Alicja Slowik , 16 mai 2025

In the judgment delivered on 8 May 2025 in the case Barało (C-530/23), the Court of Justice of the European Union provided several clarifications on the scope of the right to access to a lawyer and legal aid for vulnerable suspects or defendants in criminal proceedings.

The case concerned criminal proceedings brought against K.P., who was arrested after a car collision. He was charged with possession of drugs and driving under their influence. During the investigation, K.P. was informed about his rights. However, he was interviewed without the presence of a lawyer, given that the prosecutor had not requested that a court-appointed lawyer be assigned to assist him. Furthermore, the authorities responsible for the investigation did not conduct an assessment of his mental state despite the fact that the suspect had suffered from mental health conditions in the past.

The District Court of Włocławek (Poland), which examined K.P.’s case, considered that his state of mental health might have affected his ability to understand and participate in criminal proceedings. According to this court, K.P. was deprived of the protection guaranteed by Directive 2016/1919 on legal aid for suspects and accused persons in criminal proceedings, as a suspect and a potentially vulnerable person as well as of the rights to which all suspects are entitled under Directive 2013/48 on the right of access to a lawyer in criminal proceedings. Having strong doubts about the compatibility of the Polish legislation on criminal procedures with the aforementioned directives, the District Court decided to stay the proceedings and address to the Court of Justice several preliminary questions. The questions concerned, on the one hand, the scope of the right of access to a lawyer and a vulnerable person’s right to legal aid, and on the other hand, the right to an effective remedy and the admissibility of evidence.

Addressing the first set of questions, the Court recalled that Article 13 of Directive 2013/48 and Article 9 of Directive 2016/1919 require Member States to ensure that the particular needs of vulnerable suspects and vulnerable accused persons are taken into account in the implementation of those directives. In its previous case law, the Court held that persons with mental health conditions come within the category of vulnerable persons referred to in Article 13 of Directive 2013/48. Given that Directive 2016/1919 completes Directive 2013/48, persons with mental health conditions also qualify as “vulnerable” under Article 9 of Directive 2016/1919. The Court highlighted that these provisions do not require Member States to establish, in certain circumstances, a presumption of vulnerability of the suspect or accused persons. It then analysed the preambles of the two directives as well as UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems to which recital 23 of Directive 2016/1919 makes an explicit reference.  It observed that it results from recital 18 of Directive 2016/1919 that, given, in particular, the specific needs of vulnerable persons, a request for legal aid made by the suspect or accused person should not constitute a substantive condition for the grant of such assistance. The UN Principles and Guidelines indicate that it is the responsibility of police, prosecutors and judges to ensure that those who appear before them who cannot afford a lawyer and/or who are vulnerable are provided access to legal aid. The Court of Justice concluded that, under Article 13 of Directive 2013/48 and Article 9 of Directive 2016/1919, granting legal aid shall not be made subject to a request from the person in a vulnerable position.

The second group of questions concerned the interpretation of Article 12(1) of Directive 2013/48 and Article 8 of Directive 2016/1919, which specify that suspects or accused persons must have an effective remedy, under national law, in the event of a breach of their rights under those directives. The Court held that these provisions require Member States to ensure respect for the right to a fair hearing and the rights of defence, enshrined, respectively, in Article 47 and Article 48(2) of the EU Charter of Fundamental Rights. It then underlined that, under Article 12 of Directive 2013/48 and Article 8 of Directive 2016/1919, it is necessary that decisions concerning the assessment of the potential vulnerability of a suspect or an accused person and the decisions on the refusal to grant legal aid to a vulnerable person and the choice to question that person in the absence of the lawyer, are reasoned and may be the subject of an effective remedy. These provisions do not require the Member States to provide for the possibility for a court to declare inadmissible incriminating evidence contained in statements made by a vulnerable person during questioning by the competent authorities in breach of the rights laid down by Directive 2013/48 or 2016/1919. Nonetheless, the national court must be able to verify that the rights in question have been respected and to draw all the inferences from that breach, in particular as regards the probative value of the evidence obtained in those circumstances.

Barało was the first case in which the Court of Justice had the opportunity to interpret Directive 2016/1919 on legal aid for suspects and accused persons in criminal proceedings. Detailed guidelines on the scope of the rights of vulnerable persons in the framework of criminal proceedings will be of particular use for national authorities responsible for their effective implementation.

Reproduction autorisée avec la référence suivante : Alicja Słowik, Right of access to a lawyer and legal aid for vulnerable suspects or defendants in criminal proceedings, actualité n° 14/2025, publiée le 16 mai 2025, par le Centre d’études juridiques européennes, disponible sur www.ceje.ch