62023CC0530
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 14 November 2024 (
1
)
Case C‑530/23 [Barało] (
i
)
K.P.
joined party:
Prokurator Rejonowy we Włocławku
(Request for a preliminary ruling from the Sąd Rejonowy we Włocławku (District Court, Włocławek, Poland))
(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Procedural safeguards for vulnerable persons who are suspects or accused persons in criminal proceedings – Right of access to a lawyer – Directive 2013/48/EU – Directive (EU) 2016/1919 – Admissibility of evidence)
I. Introduction
1.
Which specific requirements does EU law impose on national authorities when they are conducting a criminal procedure involving vulnerable persons? That is the common thread behind the 15 questions submitted by the referring court in the present case.
2.
Those questions relate to Directive 2013/48 (
2
) on the right of access to a lawyer and to Directive 2016/1919, (
3
) which enhances the effectiveness of that right by obliging the Member States to ensure legal aid. Article 13 of Directive 2013/48, as well as Article 9 of Directive 2016/1919, impose an obligation on the Member States to take into account the particular needs of vulnerable persons.
3.
As the person concerned in the main proceedings suffers from a mental illness and is thus vulnerable, the referring court seeks to find out what concrete obligations arise for national authorities conducting a criminal procedure in that context.
4.
While the Court has already addressed Directive 2013/48, it has never before interpreted Directive 2016/1919, save for one passing mention (
4
) and a handful of references made by Advocates General. (
5
)
II. Facts, the questions referred and the procedure before the Court
5.
K.P. is a person accused in a criminal procedure, first, for possessing 8.50 grams of cannabis and 33.83 grams of amphetamine, and secondly, for driving under the influence of a substance having a similar effect to alcohol and for having amphetamine in his blood. The accusations came about as follows.
6.
According to the referring court, on 21 July 2022, shortly before midnight, police officers noticed a vehicle that was driving in a strange manner and emitting strange sounds. They approached the vehicle, driven by K.P., and, after speaking to him, drove away.
7.
A few moments later, the same police officers received radio information about a collision between two vehicles, and, thinking that K.P.’s vehicle matched the description of one of those implicated in the collision, they returned to where they had first seen him. K.P. was outside the vehicle, appeared nervous and spoke in a confused manner. The police officers questioned him and asked him to hand over any objects that might be prohibited.
8.
K.P. stated that he had not been driving the vehicle and handed over the plastic bags in his possession containing white powder and a dried green substance. After being handcuffed and arrested (at 00.05 on 22 July 2022), he was taken to hospital where he had a blood test to detect any presence of narcotic drugs.
9.
After the substances were tested and it was established that they were cannabis and amphetamine, K.P. was accused of being in possession of illegal substances at 12.15 on 22 July 2022. He was informed of his right to be assisted by a lawyer of his choice and of the possibility to request legal aid in case his economic situation so warranted. He was further informed of his right to be heard and to remain silent.
10.
K.P. did not waive his right to be assisted by a lawyer, nor did he ask that one be appointed to him. There is no record of the police officer making an attempt during the interrogation to examine whether the suspect was under the influence of narcotics or was able to understand and recall the events that had taken place.
11.
K.P. denied having committed the alleged offence; he remained silent and refused to sign the record or to 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, nor did the investigating authority ask the court to appoint a defence counsel. K.P. was released from detention at 12.31 on 22 July 2022.
12.
Over the course of August and September 2022, the police questioned a psychiatrist about K.P.’s mental health and the public prosecutor obtained his medical records from the psychiatric hospital where he had been hospitalised.
13.
After the results of his blood test were published, on 7 August 2022, K.P. was further accused of driving under the influence of narcotics. This information was communicated to K.P. on 14 October 2022, when he was a patient at the psychiatric hospital, where he was then interrogated.
14.
As was the case during the interrogation on 22 July 2022, this second interrogation was carried out without the presence of a lawyer, the public prosecutor did not request that a court appoint one to K.P., and there was no audiovisual recording of the interrogation. Likewise, K.P. was informed of his right to be assisted by a lawyer, his right to request legal aid in case his economic situation so warranted, his right to be heard, and his right to remain silent. K.P. requested access to his file and the reasons for his accusation, all of which was delivered in writing to his mother on 27 October 2022.
15.
On 15 December 2022, the indictment against K.P. was lodged by the public prosecutor before the Sąd Rejonowy we Włocławku (District Court, Włocławek, Poland). K.P. appointed his own lawyer.
16.
By order of 28 February 2023, the referring court ordered the prosecutor of the District Prosecutor’s Office in Włocławek to supplement the investigation by questioning K.P. in the presence of a defence counsel and by obtaining expert psychiatrists’ opinions as to the state of K.P.’s mental health at the time of the offences and during the proceedings.
17.
On 3 March 2023, the public prosecutor appealed that order, arguing that the evidence did not need to be supplemented and that the medical records already obtained did not provide grounds for K.P. to be examined by experts in order to determine the state of his mental health. On 29 March 2023, the Sąd Okręgowy we Włocławku (Regional Court, Włocławek, Poland) upheld the public prosecutor’s appeal and referred the case back to the referring court.
18.
The referring court considers that Directive 2016/1919 and Directive 2013/48 were not correctly and comprehensively implemented in the Polish legal order, as a result of which the rights granted to K.P. as a vulnerable person under EU law were breached.
19.
In the light of those facts, the Sąd Rejonowy we Włocławku (District Court, Włocławek), the referring court, submitted the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 18, 19, 24 and 27, of [Directive 2016/1919], in conjunction with [Article] 3(2)(a) and (c) and 3(3)(a) of [Directive 2013/48], interpreted in the light of Sections 6, 7, 11 … and 13 of the [Commission Recommendation], 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 [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 18, 19, 24 and 27, of [Directive 2016/1919], in conjunction with Article 1(2) of [that directive], interpreted in the light of Sections 6, 7, 11 …] and 13 of the [Commission Recommendation], 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 [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 18, 19, 24 and 27, of [Directive 2016/1919], in conjunction with Article 1(2) of [that directive], interpreted in the light of Section 3, paragraph 7, of the [Commission Recommendation], be interpreted as meaning 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 2016/1919], interpreted in the light of Section 11 of the [Commission Recommendation], 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 behaviour was not, at the time that offence was committed, lacking 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 2013/48], 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 implementation period – to replace the abovementioned national rule with the directly effective rules of the directive[?]
(6)
Must [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 19, 24 and 27, of [Directive 2016/1919], 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 point 7 of Section 3 … of the [Commission Recommendation], 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 [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 19, 24 and 27, of [Directive 2016/1919], and in conjunction with Article 1(2) of [that directive], interpreted in the light of Sections 6, 7, 11 … and 13 of the [Commission Recommendation], 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[?]
(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 behaviour was not, at the time that offence was committed, lacking or significantly restricted and if there is reasonable doubt as to whether the state of his or her mental health makes … him or her … take part in the proceedings or conduct the defence in an independent and reasonable manner[?]
(9)
Must [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 19, 24 and 27, of [Directive 2016/1919], in conjunction with Article 1(2) of [that directive], interpreted in the light of Sections 6, 7, 11 … and 13 of the [Commission Recommendation] and the principle of the presumption of vulnerability, 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 refrain from questioning the suspect until such time as that legal aid or emergency (provisional) aid is granted to that person[?]
(10)
If the answer to Question 9 is in the affirmative, must [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 19, 24 and 27, of [Directive 2016/1919], in conjunction with Article 1(2) of [that directive], interpreted in the light of Sections 6, 7, 11 … and 13 of the [Commission Recommendation], be interpreted as imposing on Member States an obligation to set out clearly in their national law the reasons and criteria for any exception to 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 to him or her, and any exceptions 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 exception, against which, in principle, the party should have the right to request a judicial review[?]
(11)
Must the second [subparagraph] of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights [of the European Union (“the Charter”)], in conjunction with [Article] 3(2)(a) and (3)(a) and (b) of [Directive 2013/48], in conjunction with Article 1(2) and recital 27 [of Directive 2016/1919], and in conjunction with Article 8 of [Directive 2016/1919], 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]), 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], in conjunction with [Article] 6(1)[, (2) and (3) TEU], in conjunction with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms [(ECHR)], 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 [the Commission Recommendation], be interpreted as meaning that the questioning of 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 EU fundamental rights[?]
(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 2016/1919], in conjunction with Recommendation 7 of the [Commission Recommendation] and the scope of [Directive 2013/48] – 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 [Article] 2(1)(b), [Article] 4(5) and [Article] 9, in conjunction with recitals 19, 24 and 27, of [Directive 2016/1919], in conjunction with [Article] 3(2)(a), (b) and (c) and … (3)(b) of [Directive 2013/48], in conjunction with the second subparagraph of Article 19(1) TEU and the principle of effectiveness of EU 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:
(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 Article 3(3)(c) of [Directive 2013/48];
(c)
without undue delay after deprivation of liberty (that is to say[,] including 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?]
(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[, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau), C‑508/18 and C‑82/19 PPU, EU:C:2019:456]), and the principle of judicial independence established in [the] second subparagraph of Article 19(1) TEU and Article 47 of the [Charter], as interpreted in the case-law of the Court of Justice (see judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:[1]17), 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 such 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)
[Article] 1(2), [Article] 3(1)(1) and (3), [Article] 7(1) to (6) and (8), and [Article] 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 including to the extent that they restrict or impede the direct application of EU law[?]’
20.
Written observations were submitted by the District Prosecutor’s Office of Włocławek (Poland), the Czech and Polish Governments and the European Commission.
21.
No hearing was held.
III. Relevant law
A.
Directive 2013/48
22.
Article 3(1) to (3) of Directive 2013/48 sets out the right of access to a lawyer in criminal proceedings as follows:
‘1.   Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.
2.   Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:
(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;
(d)
where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.
3.   The right of access to a lawyer shall entail the following:
(a)
Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;
(b)
Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;
(c)
Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:
(i)
identity parades;
(ii)
confrontations;
(iii)
reconstructions of the scene of a crime.’
23.
Article 12 of Directive 2013/48, entitled ‘Remedies’, provides as follows:
‘1.   Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this Directive.
2.   Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.’
24.
Finally, Article 13 of Directive 2013/48, entitled ‘Vulnerable persons’, states:
‘Member States shall ensure that the particular needs of vulnerable suspects and vulnerable accused persons are taken into account in the application of this Directive.’
B.
Directive 2016/1919
25.
Directive 2016/1919 regulates the provision of legal aid to suspects, accused persons or requested persons under a European arrest warrant. (
6
) Its Article 2(1) defines its scope as follows:
‘This Directive applies to suspects and accused persons in criminal proceedings who have a right of access to a lawyer pursuant to Directive 2013/48/EU and who are:
(a)
deprived of liberty;
(b)
required to be assisted by a lawyer in accordance with Union or national law; or
(c)
required or permitted to attend an investigative or evidence-gathering act, including as a minimum the following:
(i)
identity parades;
(ii)
confrontations;
(iii)
reconstructions of the scene of a crime.’
26.
Article 3 of Directive 2016/1919 defines legal aid as ‘funding by a Member State of the assistance of a lawyer, enabling the exercise of the right of access to a lawyer’.
27.
Article 4 of Directive 2016/1919 regulates the conditions for granting legal aid in criminal proceedings as follows:
‘1.   Member States shall ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require.
2.   Member States may apply a means test, a merits test, or both to determine whether legal aid is to be granted in accordance with paragraph 1.
3.   Where a Member State applies a means test, it shall take into account all relevant and objective factors, such as the income, capital and family situation of the person concerned, as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether, in accordance with the applicable criteria in that Member State, a suspect or an accused person lacks sufficient resources to pay for the assistance of a lawyer.
4.   Where a Member State applies a merits test, it shall take into account the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake, in order to determine whether the interests of justice require legal aid to be granted. In any event, the merits test shall be deemed to have been met in the following situations:
(a)
where a suspect or an accused person is brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive; and
(b)
during detention.
5.   Member States shall ensure that legal aid is granted without undue delay, and at the latest before questioning by the police, by another law enforcement authority or by a judicial authority, or before the investigative or evidence-gathering acts referred to in point (c) of Article 2(1) are carried out.
6.   Legal aid shall be granted only for the purposes of the criminal proceedings in which the person concerned is suspected or accused of having committed a criminal offence.’
28.
Under Article 8 of Directive 2016/1919, Member States ‘shall ensure that suspects, accused persons and requested persons have an effective remedy under national law in the event of a breach of their rights under this Directive’.
29.
Finally, Article 9 of Directive 2016/1919, entitled ‘Vulnerable persons’, provides that Member States ‘shall ensure that the particular needs of vulnerable suspects, accused persons and requested persons are taken into account in the implementation of this Directive’.
IV. Analysis
30.
The 15 questions posed by the referring court concern various aspects of the criminal procedure when a vulnerable person is involved. I will break down my analysis of these questions into five topics, analysing within each of those not only the substance of the question, but also the objections to inadmissibility raised by some of the participants to the procedure.
31.
The first 14 questions touch upon four topics regulated by Directives 2013/48 and 2016/1919: vulnerability, effective remedies, inhuman or degrading treatment, and direct effect. The fifteenth question relates to the independence of the public prosecutor, a matter outside of the scope of those two directives. After briefly analysing the applicability of the two directives (Section A), I will address each of the five topics in turn (Sections B to F).
A.
Applicability of the two directives at issue
32.
According to Article 2(1) of Directive 2013/48, that directive applies ‘from the time when [suspects or accused persons] are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty’. The Court has already specified that this includes communication in whatever form; thus, how it reached the person concerned is irrelevant. (
7
)
33.
Taking into account the facts as presented in points 7 to 9 above, it is clear that Directive 2013/48 applied to K.P. from the moment when the police officers asked him to hand over any illegal substances, then handcuffed and detained him. (
8
)
34.
Furthermore, Article 2(1) Directive 2016/1919 states that it applies to persons who have the right to be assisted by a lawyer under Directive 2013/48 and who are, inter alia, deprived of their liberty or are required to be assisted by a lawyer under EU or national law.
35.
Whether Directive 2016/1919 applies to K.P. therefore depends on whether he has the right to be assisted by a lawyer under Directive 2013/48.
36.
Under Article 3(2) of Directive 2013/48, suspects or accused persons ‘shall have access to a lawyer without undue delay’. Under Article 3(2)(a), this will be the case in any event at least ‘before they are questioned by the police or by another law enforcement or judicial authority’. Article 4(5) of Directive 2016/1919 states, in parallel, that legal aid is to be granted ‘without undue delay, and at the latest before questioning by the police, by another law enforcement authority or by a judicial authority’.
37.
I therefore conclude that, under Directive 2013/48, K.P. should have been assisted by a lawyer (
9
) and was thus within the scope of Directive 2016/1919. (
10
)
B.
Vulnerability (Questions 1, 2, 3, 7, 9, and 10)
38.
In its first question, the referring court asks whether the vulnerability of a person prohibits the authorities in a criminal procedure to question that person without the participation of a defence counsel and without granting legal aid when the conditions for it are met.
39.
In its second question, the referring court asks whether, in situations where the person concerned is accused of a criminal act punishable by deprivation of liberty, the failure to identify the vulnerability of that person must be expressly stated in a decision, which is the condition for questioning without the presence of a defence counsel.
40.
In its third question, the referring court asks whether Directive 2016/1919 and Directive 2013/48 introduce a presumption of vulnerability that Member State authorities are obliged to respect in the course of the criminal procedure.
41.
In its seventh question, the referring court asks about the obligations that Directive 2013/48 and Directive 2016/1919 impose on national authorities in respect of ensuring that vulnerability is recognised as well as about the rights in the criminal procedure that thereby arise for the person concerned.
42.
In its ninth question, the referring court asks whether the competent authorities in the criminal procedure have an obligation immediately to identify and recognise the vulnerability of a suspect, provide legal aid to them and refrain from questioning them until such aid has been provided.
43.
Finally, in its tenth question, in the case of an affirmative answer to the ninth question, the referring court asks whether the Member States must, in their legislation, provide detailed reasons and criteria for any exception to the immediate identification and recognition of vulnerability and the ensuing provision of legal aid. In addition, it asks whether such an exception must be proportionate, limited in time and respectful of the principle of a fair trial, against which the party concerned must have the right to request judicial review.
44.
A common denominator behind these questions hinges on the concept of vulnerability and the obligations of national authorities to identify it in a timely manner and attach proper consequences accordingly. In what follows, I will therefore provide guidance as to who is a vulnerable person (subsection 1)), followed by the interpretation of the two directives and the obligations they impose on national authorities when the suspect or the accused person is a vulnerable person (subsection 2)).
1. Who is a vulnerable person?
45.
In 2009, the Council called for a step-by-step approach to regulating different procedural rights in the criminal procedure, including special safeguards for suspects or accused persons who are vulnerable. (
11
) However, as of yet, this legislative ambition, when it comes to vulnerable persons, (
12
) has been achieved only in respect of children who are suspects or accused persons in the criminal procedure. (
13
)
46.
In the absence of further EU legislation defining vulnerability in the criminal procedure more broadly, (
14
) the Commission published a recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings. (
15
)
47.
It defines vulnerable persons as those ‘who are not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities’. (
16
)
48.
In addition, the Commission Recommendation introduces the presumption of vulnerability, which suggests the following: ‘Member States should foresee a presumption of vulnerability in particular for persons with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders, hindering them to understand and effectively participate in the proceedings.’ (
17
)
49.
Mental illnesses and mental disorders are generally more difficult to identify than vulnerability resulting from young age, and the literature is critical of the Commission’s decision to proceed with a directive solely for children, while confining the protection of vulnerable adults to a mere recommendation. (
18
)
50.
The Commission Recommendation is a non-binding act that lacks the legal force necessary to impose definitive obligations on national authorities in the criminal procedure.
51.
Although the Court decided in Grimaldi (
19
) that recommendations should be taken into consideration by national courts, that finding does not mean that recommendations are of a legally binding nature. The Court merely considered that recommendations cannot be ignored in the interpretation of other norms of EU law, but it did not suggest that they create any obligation as to the result. Recommendations thus do not impose on national courts an obligation of conform interpretation.
52.
The fact that the Council called on the Member States to ‘take into account’ the Commission Recommendation (
20
) does not change its non-binding nature either. In fact, only one Member State even notified the Commission of the measures necessary to give effect to that recommendation. (
21
)
53.
Therefore, neither the definition of a vulnerable person nor the presumption of vulnerability of persons with certain impairments, illnesses or disorders, as proposed by the Commission Recommendation (see points 47 and 48 of this Opinion) are binding on the Member States.
54.
Absent any more specific provisions in EU law beyond the Commission Recommendation, we are left with the mirror provisions in Article 13 of Directive 2013/48 (
22
) and Article 9 of Directive 2016/1919, (
23
) demanding of the Member States to ensure ‘that the particular needs of vulnerable suspects and vulnerable accused persons are taken into account’. (
24
)
55.
The Court of Justice has, in interpreting Article 13 of Directive 2013/48, found that a person who is of an unsound mind (
25
) should be considered vulnerable. That is so regardless of the fact that the directive in question does not explicitly specify categories of vulnerable persons. (
26
)
56.
The case-law of the European Court of Human Rights (ECtHR) corroborates this approach. It has considered that participation in the criminal procedure is effective if ‘the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed’. (
27
)
57.
In addition, when assessing the overall fairness of the criminal procedure, the ECtHR has compiled a list of relevant factors, the first of which is ‘whether the applicant was particularly vulnerable, for example, by reason of his age or mental capacity’. (
28
)
58.
Finally, the ECtHR has also found that an adult is particularly vulnerable in cases of chronic alcoholism and/or acute alcohol intoxication, a physical disability or medical condition belonging to a socially disadvantaged group, or a mental disorder. (
29
)
59.
Overall, and without the need to provide an exhaustive definition of a vulnerable person for the purposes of the present case, we may establish with certainty that persons with mental disorders, such as K.P., are considered vulnerable suspects or accused persons under EU law.
60.
I will now turn to the obligations that the two directives at issue impose on national authorities in relation to the treatment of vulnerable persons at the pre-trial stage of a criminal procedure and the correlative rights that vulnerable persons enjoy.
2. Obligations for national authorities in the criminal procedure when the suspect or the accused is a vulnerable person
61.
The Commission argues that Article 9 of Directive 2016/1919 should be read as introducing an obligation for the competent authorities to conduct an assessment of vulnerability in the event that they become aware of elements suggesting a certain mental disorder or illness. According to the Commission, a different reading would deprive that provision of its useful effect. That institution extends this reading also to find that legal aid cannot be refused to vulnerable persons without first having conducted an examination of the mental state of the person concerned.
62.
The Polish Government similarly argues that Polish law also provides that the competent authorities should grant legal aid whenever they become aware that the person concerned might be vulnerable. As opposed to the Commission, however, that government does not acknowledge any sort of presumption of vulnerability similar to the Commission Recommendation.
63.
I agree with the Polish Government that, as I have already explained, (
30
) the Commission Recommendation, according to which the Member States should foresee in their legal orders a presumption of vulnerability in certain situations, is not legally binding. In that respect, I also consider that the modalities of determining a person’s vulnerability, at the moment, remain a matter for the Member States.
64.
However, the Commission is right in stating that Article 9 of Directive 2016/1919 – and, for that matter, Article 13 of Directive 2013/48 – would be rendered meaningless without some obligation being placed on national authorities to recognise and properly address the vulnerability of a suspect or an accused person. National courts must interpret national law so as not to render EU law meaningless.
65.
Article 9 of Directive 2016/1919 and Article 13 of Directive 2013/48 must be interpreted to require the competent authorities to be diligent regarding the possibility that a suspect or an accused person is vulnerable because they have difficulties understanding or participating in the procedure. (
31
) This obligation is directly effective. If there is a suspicion of vulnerability, the authorities must take special care in ensuring that the rights granted by Directive 2013/48 and Directive 2016/1919 are protected.
66.
In respect of the right of access to a lawyer, Article 3(2) of Directive 2013/48 tells us that K.P., even if he had not been vulnerable, should have been assisted by a lawyer during police questioning and most certainly without undue delay after the deprivation of liberty. It is all the more important that this right be respected if the person is vulnerable.
67.
I therefore conclude that Article 3(2) of Directive 2013/48, read together with Article 13 thereof, has direct effect and must be interpreted as meaning that the competent authorities, which are aware of the potential vulnerability of a suspect or an accused person, must ensure that the latter be assisted by a lawyer.
68.
When it comes to granting legal aid, an analogous interpretation seems convincing to me. (
32
)
69.
In situations in which Directive 2016/1919 applies, legal aid may be granted on the basis of either a means test, (
33
) a merits test, (
34
) or both. Overall, Article 4(1) of that directive provides that ‘suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require’.
70.
I agree with all of the participants to the present procedure that once the vulnerability of a suspect or accused person is established, their effective participation in the proceedings might be compromised without the provision of legal aid. This is in line with Article 4(5) of Directive 2016/1919, which imposes on the Member States the obligation to ensure that legal aid is granted without undue delay and at least before the first questioning by the police.
71.
This is all the more so in a situation, such as that in the main proceedings, where the prescribed sanction is the deprivation of liberty. (
35
)
72.
I therefore conclude that Article 2(1) of Directive 2016/1919, read together with Article 4(1) and (5) and Article 9 thereof, has direct effect and must be interpreted to mean that the competent authorities which are aware of the potential vulnerability of a suspect or an accused person must grant them legal aid. This is particularly important in situations where the sanction for the alleged crime is the deprivation of liberty.
3. Conclusion on vulnerability
73.
EU law, as it currently stands, does not impose an obligation for the Member States to introduce a presumption of vulnerability. It is for national law to prescribe the exact modalities and procedures in order to determine the vulnerability of a person.
74.
Article 9 of Directive 2016/1919 and Article 13 of Directive 2013/48 must be interpreted to require the competent authorities to be diligent regarding the possibility that a suspect or accused person might be vulnerable because they have difficulties understanding or participating in the procedure. This obligation is directly effective. If there is a suspicion of vulnerability, the authorities must take special care in ensuring that the rights granted by Directive 2013/48 and Directive 2016/1919 are protected.
75.
Article 3(2) Directive 2013/48, read together with Article 13 thereof, has direct effect and must be interpreted as meaning that the competent authorities, which are aware of the potential vulnerability of a suspect or an accused person, must ensure that the latter be assisted by a lawyer.
76.
Article 2(1) of Directive 2016/1919, read together with Article 4(1) and (5) and Article 9 thereof, has direct effect and must be interpreted to mean that the competent authorities, which are aware of the potential vulnerability of a suspect or an accused person, must grant them legal aid. This is particularly important in situations where the sanction for the alleged crime is the deprivation of liberty.
C.
Remedies (Questions 2 and 10)
77.
In Questions 2 and 10, the referring court asks whether there is an obligation for the Member States to ensure that both a decision to proceed with the questioning of a vulnerable person without a lawyer and a decision not to immediately identify and recognise a vulnerable person be open to judicial review.
78.
Article 12 of Directive 2013/48 and Article 8 of Directive 2016/1919 both provide the obligation for the Member States to ensure effective remedies for suspects or accused persons in the event of a breach of their rights under each directive.
79.
The right to an effective remedy includes the right of access to a court with the power to assess and redress the breach of the right based on EU law. The Court confirmed that as long ago as its judgment in Johnston, (
36
) and the same requirement follows today from Article 47 of the Charter.
80.
However, the directives at issue do not specify the consequence that follows if a judge finds a breach of the right to access a lawyer or to legal aid. Instead, they leave that choice to the Member States, requesting only that the chosen remedy be effective.
81.
More specifically, the directives are silent on the question as to whether the evidence gathered in breach of such a right must be dismissed. That seems to me to be the crux of the referring court’s question whether certain actions of the authorities undertaken during the investigation procedure are subject to judicial review.
82.
The participants in their written observations to the Court, in particular the District Prosecutor’s Office, place great emphasis on the fact that the two abovementioned provisions do not contain a rule that the national court should find that the evidence collected in breach of the directives is inadmissible, a matter which is not regulated by EU law at all.
83.
Taking the same view as I did in the case M.S. and Others, (
37
) I agree with the argument of the District Prosecutor’s Office: the relevant EU legislation does not currently regulate the admissibility of evidence in national criminal procedures. The issue of the admissibility of evidence is, for the time being, a matter of national law. (
38
)
84.
However, where EU law applies, relevant national provisions must not infringe Articles 47 and 48 of the Charter. (
39
)
85.
In my view, respect for fundamental rights, as enshrined in Articles 47 and 48 of the Charter, requires that national judges have the flexibility necessary to assess the overall fairness of the procedure. Should they consider that a piece of evidence must be excluded because it was collected in breach of the rights of the defence, they should be free to exclude it. In other words, EU law does not regulate the admissibility of evidence, but it does prevent national law from limiting the powers of the trial judges freely to evaluate evidence and draw from such an assessment any consequence they deem necessary. (
40
)
86.
A similar approach is also taken by the European Court of Human Rights, which considered that the ECHR does not regulate the admissibility of evidence, (
41
) as it is confined to an assessment whether the overall fairness of the procedure has been prejudiced. (
42
)
87.
In conclusion, the principle of effective judicial protection requires that any breach of a right under EU law be subject to judicial review. Article 12 of Directive 2013/48 and Article 8 of Directive 2016/1919 do not, however, specify the appropriate remedies, but instead leave that choice to the Member States, requesting only that the chosen remedy be effective. However, respect for fundamental rights, as enshrined in Articles 47 and 48 of the Charter, requires that national judges have the flexibility necessary to assess the overall fairness of the procedure. Should they consider that a piece of evidence must be excluded because it was collected in breach of procedural rights that amounts to a breach of the rights of the defence, they should be free to exclude it.
D.
Inhuman or degrading treatment (Question 12)
88.
In its twelfth question, the referring court asks whether the questioning of a suspect by a police officer or another authorised person in a psychiatric hospital, without regard to the state of uncertainty, under conditions of particularly limited freedom to state views, with a specific mental vulnerability and in the absence of a lawyer, constitutes inhuman or degrading treatment under Article 4 of the Charter.
89.
In accordance with Article 94 of the Rules of Procedure of the Court of Justice, it is for the referring court to define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. (
43
)
90.
The referring court explained in the order for reference that when the police questioned K.P. on 14 October 2022, he was in a psychiatric hospital. There are, however, no further details concerning that interrogation that would allow the Court to provide guidance as to the possible breach of the prohibition of inhuman or degrading treatment.
91.
For that reason, due to the lack of sufficient information, I consider that the Court should declare the twelfth question inadmissible.
92.
Nevertheless, for the sake of completeness, the Court could provide the national court with the relevant parameters, which it may then use when establishing the facts and deciding on a possible breach of the prohibition of inhuman or degrading treatment.
93.
The Court decided, in Jawo, (
44
) that Article 4 of the Charter and Article 3 ECHR have the same scope and meaning. It is therefore useful to refer to the case-law of the European Court of Human Rights. (
45
)
94.
In determining the existence of inhuman or degrading treatment of a vulnerable person in a criminal procedure, the European Court of Human Rights decided, in Khlaifia and Others v. Italy, that the assessment of whether treatment is inhuman or degrading is ‘relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim’. (
46
)
95.
The European Court of Human Rights provided examples of what it might take into account when determining the severity of the treatment on a case-by-case basis. Such examples included the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it; the context in which that ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions; whether the victim was in a vulnerable situation, which is normally the case for persons deprived of their liberty. (
47
)
96.
What may be concluded with certainty is that the sole fact that K.P. was questioned without a lawyer while in a psychiatric hospital does not as such constitute inhuman or degrading treatment, when assessed against the abovementioned case-law of the European Court of Human Rights.
97.
However, the assessment of the facts, and any finding of a possible infringement of Article 4 of the Charter, is for the national court to carry out.
E.
Direct effect (Questions 4, 5, 6, 8, 11, 13 and 14)
98.
In Questions 4, 5, 6, 8, 11, 13 and 14, the referring court asks about the consequences that must be drawn from the direct effect of the relevant provisions of the directives at issue.
99.
The District Prosecutor’s Office, the Polish Government and the Commission argue that Question 14, relating to the obligations of the public prosecutor during the pre-trial stage of the criminal procedure, is irrelevant to the resolution of the case before the referring court and is thus inadmissible.
100.
I do not agree. It is of relevance for the referring court whether the actions of the public prosecutor in the pre-trial stage complied with EU law in order properly to assess, and possibly exclude, the evidence before it. I am therefore of the view that Question 14 is admissible.
101.
It should be added that the District Prosecutor’s Office argues in its written observations that there is nothing problematic with the national provisions at issue from the perspective of EU law, but, rather, that those involved in the procedure have committed errors and omissions in respect of K.P.
102.
As this is ultimately a matter for the referring court to establish, I will now merely summarise the consequences that follow from a situation where the relevant EU law, as interpreted by the Court of Justice, differs from national law as understood by the referring court.
103.
The Court has on many occasions already explained in its case-law the consequences of direct effect. In the same manner as I did in the case M.S. and Others, (
48
) I will thus limit myself to repeating only the most important consequences that concern the present case.
104.
The Court, by virtue of Article 19(1) TEU and Article 267, first paragraph, TFEU, has jurisdiction to interpret only EU law, whereas national courts have the exclusive power to interpret national law. (
49
)
105.
According to that strict division of labour between the Court of Justice and national courts, the former does not have the power to rule on the compatibility of national law with EU law. (
50
) It is for the referring court, once it has received the response from the Court, to draw the necessary consequences for the applicable national law. (
51
)
106.
The consequences of a national court’s possible finding of an incompatibility between national law and EU law are as follows.
107.
If a national court can interpret the existing provisions of national law in conformity with EU law as interpreted by the Court, it should do so. (
52
) Such conform interpretation of national law and its application should lead the referring court to the same result as the one dictated by the applicable EU law. In the case at hand, that means that there must exist a right for a vulnerable person that competent authorities determine their vulnerability and that they be questioned in the presence of a lawyer or, if they do not have one, that they are provided with legal aid.
108.
If a national court cannot interpret national law in conformity with EU law, the principle of direct effect comes into play. According to that principle, individuals may claim their rights under EU law by directly relying on the provisions of EU law before the national courts and the national courts are therefore obliged to recognise those rights by directly applying the relevant provision of EU law. (
53
)
109.
If those rights clash with what is provided for under national law, then EU law empowers national courts to set aside such contrary provisions of national law. That empowerment results from the combined effect of EU constitutional principles of direct effect and the primacy of EU law. (
54
)
110.
In short, the referring court should try to do away with any possible obstacle to the recognition of rights under EU law by interpreting the relevant provisions of national law in a conform manner. If conform interpretation proves impossible, the referring court must set aside the conflicting national rules and afford protection to those rights under EU law.
111.
Finally, it is not only national courts which are to give full effect to provisions of EU law, but also national administrative authorities (
55
) and all other State organs. (
56
) Thus, conform interpretation, direct effect and the primacy of EU law bind all State bodies, which are also required to recognise rights under EU law.
112.
That means that, during the pre-trial stage of a criminal procedure, the public prosecutor and the police must recognise the rights of vulnerable persons and their own correlative obligations directly based on the relevant directives. They must interpret national law in conformity with the results as required by those directives. Alternatively, they are under an obligation to set aside the rules of national law in order to enable the protection of vulnerable persons, as also required by those directives. That includes any rule of national law which would prevent a public prosecutor handling the case from giving full effect to the application of EU law, such as binding instructions from a superior public prosecutor, or any other body.
113.
If the public prosecutor, or another body handling the criminal procedure, fails to give full effect to EU law (either by not interpreting national rules so that they conform to EU law, or by applying national rules contrary to EU law), the court before which the criminal trial is pending must find that those State bodies have breached their obligations under EU law.
F.
Independence of the public prosecutor
114.
In its fifteenth question, the referring court asks whether Article 2 TEU, Article 19(1) TEU, the rule of law, the principle of judicial independence and Article 47 of the Charter require that a public prosecutor be independent.
115.
The District Prosecutor’s Office, the Polish Government, and the Commission all raise doubts as to the admissibility of that question.
116.
It is well established in the case-law of the Court that questions from a national court, ‘in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance’. (
57
) Nevertheless, if the Court considers that the answer to the questions referred is not necessary to enable the referring court to give judgment in the case before it, it will decline its jurisdiction. (
58
)
117.
It does not seem to me that a question concerning the general organisation of public prosecution in Poland is of direct relevance to the criminal procedure pending before the referring court. Regardless of the public prosecutor’s independence from the executive, they are under an obligation to ensure the rights of vulnerable persons in a criminal procedure, which they enjoy based on EU law. (
59
)
118.
I therefore propose that the Court declare the fifteenth question inadmissible.
V. Conclusion
119.
In light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Rejonowy we Włocławku (District Court, Włocławek, Poland) as follows:
(1)
In response to the first, second, third, seventh, ninth, and tenth questions of the referring court, EU law, as it currently stands, does not impose an obligation for the Member States to introduce a presumption of vulnerability. It is for national law to prescribe the exact modalities and procedures for determining the vulnerability of a person.
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 and Article 13 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 must be interpreted to require the competent authorities to be diligent of the possibility that a suspect or accused person is vulnerable because they have difficulties understanding or participating in the procedure. This obligation is directly effective. If there is a suspicion of vulnerability, the authorities must take special care in ensuring that the rights granted by Directive 2013/48 and Directive 2016/1919 are protected.
Article 3(2) of Directive 2013/48, read together with Article 13 thereof, has direct effect and must be interpreted as meaning that the competent authorities, who are aware of the possibility of a suspect’s or an accused person’s vulnerability, must ensure that the latter be assisted by a lawyer.
Article 2(1) of Directive 2016/1919, read together with Article 4(1) and (5) and Article 9 thereof, has direct effect and must be interpreted to mean that the competent authorities, who are aware of the possibility of a suspect’s or an accused person’s vulnerability, must grant that person legal aid. This is particularly important in situations where the sanction for the alleged crime is the deprivation of liberty.
(2)
In response to the second and tenth questions of the referring court, the principle of effective judicial protection requires that any breach of a right under EU law be subject to judicial review. Article 12 of Directive 2013/48 and Article 8 of Directive 2016/1919 do not, however, specify the appropriate remedies, but instead leave that choice to the Member States, requesting only that the chosen remedy be effective. However, respect for the fundamental rights enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union requires that national judges have the flexibility necessary to assess the overall fairness of the procedure. Should they consider that a piece of evidence must be excluded because it was collected in breach of procedural rights that amounts to a breach of the rights of the defence, they should be free to exclude it.
(3)
Due to the lack of sufficient information, the twelfth question is inadmissible.
(4)
In response to the fourth, fifth, sixth, eighth, eleventh, thirteenth, and fourteenth question, the referring court should do away with any possible obstacle for recognising the directly effective rights bestowed by Directive 2013/48 and Directive 2016/1919 by interpreting national law in conformity with them. If that is not possible, the referring court should set aside the conflicting rules of national law based on direct effect and the primacy of EU law. Conform interpretation, direct effect and the primacy of EU law bind all State bodies that are also required to recognise rights under EU law. That means that, in the pre-trial stage of the criminal procedure, the public prosecutor and the police are bound to recognise the rights of vulnerable persons and their own correlative obligations directly based on the relevant directives. If they fail to do so, the court before which the criminal trial is pending must find that those State bodies have breached their obligations under EU law.
(5)
Due to the lack of direct relevance to the main proceedings before the referring court, the fifteenth question is inadmissible.
(
1
)	Original language: English.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
(
2
)	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’).
(
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’).
(
4
)	Judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraphs 44, 49 and 53).
(
5
)	Opinions of Advocate General Bobek in Moro (C‑646/17, EU:C:2019:95, footnote 15); of Advocate General Pikamäe in Spetsializirana prokuratura (Letter of rights) (C‑649/19, EU:C:2020:758, points 53 and 81); of Advocate General Pikamäe in K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:52, footnote 58); of Advocate General Ćapeta in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, footnotes 14 and 34); and of Advocate General Pikamäe in 1Dream, 1Dream and Others and Lireva Investments and FORTRESS FINANCE (C‑767/22, C‑49/23 and C‑161/23, EU:C:2024:608, point 55).
(
6
)	According to Article 1(2) of Directive 2016/1919: ‘This Directive complements Directives 2013/48/EU and (EU) 2016/800. Nothing in this Directive shall be interpreted as limiting the rights provided for in those Directives.’
(
7
)	Judgment of 7 September 2023, Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit (Personal search) (C‑209/22, EU:C:2023:634, paragraph 37). Regarding how that broad interpretation and the case-law of the European Court of Human Rights are aligned, see Opinion of Advocate General Bobek in VW (Right of access to a lawyer in the event of non-appearance) (C‑659/18, EU:C:2019:940, point 35 and the case-law cited).
(
8
)	Similarly, a person is considered a suspect and thus within the scope of the said directive in a situation where police officers conduct a ‘personal search of the person concerned and seize what he or she has stated to be in possession, those acts, first, establish that that person is now suspected by a competent authority and, secondly, inform, implicitly but necessarily, that person of that suspicion’. See judgment of 7 September 2023, Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit (Personal search) (C‑209/22, EU:C:2023:634, paragraph 43).
(
9
)	There is no information in the case file that would suggest that K.P. waived his right to be assisted by a lawyer. Had he done so, however, the authorities would have the additional responsibility to provide K.P. with ‘clear and sufficient information, in simple and understandable language, having regard to his condition as a vulnerable person, on the content of [the right to be assisted by a lawyer] and on the possible consequences of waiving it’. Judgment of 14 May 2024, Stachev, (C‑15/24 PPU, EU:C:2024:399, paragraph 64).
(
10
)	Whether he was in fact eligible to receive legal aid under the conditions of Directive 2016/1919 is a different matter, which I will address below in Section IV.B.2. below.
(
11
)	Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C 295, p. 1).
(
12
)	The Commission acknowledged that there is no consensus among the Member States on the concept of vulnerability in its Staff working document entitled Impact Assessment – Accompanying the document – Proposal for a directive of the European Parliament and of the Council – Proposal for a on procedural safeguards for children suspected or accused in criminal proceedings of 27 November 2013 (SWD(2013) 480 final, pp. 12 to 28).
(
13
)	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 (OJ 2016 L 132, p. 1), recitals 4 to 6.
(
14
)	Mergaerts, L., ‘Defence lawyers’ views on and identification of suspect vulnerability in criminal proceedings’, International Journal of the Legal Profession, Vol. 29(3), 2022, pp. 281 and 283.
(
15
)	Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (OJ 2013 C 378, p. 8) (‘the Commission Recommendation’). For a critique of that recommendation as general and vague, see Meysman, M., ‘Quo vadis with vulnerable defendants in the EU?’, European Criminal Law Review, Vol. 4(2), 2014, pp. 179 and 188.
(
16
)	Commission Recommendation, recital 1. For a critique that this definition is too narrow, see Waddington, L., ‘Exploring vulnerability in EU law: An analysis of “vulnerability” in EU criminal law and consumer protection law’, European Law Review, Vol. 45(6), 2020, pp. 779 and 791.
(
17
)	Commission Recommendation, paragraph 7. The Commission identified persons with mental conditions (for example, suffering from a psychiatric condition such as schizophrenia) as vulnerable in 2003. See Commission Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union (COM(2003) 75 final).
(
18
)	On this critique and more broadly on the Commission’s reluctance to push for a legally binding act for vulnerable adults and the resulting problems, see Meysman, M., footnote 15, op. cit., pp. 191 to 193. On the history leading to the Commission’s ultimate choice of a recommendation, see van der Aa, S., ‘Variable vulnerabilities? Comparing the rights of adult vulnerable suspects and vulnerable victims under EU law’, New Journal of European Criminal Law, Vol. 7(1), 2016, pp. 39 and 43 to 47.
(
19
)	National courts ‘are bound to take recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions’. Judgment of 13 December 1989, Grimaldi (C‑322/88, EU:C:1989:646, paragraph 18).
(
20
)	Council Conclusions on the Protection of Vulnerable Adults across the European Union (OJ 2021 C 330I, p. 1) (‘the Council Conclusions’), pp. 5 and 6. In the same document, the Council also invited the Commission to ‘examine whether there is a need to strengthen, in a comprehensive manner, the procedural safeguards for vulnerable adults who are suspects or accused persons in criminal proceedings’.
(
21
)	Ibid., point 10.
(
22
)	Recital 51 of Directive 2013/48 further states: ‘The duty of care towards suspects or accused persons who are in a potentially weak position underpins a fair administration of justice. The prosecution, law enforcement and judicial authorities should therefore facilitate the effective exercise by such persons of the rights provided for in this Directive, for example by taking into account any potential vulnerability that affects their ability to exercise the right of access to a lawyer and to have a third party informed upon deprivation of liberty, and by taking appropriate steps to ensure those rights are guaranteed.’
(
23
)	Recital 18 of Directive 2016/1919 further states: ‘Member States should lay down practical arrangements regarding the provision of legal aid. Such arrangements could determine that legal aid is granted following a request by a suspect, an accused person or a requested person. Given in particular the needs of vulnerable persons, such a request should not, however, be a substantive condition for granting legal aid.’
(
24
)	A similar provision exists in respect of the right to information; see Article 3(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 (OJ 2012 L 142, p. 1).
(
25
)	‘Persons of unsound mind must therefore be considered vulnerable persons for the purposes of that provision since, because of a serious mental disorder, they may not be capable of understanding the information provided to them about their rights.’ Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 47). The Court made the same conclusion in respect of an illiterate person in the judgment of 14 May 2024, Stachev (C‑15/24 PPU, EU:C:2024:399, paragraph 60).
(
26
)	Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 48).
(
27
)	ECtHR, 10 November 2004, S.C. v. The United Kingdom (CE:ECHR:2004:0615JUD006095800, § 29). See also ECtHR, 23 March 2016, Blokhin v. Russia (CE:ECHR:2016:0323JUD004715206, § 195).
(
28
)	ECtHR, 13 September 2016, Ibrahim and Others v. The United Kingdom (CE:ECHR:2016:0913JUD005054108, § 274).
(
29
)	ECtHR, 31 March 2009, Płonka v. Poland (CE:ECHR:2009:0331JUD002031002); 27 January 2011, Bortnik v. Ukraine (CE:ECHR:2011:0127JUD003958204); 16 March 2010, Oršuš and Others v. Croatia (CE:ECHR:2010:0316JUD001576603); 23 March 2016, Blohkin v. Russia (CE:ECHR:2016:0323JUD004715206); and 16 December 2010, Borotyuk v. Ukraine (CE:ECHR:2010:1216JUD003357904). For an overview, see Mergaerts, L. and Dehaghani, R., ‘Protecting vulnerable suspects in police investigations in Europe: Lessons learned from England and Wales and Belgium’, New Journal of European Criminal Law, Vol. 11(3), 2020, p. 313.
(
30
)	See points 46 to 53 above.
(
31
)	The referring court explained that police officers noted that K.P. was behaving and speaking incoherently. That is most certainly a circumstance that could have led them to consider the possibility that K.P. was suffering from a certain vulnerability.
(
32
)	Recital 23 of Directive 2016/1919 provides that the Member States should ensure compliance with the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. Principle 10 of those principles and guidelines provides that the competent authorities should take special measures to ensure that persons with inter alia a mental illness have meaningful access to legal aid. Available here: https://www.unodc.org/documents/justice-and-prison-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf
(
33
)	According to Article 4(3) of Directive 2016/1919, in conducting a means test, Member States ‘shall take into account all relevant and objective factors, such as the income, capital and family situation of the person concerned, as well as the costs of the assistance of a lawyer and the standard of living in that Member State, in order to determine whether, in accordance with the applicable criteria in that Member State, a suspect or an accused person lacks sufficient resources to pay for the assistance of a lawyer’.
(
34
)	Under Article 4(4) of Directive 2016/1919, in applying a merits test, Member States ‘shall take into account the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake, in order to determine whether the interests of justice require legal aid to be granted. In any event, the merits test shall be deemed to have been met in the following situations: (a) where a suspect or an accused person is brought before a competent court or judge in order to decide on detention at any stage of the proceedings within the scope of this Directive; and (b) during detention.’
(
35
)	For example, Article 4(4) of Directive 2016/1919 lists ‘the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake’ as the factors that the Member States may take into account when deciding on the merits test for granting legal aid.
(
36
)	Judgment of 15 May 1986, Johnston (222/84, EU:C:1986:206, paragraph 58).
(
37
)	Opinion of Advocate General Ćapeta in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, points 118 to 127).
(
38
)	This was confirmed by the Court in respect of Directive 2016/800 in judgment of 5 September 2024, M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:685, paragraphs 169 to 174). The exception to this may be found in the Court’s interpretation of Article 14(7) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1). See judgment of 30 April 2024, M.N. (EncroChat) (C‑670/22, EU:C:2024:372, paragraphs 126 to 131).
(
39
)	Judgment of 7 September 2023, Rayonna prokuratura Lovech, teritorialno otdelenie Lukovit (Personal search) (C‑209/22, EU:C:2023:634, paragraphs 58 to 61).
(
40
)	For the same finding in respect of Directive 2016/800, where the vulnerable persons are children, see judgment of 5 September 2024, M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:685, paragraphs 167, 168 and 174).
(
41
)	ECtHR, 12 July 1988, Schenk v. Switzerland (CE:ECHR:1988:0712JUD001086284, §§ 45 and 46); 1 March 2007, Heglas v. the Czech Republic (CE:ECHR:2007:0301JUD000593502, § 84); and 11 July 2017, Moreira Ferreira v. Portugal
(No. 2) (CE:ECHR:2017:0711JUD001986712, § 83).
(
42
)	ECtHR, 17 January 2017, Habran and Dalem v. Belgium (CE:ECHR:2017:0117JUD004300011, § 94).
(
43
)	Judgment of 21 March 2024, Remia Com Impex (C‑10/23, EU:C:2024:259, paragraph 29).
(
44
)	Judgment of 19 March 2019, Jawo (C‑163/17, EU:C:2019:218, paragraph 91).
(
45
)	As the Court has done on numerous occasions, for example, in the judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 165).
(
46
)	ECtHR, 15 December 2016, Khlaifia and Others v. Italy (CE:ECHR:2016:1215JUD001648312, § 159).
(
47
)	The European Court of Human Rights added to this that ‘under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured’, ibid., paragraph 160.
(
48
)	My Opinion in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, points 128 to 135).
(
49
)	Judgments of 17 June 1999, Piaggio (C‑295/97, EU:C:1999:313, paragraph 29), and of 15 January 2013, Križan and Others (C‑416/10, EU:C:2013:8, paragraph 58).
(
50
)	Judgment of 21 January 1993, Deutsche Shell (C‑188/91, EU:C:1993:24, paragraph 27).
(
51
)	See, to that effect, judgment of 17 June 1999, Piaggio (C‑295/97, EU:C:1999:313, paragraph 32).
(
52
)	Judgments of 13 November 1990, Marleasing (C‑106/89, EU:C:1990:395, paragraph 8), and of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraphs 23 to 27).
(
53
)	Judgments of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1, p. 13); of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 37); and of 5 September 2024, M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:685, paragraph 118).
(
54
)	See, for example, judgments of 18 January 2022, Thelen Technopark Berlin (C‑261/20, EU:C:2022:33, paragraphs 25 and 26), and of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraphs 53 and 54).
(
55
)	Judgment of 22 June 1989, Costanzo (103/88, EU:C:1989:256, paragraph 31).
(
56
)	Judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána (C‑378/17, EU:C:2018:979, paragraph 38).
(
57
)	Judgment of 8 December 2022, Inspektor v Inspektorata kam Visshia sadeben savet (Purposes of the processing of personal data – Criminal investigation) (C‑180/21, EU:C:2022:967, paragraph 66).
(
58
)	Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 43 and 45).
(
59
)	Question 15 almost verbatim corresponds to question 14(b) posed in the case in M.S and Others. As I stated in my Opinion in that case, that question was inadmissible because it was, as it is in the present case, removed from the context of that case, and thus hypothetical. See my Opinion in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, points 54 to 59).