Introduction
The judgment rendered on 8 May 2025 by the Second Chamber of the European Court of Justice (the Court) in Barało (C-530/23)Footnote 1 illustrates some distinctive characteristics of EU legislation giving concrete expression to fundamental rightsFootnote 2 in the field of criminal law, particularly in relation to its scope of application, the interaction with other fundamental rights instruments, and its added value in enhancing fundamental rights protection in member states’ legal orders.
Barało concerns the interpretation of Directive 2013/48 on the right to access to a lawyer (the Access to a Lawyer Directive) and, for the first time in the Court’s case law, of Directive 2016/1919 on the right to legal aid (the Legal Aid Directive) for suspects and accused persons in criminal proceedings.Footnote 3 The judgment contributes to the growing body of case law concerning the EU Directives on the rights of suspects and accused persons (the Procedural Rights Directives). Besides its implications for EU criminal procedural law,Footnote 4 the case raises significant questions of EU fundamental rights law. This note focuses on this constitutional dimension.
After outlining the background of the case, the case note will examine Advocate General Ćapeta’s Opinion and the Court’s judgment. It will then discuss certain constitutional implications of the decision and conclude with some final observations.
The central argument of this analysis is that Barało illustrates the effects of the Procedural Rights Directives on the scope and prescriptive force of EU fundamental rights obligations within member states’ criminal law systems. As will be explained, the extension of such obligations observed in Barało derives not only from the requirements laid down in a given Directive but also, more interestingly, from the combined interpretation adopted by the Court of Justice of provisions from different Procedural Rights Directives and/or other sources of fundamental rights law. This demonstrates the added value of the Procedural Rights Directives for the protection of fundamental rights in the EU area of criminal justice, despite the procedural rights framework continuing to raise complex constitutional questions.
Factual and legal background
The dispute in the main proceedings before the District Court of Włocławek (Poland) concerned criminal charges brought against K.P., a person undergoing psychiatric treatment, who was arrested in July 2022 following a road accident and charged with possessing narcotic drugs and driving a vehicle under their influence. In relation to both charges, he was informed of his rights, including the right to be assisted by a lawyer of his choice or, if lacking sufficient means, by a court-appointed lawyer. During both the first and second questionings, the police did not assess his capacity to participate in the proceedings, and he was questioned without the assistance of a lawyer, despite evidence of prior hospitalisations for psychotic disorders. In December 2022, the authorities filed an indictment against K.P. before the Włocławek District Court, and K.P. appointed a lawyer to represent him.Footnote 5 Nevertheless, the District Court considered it necessary to obtain psychiatric opinions on K.P.’s mental state at the time of the offences and during the proceedings, noting that his earlier questionings had taken place without a lawyer, to determine whether the accused was in a vulnerable situation that would have necessitated a court-appointed lawyer. Despite the higher court annulling its request for supplementary investigations, the District Court raised the issue of whether K.P. had been deprived, as a vulnerable person, of the right to legal assistance under Directive 2013/48Footnote 6 and the right to legal aid under Directive 2016/1919.Footnote 7 The national court thus stayed the proceedings and referred 15 questions to the European Court of Justice for a preliminary ruling.
The questions referred concern: the respective scope of application of the Directives and their mutual relationship; what duties, if any, EU law imposes on national authorities regarding vulnerable persons’ rights in criminal proceedings; the legal implications of national legislation that fails to comply with the obligations arising from the Directives; and the requirement of an effective remedy and the implications for national rules on the admissibility of evidence in the event of a breach of the Directives’ provisions.Footnote 8
The Opinion of the Advocate General
Advocate General Ćapeta delivered her Opinion on 14 November 2024.Footnote 9 She expressed no doubts regarding the applicability of both Directives to the case at hand, based on their textual interpretation. K.P. enjoyed the right to be assisted by a lawyer under the Access to a Lawyer Directive since he was made aware by the authorities that he was suspected or accused of having committed a criminal offence,Footnote 10 which made him eligible to the right to legal aid.Footnote 11 Both Directives provide that those rights must be granted ‘without undue delay’ and at least ‘before [the person is] questioned’ by the authorities.Footnote 12 The Advocate General thus concluded that K.P. should have been assisted by a lawyer and granted legal aid from the first police questioning.
As for the assessment of vulnerability under the two Directives, and the resulting obligations for national authorities, the Advocate General first excluded the option advanced by the referring court of relying on the Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedingsFootnote 13 to determine who qualifies as vulnerable under EU law. While recommendations may be taken into account when interpreting other provisions of EU law,Footnote 14 they do not pose an obligation of conforming interpretation upon national courts or authorities, as they lack binding force. However, Article 9 of the Access to a Lawyer Directive and Article 13 of the Legal Aid Directive state that member states should ensure that ‘the particular needs of vulnerable suspects and accused persons [to be] taken into account’. Despite the absence of a definition of ‘vulnerable person’ in the Directives, the Court of Justice had already held that a person of ‘unsound mind’ must be considered vulnerable for the purposes of the Access to a Lawyer Directive.Footnote 15 Supporting this approach, the Advocate General referred to the case law of the European Court of Human Rights (the Strasbourg Court), which considers mental disorders as a source of vulnerability.Footnote 16 Advocate General Ćapeta therefore argued that a person with a mental disorder must be regarded as a vulnerable suspect or accused person under EU law.Footnote 17
As for the obligations arising from the finding of vulnerability, the Advocate General maintained that Article 9 of the Access to a Lawyer Directive and Article 13 of the Legal Aid Directive would be meaningless without an obligation for national authorities to identify and properly address vulnerability. These provisions introduce a duty of ‘special care’ for national authorities, which is moreover directly effective.Footnote 18 The Advocate General thus concluded that the provisions defining the scope of both Directives, read together with those imposing a duty of special care towards vulnerable persons, must be interpreted as having direct effect and as requiring that ‘competent authorities, which are aware of the potential vulnerability of a suspect or an accused person’ ensure that the person receives legal assistance and legal aid.Footnote 19
Regarding remedies, the Advocate General recalled that, under the two Directives at hand, member states must provide effective remedies where the rights under those Directives are breached.Footnote 20 While member states can opt for the exclusion of the evidence obtained in violation of EU procedural rights, they are not obliged to do so under EU law, as the admissibility of evidence in criminal proceedings remains a matter for national law. However, ‘when EU law applies’, the EU Charter of Fundamental Rights (the Charter) is activated, and the rights set out in Articles 47 and 48 must not be infringed. Relying also on Strasbourg case law, the Advocate General argued that compliance with fundamental rights requires that national judges retain the power to assess the overall fairness of proceedings. Where the admission of evidence obtained in breach of the Directives’ rights would undermine that fairness, national courts shall have, as a matter of EU law, the power to exclude such evidence.Footnote 21
Finally, the Opinion addressed the consequences for national law of breaches of the rights enshrined in the Directives. The Advocate General reiterated that all state authorities, including the police and public prosecutors, have a duty to interpret national law in conformity with EU law and, where this is not possible, to disapply conflicting national provisions and directly apply the relevant EU law provisions, in accordance with the principles of primacy and direct effect.Footnote 22
The judgment of the Court
The Court of Justice delivered its judgment on 8 May 2025. The Court grouped the 15 questions referred by the national court into three legal issues: the scope of application of the Directives; the consequences of non-compliance by national law with those Directives; and the requirement of an effective remedy in the event of a breach of the rights conferred.
As regards the first legal issue, the scope of application of the Directives, the Court’s analysis proceeded in two steps. First, it observed that the protection afforded by the Access to a Lawyer Directive and the Legal Aid Directive coincides. This was, in the Court’s view, for two reasons: (1) once the conditions for the right of access to a lawyerFootnote 23 are met, the right to legal aid is automatically triggered;Footnote 24 and (2) both Directives require that the rights thereby conferred be afforded ‘without undue delay’ and, in any event, before questioning by the police or any investigative act.Footnote 25 These provisions confirmed, in the Court’s view, that the right to be assisted by a lawyer constitutes a ‘fundamental principle enabling suspects and accused persons to exercise their rights of defence practically and effectively’. Consequently, legal aid, where necessary, must also be provided from the earliest stages of criminal proceedings.Footnote 26 Second, the Court clarified the role of vulnerability within the system of protection established by the Directives. The Court referred to Article 9 of the Access to a Lawyer Directive and Article 13 of the Legal Aid Directive, both of which require member states to ‘take into account’ the needs of vulnerable persons in implementing the Directives. Following the Advocate General’s Opinion, the Court relied on its precedent in Rayonna prokuratura Lom,Footnote 27 where it held that mental health conditions fall within the category of vulnerability for the purposes of the Access to a Lawyer Directive. Referring back to the common objective and the coinciding scope of protection of the two Directives, the Court concluded that the scope ratione personae must be the same under the Legal Aid Directive.Footnote 28 However, member states are not required to establish a presumption of vulnerability in criminal proceedings on the basis of the Commission Recommendation,Footnote 29 as suggested by the referring court. This is not only because, as argued by the Advocate General, that instrument lacks binding force, but also because the legal basis of the Directives in question allows for only minimum harmonisation, and the EU legislature has not adopted legislation regarding procedural safeguards for vulnerable suspects and accused persons. Nevertheless, the Court held that the duty to ‘take into account’ vulnerable persons’ needs could be interpreted in light of other provisions. Recital 23 of the Legal Aid Directive refers to the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,Footnote 30 which emphasise the responsibility of competent authorities to ensure meaningful access to legal aid for vulnerable persons. Similarly, Recital 51 of the Access to a Lawyer Directive provides that competent authorities should facilitate the effective exercise of the Directive’s rights by persons in a potentially weak position. Building on these principles (differently than the Advocate General, who relied on the Strasbourg case law), the Court concluded that, even in the absence of a legal presumption, competent authorities must ensure that the vulnerability of suspects or accused persons is ‘ascertained and acknowledged’. This enables them to be guaranteed access to a lawyer under legal aid before the questioning or the conduct of any investigative act.Footnote 31
Turning to the second legal issue, the consequences of non-compliance with the obligations arising from the two Directives, the Court recalled, following entirely the Advocate General’s Opinion on the point, its well-established case law on consistent interpretation, the duty of disapplication, and the direct effect of EU law. In line with the principles of primacy and effectiveness, national courts and all state authorities – including police and prosecutors – must first interpret national law in the light of the wording and purpose of the relevant EU provisions. Where such interpretation is not possible, they must disapply any national rule or practice that conflicts with a directly effective provision of EU law, namely one that confers rights on individuals in an unconditional and sufficiently precise manner.Footnote 32 Crucially, this section of the judgment concluded with the identification of four provisions that the Court found to have direct effect. The Court found the following provisions to be unconditional and sufficiently precise: Article 3(2) of the Access to a Lawyer Directive, insofar as it requires that suspects and accused persons have access to a lawyer without undue delay and, at the latest, from the first of the four events listed therein; Article 3(3) of the Access to a Lawyer Directive, insofar as it sets the minimum constituent elements of the right to access to a lawyer; Article 4(5) of the Legal Aid Directive, insofar as it provides that eligible suspects and accused persons must receive legal aid without undue delay and, at the latest, before questioning by the authorities or the investigative or evidence-gathering acts listed in Article 2(1)(c); Article 9 of the Legal Aid Directive, insofar as it requires that the needs of vulnerable persons be taken into account by the authorities for the purpose of granting legal aid.Footnote 33
The Court’s answer to the first two legal issues led to a clear conclusion: the combined effect of several provisions of the two Directives imposes on all state authorities involved in criminal proceedings: (a) the obligation to ensure that the vulnerability of suspects or accused persons is ascertained and acknowledged before they are questioned or before any investigative measures are carried out in relation to them; and (b) the duty to guarantee such persons access to a lawyer under legal aid without undue delay and, at the latest, before questioning or any investigative act is conducted.
The third and last legal issue addressed in the ruling concerned the requirement that member states provide an effective remedy in the event of a breach of the rights guaranteed by the Directives, as laid down in Article 12 of the Access to a Lawyer Directive and Article 8 of the Legal Aid Directive. At this point in the judgment, the EU Charter of Fundamental Rights came into play for the first time. The Court held, following Advocate General Ćapeta on the point, that the provisions on remedies contribute to the protection of the rights enshrined in Articles 47 and 48 of the Charter. More generally, the ‘combined action’ of the two Directives contributes to the fulfilment of the ‘right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter’, as legal aid guarantees an effective access to a lawyer, which in turn ensures the right to an effective remedy. It follows that the provisions on remedies must be interpreted in the light of Articles 47 and 48 of the Charter.Footnote 34 Although these Charter provisions do not oblige member states to introduce remedies other than those available under national law – and expressly leave the admissibility of evidence within member states’ competence – the Court emphasised that respect for the Charter rights of defence and overall fairness of the criminal proceedings cannot be disregarded. This is particularly relevant when assessing statements made or evidence obtained in breach of the suspect’s or accused person’s right of access to a lawyer. The Court supported this conclusion with a cross-reference to the Strasbourg case law, which, according to the preambles of both Directives, must be ‘taken into account’ when interpreting the Directives.Footnote 35
A combined reading of the provisions on remedies and the Charter thus led the Court to conclude that the assessment of a suspect’s or accused person’s vulnerability, the decision to question that person without a lawyer, and the refusal to grant legal aid must all be reasoned and subject to an effective remedy. EU law does not, however, require the automatic exclusion of evidence obtained in breach of those rights, provided that the national court has the power to verify whether the rights have been respected and to draw all necessary inferences, in particular as regards the probative value of evidence obtained in violation thereof.Footnote 36
Commentary
The following analysis consists of two parts. The first part will argue that Barało exemplifies how the operation of the Procedural Rights Directives within a dense normative ecosystem, and the interaction between different legal instruments that this implies, leads to the expansion of the scope and the prescriptive force of EU fundamental rights law in national criminal systems. This constitutes arguably one added value of the legislation at hand from the perspective of fundamental rights protection. The second part will in turn highlight certain open constitutional questions within the current framework illustrated by Barało, especially when placed into the wider context of other case law of the Court on the Procedural Rights Directives. These questions regard the relationship between the EU legislator and judiciary, the use of the Strasbourg case law by the Court of Justice, and the challenges posed by the minimum harmonisation requirement in the TFEU.
The scope and effectiveness of the Procedural Rights Directives in a dense normative ecosystem
The Procedural Rights Directives were interpreted in Barało not in isolation, but by emphasising their mutual connections and overlaps. Different components of criminal fair trial are, after all, interrelated, and in fact the adoption of procedural guarantees at the EU level was initially conceived as part of a unique legal instrument, namely the draft Framework Decisions tabled in 2004 by the Commission.Footnote 37 In addition, since the Procedural Rights Directives operationalise in secondary law rights enshrined in the Charter and in the European Convention on Human Rights (the Convention), the Court interpreted those detailed rules of criminal procedure in light of the wider constitutional setting. It will be shown that the interpretation of the Procedural Rights Directives within the broader legislative and constitutional framework is used in Barało as a tool for expanding both their scope of application and their practical effectiveness.
The first factor informing the Court’s expansive interpretation is the interaction between the Procedural Rights Directives themselves. The complementarity between the provisions of the Access to a Lawyer and the Legal Aid Directives has five dimensions in Barało. The Court expressly emphasised the unity of the two legal instruments at hand at the outset of the operative part of the judgment: the two Directives complement each other, as the ‘right to legal aid is linked to the exercise of the right to access to a lawyer’,Footnote 38 so that once the conditions for recognition of the right to a lawyer are met, the right to legal aid is automatically ‘triggered’.Footnote 39 The ‘coincidence in the protection’Footnote 40 also concerns the point in time from which those rights must be guaranteed – namely, at the latest, before the suspect’s questioning or the first investigative act. Both Directives equally impose on the authorities the duty to ‘take into account’ the potential vulnerability of the person concerned,Footnote 41 as well as to provide effective remedies in the event of a breach.Footnote 42 Teleologically, both instruments operate, through their ‘combined action’,Footnote 43 ‘to ensure the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, since the grant of legal aid facilitates the right of access to a lawyer’ which, in turn, is a ‘fundamental’ precondition to the right to an effective remedy. Two remarks prove that the complementarity between the legislative instruments hereby exemplified constitutes a recurrent feature of the EU legal framework for the protection of the rights of suspects and accused persons.
First, the same dynamic observed in Barało can be observed with respect to other Procedural Rights Directives. For instance, Directive 2016/800 on procedural safeguards for children enshrines the right to be assisted by a lawyer, building upon the right of access to a lawyer under Directive 2013/48, which constitutes its essential precondition.Footnote 44 This interlinks the scope of application of Directive 2016/800 with that of the Access to a Lawyer Directive, similarly to what was observed in Barało in reference to the Legal Aid Directive. Another example is provided by the interrelation between the provisions on the letter of rights under Directive 2012/13 on the right to information (the Information Directive) and the right not to incriminate oneself under Directive 2016/343. The Preamble of the latter invites member states to include in the letter of rights the information concerning the privilege against self-incrimination, ‘as it applies under national law in accordance with … Directive [2012/13]’ (emphasis added).Footnote 45
Second, Barało shows continuity with the Court’s previous case law as regards the complementarity between the Procedural Rights Directives. Issues concerning the compatibility of national law with EU law frequently arise in connection with more than one Directive. In many cases before the Court, as in the case under discussion, the same national provision simultaneously raised issues under several Procedural Rights Directives. Two further judgments, among many others, substantiate this observation. In Rayonna prokuratura Lom,Footnote 46 the referring court raised questions concerning Directives 2012/13 (the Information Directive), 2013/48 (the Access to a Lawyer Directive), and 2016/343. When addressing the third question, the Court interpreted the provisions of the Information Directive and the Access to a Lawyer Directive in light of the right to liberty enshrined in the Charter and the Convention, concluding that their scope of application extended to procedures for committal to a psychiatric hospital, given their effect of deprivation of liberty. When subsequently addressing the same issue in relation to Directive 2016/343, the Court simply assumed that its scope had to coincide with that of the Information and the Access to a Lawyer Directives.Footnote 47 This shows that the similar wording used across the Directives when defining their scope of application allows the Court to transpose interpretative conclusions from one instrument to another. K.B. and F.S. Footnote 48 concerned the failure of national authorities to inform in due time suspects or accused persons of their right to remain silent, and the compatibility with EU law of a national rule preventing trial courts from raising such a violation ex officio. The Court held that a national procedural rule preventing the trial court from raising, of its own motion, a breach of the right to information under the Information Directive did not undermine Articles 47 and 48 of the Charter, provided that suspects or accused persons had not been deprived of a practical and effective opportunity to have access to a lawyer under Article 3 of the Access to a Lawyer Directive, with legal aid, when required by the Legal Aid Directive. This conclusion is remarkable, as it illustrates that, in the Court’s view, a potential breach of one procedural right may be remedied by the effective exercise of other functionally connected procedural rights, thereby safeguarding the overall fairness of the proceedings.Footnote 49
Overall, the present case confirms that the interrelations between the Directives have significant legal consequences. They enable the Court to transfer interpretative conclusions from one Directive to another – as happened in Barało (on the inclusion of persons with mental health conditions within the notion of vulnerability) and in Rayonna prokuratura Lom (on the applicability of two Directives to psychiatric committal proceedings). They also allow the Court to develop consistent procedural obligations for national authorities from two (or more) Procedural Rights Directives, such as for the duty of vulnerability assessments and the remedies for rights violations in Barało. Moreover, as K.B. and F.S. demonstrates, the interconnection of these rights enables one procedural safeguard to compensate for the breach of another, ensuring the overall fairness of the criminal proceedings. Despite the political complexity of the negotiations leading to the adoption of separate legal instruments,Footnote 50 the Court demonstrates a remarkable effort in constructing a criminal fair trial standard in EU law by systematically combining its various constituent elements. In doing so, it either relies directly on the explicit connections established by the legislative provisions, or it develops such connections itself on the basis of a fundamental-rights-oriented interpretation. However, arguably greater legal certainty would be achieved if those interconnections were established at the outset by the EU legislator, even via the ‘codification’ of procedural guarantees in a single and internally coherent legal instrument.
The second factor informing the Court’s expansive interpretation is the interaction of the Procedural Rights Directives with other sources of fundamental rights protection. Barało indeed illustrates the challenges arising from adding yet another layer to a multi-level system of fundamental rights sources. In this judgment, the Court interpreted the Directives’ provisions on remedies in the light of Articles 47 and 48 of the Charter, which the Directives themselves operationalise in EU secondary law.Footnote 51 The Court also drew on the Strasbourg case law on Article 6 of the Convention, based on the explicit mandate to take Convention standards into account in the preambles of both the Access to a Lawyer and the Legal Aid Directives.Footnote 52 Such references to the Convention system can be seen as inspired by the mechanism of Article 52(3) of the Charter, according to which the Charter rights corresponding to rights guaranteed by the Convention shall be given the same meaning and scope as those guaranteed by the latter. However, the preambles’ references should be understood as bearing autonomous legal significance and as implying an added value for the convergence between EU and Convention fundamental rights standards in the field, beyond that provided by Article 52(3) of the Charter. The reliance on the Convention and its case law by the EU legislator implies their direct interpretative relevance for each provision of the Directives expressing Convention rights, and not merely an indirect one, mediated by the Charter. This entails the possibility of a Convention-reliant interpretation in situations where a specific Directive right has not yet been addressed by the Court’s case law under the Charter, in which case – under the logic of Article 52(3) of the Charter – the interpretative role of the Convention would otherwise be excluded. More generally, such references signal the explicit intention of the EU legislator to establish fundamental rights standards building on their Convention elaboration, thereby providing additional institutional support to the Court of Justice’s rulings that align with Strasbourg case law.Footnote 53 It has indeed been observed not only that, in the field of procedural rights, the Court of Justice often tends to align to the Strasbourg Court when Strasbourg case law exists on a given matterFootnote 54 but also that the area of defence rights in criminal proceeding is characterised by a remarkable degree of convergence,Footnote 55 differently than other fields of EU lawFootnote 56 and ultimately to the benefit of the work of national judges, who are bound by both EU and Convention law.Footnote 57 The Procedural Rights Directives thus translate, expand, and clarifyFootnote 58 specific components of the right to a fair trial as protected by Articles 47 and 48 of the Charter and Article 6 of the Convention, thereby constituting another example of EU legislation giving concrete expression to fundamental rights enshrined at the constitutional level.Footnote 59 Barało also provides a clear example that the Directives engage with international law instruments even beyond the Convention. Through Recital 23 of the Legal Aid Directive, in fact, the Court relied for the first time on the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, an instrument of international soft law.Footnote 60 By reading the Directives’ obligation to ‘take into account’ the needs of vulnerable persons in light of the UN Principles, the Court derived concrete positive duties for national authorities – namely, to conduct a vulnerability assessment within a defined timeframe – even though no such obligation appears in the text of the Directives.
In sum, Barało confirms that the Procedural Rights Directives operate within a dense ‘normative ecosystem’ – internally, as six interrelated instruments of secondary EU law sharing structural similarities and functional connections; and externally, as they draw upon and consolidate a broader framework of sources protecting fundamental and human rights. It is thus submitted that the enactment of the Directives, in conjunction with pre-existing instruments, expands the scope of application and effectiveness of EU fundamental rights law in national criminal proceedings. Barało illustrates this expansion at least in two respects.
First, in the present case the Court brought persons with mental health conditions within the protection of the Directives and consequently imposed on national authorities a specific duty to ascertain vulnerability within a specific timeframe, despite the absence of any indication in the legislative text. This expansive interpretation, as explained above, was grounded in a systematic interpretation based on the interactions between the two Directives and their link to other instruments of protection of the rights of suspects and accused persons.
The second illustration lies in the part of the judgment concerning remedies. When addressing the consequences of a breach of the harmonised rights, the Court was confronted with a complex interpretative challenge. On the one hand, a powerful remedy for evidence-gathering acts – such as a police questioning – conducted without the requisite procedural safeguards would need to affect the admissibility of the resulting evidence. Since most evidence-gathering acts conducted during criminal investigations cannot be replicated, their annulment and repetition would be incompatible with the objectives of criminal enforcement. On the other hand, the rules on the admissibility of evidence are expressly excluded from the scope of the Directives. The Court thus opted for a constitutional interpretation: it read the Directives’ provisions on remedies in the light of Articles 47 and 48 of the Charter, and referred to the Strasbourg case law, deriving the national courts’ power to draw ‘all inferences’ from the breach of the rights to a lawyer and to legal aid – ‘in particular’, thus not exclusively, ‘as regards the probative value of the evidence obtained’.Footnote 61 This suggests that, as also explicitly maintained in the Opinion of the Advocate General,Footnote 62 evidence obtained in breach of EU fundamental rights could even be excluded, notwithstanding that the admissibility of evidence remains a matter for national law. Such interpretation enhances national courts’ power to remedy for fundamental rights violations – even in the field of evidentiary rules – so as to uphold the overarching principles of a fair trial and the rights of the defence enshrined in the Charter.Footnote 63
Open constitutional questions
This comment has thus far argued, in relation to the Court’s ruling in Barało, that the Procedural Rights Directives, operating within a dense normative ecosystem, extend the scope of EU fundamental rights law and strengthen the protection of suspects and accused persons in national (criminal) law systems. From an EU integration perspective, this outcome is most welcome. Stricter fundamental rights standards, in fact, enhance mutual trust among law enforcement and judicial authorities,Footnote 64 making them more willing to engage in cross-border cooperation. This reflects the overarching objective of EU harmonisation of national criminal procedure, namely, ‘to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters’.Footnote 65 The procedural rights harmonisation therefore constitutes an added value both for interstate cooperation in criminal matters and for the protection of fundamental rights within the EU. However, from an EU constitutional law perspective, the ruling also highlights three open issues within the current framework and, alongside its added value, points to certain limitations that might be considered for future revision or further harmonisation.
The first issue concerns a broader dimension of legislative and judicial politics. As anticipated, the negotiations of the Procedural Rights Directives were lengthy and complex, as both criminal procedure and fundamental rights law are areas deeply intertwined with member states’ prerogatives. One additional reason for this complexity lies in the Treaty-based limitation of EU competence to minimum harmonisation, accompanied by the obligation to respect national legal diversity.Footnote 66 The member states’ concern to preserve national specificities in this field explains the enactment of separate Directives, the relocation to lengthy preambles of obligations on which no agreement on the main text could be reached,Footnote 67 and the presence of open-ended clauses. It has been noted that these features, however, enhance the interpretative role of the Court of Justice, which is progressively developing autonomous concepts of EU law and filling the gaps left by the legislature.Footnote 68 Barało is a clear example of such phenomenon, as in this case the Court constructed, based on systematic interpretation, a procedural duty for national authorities to conduct a vulnerability assessment – and granted national courts broad powers to remedy to breaches of Directive-based rights. While courts are undoubtedly entrusted with interpreting legal rules and adapting them to specific factual circumstances, EU harmonisation in this field appears to delegate significant normative choices on the configuration of fair trial rights to the judiciary. Given that procedural guarantees in criminal proceedings are inherently sensitive to fundamental rights, the importance of grounding them in democratic legislative processes cannot be overstated. This suggests that, when updating the existing instruments or pursuing further procedural rights harmonisation, the EU legislator should aim to overcome political negotiation hurdles and provide clearer legislative definitions of at least the essential aspects of the harmonised rights. This is all the more so considering that, in terms of judicial politics, the Court appears to develop its fundamental rights jurisdiction with increasing reliance on EU legislative acts, which alone calls for heightened consideration of the implications of the drafting of EU legislation for the protection of fundamental rights.Footnote 69
The second issue arises in relation to the methodology employed by the Court of Justice when relying on the standards developed by the Strasbourg Court, which form the substantive backbone of the Procedural Rights Directives. As anticipated, the Court has shown a high degree of reliance on Convention standards where relevant Strasbourg case law exists, while reverting to the Charter or to general principles of EU law in its absence.Footnote 70 This approach is sound, especially because also their Recitals require the implementation of the Directives to be consistent with corresponding Convention standards.Footnote 71 In Barało, Advocate General Ćapeta relied extensively on Strasbourg rulings when addressing the scope ratione personae of the Legal Aid DirectiveFootnote 72 and the consequences of rights violations on national rules of evidence;Footnote 73 the Court’s reliance on Strasbourg case law,Footnote 74 however, took the form of an incidental reference to the Strasbourg jurisprudence without identifying specific judgments,Footnote 75 unlike the approach adopted in the vast majority of cases concerning the Procedural Rights Directives. This is perhaps partly explained in the case at hand by the main reliance on the Charter to determine the effects of EU law on national evidentiary rules. More generally, this area of EU law brings back – with renewed relevance – long-standing methodological questions concerning the use of the Convention by the Court of Justice. These issues are not new, yet they continue to re-emerge with particular intensity in relation to the Procedural Rights Directives. In Barało, the Court referred to the Convention but ultimately grounded its reasoning on Articles 47 and 48 of the Charter. However, as the Strasbourg references in the Advocate General’s Opinion suggest, this appears to be less a case of autonomous EU law development in the absence of Strasbourg guidance than a methodological oversight – namely, the failure to identify and cite the relevant Strasbourg judgments. As explained, the centrality of the Convention for the Court of Justice’s interpretation of the Procedural Rights Directives derives from the explicit reference in the Preambles of those Directives to the Convention standards on fair trial rights in criminal matters. Moreover, the Court has to engage with the Convention to ensure compliance with the non-regression clauses contained in the Directives, which stipulate that nothing in them ‘shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under … the [Convention]’.Footnote 76 This alignment between the two courts’ interpretations is all the more crucial in light of the renewed prospect of the EU’s accession to the Convention. Although the Court’s overall aim of ensuring harmony with Strasbourg jurisprudence is commendable, greater methodological rigour would undoubtedly benefit this area of EU law marked by interactions and overlaps among layers of rights protection. The one reference to Strasbourg case law in the judgment at hand, unsupported by citations to specific judgments, could give the impression of an exercise in style rather than of a substantive engagement with the international human rights standard. Consistently and expressly quoting the Strasbourg judgments on which the Court of Justice relies would enhance transparency and methodological consistency, facilitating interpretation of supranational rights standards by national courts who are ultimately called to guarantee the rights of suspects and accused persons.
The third issue pertains to the inherent tension between the expansive interpretation of the scope and prescriptive force of the Directives, and the minimum harmonisation requirement stemming from their legal basis in Article 82(2) TFEU. This tension generates complex interpretative challenges and, once again, is reflected in the broadening of the interpretative role of the Court of Justice, as exemplified in Barało. Scholars have observed that the Court tends to adopt two different approaches when dealing with this tension. On the one hand, it often promotes a broad and fundamental rights-based understanding of the Directives’ scope to enhance their protective effect. On the other hand, in certain cases, it adopts a restrictive reading, limiting the reach of the rights conferred by insisting on their minimum-rules character.Footnote 77 Barało provides two illustrations of the first approach – though not without certain argumentative ambiguities.
The first illustration explicitly engages with the minimum harmonisation requirement. When addressing national authorities’ duties towards vulnerable persons, the Court refused to rely on the Commission Recommendation on procedural safeguards for vulnerable persons, considering it a non-binding instrument and, ‘all the more so in the context of minimum harmonisation’, noting that the EU legislator had not yet adopted a binding text specifying those duties. Perhaps surprisingly, however, the Court did rely on an instrument of international soft law – the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems – which, unlike the Commission Recommendation, lies outside the EU legal order. This reliance was explained by the reference to the UN Principles contained in Recital 23 of the Legal Aid Directive.Footnote 78 Yet, the soundness of this interpretative move remains open to discussion. Recitals, just like recommendations, lack binding force, and if the principle of minimum harmonisation implies that matters not explicitly covered by the Directive remain within member states’ regulatory autonomy,Footnote 79 a recital referring to an international soft law document could not, by itself, generally speaking, suffice to establish a concrete procedural duty on national authorities in the absence of a corresponding clear operative provision in the Directive.
A second example of the tension between expansive interpretation and the minimum-harmonisation character of the Directives in Barało concerns the Court’s expansive reading of national courts’ powers to remedy rights violations. It should be recalled that the Legal Aid Directive does not regulate evidentiary rules, while the Access to a Lawyer Directive merely requires that the right to a fair trial and the rights of the defence be ‘respected’ in the assessment of evidence.Footnote 80 Despite the inherent ambiguity of the latter provision, it is striking that the Court, by interpreting the Directives’ provisions on remedies in light of the Charter, suggested that national courts could, as a matter of EU law, exclude evidence obtained in violation of the EU rights enshrined in the Directives. This outcome is indeed particularly remarkable, in the context of minimum harmonisation, as only the assessment (here, the probative value) and not the exclusion (which concerns admissibility) of evidence obtained in breach of rights falls within the scope of the Access to a Lawyer Directive.Footnote 81 The Court’s approach therefore stretched the interpretative boundaries of minimum harmonisation, demonstrating how constitutional interpretation may, in practice, prevail over the competence-bound logic of the Treaties in the pursuit of effective fundamental rights protection.
Conclusion
The analysis of the present judgment demonstrated the added value of the Procedural Rights Directives for the protection of fundamental rights in the EU area of criminal justice. Such added value has two constitutional drivers. First, the interactions of the Procedural Rights Directives within a complex normative ecosystem significantly broaden the scope of application and the intensity of the obligations flowing from EU fundamental rights law vis-à-vis member states’ criminal systems. In Barało, the Court’s systematic interpretation of the Procedural Rights Directives resulted in the imposition of specific procedural duties on national criminal law authorities in relation to vulnerable persons and of far-reaching obligations for national courts when dealing with evidentiary rules. In this respect, this precedent moreover affects the interpretation of the other Procedural Rights Directives: given their analogous structure and design, an expansive interpretation adopted by the Court in relation to one instrument is likely to influence the understanding of the other instruments within the same framework. In particular, the duty to conduct a vulnerability assessment as constructed in the present case must be understood as implicitly applying across all Procedural Rights Directives.
Second, the Procedural Rights Directives provide detailed fundamental-rights-protective rules that benefit from the distinctive features of EU law, such as consistent interpretation, primacy, disapplication, and direct effect.Footnote 82 In Barało, this is exemplified by the recognition of direct effect to four Directives’ provisions, on which individuals may now rely directly before national criminal courts. This distinguishes the protective capacity of the Directives from that of the Charter and, notably, from that of the Convention, within whose legal system most substantive standards in the field were developed. The enforcement toolbox of EU law, combined with the level of detail of secondary legislation, affords individuals with much greater protection.
The enforcement potential of the Procedural Rights Directives in national criminal proceedings raises yet again the tension with the minimum harmonisation requirement of Article 82(2) TFEU, and particularly its constitutional rationale: protecting national legal diversity.Footnote 83 This requirement has limited relevance for enforcement considerations as such: once a situation falls within the (even minimum) scope of EU law, the full set of EU legal principles – including direct (and indirect) effect – applies. Nonetheless, in light of the far-reaching effects of these Directives on national criminal systems, the protection of national diversity mandated by the Treaty appears threatened, both in relation to domestic fundamental rights standards and to principles of criminal procedure. In other words, reconciling the call for uniformity inherent in EU legislation with the need to respect the diversity of national legal solutions appears to be a major (if not the main) constitutional challenge in the field of EU procedural rights.
Addressing the open questions raised in this analysis is crucial to ensure that the Procedural Rights Directives are properly updated as EU legal integration in criminal matters progresses, and to prepare for further procedural rights harmonisation, which remains a prominent topic in both institutional and academic debate. In the absence of full conceptual clarity as to how these instruments are intended to operate, moreover, national judges may be uncertain or reluctant to engage with them. Current practice suggests that this concern is not merely theoretical: most preliminary references on the Procedural Rights Directives originate from a limited number of member states, while others appear to avoid engagement – a tendency that is unsurprising given the complexity of the field.Footnote 84
Acknowledgements
I am very grateful to Lorenzo Cecchetti, Elise Muir and Anne Weyembergh for their insightful feedback on an earlier draft, and to the anonymous reviewers for their sharp comments and suggestions. All errors remain mine.
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