Opinion of the Advocate General — ECLI:EU:C:2024:157
Date: 2024-02-22
Language of the case: Polish
Subject matter: Justice and home affairs;Principles, objectives and tasks of the Treaties;Approximation of laws;Judicial cooperation in criminal matters;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

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: 
19 September 2022 
Referring court: 
Sąd Rejonowy w Słupsku (Poland) 
Date of the decision to refer: 
26 August 2022 
Criminal proceedings against: 
M.S. 
J.W. 
M.P. 
  
Subject matter of the main proceedings 
Criminal proceedings against three minors charged with the offence of 
unauthorised entering of premises. 
Subject matter and legal basis of the request 
Interpretation of EU law on procedural safeguards afforded to children in criminal 
proceedings with regard to the right to be assisted by a defence counsel and the 
obligations on enforcement authorities to provide information – 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 and to order the suspension of a 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
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judge’s activities – Article 267 of the Treaty on the Functioning of the European 
Union. 
Questions referred for a preliminary ruling 
1. Must Article 6(1), (2), (3)(a) and (7) and Article 18, in conjunction with 
recitals 25, 26 and 27, of Directive (EU) 2016/800 of the European Parliament and 
of the Council of 11 May 2016 on procedural safeguards for children who are 
suspects or accused persons in criminal proceedings be interpreted as meaning 
that, as soon as a suspect below the age of 18 years is charged, the authorities 
conducting the proceedings are obliged to ensure that the child has the right to be 
assisted by a public defence counsel if he or she does not have a defence counsel 
of his or her choice (because the child or the holder of parental responsibility has 
not arranged such assistance) and to ensure that a defence counsel participates in 
the actions of the pre-trial proceedings, such as the questioning of the minor as a 
suspect, and that they preclude a minor from being questioned without the 
participation of a defence counsel[?] 
2. Must Article 6(6) and (8), in conjunction with recitals 16, 30, 31 and 32, of 
Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children 
who are suspects or accused persons in criminal proceedings be interpreted as 
meaning that the provision of the assistance of a defence counsel without undue 
delay may not be derogated from in any event in cases concerning offences 
punishable by a restriction of liberty and that application of the right to 
assistance of a defence counsel within the meaning of Article 6(8) of the directive 
may be temporarily derogated from only in pre-trial proceedings and only in the 
circumstances listed exhaustively in Article 6(8)(a) and (b), which 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. If the answer to at least one of the first two questions is in the affirmative, 
are the abovementioned provisions of Directive (EU) 2016/800 therefore 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(3) of the Code of Criminal Procedure, under which, in the case of 
a person below the age of 18 years (Article 79(1)(1) of the Code of Criminal 
Procedure), the participation of a defence counsel is mandatory only at the trial 
and at those hearings in which the participation of the accused person is 
mandatory, that is to say at the trial stage[?] 
4. Must the provisions referred to in Questions 1 and 2, and also the principle 
of primacy and the principle of direct effect of directives, be interpreted as 
M.S. AND OTHERS 
 
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empowering (or obliging) a national court hearing a case in criminal proceedings 
coming within the scope of Directive (EU) 2016/800 of the European Parliament 
and of the Council of 11 May 2016 on procedural safeguards for children who are 
suspects or accused persons in criminal proceedings, and any State authorities, to 
disregard provisions of national law which are incompatible with the 
directive, such as those listed in Question 3, 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[?] 
5. Must Article 6(1), (2), (3) and (7) and Article 18, in conjunction with 
Article 2(1) and [(3)] and recitals 11, 25 and 26, of Directive (EU) 2016/800 of 
the European Parliament and of the Council of 11 May 2016 on procedural 
safeguards for children who are suspects or accused persons in criminal 
proceedings, in conjunction with Article 13 and recital 50 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, be interpreted as meaning that a Member 
State must grant legal aid to suspects or accused persons in criminal 
proceedings who were children at the time of the beginning of the 
proceedings but have subsequently reached the age of 18 years and that such 
assistance is mandatory until the final conclusion of the proceedings[?] 
6. If the answer to Question 5 is in the affirmative, must the abovementioned 
provisions of the directive therefore be interpreted as precluding provisions of 
national law, such as Article 79(1)(1) of the Code of Criminal Procedure, 
under which, in criminal proceedings, the accused person must have a defence 
counsel only until he or she reaches the age of 18 years[?] 
7. Must the provisions referred to in Question 5, and also the principle of 
primacy and the principle of direct effect of directives, be interpreted as 
empowering (or obliging) a national court hearing a case in criminal proceedings 
coming within the scope of Directive (EU) 2016/800 of the European Parliament 
and of the Council of 11 May 2016 on procedural safeguards for children who are 
suspects or accused persons in criminal proceedings, and any State authorities, to 
disregard provisions of national law which are incompatible with the directive, 
such as those listed in Question [6], and to apply provisions of national law, such 
as Article 79(2) of the Code of Criminal Procedure, interpreted in conformity with 
the directive, that is to say, to maintain the appointment of a public defence 
counsel for an accused person who was under the age of 18 years at the time of 
the charge but subsequently, in the course of the proceedings, reached the age of 
18 years and in respect of whom the criminal proceedings remain pending, until 
the final conclusion of the proceedings, on the assumption that this is necessary 
in view of circumstances impeding the defence, or – on account of the expiry of 
the implementation period – to replace the abovementioned national rule with the 
directly effective rules of the directive[?] 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
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8. Must Article 4(1) to (3), in conjunction with recitals 18, 19 and 22, of 
Directive (EU) 2016/800 of the European Parliament and of the Council of 
11 May 2016 on procedural safeguards for children who are suspects or accused 
persons in criminal proceedings, in conjunction with Article 3(2), in conjunction 
with recitals 19 and 26 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, be interpreted as meaning that the competent authorities (public 
prosecutor’s office, police) must, at the latest before the initial official 
questioning of a suspect by the police or another competent authority, 
promptly inform both the suspect and, at the same time, the holder of 
parental responsibility, of the rights which are essential for safeguarding the 
fairness of the proceedings and of the procedural steps in the proceedings, 
including, more specifically, the obligation to appoint a defence counsel for a 
minor suspect and the consequences of not appointing a defence counsel of choice 
for the accused minor (appointment of a public defence counsel), and, as regards 
child suspects, that information must be given in simple and accessible language 
appropriate to the age of the minor[?] 
9. Must Article 7(1) and (2), in conjunction with recital 31, of Directive (EU) 
2016/343 of the European Parliament and of the Council of 9 March 2016 on the 
strengthening of certain aspects of the presumption of innocence and of the right 
to be present at the trial in criminal proceedings, in conjunction with 
Article 3(1)(e) and (2) 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, 
be interpreted as meaning that the authorities of a Member State conducting 
criminal proceedings involving a suspect/accused person who is a child are 
obliged to instruct a child suspect as to the right to remain silent and the 
right not to incriminate himself/herself, in a manner which is intelligible and 
appropriate to the age of the suspect[?] 
10. Must Article 4(1) to (3), in conjunction with recitals 18, 19 and 22, of 
Directive 2016/800 of the European Parliament and of the Council of 11 May 
2016 on procedural safeguards for children who are suspects or accused persons in 
criminal proceedings and Article 3(2), in conjunction with recitals 19 and 26, 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, be interpreted as 
meaning that the requirements laid down in the abovementioned provisions 
are not satisfied by the service of general instructions shortly before the 
questioning of a minor suspect, without regard to the specific rights arising 
from the scope of Directive 2016/800, and by the service of such instruction 
only on a suspect acting without a defence counsel, without the involvement 
of the holder of parental responsibility, and in a situation in which such 
instructions are formulated in language inappropriate to the age of the 
suspect[?] 
11. Must Articles 18 and 19, in conjunction with recital 26, of Directive 
2016/800 of the European Parliament and of the Council of 11 May 2016 on 
M.S. AND OTHERS 
 
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procedural safeguards for children who are suspects or accused persons in 
criminal proceedings and Article 12(2), in conjunction with recital 50, 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, combined with Article 7(1) 
and (2), in conjunction with Article 10(2) and recital 44 of Directive (EU) 
2016/343 of the European Parliament and of the Council of 9 March 2016 on the 
strengthening of certain aspects of the presumption of innocence and of the right 
to be present at the trial in criminal proceedings and the principle of a fair trial, be 
interpreted – in relation to statements made by a suspect during police questioning 
conducted without access to a lawyer and without the suspect being fairly 
informed of his or her rights, without the holder of parental responsibility being 
informed of the rights and general aspects of the conduct of the proceedings that 
the child is entitled to pursuant to Article 4 of the directive – as obliging (or 
empowering) a national court hearing a case in criminal proceedings coming 
within the scope of the abovementioned directives, and any State authorities, 
to ensure that suspects/accused persons are placed in the same position as 
that in which they would have been had the infringements in question not 
occurred, and therefore to disregard such evidence, in particular where the 
incriminating information obtained in such questioning was to be used to convict 
the person concerned[?] 
12. Must the provisions referred to in Question 11, and also the principle of 
primacy and the principle of direct effect, therefore be interpreted as requiring a 
national court hearing a case in criminal proceedings coming within the 
scope of the abovementioned directives, and any other State authorities, to 
disregard provisions of national law which are incompatible with those 
directives, such as abovementioned 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, 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[?] 
13. Must Article 2(1) of Directive 2016/800 of the European Parliament and of 
the Council of 11 May 2016 on procedural safeguards for children who are 
suspects or accused persons in criminal proceedings, 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 a public prosecutor, as an 
authority participating in the administration of justice, upholding the rule of law 
and in that regard the host of the pre-trial proceedings, has a duty to ensure, at the 
pre-trial stage, effective legal protection coming within the scope of the 
abovementioned directive and that, in the effective application of European Union 
law, he or she must guarantee his or her independence and impartiality[?] 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
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14. If the answer to any of Questions 1 to 4, 5 to 8, and 9 to 12, and especially 
the answer to Question 13, is in the affirmative, must the second subparagraph of 
Article 19(1) TEU (principle of effective legal protection), in conjunction with 
Article 2 TEU, in particular in conjunction with the principle of respect for the 
rule of law, as interpreted in the case-law of the Court of Justice (judgment of 
21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and 
C-840/19, [Euro Box Promotion and Others], EU:C:2021:1034), and the principle 
of judicial independence established in the second subparagraph of Article 19(1) 
TEU and in Article 47 of the Charter of Fundamental Rights, as interpreted in the 
case-law of the Court of Justice (judgment of 27 February 2018, Associação 
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117), be interpreted as 
meaning that those principles, in view of the possibility of pressure being 
exerted indirectly on judges and the possibility of the Public Prosecutor 
General issuing binding instructions in this regard to lower-ranking public 
prosecutors, preclude national legislation stating that the prosecutor’s office 
is to be dependent on an executive authority, such as the Minister for Justice, 
and also preclude the existence of national rules which limit the independence 
of the courts and the independence of the public prosecutor in the application 
of European Union law, in particular: 
(a) Article 130(1) of the Ustawa z dnia 27 lipca 2001 roku o ustroju sądów 
powszechnych (Law of 27 July 2001 on the system of the ordinary courts), which 
permits the Minister for Justice – in connection with the public prosecutor’s 
obligation to report a situation in which a court gives judgment applying European 
Union law – to order the immediate suspension of a judge’s service activities 
pending a decision by the disciplinary court, for no longer than one month, when, 
on account of the nature of the offence committed by the judge and given effect in 
the direct application of European Union law, the Minister for Justice considers 
that the authority of the court and the essential interests of the service so require; 
(b) 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), the content of which, considered in 
conjunction with one another, indicates that the Minister for Justice, who is also 
the Public Prosecutor General and the highest authority of the public prosecutor’s 
office, may issue instructions which are binding on lower-ranking public 
prosecutors also to the extent that they restrict or impede the direct application of 
European Union law[?] 
Provisions of international law cited 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘ECHR’) – Article 6(3)(b) and (c) 
M.S. AND OTHERS 
 
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Provisions of EU law cited 
1. Treaty on European Union – Articles 2, 4(3), 6(1) and (3), and 19(1), second 
paragraph; 
2. Charter of Fundamental Rights of the European Union – Articles 47, 48(2), 
and 52(3); 
3. Directive (EU) 2016/800 of the European Parliament and of the Council of 
11 May 2016 on procedural safeguards for children who are suspects or accused 
persons in criminal proceedings – recitals 11, 16, 18, 19, 22, 25 to 27, 30 to 32 
and 42, and Articles 2(1) and (3), 4(1) to (3), 6(1) to (4) and (6) to (8), 9(1) and 
(2), and Articles 18, 19 and 23; 
4. 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 – recitals 50 and 51 and 
Articles 3 and 12 to 14; 
5. Directive 2012/13/EU of the European Parliament and of the Council of 
22 May 2012 on the right to information in criminal proceedings – recitals 19 and 
26 and Article 3; 
6. Directive (EU) 2016/343 of the European Parliament and of the Council of 
9 March 2016 on the strengthening of certain aspects of the presumption of 
innocence and of the right to be present at the trial in criminal proceedings – 
recitals 31 and 44, and Articles 7(1) and (2) and 10. 
Provisions of national law cited 
1. Constitution of the Republic of Poland – Articles 7, 9, 10, 42(2) and 72; 
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), 10(1) and 
(2), 12(1) and 193; 
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, 73, 76, 79(1)(1), 79(2) and (3), 81(1), 147(1) to 
(2b), 168a, 171(5) and (7), 175(1), 245(1), 298(1), 300(1) and (4), 301 and 313(1); 
4. Ustawa z dnia 26 października 1982 r. o postępowaniu w sprawach 
nieletnich (Law of 26 October 1982 on the procedure in juvenile cases) (the Law 
was repealed on 1 September 2022) – Articles 1(1)(2) and 1(2); 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
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5. Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law 
of 27 July 2001 on the system of the ordinary courts) (‘Law on the system of the 
ordinary courts’) – Articles 9, 9a, 9b, 53c and 130; 
6. Ustawa z dnia 28 stycznia 2016 r. – Prawo o prokuraturze (Law of 
28 January 2016 on the Public Prosecutor’s Office) – Articles 1(1) and (2), 3(1)(1) 
and (3), 7 and 13(1) and (2). 
Case-law of the European Court of Human Rights (‘ECtHR’) cited (inter 
alia) 
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). 
Case-law of the Court of Justice of the European Union cited (inter alia) 
1. Judgment of 22 December 2010, DEB, C-279/09, EU:C:2010:811; 
2. Judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v 
Parliament and Council, C-583/11 P, EU:C:2013:625; 
3. Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, 
C-64/16, EU:C:2018:117; 
4. Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ 
and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, 
EU:C:2021:393; 
5. Judgment of 21 December 2021, Euro Box Promotion and Others, 
C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, EU:C:2021:1034. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The first accused in the present case, M.S, is accused of repeatedly breaking into a 
disused holiday facility between December 2021 and January 2022, whilst the 
M.S. AND OTHERS 
 
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other two accused, J.W. and M.P., are accused of doing so on one occasion. The 
holiday facility belongs to owners represented in absentia by a court-appointed 
officer, is being auctioned off in enforcement proceedings, and has been 
vandalised since at least February 2021. 
2 At the time when the offences were committed the accused were 17 years old. The 
alleged offences were committed by the accused in conjunction with other persons 
not subject to the main proceedings, who were 16 years old at the time. On 
account of their age, those persons participated as juvenile offenders in the actions 
carried out by the police in the pre-trial proceedings. Consequently, they were 
summoned to participate in those actions with their legal representatives (parents), 
questioned in the presence of those parents, and given instructions for juveniles on 
their rights and obligations. 
3 M.S. was questioned as a suspect on 26 January 2022. His parents were not 
informed (separately) of his questioning. The summons for questioning did not 
state that M.S. could appoint a defence counsel. M.S. went to the police station 
with his mother, who, despite her request, was not allowed to be present when her 
son was questioned on the grounds that he was criminally liable as an adult. In 
addition, she was refused information about the course of the proceedings. 
4 The decision to bring charges was read out and given to M.S. and signed by him. 
He was also instructed about the right to request that the bases for the charges be 
stated orally and that reasons for the decision to bring charges be drawn up in 
writing and served on him and his appointed legal counsel within 14 days. M.S. 
neither waived nor made such a request. He was also given an instruction on the 
rights and obligations of a suspect in criminal proceedings (containing standard 
information given to every suspect regardless of their age). M.S. did not read the 
content of that instruction as the content thereof was extensive and complicated, 
but he did sign his acceptance of it. Neither M.S nor his parents appointed a 
defence counsel. Nor was a public defence counsel appointed for him. 
5 Consequently, M.S. was questioned as a suspect without the participation of a 
defence counsel. During the questioning, which was not recorded in the form of 
an audiovisual recording, he made extensive statements of a self-incriminating 
nature. Following those statements, the charges against him were changed from 
one instance of breaking into the abovementioned holiday facility to repeated 
instances, and the actions relating to the giving of instructions and the obligations 
to provide information were repeated. M.S. was not informed of his right to 
familiarise himself a final time with the case file before the indictment was sent to 
court, nor of the possibility of requesting a time limit for that action. 
6 Similar actions were carried out in relation to J.W. and M.P. Unlike in the case of 
M.S., the parents of those accused persons did go to the police station to 
accompany their sons. Otherwise, the course of action taken in both cases was 
very similar to that taken vis-à-vis M.S., with the exception that the charge of one 
instance of breaking into the holiday facility was not changed in relation to them. 
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7 During the pre-trial proceedings, no individual assessment of the suspects was 
carried out pursuant to Article 7 of Directive 2016/800. 
8 The indictments against the accused persons were signed by the public 
prosecutor’s office on 31 May 2022, and sent to the referring court. As the 
accused persons did not have appointed defence counsel, the court appointed 
defence counsel for each of them. At the trial on 23 August 2022, the accused 
persons pleaded not guilty, with M.S. making a statement and the other two 
accused persons refusing to provide statements and answering only questions from 
the defence counsel. With regard to each of the accused persons, his defence 
counsel requested that the accused person’s pre-trial statements be disregarded, 
pointing out that the evidence had been obtained in breach of the law, that is to 
say, in questioning without the participation of a defence counsel, whose 
participation was mandatory, and that the evidence thus obtained cannot form a 
basis for establishing the facts. 
9 In each case, the court rejected as inadmissible the prosecutor’s requests for 
evidence to be taken from statements made by the accused persons in the course 
of the pre-trial proceedings and consequently removed from the evidence the 
statements which the accused persons had made in the pre-trial proceedings 
without the participation of a defence counsel. 
10 At the abovementioned trial, the court found of its own motion that M.P. had 
reached the age of 18 years and, pursuant to Article 79(1)(1) of the Code of 
Criminal Procedure, the duty of defence had lapsed. The accused person’s defence 
counsel requested that the appointment of the public defence counsel for the 
accused person be maintained since the defence of the accused person is 
mandatory until the final conclusion of the proceedings as he was a child when he 
became subject to the proceedings and the circumstances of the case indicate that 
the degree of maturity and the need for special treatment of that person justify the 
maintenance of a public defence counsel. The court consequently maintained the 
appointment of the public defence counsel for M.P. 
11 The referring court notes that that the superior of the District Prosecutor in Słupsk, 
who is a party to the proceedings in the case of the accused persons M.S., J.W. 
and M.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. 
12 The judge sitting alone in the present case was deprived of the right to give a 
ruling in the period from 9 February to 8 March 2022 by an order issued by the 
Minister for Justice pursuant to Article 130(1) of the Law on the system of the 
ordinary courts. By that act, the Minister for Justice ordered the immediate 
suspension of the judge’s activities for the commission of an offence of such a 
nature that the authority of the Sąd Rejonowy w Słupsku (District Court, Słupsk) 
and the vital interests of the service require that she be relieved immediately of her 
M.S. AND OTHERS 
 
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service obligations. As reasons for that order, it was stated that the factual basis 
for that finding is that in another case, that judge, sitting alone, called into 
question, by an order of 29 November 2021, the existence of the service 
relationship of another judge, the effectiveness of his appointment to the position 
of judge, and the legitimacy of a constitutional body of the Republic of Poland. In 
the order, the judge excluded, at the request of a party, a judge who had been 
appointed to the position of judge in a procedure involving the National Council 
of the Judiciary constituted after 2018. In the order, the judge pointed to the gap 
between national law and EU law and the ECHR in assessing whether judges were 
appointed properly after 2018, and held, citing the case-law of the Court of Justice 
and ECtHR, that until such time as rules compatible with EU law and the ECHR 
are introduced into the national legal order, the party’s doubts about the lack of 
confidence in a court composed in such a manner should be shared and the judge 
concerned should be excluded from giving rulings. 
13 The District Prosecutor in Słupsk notified the Regional Prosecutor in Gdańsk of 
the order issued by the judge in the other case referred to above, who in turn 
notified the Deputy Disciplinary Officer for Ordinary Court Judges, appointed to 
that position by the Minister for Justice, and the deputy notified the Minister for 
Justice. Those successive notices constituted implementation of the instructions 
issued in connection with the public prosecutor’s office. Those instructions 
required public prosecutors to inform the regional prosecutor with territorial 
jurisdiction of cases in which judges call into question the status of another judge 
of an ordinary court or the status of a Supreme Court judge. In essence, those 
instructions related to the obligation to give notice of any situation where a judge 
relies directly on the provisions of EU law and the case-law of the Court of Justice 
of the European Union, while disregarding national law. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 With regard to the reasons for Questions 1, 2, 5, 8 and 9, the referring court states 
that the present case concerns suspects/accused persons who had the status of 
children at the time when the criminal proceedings began. In the course of the pre-
trial proceedings, the minor suspects were charged without informing the holder 
of parental responsibility of that action, without informing the suspects themselves 
of the situation in which they found themselves (inter alia the need to appoint a 
defence counsel and, in the absence of a defence counsel of choice, the need to 
appoint a public defence counsel). During the questioning of the suspects, they 
were not provided with a defence counsel and, moreover, no defence counsel was 
appointed for any of the suspects throughout the pre-trial stage. 
15 The action of taking statements in the pre-trial proceedings in respect of all three 
suspects was not recorded in the form of an audiovisual recording. No statements 
were taken from two suspects at all as to whether they were waiving their right to 
familiarise themselves a final time with the pre-trial documents, and the third was 
not instructed about it in a manner which was intelligible to him. There was also a 
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failure to draw up an individual assessment of the minor suspects during the pre-
trial proceedings. 
16 The suspects were thus deprived of the minimum standards of protection to which 
they are entitled as children who are suspects under Directive 2016/800 and of the 
rights which all suspects enjoy under Directives 2013/48 and 2012/13, and this in 
turn was made possible by the failure to implement or correctly implement 
Directive 2016/800, Directive 2013/48 and Directive 2012/13/EU into the Polish 
legal order. 
17 Despite the obligations imposed on Member States in Article 4(1) and (2) of 
Directive 2016/800, the Regulation of the Minister for Justice of 11 June 2015 
determining model instructions on the rights and obligations of a suspect in 
criminal proceedings does not set out a specific formula for instructions for 
children who are suspects in criminal proceedings. As a result, minor suspects 
receive an instruction form intended for adults, which does not contain 
information in appropriate language regarding the specific rights of minor 
suspects. 
18 In the view of the referring court, this affects the fairness of the subsequent 
proceedings by significantly limiting the possibility of understanding the 
procedural situation of a minor who is treated as an adult with regard to 
responsibility for criminal acts. Furthermore, Polish criminal procedure denies the 
right to information to the parents of suspects who are over 17 years of age but not 
yet 18 years of age. Such persons are deprived, under the Polish Code of Criminal 
Procedure, of the support of the holder of parental responsibility in the course of 
the proceedings, and parents cannot request from the police or the public 
prosecutor information on the course of the proceedings, and still less 
participation in actions involving the child. 
19 Contrary to Article 9(1) of Directive 2016/800, in Polish criminal procedure the 
issue of audiovisual recording of a child suspect’s questioning is not framed in a 
way that guarantees compliance with a suspect’s rights. Article 147(1) of the Code 
of Criminal Procedure allows recording of a suspect’s questioning to be made 
merely on an optional basis, but does not set out the situation where a suspect who 
has not reached the age of 18 years old is interviewed as one in which the making 
of an audiovisual recording is to be mandatory, or almost mandatory (setting out 
strictly defined circumstances which would allow the audiovisual recording not to 
be made). In essence, therefore, no recording of a minor’s questioning is ever 
made and there are no mechanisms in the national legal order to enforce it as 
against the police or the public prosecutor’s office. 
20 Furthermore, no instrument permitting an individual assessment of children who 
are suspects or accused in criminal proceeding to be carried out pursuant to 
Article 7 of Directive 2016/800 has been incorporated into Polish criminal 
procedure. The only arrangement which allows such an individual assessment to 
be carried out to a partial degree is a background interview carried out by a court-
M.S. AND OTHERS 
 
13 
appointed officer, but in this regard too the provisions of the Code of Criminal 
Procedure do not state that an interview is mandatory in every case where the 
accused person/suspect is under the age of 18 years. 
21 In the view of the referring court, the most significant problem related to the 
failure to implement Directive 2016/800 into the national legal order (which is 
furthermore linked to the failure correctly to implement Directive 2013/48) is that 
of ensuring the right to defence counsel for suspects who are children. 
22 The provisions of the Polish Code of Criminal Procedure, apart from the 
stipulation that an accused person under the age of 18 years must have a defence 
counsel (Article 79(1)(1) of the Code of Criminal Procedure), govern to a very 
scanty extent the issues related to genuine and effective access to a lawyer and the 
effective exercise of the minor’s rights of the defence. Above all, the provisions of 
the Polish Criminal Code do not govern at all the issue of the presence of a 
suspect’s lawyer during the actions carried out with his or her participation. In 
addition, there are no specific rules on the possibility for the accused to consult his 
or her defence counsel before the initial questioning as part of the arrangement for 
bringing charges. With regard to the mandatory representation of the 
suspect/accused person by a defence counsel, the Code of Criminal Procedure 
makes the participation of a defence counsel mandatory precisely only at the trial 
stage of court proceedings, whilst leaving aside the issue of the mandatory 
participation of defence counsel in pre-trial proceedings. 
23 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, 5, 8 
and 9, in conjunction with the provisions of Directive 2013/48/EU, which also 
apply to minor 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. 
24 In that respect, the referring court understands the provisions of Directive 
2016/800 as meaning that, with regard to the mandatory participation of a defence 
counsel in criminal proceedings against a suspect/accused person under the age of 
18 years, the provisions of the directive independently create a source of 
individual rights and are not conditional, despite Article 6(6) and (8) of Directive 
2016/800. In the view of the referring court, this provision does not introduce a 
condition for the existence of an entitlement to the effective assistance of a 
defence counsel in procedural acts involving a child, but merely clarifies the 
situations where it is possible to declare admissible a derogation from the 
principle relating to the participation of a lawyer in such actions. Citing 
recitals 16, 30, 31 and 30 of the directive, the referring court considers that, 
wherever the subject of the charges against the child is an offence punishable in 
law by a restriction of liberty, temporary derogations from the obligation to ensure 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
14  
the assistance of a lawyer in pre-trial proceedings are excluded. This also applies 
to the accused in the present case, who are charged with having committed an 
offence punishable by, in particular, a restriction of liberty of up to one year. 
25 Similarly, the provisions of Directive 2016/800, in conjunction with the provisions 
of Directive 2012/13, state that a child subject to criminal proceedings has the 
right to request from the acting authority (the police, public prosecutor’s office) 
information about the rights which are essential in order to guarantee him or her a 
fair trial. In particular, it refers to the child’s right to request information, in a 
manner which is intelligible and appropriate to his or her age, about the right to 
remain silent and the right not to incriminate himself or herself, and this right is to 
be derived directly from the wording of Directive 2016/800, in conjunction with 
the provisions contained in Directive 2012/13. 
26 The right to information in this regard is also explicitly conferred on the holder of 
parental responsibility over a minor suspect under the provisions of Directive 
2016/800, which, in the view of the referring court, are also directly applicable. 
27 As reasons for Questions 3, 4, 6, 7 and 10, the referring court states that, in its 
view, there is, in general, 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 child has the rights set out in 
Directive 2016/800 but even contain rules which prevent procedural provisions 
from being interpreted in conformity with EU law. 
28 Article 79(1)(1) of the Code of Criminal Procedure stipulates that in criminal 
proceedings an accused person must have a defence counsel if he or she is under 
18 years of age, with the result that in practice the courts find that the participation 
of a defence counsel in the proceedings is not mandatory once the suspect/accused 
person has reached the age of 18 years and relieve the public defence counsel of 
his or her duties. Article 79(3) of the Code of Criminal Procedure states 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, which in 
practice excludes the mandatory participation of a defence counsel in pre-trial 
proceedings. 
29 Article 301 of the Code of Criminal Procedure – which governs access to a lawyer 
at the pre-trial stage – 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 child as a suspect, without making contact with a 
M.S. AND OTHERS 
 
15 
defence counsel possible and ensuring his or her participation in that action, does 
not constitute a formal infringement of the rules contained in the Code of Criminal 
Procedure. Very often – as in the present case – the charges are brought against 
suspects who are not formally detained and the provisions of the Polish Code of 
Criminal Procedure are silent on the right to contact with a defence counsel before 
charges have been brought. 
30 In the view of the referring court, Article 301 of the Code of Criminal Procedure 
is general in nature and there is no specification of the right to questioning with 
the participation of a defence counsel laid down therein. As a result, in the light of 
that provision only the obligation effectively to notify the defence counsel whom 
the suspect has already appointed previously is imposed on the authority 
concerned. Whether or not that defence counsel is able to participate in the 
questioning with due diligence, on the other hand, is not of interest to the Polish 
legislature. 
31 The analysis carried out reveals that the Polish procedural rules in many aspects 
either disregard the provisions of the directives or are even 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. 
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. 
32 Questions 11 and 12, as intended by the referring court, seek to establish – in 
connection with Article 19 of Directive 2016/800 – an effective remedy to ensure 
that suspects in the criminal proceedings pending before the referring court 
neutralise the effects of the infringement of their rights under Directive 2016/800 
and, by way of complement, Directives 2013/48 and 2012/13. In connection with 
the reference to Directive 2013/48 contained in Directive 2016/800, the referring 
court emphasises the importance of Article 12(1) and (2) of Directive 2013/48 in 
that regard and refers to the view that that provision has the effect of excluding 
from the trial evidence obtained in breach of the right of access to a lawyer. This 
view is confirmed in the case-law of the ECtHR (judgment in the case of Salduz), 
to which Directive 2013/48 refers in recital 50. In the view of the referring court, 
as regards the right to the assistance of a lawyer and the effects of an infringement 
of that right, Directives 2013/48 and 2016/800 relate not so much to provisions of 
national law as to the current case-law of the ECtHR and therefore indicate the 
need to comply with that case-law in this regard. This is necessary in order to 
establish the minimum standard of protection which adequate remedies must 
provide. 
33 The referring court notes in particular the judgment of the ECtHR in the case of 
Salduz, in which the ECtHR expressly strengthened the right of access to a lawyer 
for a minor at the preliminary stage of criminal prosecution and pointed out that 
the rights of the defence are, in principle, irretrievably prejudiced when 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-603/22 
 
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incriminating statements made during questioning without access to a lawyer are 
used as a basis for a conviction. The referring court also referred inter alia to the 
judgments of the ECtHR in the cases of Ibrahim and of 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. The 
referring court is thus inclined to the view that an interpretation of Article 12 of 
Directive 2013/48 taking account of the case-law of the ECtHR indicates that the 
court should not take into account evidence gathered in breach of the rights of the 
defence, in particular where such evidence was taken in a situation of mandatory 
defence. In its view, this interpretation is confirmed by the provisions of Directive 
2016/343 (recital 44 and Article 10(1) and (2)). 
34 Summing up, having regard to the ECtHR standards to which Directive 2016/800 
refers, as well as Directive 2013/48/EU and Directive 2016/343, it must be found 
that EU law precludes the use as evidence of statements by a suspect made 
without a lawyer being present and that such evidence should be disregarded by a 
judicial authority. 
35 The referring court notes, however, that no provision of national law explicitly 
prevents the use of evidence from a suspect’s statements made by him or her 
without a defence counsel being present in a situation where the Code provides for 
mandatory defence. A court wishing to eliminate evidence from the process of 
reconstructing the facts must assume that, in addition to the prohibitions on the 
use of evidence laid down in procedural law, there is also a non-statutory 
prohibition on the use of evidence derived from a systematic interpretation, that is 
to say, from constitutional values and international conventions. Moreover, 
Article 168a of the Code of Criminal Procedure in essence limits the practical, 
procedural blocking of evidence obtained in breach of statutory requirements. 
36 In Polish case-law too, the prevailing line is that the mere absence of a defence 
counsel during initial questioning in pre-trial proceedings against a suspect does 
not preclude the use at trial of the statements made by the suspect in those 
circumstances. Polish case-law accepts situations where the suspect has declared 
that he or she wishes to exercise his or her right to remain silent and contact a 
lawyer, but responded to the interviewer’s questions, or where, as a person who is 
particularly vulnerable on account of his or her age or mental state, he or she was 
protected by mandatory defence, but was nevertheless questioned without the 
participation of a defence counsel and made self-incriminating statements during 
questioning. In the vast majority of such situations, the suspect is deemed to have 
implicitly waived his or her rights since no one compelled him or her to answer by 
exerting impermissible mental or physical pressure. National case-law also 
indicates that the absence of a defence counsel during initial questioning cannot 
preclude the use of evidence from his or her statements at the trial, unless there are 
circumstances excluding freedom of expression or an objective vulnerability on 
the part of the suspect. In this respect, the referring court notes that the 
M.S. AND OTHERS 
 
17 
interpretation of the concept ‘exclusion of freedom of expression’ in Polish case-
law is strict. 
37 The consequences of the failure to implement Directive 2013/48/EU may be 
mitigated by the direct application of EU law and the consolidation of a line of 
case-law in the practice of the courts which takes that into account, while the 
problem of the inadmissibility of evidence from a suspect’s statements made 
without a defence counsel being present may be clarified either by disregarding 
Article 168a of the Code of Criminal Procedure (as advocated by the referring 
court as the most far-reaching remedy) or by modifying the interpretation of the 
concept ‘exclusion of freedom of expression’, which takes greater account of the 
case-law of the ECtHR. 
38 With regard to Question 13, the referring court emphasises that public authorities 
such as the public prosecutor are under an obligation to comply with EU law and 
thus to recognise the direct effect of the rules of EU directives whose time limit 
for implementation has passed. However, the practice of pre-trial proceedings 
brought against suspects who are children leads to the conclusion that this does 
not happen. The authorities conducting pre-trial proceedings do nothing to 
indicate their recognition of the direct effect of the directive, basing their 
decisions solely on the wording of Polish provisions. Furthermore, the provisions 
of national law allowing one State authority to interfere in the decision-making 
process of another State authority in a matter falling within the scope of directives 
(in particular where they have not been correctly implemented) may severely 
restrict or even render impossible operation of the principle of effectiveness of EU 
law. 
39 In this context, the referring court expresses doubts as to whether an enforcement 
authority such as the Minister for Justice may interfere in the process of direct 
application of EU law at the pre-trial stage and at the trial stage, combining the 
powers of supervision over the courts and those deriving from the exercise of the 
function of Public Prosecutor General. There are a number of factors which give 
the Minister for Justice the ability to exercise influence over both the public 
prosecutor conducting the pre-trial proceedings and then participating in the court 
proceedings, as well as the court hearing the case, and to do so in a way which 
may give rise to doubt as the independence of the prosecutor and that of the 
judges. The Minister for Justice holds the office of Public Prosecutor General and, 
in that capacity, is the superior of the public prosecutors of the public prosecution 
services. He or she has the power to issue orders, guidelines and instructions 
which are to be implemented by the public prosecutors. Other superior prosecutors 
also have this right. This means that superior prosecutors, including the Public 
Prosecutor General who is the Minister for Justice, may at any time decide that in 
a given case the prosecutor should adopt a particular legal classification of an 
offence, request provisional arrest, apply a preventive measure in the form of a 
prohibition on exercising the profession, issue an indictment or discontinue the 
proceedings, or to disregard the direct effect of an unimplemented directive where 
the period for the implementation thereof has expired without effect. 
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40 With regard to Question 14, it should be noted that the Minister for Justice 
performs administrative supervision of courts and judges. Although activities 
relating to administrative supervision cannot concern the sphere in which judges 
are independent, under Article 53c(2) of the Law on the system of the ordinary 
courts the Minister for Justice may request that the files of any case be presented 
to him or her for the purpose of performing tasks related to representation of the 
Republic of Poland before international courts and international organisations, 
and, under Article 130(1) thereof, the Minister for Justice may order the 
immediate suspension of a judge’s activities pending the disciplinary court’s 
decision (taken within a period of less than one month). This instrument has, in 
essence, been used on several occasions (including against a judge who was a 
member of the referring court adjudicating in the present case) to remove from 
cases judges who, in their procedural decisions, relied on the case-law of the 
Court of Justice of the European Union and EU law, that is to say issued decisions 
based directly on EU law. 
41 The referring court in uncertain whether the existence of such an instrument 
infringes the EU principle of the rule of law, the principle of legality, and the 
principle of the independence of courts and judges, and constitutes an 
infringement of the principle of the separation of powers, and thus whether it 
undermines a citizen’s right to have his or her case heard by an independent and 
impartial court on account of the impermissible interference by the executive in 
judicial activities. In the view of the referring court, this mechanism undermines 
the very substance of judges’ administration of justice by interfering with the 
court’s judicial activities, which may be subject to full review in judicial 
proceedings. Against this background, the arrangement set out in Article 130 of 
the Law on the system of the ordinary courts constitutes a specific method for 
challenging a specific ruling or judicial actions taken by a judge – as an alternative 
to judicial review – which essentially acts as a ‘penalty’ for procedural decisions 
having specific content which are regarded unfavourably by the Minister for 
Justice. In this regard, that penalty is initiated by the notification of a specific 
procedural decision by a public prosecutor of the general prosecution unit, who is 
a party to the proceedings before the court. In the view of the referring court, the 
mechanism described in the factual background to the question referred for a 
preliminary ruling can also be utilised in full when a judge applies the principle of 
direct effect of EU law in a specific criminal case such as that of M.S., J.W. and 
M.P.