VW (Droit d’accès à un avocat en cas de non-comparution)

On 12 March 2020, the Second Chamber of the Court of Justice delivered its judgment in case C-659/18, concerning the interpretation of Article 3(2) of Directive 2013/48 on the right of access to a lawyer in criminal proceedings and European arrest warrant proceedings, as well as of Article 47 of the Charter. The request for a preliminary ruling was issued by the Court of Preliminary Investigation of Badalona (Spain), which had doubts as to whether the case-law of the Spanish Constitutional Court and the Supreme Court complies with Article 3(2) of that directive and Article 47 of the Charter.

On 20 April 2018, the Spanish police filed a report against VW for driving without license and forgery of documents. Criminal proceedings concerning these facts were brought before the referring court, which on 27 September 2018 issued an arrest warrant against VW after several unsuccessful attempts to summon him. According to Spanish law, the appearance of the person under investigation is an obligation, as in the case of persistent absence of that person at the conclusion of the investigation, the hearing cannot be held and judgment cannot be given, therefore paralyzing the proceedings. On 16 October 2018, the referring court received a letter from a lawyer stating that she was entering an appearance in the proceedings on behalf of VW. However, according to the case-law of the Spanish Constitutional Court and the Supreme Court, Article 24 of the Spanish Constitution and Article 118 of the Code of Criminal Procedure allow for the right of access to a lawyer to be subject to the obligation for the investigated person to appear before the court.

The referring court asks, in essence, whether Article 3(2) of Directive 2013/48, read in the light of Article 47 of the Charter, precludes national legislation, as interpreted by national case-law, from allowing that the exercise of the right of access to a lawyer may, at the pre-trial stage, be delayed until the suspect or accused person appears in person before the investigating judge.

Before replying to the referred question, the Court addresses the applicability of Directive 2013/48 to the case at hand as well as the application of and the possible derogations from the right of access to a lawyer in the main proceedings. Concerning the applicability of the directive, Article 2(1) states that it applies to suspects or accused persons in criminal proceedings, from the time when they are made aware by the authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence. The situation of VW, against whom Spanish authorities initiated criminal proceedings and issued an arrest warrant, falls therefore within the concept of a “suspect” made aware of the criminal proceedings. The Court stresses, in this regard, that what is relevant is that the Spanish authorities took procedural steps aiming at informing VW of his status of suspect and, since he instructed a lawyer to represent him in court, VW received this information, no matter how this information reached him.

As regards to the application and possible derogations of the right at issue under Directive 2013/48 in the main proceedings, the Court begins its reasoning by observing that Article 3(2) of that directive requires that suspects and accused persons have access to a lawyer without undue delay. In particular, the Court recalls that the access to a lawyer must be ensured, inter alia, “before they are questioned by the police or by another law enforcement or judicial authority” (Article 3(2)(a)) and “where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court” (Article 3(2)(d)). In the case at hand, therefore, VW’s right of access to a lawyer must be, in principle, guaranteed.

The Court then moves on to ascertain whether Directive 2013/48, read in the light of Article 47 of the Charter, allows Member States to derogate from the right of access to a lawyer in the case where the suspect has been summoned to appear before an investigating judge and has failed to appear. The Court points out that, under Article 3(5) of the directive, Member States may temporarily derogate from the application of the right at issue “where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty”. Moreover, according to paragraphs (a) and (b) of Article 3(6), a temporary derogation may also occur “where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person”, or “where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings”. Underscoring that the list of derogating circumstances provided for in Article 3(5) and (6) of the directive is exhaustive and must be interpreted strictly, the Court affirms that “the request for a preliminary ruling does not mention any of the circumstances referred to in Directive 2013/48” (para. 41).

Therefore, the Court concludes that Article 3(2) of Directive 2013/48, read in the light of Article 47 of the Charter, precludes national legislation from delaying the exercise of the right of access to a lawyer at the pre-trial stage for the reason that the suspect or accused person has failed to appear before an investigating judge.