Case C-603/22: Request for a preliminary ruling from the Sąd Rejonowy w Słupsku (Poland) lodged on 19 September 2022 — Criminal proceedings against M.S., J.W., M.P.
Date: 2022-09-19
Institutions: Court of Justice
Subjects: criminal proceedings, criminal responsibility of minors, direct applicability, disciplinary proceedings, independence of the judiciary, judge, legal aid, right to information, rights of the defence, rule of law








C_2023024EN.01002101.xml










23.1.2023   


EN


Official Journal of the European Union


C 24/21






Request for a preliminary ruling from the Sąd Rejonowy w Słupsku (Poland) lodged on 19 September 2022 — Criminal proceedings against M.S., J.W., M.P.
(Case C-603/22)
(2023/C 24/30)
Language of the case: Polish

Referring court

Sąd Rejonowy w Słupsku

Parties to the main proceedings

M.S., J.W., M.P., Prokurator Rejonowy w Słupsku, D.G.- administrator appointed to act for M.B. and B.B.

Questions referred







1.


Must Article 6(1), (2), (3)(a) and (7) and Article 18, in conjunction with recitals 25, 26 and 27, of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (1) be interpreted as meaning that, as soon as a suspect below the age of 18 years is charged, the authorities conducting the proceedings are obliged to ensure that the child has the right to be assisted by a public defence counsel if he or she does not have a defence counsel of his or her choice (because the child or the holder of parental responsibility has not arranged such assistance) and to ensure that a defence counsel participates in the actions of the pre-trial proceedings, such as the questioning of the minor as a suspect, and that they preclude a minor from being questioned without the participation of a defence counsel?










2.


Must Article 6(6) and (8), in conjunction with recitals 16, 30, 31 and 32, of Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings be interpreted as meaning that the provision of the assistance of a defence counsel without undue delay may not be derogated from in any event in cases concerning offences punishable by a restriction of liberty and that application of the right to assistance of a defence counsel within the meaning of Article 6(8) of the directive may be temporarily derogated from only in pre-trial proceedings and only in the circumstances listed exhaustively in Article 6(8)(a) and (b), which must be expressly stated in the decision, which is in principle open to challenge, to proceed to questioning in the absence of a lawyer?










3.


If the answer to at least one of the first two questions is in the affirmative, are the abovementioned provisions of Directive (EU) 2016/800 therefore to be interpreted as precluding provisions of national law such as:






(a)


the second sentence of Article 301 of the Code of Criminal Procedure, under which a suspect is to be questioned with the participation of the appointed defence counsel only at his or her request and the failure of the defence counsel to appear for the questioning of the suspect is not to block questioning;










(b)


Article 79(3) of the Code of Criminal Procedure, under which, in the case of a person below the age of 18 years (Article 79(1)(1) of the Code of Criminal Procedure), the participation of a defence counsel is mandatory only at the trial and at those hearings in which the participation of the accused person is mandatory, that is to say at the trial stage?














4.


Must the provisions referred to in Questions 1 and 2, and also the principle of primacy and the principle of direct effect of directives, be interpreted as empowering (or obliging) a national court hearing a case in criminal proceedings coming within the scope of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, and any State authorities, to disregard provisions of national law which are incompatible with the directive, such as those listed in Question 3, and consequently — on account of the expiry of the implementation period — to replace the abovementioned national rule with the directly effective rules of the directive?










5.


Must Article 6(1), (2), (3) and (7) and Article 18, in conjunction with Article 2(1) and [(3)] and recitals 11, 25 and 26, of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, in conjunction with Article 13 and recital 50 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, (2) be interpreted as meaning that a Member State must grant legal aid to suspects or accused persons in criminal proceedings who were children at the time of the beginning of the proceedings but have subsequently reached the age of 18 years and that such assistance is mandatory until the final conclusion of the proceedings?










6.


If the answer to Question 5 is in the affirmative, must the abovementioned provisions of the directive therefore be interpreted as precluding provisions of national law, such as Article 79(1)(1) of the Code of Criminal Procedure, under which, in criminal proceedings, the accused person must have a defence counsel only until he or she reaches the age of 18 years?










7.


Must the provisions referred to in Question 5, and also the principle of primacy and the principle of direct effect of directives, be interpreted as empowering (or obliging) a national court hearing a case in criminal proceedings coming within the scope of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, and any State authorities, to disregard provisions of national law which are incompatible with the directive, such as those listed in Question [6], and to apply provisions of national law, such as Article 79(2) of the Code of Criminal Procedure, interpreted in conformity with the directive, that is to say, to maintain the appointment of a public defence counsel for an accused person who was under the age of 18 years at the time of the charge but subsequently, in the course of the proceedings, reached the age of 18 years and in respect of whom the criminal proceedings remain pending, until the final conclusion of the proceedings, on the assumption that this is necessary in view of circumstances impeding the defence, or — on account of the expiry of the implementation period — to replace the abovementioned national rule with the directly effective rules of the directive?










8.


Must Article 4(1) to (3), in conjunction with recitals 18, 19 and 22, of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, in conjunction with Article 3(2), in conjunction with recitals 19 and 26 of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, (3) be interpreted as meaning that the competent authorities (public prosecutor’s office, police) must, at the latest before the initial official questioning of a suspect by the police or another competent authority, promptly inform both the suspect and, at the same time, the holder of parental responsibility, of the rights which are essential for safeguarding the fairness of the proceedings and of the procedural steps in the proceedings, including, more specifically, the obligation to appoint a defence counsel for a minor suspect and the consequences of not appointing a defence counsel of choice for the accused minor (appointment of a public defence counsel), and, as regards child suspects, that information must be given in simple and accessible language appropriate to the age of the minor?










9.


Must Article 7(1) and (2), in conjunction with recital 31, of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, in conjunction with Article 3(1)(e) and (2) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, (4) be interpreted as meaning that the authorities of a Member State conducting criminal proceedings involving a suspect/accused person who is a child are obliged to instruct a child suspect as to the right to remain silent and the right not to incriminate himself/herself, in a manner which is intelligible and appropriate to the age of the suspect?










10.


Must Article 4(1) to (3), in conjunction with recitals 18, 19 and 22, of Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings and Article 3(2), in conjunction with recitals 19 and 26, of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, be interpreted as meaning that the requirements laid down in the abovementioned provisions are not satisfied by the service of general instructions shortly before the questioning of a minor suspect, without regard to the specific rights arising from the scope of Directive 2016/800, and by the service of such instruction only on a suspect acting without a defence counsel, without the involvement of the holder of parental responsibility, and in a situation in which such instructions are formulated in language inappropriate to the age of the suspect?










11.


Must Articles 18 and 19, in conjunction with recital 26, of Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings and Article 12(2), in conjunction with recital 50, of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, combined with Article 7(1) and (2), in conjunction with Article 10(2) and recital 44 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings and the principle of a fair trial, be interpreted — in relation to statements made by a suspect during police questioning conducted without access to a lawyer and without the suspect being fairly informed of his or her rights, without the holder of parental responsibility being informed of the rights and general aspects of the conduct of the proceedings that the child is entitled to pursuant to Article 4 of the directive — as obliging (or empowering) a national court hearing a case in criminal proceedings coming within the scope of the abovementioned directives, and any State authorities, to ensure that suspects/accused persons are placed in the same position as that in which they would have been had the infringements in question not occurred, and therefore to disregard such evidence, in particular where the incriminating information obtained in such questioning was to be used to convict the person concerned?










12.


Must the provisions referred to in Question 11, and also the principle of primacy and the principle of direct effect, therefore be interpreted as requiring a national court hearing a case in criminal proceedings coming within the scope of the abovementioned directives, and any other State authorities, to disregard provisions of national law which are incompatible with those directives, such as abovementioned Article 168a of the Code of Criminal Procedure, under which evidence may not be declared inadmissible solely on the ground that it was obtained in breach of the rules of procedure or by means of an offence referred to in Article 1(1) of the Criminal Code, unless the evidence was obtained in connection with the performance of official duties by a public official, as a result of: murder, intentional bodily injury or deprivation of liberty?










13.


Must Article 2(1) of Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, in conjunction with the second subparagraph of Article 19(1) TEU, and the principle of effectiveness in European Union law, be interpreted as meaning that a public prosecutor, as an authority participating in the administration of justice, upholding the rule of law and in that regard the host of the pre-trial proceedings, has a duty to ensure, at the pre-trial stage, effective legal protection coming within the scope of the abovementioned directive and that, in the effective application of European Union law, he or she must guarantee his or her independence and impartiality?










14.


If the answer to any of Questions 1 to 4, 5 to 8, and 9 to 12, and especially the answer to Question 13, is in the affirmative, must the second subparagraph of Article 19(1) TEU (principle of effective legal protection), in conjunction with Article 2 TEU, in particular in conjunction with the principle of respect for the rule of law, as interpreted in the case-law of the Court of Justice (judgment of 21 December 2021 in Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, [Euro Box Promotion and Others], EU:C:2021:1034), and the principle of judicial independence established in the second subparagraph of Article 19(1) TEU and in Article 47 of the Charter of Fundamental Rights, as interpreted in the case-law of the Court of Justice (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117), be interpreted as meaning that those principles, in view of the possibility of pressure being exerted indirectly on judges and the possibility of the Public Prosecutor General issuing binding instructions in this regard to lower-ranking public prosecutors, preclude national legislation stating that the prosecutor’s office is to be dependent on an executive authority, such as the Minister for Justice, and also preclude the existence of national rules which limit the independence of the courts and the independence of the public prosecutor in the application of European Union law, in particular:






(a)


Article 130(1) of the Ustawa z dnia 27 lipca 2001 roku o ustroju sądów powszechnych (Law of 27 July 2001 on the system of the ordinary courts), which permits the Minister for Justice — in connection with the public prosecutor’s obligation to report a situation in which a court gives judgment applying European Union law — to order the immediate suspension of a judge’s service activities pending a decision by the disciplinary court, for no longer than one month, when, on account of the nature of the offence committed by the judge and given effect in the direct application of European Union law, the Minister for Justice considers that the authority of the court and the essential interests of the service so require;










(b)


Articles 1(2), 3(1)(1) and (3), 7(1) to (6) and (8), and 13(1) and (2) of the Ustawa z dnia 28 stycznia 2016 roku Prawo o prokuraturze (Law of 28 January 2016 on the Public Prosecutor’s Office), the content of which, considered in conjunction with one another, indicates that the Minister for Justice, who is also the Public Prosecutor General and the highest authority of the public prosecutor’s office, may issue instructions which are binding on lower-ranking public prosecutors also to the extent that they restrict or impede the direct application of European Union law?










(1)  OJ 2016 L 132, p. 1.

(2)  OJ 2013 L 294, p. 1.

(3)  OJ 2012 L 142, p. 1.

(4)  OJ 2016 L 65, p. 1.