Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 26 January 2023 ( )

Case C‑660/21

Procureur de la République

Criminal proceedings

against

K.B.,

F.S.

(Request for a preliminary ruling from the tribunal correctionnel de Villefranche-sur-Saône (Criminal Court, Villefranche-sur-Saône (France))

(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in criminal matters – Article 82(2) TFEU – Principles of trust and mutual recognition – Right to information in criminal proceedings – Right to information about the right to remain silent – Directive 2012/13/EU – Articles 3 and 4 – Rights of the defence – Effective judicial protection – National case-law prohibiting the criminal court from raising of its own motion a breach of the procedural rights derived from EU law – Procedural autonomy of the Member States – Principles of equivalence and effectiveness)





1. ‘United in diversity’: that is the motto of the European Union; ( ) those words also describe the challenge which the European Union faces in its construction, owing to the difficulty in striking a balance between those two poles. That applies in the area of judicial cooperation in criminal matters, which traditionally refers to national sovereignty, and more particularly in that of criminal procedure, which is rightly regarded as ‘one of the areas of criminal law that are most entrenched in the legal traditions or the legal culture of the States, indeed in their cultural traditions or their culture full stop’. ( )

2. The present case concerns, specifically, the delicate subject of the task of the criminal court at the trial stage, and the question for the Court is as follows: is a court required to raise a procedural defect consisting in a breach of the right of the accused person to be informed of his or her right to remain silent?

Legal framework

European Union law

3. Of relevance to the present case are Article 82(2) TFEU, Articles 3 and 4 and Article 8(2) of Directive 2012/13/EU, ( ) and Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

French law

4. Article 63-1 of the code de procédure pénale (the French Code of Criminal Procedure; ‘the CCP’) provides:

‘A person who is placed in custody shall be immediately informed by a senior police officer or, under the latter’s supervision, by a police officer, in a language which the person concerned understands, where appropriate by means of the form provided for in the 13th paragraph:

1° That he or she is being placed in custody, the duration of the detention in custody and of any extension or extensions to which it may be subject;

2° Of the nature and the alleged date and place of the offence which he or she is suspected of having committed or attempted to commit and also of the grounds set out in paragraphs 1 to 6 of Article 62-2 that justify his or her being placed in custody;

3° That he or she has:

- the right to have a relative and his or her employer and also, if he or she is of foreign nationality, the consular authorities of the State of which he or she is a national notified and, where appropriate, to communicate with those persons, in accordance with Article 63-2;

- the right to be examined by a doctor, in accordance with Article 63-3;

- the right to be assisted by a lawyer, in accordance with Articles 63-3-1 to 63-4-3;

- where necessary, the right to be assisted by an interpreter;

- the right to consult, as soon as possible and no later than any extension of the custody, the documents referred to in Article 63-4-1;

- the right to submit observations to the Public Prosecutor or, where appropriate, to the juge des libertés et de la détention [(Judge deciding on provisional detention)], where the latter rules on any extension of the custody, with a view to having the measure terminated. If the person concerned is not brought before the judge, he or she may submit observations orally in the form of a deposition, which shall be communicated to the judge before the judge decides whether to extend the measure;

- the right, at the hearings, after having stated his or her identity, to make statements, to answer the questions put to him or her or to remain silent.

If the person is deaf and can neither read nor write, he or she must be assisted by a sign language interpreter or by any qualified person with a command of a language or a method that allows communication with him or her. Any technical device that makes it possible to communicate with a deaf person may be employed.

If the person does not understand French, his or her rights must be notified by an interpreter, where appropriate after he or she has been provided with a form for his or her immediate information.

A note of the information provided pursuant to this article shall be placed on the custody record and initialled by the person placed in custody. In the event of a refusal to initial the record, a note to that effect shall be placed on the record.

Pursuant to Article 803-6, a document setting out those rights shall be handed to the person when he or she is notified that he or she is being placed in custody.’

5. The first paragraph of Article 385 of the CCP provides:

‘The criminal court shall have jurisdiction to rule on any invalidity in the proceedings before it except where those proceedings are brought by the investigating judge or the investigating chamber.’

6. According to Article 802 of that code:

‘In the event of a breach of the formalities prescribed by law under pain of invalidity or of failure to observe essential procedural requirements, any court, including the Cour de cassation [(Court of Cassation)], before which an application for annulment is submitted or which raises such an irregularity of its own motion, may rule on that invalidity only where it has the effect of harming the interests of the party which it concerns.’

The facts giving rise to the dispute, the main proceedings and the question referred for a preliminary ruling

7. On the evening of 22 March 2021, police officers noted the suspicious presence on a company’s vehicle parking area of two individuals who were attempting to keep out of the police officers’ sight. The officers observed that the fuel tank of a heavy goods vehicle parked there was open and that there were some jerry cans nearby. At 10.25 p.m., in the course of an on-the-spot investigation for theft of fuel, they questioned the two suspects, K.B. and F.S., who were handcuffed to prevent any attempt to abscond.

8. After questioning K.B. and F.S., the police officers advised a senior police officer, who asked that the two persons questioned be immediately produced in order to be placed in custody.

9. The police officers then called on another senior police officer, who attended the scene at 10.40 p.m. and searched the vehicle of K.B. and F.S. That senior officer also asked them certain questions, which they answered. A search of their vehicle revealed incriminating evidence, such as stoppers, a funnel and an electric pump.

10. At 10.50 p.m., the Public Prosecutor’s Office was advised that F.S. and K.B. were being placed in custody; they were notified of their rights at 11.00 p.m. and 11.06 p.m., respectively.

11. The referring court, which is trying K.B. and F.S. for offences of theft of fuel in collusion, notes that certain investigative acts were carried out, and certain self-incriminating statements taken, before K.B. and F.S. were notified of their rights, as provided for in Articles 3 and 4 of Directive 2012/13. Because of the delay in placing the suspects in custody, advising the Public Prosecutor’s Office and notifying the suspects of their rights, in particular the right to remain silent, the vehicle search, their detention in custody and all the consequential acts should, in principle, be annulled.

12. The referring court states in that respect that, according to the case-law of the Cour de cassation (Court of Cassation, France), save in insurmountable circumstances, any delay in notifying the persons questioned of their rights or in informing the Public Prosecutor’s Office constitutes a ground of invalidity of the measure placing those persons in custody.

13. However, the Cour de cassation (Court of Cassation) has also decided that the trial courts do not have the right to raise of their own motion a plea of invalidity of the procedure, apart from lack of jurisdiction, on the ground that it is open to the accused person, who has the right to be assisted by a lawyer when he or she appears or is represented before a trial court, to raise such an invalidity, or to do so on appeal if he or she did not appear or was not represented at first instance. ( )

14. At the trial of K.B. and F.S., their respective counsel did not raise a plea of procedural invalidity.

15. According to the referring court, it follows from that case-law of the Cour de cassation (Court of Cassation) that it is not the criminal court that ensures the primacy and the effectiveness of EU law for the litigant, but his or her lawyer. For that reason, in cases involving petty crime and/or for individuals who are not assisted by a lawyer, the court cannot ensure the effectiveness of EU law by finding, if necessary of its own motion, that EU law has been infringed.

16. In that regard, the referring court refers to the Court’s case-law according to which, in the absence of EU rules governing the matter, as in the present case, it is for the domestic legal system of each Member State to prescribe the detailed procedural rules governing actions intended to protect the rights of individuals, pursuant to the principle of procedural autonomy, provided, however, that they are not less favourable than those governing similar situations subject to domestic law (principle of equivalence) and do not make the exercise of the rights conferred by EU law impossible in practice or excessively difficult (principle of effectiveness). In the judgment of 14 December 1995, Peterbroeck, ( ) the Court ruled that EU law precludes application of a domestic procedural rule whose effect is to prevent the national court, seised of a matter falling within its jurisdiction, from considering of its own motion whether a measure of domestic law is compatible with a provision of EU law when the latter provision has not been invoked by the litigant within a certain period.

17. In addition, the referring court refers to the Court’s case-law in the area of consumer protection, where the Court has found that the national court is under an obligation to examine of its own motion an infringement of Directive 93/13/EEC, ( ) in so far as such an examination makes it possible to achieve the results prescribed by that directive. That case-law recognises the national court’s status as an authority of a Member State and its corresponding duty as a fully fledged actor in the transposition procedure for directives, in a specific context where one party to the proceedings is in a weaker position. That reasoning relating to consumers might well be transposed to the accused in a criminal matter, who is not necessarily assisted by a lawyer in enforcing his or her rights.

18. The referring court observes that if the Court decided that the prohibition on a court raising of its own motion an infringement of a national provision designed to transpose a directive is contrary to EU law, the national court would be able to ensure the effectiveness of EU law, even where the litigant does not have a lawyer or where the lawyer has not raised an infringement of EU law. In this instance, the referring court states that, if it may raise of its own motion the late notification of the right to remain silent, it will be able to annul the acts that are decisive for the purpose of establishing the guilt of the accused, namely the vehicle search and the self-incriminating statements taken, and also the custody and the ensuing measures.

19. In those circumstances, the tribunal correctionnel de Villefranche-sur-Saône (Criminal Court, Villefranche-sur-Saône, France) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Articles 3 (Right to information about rights) and 4 (Letter of Rights on arrest) of [Directive 2012/13], Article 7 (Right to remain silent) of [Directive (EU) 2016/343], in conjunction with Article 48 (Presumption of innocence and right of defence) of the [Charter] be interpreted as precluding the prohibition on the national court raising of its own motion a violation of the rights of the defence as guaranteed by [those directives], more specifically in so far as it is prohibited from raising of its own motion, with a view to the annulment of the procedure, a failure to give notification of the right to remain silent at the time of the arrest or a late notification of the right to remain silent?’

The procedure before the Court

20. The defendants in the main proceedings, the French Government, Ireland and the European Commission lodged written observations and submitted oral observations at the hearing on 20 September 2022.

Analysis

21. By its question, the referring court asks, in essence, whether Articles 3 and 4 of Directive 2012/13 and Article 7 of Directive 2016/343, ( ) read in the light of Article 48 of the Charter, must be interpreted as meaning that they preclude a judicial practice that prohibits the criminal court responsible for determining whether the accused person is guilty from raising of its own motion, for the purposes of the annulment of the procedure, ( ) the breach of the accused person’s right to be informed of his or her right to remain silent.

The applicability of Directive 2012/13

22. At the hearing, the question was raised of the applicability of Directive 2012/13, in the light of the wording of Article 2(1) thereof, which provides that that directive is to apply ‘from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence’. That wording of that provision, it was argued, is such as to preclude the application ratione temporis of that directive in any situation preceding the official notification of that information.

23. It should be borne in mind that the purpose of Directive 2012/13, according to Article 1 thereof, is to define minimum rules concerning the rights which suspects and accused persons enjoy in criminal proceedings, in particular the right to be informed of their rights. The scope of that directive is defined in Article 2 thereof. Article 3 of that directive provides that ‘Member States shall ensure that suspects or accused persons are provided promptly with information concerning … procedural rights … in order to allow for those rights to be exercised effectively’.

24. As stated in recital 19 of Directive 2012/13, the right to be informed of one’s rights is intended to safeguard the fairness of the criminal procedure and to ensure the effective exercise of the rights of the defence from the first stages of those proceedings. As is clear from point 24 of the Commission Proposal for a directive, of 20 July 2010 (COM(2010) 392 final), which led to Directive 2012/13, the period immediately following deprivation of liberty is when the arrested person is considered to be most vulnerable in relation to the risk of wrongful extraction of confessions, so that ‘it is essential that a suspected or accused person is informed of his rights promptly, i.e. without delay after his arrest and in the most effective way’. Recital 19 of Directive 2012/13 makes clear, moreover, that the right to be informed of one’s rights must be observed ‘at the latest before the first official interview of the suspect or accused person by the police’, while a Letter of Rights containing information about applicable procedural rights should be provided ‘promptly’, according to recital 22 of that directive, where suspects or accused persons are arrested or detained. ( )

25. It follows from those factors that persons suspected of having committed a criminal offence must be informed of their rights as soon as possible, from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures and, at the latest, before they are first officially questioned by the police. ( ) As the communication of those rights must therefore, in order to be effective, take place at an early stage in the proceedings, the Court has held that the persons concerned may be informed by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence by official notification or ‘otherwise’ or ‘in whatever form’, the means by which such information reaches those persons being irrelevant. ( )

26. In addition, it must be emphasised that, in accordance with recital 14 of Directive 2012/13, that directive rests on the rights laid down in the Charter, and in particular Articles 6, 47 and 48 thereof, by building on Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights (‘the ECtHR’), and that the term ‘accusation’ is used to describe the same concept as the term ‘charge’ used in Article 6(1) ECHR. In that regard, a ‘criminal charge’ exists from the moment that an individual is officially notified by the competent authority of an allegation that he or she has committed a criminal offence, or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of suspicions against him or her. Thus, for example, a person arrested on suspicion of having committed a criminal offence can be regarded as being ‘charged with a criminal offence’ and claim the protection of Article 6 ECHR. ( ) In particular, any person ‘charged with a criminal offence’ for the purposes of that article has the right to be informed of the right to remain silent. ( )

27. It is apparent from the order for reference that, on the evening of 22 March 2021, the police officers’ attention was drawn by the presence of two individuals on a company’s vehicle parking area, busying themselves around a truck whose fuel tank was open, with jerry cans nearby, and attempting to keep out of the police officers’ sight, a situation that led to their being questioned and handcuffed. By those unequivocal coercive measures, it was brought to the knowledge of the persons concerned that they were suspected of having committed a criminal offence, in fact the theft of fuel, which determines the application of Directive 2012/13. Accordingly, and in accordance with Article 3(1)(e) of Directive 2012/13, the two individuals concerned had the right to be informed promptly of their rights and, in particular, of the right to remain silent.

28. I note, last, that the interpretation of Article 2(1) of Directive 2012/13 set out in point 22 of this Opinion amounts to making the late and therefore unlawful notification of the rights provided for in that directive a ground for its non-application, which, as a matter of logic and of law, is not acceptable.

The scope of the request for a preliminary ruling

29. It seems to me to be necessary, in the first place, to consider the precise meaning of the question for a preliminary ruling in the light of its formulation, which suggests that the referring court seems to confine its question solely to the issue of the incompatibility with EU law of the prohibition, imposed by the national case-law, on its raising the breach in question of its own motion, contrary to the referring court’s desire to be able to exercise such a power. Thus, the question for the Court does not relate to the existence of any duty imposed on the national court by EU law to raise of its own motion that breach of the rights of the accused in the circumstances of the case in the main proceedings.

30. It is by no means certain, in my view, that the question for a preliminary ruling should be understood in that sense, since the national court makes express reference, in the order for reference, to case-law in which the Court has found that the national court is under a ‘duty’ to examine of its own motion an infringement of EU law in the field of consumer protection against unfair terms. It is clear that the national court considers that the case-law referred to above must be applicable in the main proceedings and that an accused person may be treated as equivalent to a consumer, given that they are both in a weak position in the proceedings in question. In that regard, it is significant that the defendants in the main proceedings, the French Government, Ireland and the Commission suggested in their observations that the answer should indicate the existence resulting from EU law of a duty on the court to raise the breach of its own motion, a question which to my mind is difficult simply to dismiss as the order for reference stands.

31. It should be observed, in the second place, that EU law establishes the right of suspects or accused persons to remain silent in two distinct legal instruments, namely Directive 2012/13 and Directive 2016/343. The former, in Articles 3 and 4, provides for the existence of the right to be informed and of the right to remain silent, whereas the latter, in Article 7, enshrines the right to remain silent as a substantive right alongside the right not to incriminate oneself, both of which are described as aspects of the presumption of innocence. According to recitals 26 and 27 of Directive 2016/343, the right to remain silent and the right not to incriminate oneself apply to questions relating to the alleged criminal offence and imply that the competent authorities should not compel suspects or accused persons to provide information if those persons do not wish to do so, recital 27 referring to the interpretation of the ECtHR. ( )

32. The ECtHR considers that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seeks to prove its case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. The rationale of those rights lies, inter alia, in the protection of accused persons against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ECHR. ( ) Thus, Article 7 of Directive 2016/343 and Article 6 ECHR perceive those rights in the same sense, that is to say, as affording protection, during questioning, against evidence obtained by force, notwithstanding that the suspect has previously expressed the wish to remain silent.

33. I observe that, having regard to the facts of the case in the main proceedings, as set out in the order for reference, the essence of the right to remain silent enshrined in Article 7 of Directive 2016/343, referred to in the question for a preliminary ruling and described above, is therefore not directly called into question. The context of the problem raised by the present case is that notification to the suspects of their right to remain silent was given late, contrary to Articles 3 and 4 of Directive 2012/13, transposed into national law, which provide that such information must be provided promptly. In those circumstances, Article 7 of Directive 2016/343 does not seem to be relevant for the purposes of the answer which the Court is required to give in the present case.

34. In addition, it is apparent from the order for reference that the case in the main proceedings concerns the existence of an effective remedy, as provided for in Article 8(2) of Directive 2012/13, which requires that ‘suspects or accused persons or their lawyers [are to] have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive’.

35. Accordingly, it must be stated, ( ) first, that the dispute at issue in the main proceedings concerns, in particular, Articles 3 and 4 of Directive 2012/13 and Article 8(2) of that directive and, second, that those provisions give specific expression to the fundamental rights to a fair trial and to respect for the rights of the defence, as enshrined in particular in Article 47 and Article 48(2) of the Charter, and must be interpreted in the light of those provisions. ( ) In that regard, it follows from the explanations relating to the Charter – which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it – that Articles 47 and 48 of the Charter ensure that the protection conferred by Articles 6 and 13 ECHR is safeguarded under EU law. ( ) The Court must therefore ensure that its interpretation of those articles of the Charter ensures a level of protection that does not disregard that guaranteed by Articles 6 and 13 ECHR, as interpreted by the ECtHR. ( )

36. In those circumstances, it must be considered that the referring court is asking, in essence, whether Articles 3 and 4 of Directive 2012/13, and Article 8(2) of that directive, read in the light of Article 47 and Article 48(2) of the Charter, must be interpreted as meaning that they preclude the interpretation of a national provision that would prevent the court, in a criminal trial that was not preceded by a preliminary judicial investigation, ( ) from raising of its own motion a breach of the right of the accused person to be informed of his or her right to remain silent, which constitutes a ground of invalidity of the procedure, and, if so, whether EU law confers on the national court the power, or imposes on it the duty, to raise such a breach of its own motion.

37. In my view, the answer to that question means that the interpretation of the provisions of Directive 2012/13 must also take account of the limits inherent in the legal basis on which that directive was adopted.

The legal basis of Directive 2012/13

38. In the first place, it should be borne in mind that Article 67 TFEU states that ‘the Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States’. Article 82(2) TFEU, which comes under Part III, Title V, Chapter 4 (entitled ‘Judicial Cooperation in Criminal Matters’), of that treaty, provides as follows: ‘to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States’.

39. Article 82(2)(b) TFEU, which constitutes the legal basis of Directive 2012/13, permits the establishment of only minimum rules concerning the ‘rights of individuals’ in criminal procedures, and that directive cannot therefore contain provisions determining the court with jurisdiction to adjudicate on alleged breaches of the substantive rights which it recognises, or the nature and extent of judicial oversight, as no power was conferred on the EU legislature in that respect. ( )

40. Therefore, Directive 2012/13 contributes to the establishment of a minimum harmonisation of criminal procedures in the European Union and cannot be interpreted as being a complete and exhaustive instrument. As stated in recital 40, it leaves the Member States free to extend the rights which it sets out in order to provide a higher level of protection also in situations not explicitly dealt with in that directive, the level of protection never falling below the standards provided by the ECHR as interpreted in the case-law of the ECtHR. ( )

41. As the Commission rightly observes, the provisions of primary law mentioned above are designed to preserve the particularities of national criminal procedures and mean that the interference by EU law with the rules governing those procedures is limited, which to my mind seems difficult to reconcile with an interpretation by the Court of Directive 2012/13 according to which the national court may, or indeed must, raise of its own motion, in a criminal trial that was not preceded by a preliminary judicial investigation, a breach of the procedural rights recognised by that directive.

42. It should be borne in mind, in the second place, that EU law is based on the fundamental premiss that each Member State shares with all the other Member States – and recognises that they share with it – a set of common values on which the European Union is founded, as stated in Article 2 TEU. That premiss entails and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the EU legislation that implements them will be respected. Both the principle of mutual trust between the Member States and the principle of mutual recognition, which is itself based on that mutual trust, are, in EU law, of fundamental importance, since they allow an area without internal borders to be created and maintained. ( )

43. In that regard, it follows from recitals 3, 4, 10 and 14 of Directive 2012/13 that, by laying down common minimum rules that establish a framework for the right to information in criminal procedures, that directive aims to strengthen mutual trust between the Member States in their respective criminal justice systems in order to facilitate the recognition of decisions in criminal matters. As stated in recital 4 of Directive 2012/13, ‘mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial authorities but all actors in the criminal process consider decisions of the judicial authorities of other Member States as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those rules are correctly applied’.

44. It should further be stated that the principle of mutual trust between the Member States requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the European Union. ( )

45. That case-law reflects a presumption of reciprocal trust in the national systems for the protection of fundamental rights which can be rebutted only in extremely restricted situations that must be characterised as ‘exceptional circumstances’. That case-law is intended to apply to all instruments of secondary law concerning the execution of criminal convictions imposing penalties, namely Framework Decision 2002/584/JHA, ( ) Framework Decision 2008/909/JHA ( ) and Framework Decision 2008/675/JHA. ( )

46. Apart from the preservation of the specificities of the national legal systems and the presumption of equivalence of those systems in the protection of fundamental rights, the legal problem raised by the referring court must also be examined in the light of the principle of the procedural autonomy of the Member States, which is delimited by the need to have regard to the requirements flowing from the principles of equivalence and effectiveness. ( )

The delimited procedural autonomy of the Member States

47. It is common ground that the rights which K.B. and F.S. derive from Article 3(1)(e) and Article 4(2) of Directive 2012/13 were violated in the criminal proceedings at issue in the main proceedings. The obligation which those provisions place on national authorities to inform suspects and accused persons of their right to remain silent is of essential importance for the effective guarantee of those rights and, thus, for compliance with Article 47 and Article 48(2) of the Charter. Without that information, the person concerned could not be aware of the existence and the scope of those rights or demand that they be upheld, with the result that he or she would not be able to exercise his or her rights of defence fully and have a fair trial. ( ) It must be borne in mind, however, that in the present case the two individuals who were questioned were indeed notified of their rights, but not promptly, which leads to the conclusion that there was a breach of those rights, as the delay was not justified by any insurmountable circumstance. ( )

48. As regards the consequences of those breaches, it is clear from the observations of the French Government that national law distinguishes invalidities which are a matter of public policy, relating to the organisation, the composition and the jurisdiction of the courts, and invalidities of a private nature, which are established in the interest of the parties. The latter invalidities are penalised only if the existence of an adverse effect on the interests of the party relying on them is demonstrated, with the exception of certain particularly important guarantees (such as the guarantee of the right to remain silent, a breach of which is regarded as necessarily having an adverse effect), and cannot be raised by the court of its own motion. This last rule results from the interpretation by the Cour de cassation (Court of Cassation) of the first paragraph of Article 385 of the CCP.

49. In that regard, it should be borne in mind that Article 8(2) of Directive 2012/13 requires Member States to ensure that, in accordance with the procedures laid down in national law, suspects or accused persons or their lawyers have the right to challenge the possible failure or refusal of the competent authorities to provide information in accordance with that directive. Thus, the EU legislature left it to the Member States to decide on the nature and the specific procedures of the remedies available to the persons concerned and of the consequences that should flow from a breach of the rights provided for in Directive 2012/13.

50. The Court has consistently held that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. On that basis, in accordance with the principle of sincere cooperation, now enshrined in Article 4(3) TEU, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness). Those requirements of equivalence and effectiveness express the general obligation for Member States to ensure judicial protection of the rights which individuals derive from EU law, including the rights of the defence. ( )

The principle of equivalence

51. As regards the principle of equivalence, there is nothing in the file before the Court to indicate, a priori, that that principle would be breached by the application of the first paragraph of Article 385 of the CCP in the event of a breach of the rights deriving from Directive 2012/13. That article, as interpreted in the judicial practice at issue, governs the conditions in which a procedural invalidity may be relied on before the criminal court, irrespective of whether that invalidity results from a breach of an individual right having its basis in provisions of domestic law or one based on provisions of EU law. ( )

The principle of effectiveness

52. So far as the principle of effectiveness is concerned, it must be borne in mind that EU law does not have the effect of requiring Member States to establish remedies other than those established by national law, unless it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or that the sole means of obtaining access to a court is effectively for individuals to break the law. ( )

53. It also follows from the Court’s case-law that each case which raises the question whether a national procedural provision renders the exercise of the rights conferred on individuals by the EU legal order impossible or excessively difficult must be analysed by reference to the place which that provision occupies in the procedure, in its progress and in its special features, viewed as a whole, before the various national instances. From that perspective, the basic principles of the national judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure, must, where appropriate, be taken into consideration. ( )

54. According to the wording of that case-law, the assessment of compliance with the principle of effectiveness does not require an analysis of all the legal remedies available in a Member State, but a contextualised analysis of the provision which allegedly undermines that principle, which may entail the analysis of other procedural provisions applicable to the legal remedy whose effectiveness has been called into question, or the analysis of legal remedies which have the same purpose as that remedy. ( ) The Court considers that the judgments delivered are thus merely the result of assessments on a case-by-case basis, taking account of each case’s own factual and legal context as a whole, which cannot be applied mechanically in fields other than those in which they were made. ( )

55. To my mind, it is important to emphasise the difficulty which such an assessment entails, in the light of the method whereby the matter is brought before the Court, in this case in the context of a reference for a preliminary ruling. In that context, it is necessary to refer primarily to the order for reference in order to ascertain the applicable national legislation, that information being supplemented where, as in the present case, the order for reference is short on detail, by the written observations submitted by the interested parties and also, where relevant, by the terms of the debate at the hearing. In the present case, it seems to me that the requisite contextualisation must include a number of provisions of national law.

56. As regards, in the first place, the role of the Public Prosecutor’s Office in France, the French Government claims that it follows from the relevant provisions of the CCP ( ) that the task of that office is to reconcile the protection of the general interests of society, by prosecuting criminal offences, and respect for individual freedoms, while safeguarding the rights of the accused throughout the procedure. While it is true that the interpretation of the relevant provisions of Directive 2012/13 does not, strictly speaking, entail an assessment of the concept of ‘judicial authority’, it is nonetheless important to underline the very controversial nature of such a classification so far as the French Public Prosecutor’s Office is concerned.

57. Called on to rule on the capacity of the Public Prosecutor’s Office to provide proper oversight of the custody measures for the purposes of Article 5(3) ECHR, which provides that ‘everyone arrested or detained … shall be brought promptly before a judge or other officer authorised by law to exercise judicial power’, the Cour de cassation (Court of Cassation), taking inspiration from the case-law of the ECtHR, ( ) held that, as the Public Prosecutor’s Office does not present the guarantees of independence and impartiality and is the prosecuting authority, it is not a judicial authority for the purposes of that article. ( ) The Conseil constitutionnel (Constitutional Council, France), on the other hand, has always considered that the judicial authority which ensures respect for individual freedom includes both judges and members of the Public Prosecutor’s Office and that the fact that the Public Prosecutor’s Office has oversight of the first 48 hours of custody is not contrary to the Constitution. ( ) I would add that although the French Public Prosecutor’s Office has been recognised by the Court of Justice as a judicial authority, such recognition has been afforded solely in the specific context of the issuing of a European arrest warrant, within the meaning of Article 6(1) of Framework Decision 2002/584. The Court considered that members of the Public Prosecutor’s Office, who in France have the status of judges, act independently when exercising the functions inherent in the issuing of such a warrant. ( )

58. Beyond the legal relativism as regards the definition of a judicial authority, including within the same State, and the corresponding acknowledgement that it is objectively difficult to get an overview of a national legal system, I find it difficult to accept, in that context, that the preventive control exercised by the French Public Prosecutor’s Office, which was deficient in this instance, is capable on its own of ensuring the effectiveness of the protection guaranteed by Directive 2012/13.

59. It follows, in the second place, from the written and oral observations of the French Government that the right to a lawyer is guaranteed throughout the criminal procedure, ( ) which, in any event, is not at issue in the present case, and is facilitated by the mechanisms of legal aid, which allow those without resources or with modest incomes to have the costs of the proceedings, including the lawyer’s fees, paid in whole or in part by the State, and of appointment ex officio, whereby a lawyer is designated by the President of the Bar or by the President of the court to assist an accused person in criminal proceedings, either at the request of the person concerned, because he or she does not have a lawyer or has not had time to choose one, or because the proceedings require the presence of a lawyer and the accused person does not have one.

60. As regards the lawyer’s role, I observe that, following each interview with the person in custody and each hearing or confrontation which he or she has attended, the lawyer may submit written observations, which are placed on the file, and address them to the Public Prosecutor’s Office during the custody period. The lawyer may, in particular, consult the record of notification of the custodial measure and the associated rights, which enables him or her to check that the relevant requirements were satisfied, including from the temporal aspect. ( )

61. At the hearing on the substance of the case, ( ) the presence of a lawyer is mandatory for certain procedures, such as those involving an immediate appearance entailing a decision very shortly after the offences charged, on a prior guilty plea, before the cour d’assises (Assize Court, France), which deals with serious offences, and in all criminal proceedings concerning a minor. When the lawyer is not compulsory, the accused person may, on his or her initiative, be assisted or represented by a lawyer of his or her choice or request that a lawyer be assigned, if necessary on the actual day of the hearing. It should be borne in mind that if the plea of procedural invalidity was not raised at first instance by an accused who did not appear or was not represented, he or she has the opportunity to raise that plea on appeal.

62. It must be emphasised, in the third place, that the preliminary article of the CCP contains a paragraph according to which, in the case of serious offences and minor offences, an individual cannot be convicted on the sole basis of statements which he or she has made without having been able to consult and be assisted by a lawyer. In addition, and above all, since a law of 22 December 2021, which entered into force on 31 December 2021, that article has contained a new paragraph, according to which, ‘in the case of a serious offence or a minor offence, the right to remain silent about the alleged facts shall be notified to any suspect or accused person before his or her observations are received and before any interview, including for the purpose of obtaining information about his or her personality or ordering a restrictive measure, when he or she is first brought before an investigative service, a judge, a court or any person or any service appointed by the judicial authority. A person may not be convicted on the sole basis of statements made without that right having been notified’.

63. Those provisions are essential in that they allow a breach of the right of suspects or accused persons to be informed of their rights provided for in Directive 2012/13, concerning in particular the right to be assisted by a lawyer and the right to remain silent, to be automatically remedied, by ‘neutralising’ the statements of the persons concerned that were unlawfully taken in the investigation stage for the purposes of the assessment of their criminal liability.

64. In the fourth place, while it is common ground that the trial court does not have the power to raise of its own motion the invalidity of records which were not properly drawn up, it must infer from the irregularity found that those records lack probative force. Thus, Article 429 of the CCP, which was relied on at the hearing, provides that any record or report is to have probative value only if it is in due and proper form, if its author acted in the exercise of his or her duties and reported on a matter within his or her competence. ( ) No probative force is to attach to unlawful measures. The referring court should therefore disregard the unlawful procedural documents and not recognise them as having any probative value, although the loss of the probative force of a record is not the consequence of its annulment. The referring court might, depending on its assessment of the material on the file that remains valid, decide, on the basis of its firm conviction, to release the two accused, if appropriate. It must be stated that that provision allows information and evidence obtained in breach of the requirements of EU law, in this instance Articles 3 and 4 of Directive 2012/13, to be excluded. The irregularity found therefore does not remain without a remedy. ( )

65. It thus seems that the existence in the French legal order of such procedural rules guarantees the effectiveness of EU law and that the fact that the referring court is prohibited from raising of its own motion a plea of procedural invalidity based on the late notification to the two accused of their right to remain silent – a ground of invalidity of a private nature – does not constitute a breach of the principle of effectiveness, in so far as that rule is not capable in itself of rendering practically impossible or excessively difficult the exercise of the rights which suspects or accused persons derive from Article 3(1)(e) and Article 4(2) of Directive 2012/13, read in conjunction with Article 8(2) of that directive.

66. That conclusion cannot be called into question in the light of Article 47 and Article 48(2) of the Charter. In that regard, it is sufficient to observe that, where individuals have, in the area of EU law concerned, a legal remedy that makes it possible to ensure respect for the rights which they derive from EU law, which appears to be the case in the French legal order, a rule of national law which prevents the trial court from raising of its own motion a plea of procedural invalidity on account of the breach of provisions that protect the private interest of those individuals cannot be analysed as a limitation, for the purposes of Article 52(1) of the Charter, on the right to an effective remedy and to a fair trial or on the rights of the defence, guaranteed, respectively, by Article 47 and Article 48(2) of the Charter. ( )

67. The interpretation of EU law thus proposed seems to me to be compatible with the case-law of the Court and of the ECtHR concerning the question of the raising of a matter of the court’s own motion.

The European case-law on the raising of a matter of the court’s own motion

The case-law of the Court

68. In civil and administrative proceedings, the Court has considered that EU law, and in particular the principle of effectiveness, does not as a matter of principle require the national courts to raise of their own motion a plea based on an infringement of provisions of EU law, irrespective of the importance of those provisions in the European legal order, where examination of that plea would oblige them to go beyond the ambit of the dispute defined by the parties themselves and rely on facts and circumstances other than those on which the party with an interest in the application of those provisions has based his or her claim. That limitation on the power of the national court is justified by the principle that it is for the parties to take the initiative and that, as a result, where national procedural law provides a genuine opportunity for the party concerned to raise a plea based on EU law, the national court can act on its own initiative only in exceptional cases where the public interest requires its intervention. ( )

69. The Court has also stated ( ) that that case-law is not called into question by the case-law resulting from the judgments of 14 December 1995, Peterbroeck (C‑312/93, EU:C:1995:437), and of 27 June 2000, Océano Grupo Editorial and Salvat Editores (C‑240/98 to C‑244/98, EU:C:2000:346), referred to in the order for reference, one of which can be distinguished by reason of circumstances peculiar to the dispute, which resulted in the applicant in the main proceedings being deprived of the opportunity to rely effectively on the incompatibility of a domestic provision with EU law, while the other is justified by the need to ensure that consumers are given the effective protection which Directive 93/13 seeks to achieve. ( )

70. It is common ground that the question of unfair terms opened the door to the development of the role of the national court in consumer law, as it was given the power, and then the duty, to raise of its own motion the unfairness of a contractual term. ( ) According to the settled case-law of the Court, the system of protection implemented by Directive 93/13 is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge, which results in the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. On account of that weaker position, Article 6(1) of that directive provides that unfair terms are not to be binding on the consumer. That is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them. ( )

71. In that regard, the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is fair, thus compensating for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task. In addition, Directive 93/13, as is apparent from Article 7(1) thereof in conjunction with the twenty-fourth recital of that directive, obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. It was by taking the requirements of Article 6(1) and Article 7(1) of Directive 93/13 – a normative combination with no equivalent in Directive 2012/13 – into account that the Court defined the way in which the national courts must ensure that the rights which consumers derive from that directive are protected, while making clear that consumer protection is not absolute. ( ) The Court has thus made clear that the need to comply with the principle of effectiveness cannot be stretched so far as to require the national courts not only to compensate for a procedural omission on the part of a consumer who is unaware of his or her rights but also to make up fully for the complete inaction on the part of the consumer concerned. ( )

72. The referring court considers that the case-law referred to above may be transposed to the case in the main proceedings, relying more particularly on the position of weakness shared by consumers ( ) and the accused, an approach which to my mind cannot be accepted. It must be remembered that the case in the main proceedings is a criminal matter, an area of law wholly unconnected to contractual obligations and one in which it is for both the legislature and the courts to reconcile the prevention of breaches of public policy and the detection and punishment of offenders, on the one hand, and the fundamental rights of accused persons, on the other hand, while ensuring that the proceedings take place within a reasonable period of time. In addition, in the context of the exercise of its penal powers, the State aims to protect not only the interests of victims of crime, but also the more general interests of society that constitute the public interest in the wide sense.

73. In that context, it should be emphasised that, since the adoption of Framework Decision 2002/584, judicial cooperation in criminal matters has gradually acquired legal instruments the coordinated application of which is intended to strengthen Member States’ trust in their respective national legal orders with the aim of ensuring that judgments in criminal matters are recognised and enforced within the European Union in order to ensure that persons who have committed offences do not go unpunished, ( ) while ensuring that the criminal proceedings are conducted fairly. As indicated in recitals 11, 12 and 14 of Directive 2012/13, that directive is part of the Roadmap, adopted by the Council in 2009, for strengthening the rights of suspects or accused persons throughout those proceedings. ( ) The cumulative effect of those instruments, added to the provisions of the Charter, of the ECHR and of the case-law of the ECtHR, and also to the national mechanisms, confers genuine and extensive protection on the persons concerned, whose status is therefore not comparable, including at the level of information, with that of a consumer in his or her contractual relationship with a seller or supplier. ( ) In those circumstances, any form of transposition in the present case of the solution, applied in Article 6 of Directive 93/13, of equating the European standard to the domestic rules of public policy seems to me to be precluded.

74. Last, it is necessary to refer, at this stage, to the Court’s recent case-law concerning the role of the courts in the context, first, of criminal proceedings based on information or evidence obtained in breach of the requirements laid down in Directive 2002/58/EC, ( ) and, second, of proceedings for the review of the legality of the conditions governing the lawfulness of the detention of third-country nationals which derive from EU law.

75. In the first place, the Court has held that Article 15(1) of Directive 2002/58, interpreted in the light of the principle of effectiveness, requires national courts to disregard information and evidence obtained by means of the general and indiscriminate retention of traffic and location data in breach of EU law, in the context of criminal proceedings against persons suspected of having committed criminal offences, where those persons are not in a position to comment effectively on that information and that evidence, which originate in a field of which the judges have no knowledge and which are likely to have a preponderant influence on the findings of fact. ( ) Although that particular case did concern the principle of effectiveness applied in criminal proceedings, as in the case in the main proceedings, the case in the main proceedings does not concern evidence originating in a field of which the judges have no knowledge, the admissibility of which would entail a risk as regards compliance with the inter partes principle and therefore with the right to a fair trial.

76. In the second place, the Court has ruled that Article 15(2) and (3) of Directive 2008/115/EC, ( ) Article 9(3) and (5) of Directive 2013/33/EU ( ) and Article 28(4) of Regulation (EU) No 604/2013, ( ) read in conjunction with Articles 6 and 47 of the Charter, must be interpreted as meaning that a judicial authority’s review of compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law must lead that authority to raise of its own motion, on the basis of the material in the file that is brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned. ( )

77. That solution seems to me to be dictated by a specific normative context that is radically different from that of the present case. The Court first of all made clear that while the detention of a third-country national constitutes a serious interference with the right to liberty enshrined in Article 6 of the Charter, the purpose of such a measure, within the meaning of Directive 2008/115, Directive 2013/33 and Regulation No 604/2013, is not the prosecution and punishment of criminal offences. Next, and most importantly, the Court observed that the EU legislature did not confine itself to establishing common substantive standards on conditions pertaining to detention, but also established common procedural standards, the purpose of which is to ensure that, in each Member State, there is a system which enables the competent judicial authority to release the person concerned, where appropriate after an examination of its own motion, as soon as it is apparent that his or her detention is not, or is no longer, lawful. ( ) The Court highlighted the fact that detention ordered by an administrative authority is subject to judicial review, either ex officio or at the request of the person concerned, whereas, in the case of the continuation of the measure, the competent authority is required to carry out that review of its own motion, even if the person concerned has not requested a review. In a normative context in which the court may act of its own motion where it is apparent that the conditions governing the lawfulness of the detention are not, or are no longer, satisfactory, which could be reflected in a procedure in which the detained person would not appear, it was difficult in theory to imagine a solution other than the court raising of its own motion a failure to comply with a condition governing the lawfulness of the detention ‘which was not invoked by the person concerned’.

78. It was in the light of that strict delimitation of the measure of detention, set out above, that the Court departed from its normal case-law on the a priori absence of the obligation to raise a matter of its own motion in administrative proceedings, in which the rule that a court is to confine itself to the matters raised before it applies, and on the implementation of the principle of effectiveness. ( ) In the present case, such a delimitation by EU law, at the procedural level, is manifestly lacking, which to my mind prohibits any form of transposition of the solution applied in relation to judicial review of detention.

The case-law of the ECtHR

79. Where it examines a complaint based on Article 3 ECHR, the ECtHR must essentially determine whether the criminal proceedings as a whole were fair, by reference to the circumstances peculiar to each case. Respect for the requirements of a fair trial is therefore assessed on a case-by-case basis, by reference to the conduct of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be precluded that a specific factor may be so decisive as to enable the overall fairness of the procedure to be assessed at an earlier stage. ( ) Having regard to the nature of the right not to give self-incriminating evidence and of the right to remain silent, the ECtHR considers that, as a matter of principle, there can be no justification for the failure to notify a suspect of those rights. However, where the suspected person has not been so notified, the ECtHR must examine whether, notwithstanding that failure, the proceedings as a whole were fair. ( )

80. That global assessment may include an examination of the effectiveness of the legal assistance the right to which is guaranteed in Article 6(3)(c) ECHR. The ECtHR considers that, in accordance with the independence of the Bar vis-à-vis the State, the conduct of the defence is essentially a matter for the accused and his or her lawyer, whether the latter was designated by the authorities or paid by the client. However, if the failure on the part of legal aid counsel is manifest or sufficiently brought to their attention in some other way, the authorities must take measures to ensure that the accused benefits from effective legal assistance. The fact remains that the State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes. ( )

81. The liability of the State may thus be incurred where a lawyer quite simply fails to act on behalf of the accused ( ) or does not comply with a purely formal condition for submitting an appeal, although that cannot be equated with an injudicious line of defence or a mere defect of argumentation that could not give rise to such liability, the ECtHR having also taken into account, as one of a combination of circumstances, the fact that the applicant was a foreigner who did not know the language of the proceedings and who was facing charges which made him liable to a lengthy prison sentence. In this last example, the ECtHR considered that the national court could have invited the officially appointed lawyer to complete or rectify his pleading rather than declare the appeal inadmissible. ( )

82. Apart from the fact that the role of the ECtHR is to determine the disputes brought before it, not to adjudicate in the abstract or to harmonise the various legal systems, having regard to the specific circumstances of each case, ( ) I note that the situations referred to above, corresponding to a restrictive approach, are different from the circumstances of the case in the main proceedings. It must be emphasised, in that regard, that the right to be informed of one’s procedural rights and the right to remain silent are personal rights, the exercise of which is a matter for the discretion of the persons concerned, and it is solely for the accused persons and their counsel to define the defence strategy, which may entail not relying on a breach of those rights, for reasons specific to the persons concerned. ( ) That situation cannot, in itself, necessarily be equated to that of a ‘manifest failure’ calling for positive measures on the part of the competent court. ( ) At the trial, the court does not have to replace the parties in the choices of their defence strategies.

Intermediate conclusion

83. Having regard to all of the foregoing considerations, I propose that the Court should rule that Articles 3 and 4 of Directive 2012/13, and also Article 8(2) of Directive 2012/13, read in the light of Article 47 and Article 48(2) of the Charter and in the light of the principles of equivalence and effectiveness, do not preclude the interpretation of a national provision that would prevent the court, in a criminal trial that was not preceded by a preliminary judicial investigation, from raising of its own motion a breach of the right of the accused person to be informed of his or her right to remain silent.

84. Examination of the national legal systems ( ) does not in my view lead to a different interpretation. Far from reflecting the classic divide between adversarial and inquisitorial systems, in which the courts supposedly play, respectively, a passive and an active role, a cross-perspective on the different national legal systems shows the extent to which those two systems interpenetrate and the diversity and complexity of criminal procedures, based on combinations of rules, which render the comparative exercise delicate and even relative. Whether they provide for mechanisms for the imposition of what are sometimes automatic penalties for breach of the right to information, based on rules on the admissibility of evidence or on the invalidity of unlawful procedural measures, the national systems may thus define with varying degrees of rigour the role assigned to the accused person, and, in turn, to the court, in the implementation of those mechanisms.

85. However, all of the national legal systems taken into account incorporate the system of evidence adduced by any means, referring to the freedom of the court in assessing the evidence, and, while those legal systems may follow different procedural paths, they all share the same concern or objective, namely of ensuring that a procedural measure that is unlawful because it is the consequence of a breach of the right of an accused person to be informed, in particular, of his or her right to remain silent, is ineffective. As correctly stated in the ‘research note’ 22/006, if a piece of evidence is not formally eliminated by the court, a procedural defect that arose when that evidence was obtained may still be taken into account in the decision on the substance, as regards its probative value, which I specifically observed in the preceding points of the present Opinion in connection with the French legal order.

86. Is it therefore necessary, and indeed appropriate, for the Court to adopt a solution which allows, or even requires, the courts to raise an infringement of their own motion, when, as matters now stand, it is impossible to measure all the consequences which that would have for the subtle architectures of the national procedures, which all express the desire to strike a balance – which is so difficult to find – between the needs of the punishment of offences and the rights of accused persons to a fair trial, ( ) and for the national judicial organisations? ( ) Furthermore, the implementation by a court of the obligation to raise an infringement of its own motion can be conceived of only in strict observance of the inter partes principle, which may have the effect of increasing the length of the proceedings. ( )

87. To my mind, such a solution is not necessary for the purpose of reinforcing the legitimacy of the mutual trust which mutual recognition assumes. It is common ground that EU law has expanded considerably in the area of criminal judicial cooperation, to such an extent that it is now possible to evoke an acquis or a significant common heritage that has permitted an upward alignment of the national judicial systems in terms of protection of the procedural rights of suspects or accused persons and genuine progress in the integration of those systems in the European Union. In that context, it is important to emphasise, first, as the French Government has done, that the problem in the present case is not one of finding, in the context of a pseudo inter-State competition, the national system that guarantees the best protection of those rights, ( ) and, second, as is maintained in the literature, that there is no subjective right to benefit from the system that is most protective of individual rights. ( )

88. As we are dealing with a question expressing the specificities of the national legal systems, which the authors of the Treaties undertook to preserve, ( ) and the interpretation of a directive which literally makes suspects or accused persons, or their lawyers, responsible for ensuring that breaches of the rights which they contain do not go unpunished, it seems to me that the Court must take a cautious approach and consider how acceptable its answer will be in the national legal orders. ( ) According to the French philosopher and writer of the Enlightenment, Montesquieu, ‘it is sometimes necessary to change certain law. But the case is rare; and when it happens it requires the most delicate handling’. ( ) In the present case, and applied to the procedure before the courts, that conjuration should in any event lead to the rejection of a solution entailing an obligation for a court to raise an infringement of its own motion where to do so would increase the burden borne by the national courts, which would be faced with the simultaneous application of domestic norms, primary and secondary EU law, including the Charter, and norms derived from conventions, including the ECHR, working in institutional situations marked by strong disparities ( ) and being at risk of incurring liability having regard to their duty to uphold the law. Because – a gentle reminder of the inescapable human component of the judicial process – a judge is just as fallible as the other actors in the criminal process, whose sense of responsibility should not be taken away from them.

Conclusion

89. In the light of the foregoing considerations, I propose that the Court should answer the tribunal correctionnel de Villefranche-sur-Saône (Criminal Court, Villefranche-sur-Saône, France) as follows:

Articles 3 and 4, and Article 8(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, read in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union and of the principles of equivalence and effectiveness,

must be interpreted as meaning that they do not preclude the interpretation of a national provision that would prevent the court, in a criminal trial that was not preceded by a preliminary judicial investigation, from raising of its own motion a breach of the right of the accused person to be informed of his or her right to remain silent, provided that the national procedural rules guarantee, first, the right of suspects or accused persons to have access to a lawyer before and during the trial stage and, second, that the unlawful nature of the procedural measures carried out or the evidence obtained in breach of that right is taken into consideration by means of mechanisms of invalidity or inadmissibility of those measures or that evidence, or when the probative force of those measures or that evidence is assessed.