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EU Judgment in Case C-660/21 K.B. et F.S. – Violation of the rights of the defence
22 June 2023
Thursday 22 June 2023
Judgment in Case C-660/21 K.B. et F.S. (Raising of its own motion a violation of the rights of the defence – criminal law)
(Area of Freedom, Security and Justice)
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.
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. 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.
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.
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.
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.
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.
At the trial of K.B. and F.S., their respective counsel did not raise a plea of procedural invalidity.
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.
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.
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.
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.
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?’