Polish legal order. Recognising the direct effect of the abovementioned 
directives in that respect would enable the act of identifying and granting at least 
emergency legal aid to the suspect to be carried out prior to the first questioning 
and his or her rights as a suspect to be exercised in full. It is precisely during the 
first questioning that the person being questioned is most vulnerable and 
susceptible to pressure. 
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23 Polish criminal law also does not ensure that the questioning of the person to 
whom Directive 2016/1919 and the Commission recommendations apply is 
recorded. The referring court is aware that the recommendations are non-binding 
acts (soft law), but they do have an informative and clarifying function vis-à-vis 
the provisions of both directives. The national courts are obliged to take account 
of recommendations issued by the European Union authorities wherever they may 
shed light on the interpretation of other provisions of EU law. The 
recommendation concerning the making of an audiovisual recording is intended to 
strengthen the procedural safeguards for the suspect by, inter alia, making it 
possible to examine whether the law enforcement authorities have, without undue 
delay, made an assessment of whether there are grounds for granting legal aid 
(albeit on an emergency basis). Such a preliminary assessment should also be 
reflected in the form of a procedural act. That does not necessarily involve a 
decision open to challenge, but it must be amendable to review. 
24 Although the possibility of making an audiovisual recording of a suspect’s 
questioning is provided for in Article 147(1) of the Code of Criminal Procedure, it 
does not set out the situation of the pre-trial questioning of a suspect who should 
be presumed to be vulnerable. In practice, such recordings are not made at that 
stage of the proceedings. The absence of such recording does not allow for ex post 
assessment of whether any attempt was made to identify and assess the suspect’s 
particular needs and whether he or she was able to understand the instructions. 
25 Under Article 2(1) of Directive 2016/1919, the right to request the appointment of 
a public defence counsel materialises at the time of deprivation of liberty, that is 
to say detention (subparagraph (a)) or the conduct of certain evidence-gathering 
acts in which the suspect may or must participate (subparagraph (c)), that is to say 
also at the pre-trial stage, prior to questioning by the police or other authority or 
prior to the conduct of investigative or evidence-gathering acts. 
26 The referring court points out that in Polish procedural law there is no mechanism 
to counteract omissions or remedy an omission of a law enforcement agency in 
that respect. That absence often undermines the suspect’s rights of defence.  
27 In the view of this court, on account of expiry the period for implementing 
Directive 2016/1919 (on 25 May 2019) and the expiry of the period for 
implementing Directive 2013/48 (27 November 2016), the rights arising from 
those directives should apply directly to citizens in vertical relationships. 
However, the relevant presumptions of the directives are disregarded in the pre-
trial proceedings. 
28 In the view of the referring court, the main problem with the failure to implement 
Directive 2016/1919 and Directive 2013/48 and the failure to implement the 
Commission recommendation is safeguarding the rights of defence for persons 
who are presumed to vulnerable and who should already benefit from legal aid 
from the moment the suspicion of an offence is levelled against them. Without 
BARAŁO 
 
15 
legal aid, a person referred to in Directive 2016/1919 may be unaware of what he 
or she is entitled to and to what extent. 
29 Under Article 31(1) and (2) of the Polish Criminal Code, anyone who, due to 
mental illness, mental disability or other mental disturbance, was unable at the 
time of the offence to recognise its significance or control his or her behaviour 
does not commit an offence, and if at the time of the offence the capacity to 
recognise the significance of the offence or control his or her behaviour was 
significantly restricted, the court may apply exceptional mitigation of the penalty. 
In the view of the referring court, a situation where the lack of identification at the 
pre-trial stage results in the filing of an indictment against such a person in court 
is impermissible. 
30 Under EU law, in criminal proceedings, suspects and accused persons who are 
potentially vulnerable on account of doubts as to their mental and physical state 
must have a lawyer (legal aid) in accordance with national law (Article 79(1)(3) 
and (4) of the Criminal Procedure Code) and Directive 2013/48 and Directive 
2016/1919. According to recital 19 of Directive 2016/1919, the State is obliged to 
grant the person concerned legal aid without undue delay and at the latest before 
the first questioning. If that is not possible, the institutions conducting pre-trial 
proceedings should at least grant emergency or provisional legal aid before 
questioning or an evidence-gathering act. 
31 On the other hand, the provisions of the Polish Code of Criminal Procedure 
govern to limited extent the issues related to the actual and effective access to 
mandatory defence and do not govern at all the issue relating to the presence of a 
suspect’s lawyer before the first question and during acts involving the suspect 
even in the case of mandatory defence. 
32 The necessity, under Article 313(1) of the Code of Criminal Procedure, to 
question a suspect without delay after the decision bring charges has been read out 
to him, in the absence of a legal bases allowing for even emergency or provisional 
legal aid to be granted, is contrary to the right of access to a lawyer ‘before 
questioning’ which arises from the directives in question. Article 301 of the Code 
of Criminal Procedure states that in pre-trial proceedings, a suspect is to be 
questioned with the participation of a defence counsel only at his or her request, 
and failure of the defence counsel to appear does not block questioning. 
33 In order to ensure the effectiveness of EU law in relation to the circumstances of 
the present case, the referring court relies on the principle of direct effect of 
unimplemented or incorrectly implemented EU directives. In the view of the 
referring court, the provisions of Directive 2016/800 cited in Questions 1, 2, 3, 5, 
6, 7, 9 and 10, in conjunction with the Commission recommendation and the 
provisions of Directive 2013/48, which also apply to suspects, are clear and 
precise and give rise to no doubts regarding interpretation. In that regard, they are 
unconditional in nature. As a result, the referring court seeks confirmation that the 
above provisions meet the criteria relating to direct effect. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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Reasoning for Questions 4 and 8 
34 The referring court states that, in its view, there is a conflict between rules of 
domestic law (the Code of Criminal Procedure) and EU law. The referring court 
seeks to establish that, on account of the failure correctly to implement EU law 
and in view of the direct effect of the provisions of the directives to the extent 
indicated above, the courts – and all other State authorities administering justice at 
every stage thereof – are obliged to disregard provisions of national law which are 
in conflict with EU law. The procedural rules currently in force in Poland not only 
do not contain sufficiently precise solutions which ensure that the person 
concerned has the full set of rights set out in Directives 2016/800 and 2013/48 but 
even contain rules which prevent procedural provisions from being interpreted in 
conformity with EU law. 
35 Article 79(3) of the Code of Criminal Procedure stipulates that the participation of 
a defence counsel is mandatory only at the trial and in those hearings in which the 
participation of the accused person is mandatory. 
36 Article 301 of the Code of Criminal Procedure stipulates that a suspect is to be 
questioned with the participation of a defence counsel only at the request of the 
suspect himself or herself, and at the same time, the failure of the defence counsel 
to appear (regardless of the reason for the failure to do so) is not to block 
questioning. Therefore, the questioning of a suspect (or even a person under 
suspicion) who is potentially vulnerable, without making contact with a defence 
counsel possible and ensuring his or her participation in an act, does not constitute 
an infringement of the rules contained in the Code of Criminal Procedure. Polish 
criminal law is also silent on the issue of granting emergency or provisional aid at 
the stage of identifying the needs of the suspect. It is commonly accepted in pre-
trial proceedings that the prosecutor applies to the court for the appointment of a 
public defence counsel for the suspect only after a specialist opinion has been 
obtained, while in this case the suspect has already been questioned initially and 
charged. 
37 The general nature of Article 301 of the Code of Criminal Procedure results, in the 
view of the referring court, in a lack of specification of the obligation to question 
the suspect with the participation of a defence counsel, which it lays down. 
While – as in the case against K.P – the prosecutor collects further information 
about the suspect’s state of health, the evidence-gathering acts take place in 
parallel without the participation of a lawyer. All the most important acts in the 
pre-trial proceedings take place in such a situation vis-à-vis the suspect without 
the participation of a defence counsel.  
38 The provisions of Polish criminal procedural law, to the extent set out above, 
either disregard the provisions of the directives or are contrary to them. 
Consequently, the referring court considers that it is essential that both the courts 
and all the State authorities administering justice disregard provisions of national 
law which preclude the effective application of EU law in the case at issue. 
BARAŁO 
 
17 
However, where the application of a conforming interpretation is sufficient, both 
the courts and the other authorities of the State administering justice are obliged to 
use that instrument. 
39 The referring court further notes the possible conflict between recital 27 of 
Directive 2016/1919 and Article 344a of the Code of Criminal Procedure, which 
allows the case to be referred to the public prosecutor for the purpose of 
supplementing the prosecution or investigation if the case file points to significant 
deficiencies in the proceedings, in particular the need to search for evidence, and 
the court carrying out the necessary acts would cause significant difficulties. 
However, it places emphasis on the lack of evidence in the file, whilst remaining 
silent on the infringement of the suspect’s procedural safeguards. 
Reasoning for Questions 11, 12 and 13 
40 Questions 11, 12 and 13, as intended by the referring court, seek to establish an 
effective remedy to ensure that suspects in the criminal proceedings pending 
before the referring court eliminate the effects of the infringement of their rights 
under Directive 2016/1919 and, by way of complement, Directive 2013/48. The 
need to introduce such a remedy arises from Article 8 of Directive 2016/1919 and 
Article 12 of Directive 2013/48. 
41 Directive 2013/48 and Directive 2016/1919, with regard to the right to the 
assistance of a lawyer the consequences of an infringement of that right, refer to 
the current case-law of the European Court of Human Rights (‘the ECtHR’) and 
therefore point to the need to comply with ECtHR standards in that regard. 
42 The referring court notes in particular the judgments of the ECtHR in Ibrahim and 
Beuze, concluding that the case-law of the ECtHR indicates the unacceptability of 
the procedural use of evidence from accused persons’ statements made at the 
initial stage of criminal proceedings where the right to the assistance of a defence 
counsel is not afforded and there is inadequate knowledge of the consequences of 
making statements. 
43 In the light of the case-law of the ECtHR, an infringement of the rights of the 
defence therefore constitutes a serious ground for disregarding evidence obtained 
in the circumstances of such an infringement. Such an approach in the light of 
Polish national law is, however, precluded by Article 168a of the Code of 
Criminal Procedure, under which evidence may not be declared inadmissible 
solely on the ground that it was obtained in breach of the rules of procedure or by 
means of an offence referred to in Article 1(1) of the Criminal Code (conditions 
for criminal liability), unless the evidence was obtained in connection with the 
performance of official duties by a public official, as a result of: murder, 
intentional bodily injury or deprivation of liberty. While it is true that the 
European legislature, in Directive 2013/48/EU, did not introduce a general 
prohibition on the use of evidence obtained in a manner that infringes the right of 
access to a lawyer, it nevertheless laid down a requirement that the evaluation 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-530/23 
 
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thereof be carried out in a specific manner, taking into account the need to 
guarantee the accused person/suspect a fair trial. 
44 For that reason, the referring court considers that the provisions of Directive 
2013/48 on effective remedy imply that the court should disregard Article 168a of 
the Code of Criminal Procedure when assessing the statements of a 
suspect/accused person who has not been afforded the right to be assisted by a 
defence counsel, and declare the act thus carried out impermissible. Subsequently, 
the court should seek to remove the inadmissible procedural act from the evidence 
and repeat the act so that the conduct thereof is lawful in terms of the right to the 
presence of defence counsel. In order to achieve that result, the court should, in 
such a situation, resort to the arrangement of returning the case back to the pre-
trial stage (Article 344a of the Code of Criminal Procedure), obliging the 
prosecutor to remove the infringements. 
45 The referring court points out that in the present case there have been a number of 
infringements of the suspect’s rights (questioning without the participation of a 
defence counsel and, moreover, twice in situations raising doubts as to the 
suspect’s capacity to understand the significance of the acts carried out with him 
and to maintain his freedom to state views, including in a psychiatric hospital), the 
elimination of which is not possible at the trial stage, and their existence 
significantly affects the assessment of the lawfulness of the manner in which the 
evidence gathered in this case was submitted. 
46 The referring court thus regards the arrangement set out in Article 344a of the 
Code of Criminal Procedure as the only effective and available remedy in the 
Polish criminal procedure, as referred to in Article 12 of Directive 2013/48, which 
is actually able to bring about elimination of infringements of the pre-trial 
proceedings with regard to the suspect’s rights of defence at that stage of the 
proceedings. 
Reasoning for Questions 14 and 15 
47 The referring court seeks to ascertain whether the public prosecutor is obliged to 
recognise the direct effect of the provisions of that directive after the period for its 
transposition has expired. The referring court takes the position that during pre-
trial proceedings Polish law enforcement authorities do not recognise such an 
effect and base their adopted decisions solely on the wording of Polish legislation, 
which discounts the relevance of Directive 2016/1919 in the Polish legal order. 
48 Once the pre-trial proceedings are completed and the indictment has been 
submitted to the court, the public prosecutor is a party to the proceedings. 
However, until that point, he or she is the authority conducting the proceedings 
and thus administering justice in the wider sense. He or she may bring charges and 
file an indictment against a person, but may also discontinue proceedings. Under 
Article 6 of the Law on the Public Prosecutor’s Office, the public prosecutor is 
obliged to take the actions set out in laws, guided by the principle of impartiality 
BARAŁO 
 
19 
and equal treatment of all citizens. A duty to ensure compliance with EU law must 
be deduced from that. However, in pre-trial proceedings involving persons 
covered by the protection set out in Directive 2016/1919, which has not been fully 
implemented, there are infringements of rights. 
49 Referring to the case-law of the Court of Justice, inter alia the judgment of 
27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), 
C-508/18 and C-82/19 PPU, EU:C:2019:456, the referring court takes the view 
that the attribute of independence must also characterise the pre-trial authorities 
wherever they apply EU law. The referring court points out that, as a result, in that 
judgment, the Court of Justice criticised severely those situations in which the 
guarantee of the fundamental rights of the European Union is entrusted to a body 
to which binding direction can be given by an executive authority (the Minister 
for Justice), pointing out that this is incompatible with the principle of 
guaranteeing the right to effective legal protection. 
50 However, in the Polish criminal law system, superior prosecutors of a district 
prosecutor and the Public Prosecutor General (who is also the Minister for Justice, 
that is to say an executive authority), may at any time and in any case decide that 
the district prosecutor should adopt a legal classification of the offence committed 
which is different from the original one, request the application of a preventive 
measure in the form of provisional arrest, apply preventive measures of a non-
custodial nature, issue an indictment or discontinue the proceedings, or to 
disregard the direct effect of a provision of a directive which has not been 
transposed in the Polish legal order within the prescribed time limit. 
51 Under Article 1(2) of the Law on the Public Prosecutor’s Office, the Minister for 
Justice holds the office of Prosecutor General and, under Article 13(2) thereof, is 
the superior of the public prosecutors attached to the ordinary courts . He has the 
power to issue orders, guidelines and instructions (Article 13(1) of the Law on the 
Public Prosecutor’s Office), and a public prosecutor attached to the ordinary 
courts is obliged to carry out the order or instruction issued, or even the guidelines 
of the superior. 
52 The independence of public prosecutors provides an individual with a guarantee 
that the authority will uphold the rule of law. It is a guarantee of the right to a fair 
and impartial trial. On the other hand, in the current legal order in the Republic of 
Poland, a de facto politician, that is to say the Minister for Justice who is also the 
Public Prosecutor General, can influence the course of any criminal proceedings 
and even indirectly (through the so-called ‘deterrent effect’) influence the 
decisions of the court, and a fortiori the prosecutors of subordinate public 
prosecutor’s offices. 
53 In the context of producing a so-called ‘deterrent effect’ on prosecutors, the 
referring court refers to Article 106(3) of the Law on the Public Prosecutor’s 
Office, which allows a public prosecutor to be seconded, without his or her 
consent, to a public prosecutor’s office having its seat at the place where the 
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seconded person resides, or to a public prosecutor’s office at the place the public 
prosecutor’s office is located, which is the place of employment of the seconded 
person, for a period of 12 months in the course of a year. Such secondments 
should be exceptional, but, between 4 March 2016 and 31 December 2019, at least 
60 public prosecutors were transferred to lower-level courts as a particular 
disciplinary punishment. Another – equally severe – form of particular 
disciplinary punishment is the secondment of a public prosecutor to another public 
prosecutor’s office located outside his or her place of work or residence for up to 
six months without his or her consent. The referring court takes the position that 
the exertion of influence (the application of a deterrent effect) on an authority 
administering justice may be dictated by the fact that the authority is not applying 
EU law directly. 
54 An interpretation by the Court of Justice in this regard is necessary in order to 
clarify whether the rules of EU law must be interpreted as precluding rules of 
national law under which it is possible to exert pressure on authorities 
administering justice in such a way as to restrict or eliminate the direct application 
of EU law by those authorities and, in particular, as precluding national rules 
which deter a judge or public prosecutor from negating the effects of such national 
law in order to guarantee the full effect of provisions of EU law. In the absence of 
an answer to those questions, there is a serious risk, irrespective of the answers to 
Questions 1 to 12, that the judgment will not be enforceable under national law on 
account of the existence in the national legal order of mechanisms of a repressive 
nature (the demotion or transfer referred to) and intervening nature (guidelines 
and instructions), which may effectively prevent it. 
55 Pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice, the 
Sąd Rejonowy we Włocławku requests application of an expedited procedure.