Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

PRIIT PIKAMÄE

delivered on 23 March 2023 (1)

Case C‑209/22

Criminal proceedings

in the presence of:

Rayonna prokuratura Lovech, TO Lukovit

(Request for a preliminary ruling made by the Rayonen sad Lukovit (District Court, Lukovit, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to information in criminal proceedings – Directive 2012/13/EU – Right of access to a lawyer in criminal proceedings – Directive 2013/48/EU – Pre-litigation criminal procedure – Coercive measure of personal search and seizure – National law not recognising the concept of suspect – Articles 47 and 48 of the Charter of Fundamental Right of the European Union – Effective exercise of the rights of defence of suspects and accused persons during the judicial review of measures to obtain evidence)

I.      Introduction

1.        The purpose of this request for a preliminary ruling referred by the Rayonen sad Lukovit (District Court, Lukovit, Bulgaria) under Article 267 TFEU is the interpretation 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, (2) 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 (3) and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (’the Charter’), as well as the principles of lawfulness and effectiveness.

2.        This request was submitted in the context of criminal proceedings brought against AB for possession of illicit substances. The referring court questions, in essence, the protection, with regard to the right to information and the right of access to a lawyer, established in Directives 2012/13 and 2013/48, which should be enjoyed by a person who, in the preliminary stage of criminal proceedings, is subject to a personal search and seizure of property in their possession. The referring court also questions the scope of the judicial review of coercive measures to obtain evidence that is required under EU law. This case thus raises sensitive questions relating to the safeguarding of the rights of suspects and accused persons in criminal proceedings, regarding which the Court must rule in the interests of consistent application of EU law and effective protection of fundamental rights in the area of freedom, security and justice.

II.    Legal context

A.      European Union law

1.      Directive 2012/13

3.        Under the title, ‘Scope’, Article 2(1) of Directive 2012/13 states:

‘This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.’

4.        Article 3 of that directive, entitled ‘Right to information about rights’, states:

‘1.      Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

(a)      the right of access to a lawyer;

(b)      any entitlement to free legal advice and the conditions for obtaining such advice;

(c)      the right to be informed of the accusation, in accordance with Article 6;

(d)      the right to interpretation and translation;

(e)      the right to remain silent.

2.      Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.’

5.        Article 8 of that directive, entitled ‘Verification and remedies’, states:

‘1.      Member States shall ensure that when information is provided to suspects or accused persons in accordance with Articles 3 to 6 this is noted using the recording procedure specified in the law of the Member State concerned.

2.      Member States shall ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive.’

2.      Directive 2013/48

6.        Article 2(1) of Directive 2013/48 is worded as follows:

‘This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.’

7.        Article 3 of that directive states:

‘1.      Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.

2.      Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

(a)      before they are questioned by the police or by another law enforcement or judicial authority;

(b)      upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;

(c)      without undue delay after deprivation of liberty;

(d)      where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.

3.      The right of access to a lawyer shall entail the following:

(a)      Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;

(b)      Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. …

(c)      Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:

(i)      identity parades;

(ii)      confrontations;

(iii)      reconstructions of the scene of a crime.

…

6.      In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons:

…

(b)      where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.’

8.        Under the title ‘Remedies’, Article 12 of that directive states:

‘1.      Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this Directive.

2.      Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.’

B.      Bulgarian law

9.        In accordance with Article 54 of the Nakazatelno protsesualen kodeks (Code of Criminal Procedure), in force as from 29 April 2006 (DV No 86 of 28 October 2005; the ‘NPK’), the person accused is the person who, in that capacity, is subject to criminal prosecution under the conditions and in the manner provided for in this code.

10.      Under the title ‘Rights of the accused’, Article 55 of that code states:

‘(1)      The accused person shall have the following rights: to learn what offence he or she is formally accused of and on the basis of what evidence; to provide or refuse to provide explanations regarding the accusation; to read through the case file, including information obtained by special investigative methods, and obtain the necessary extracts; to present evidence; to participate in the criminal proceedings; to make requests, remarks and objections; to speak last; to lodge an appeal against acts that infringe his or her rights and legitimate interests; and to have a lawyer. The accused person shall have the right to have his or her defence counsel take part during any investigative actions or other procedural actions involving the accused person, unless the accused person has expressly waived that right. …

(2)      The accused person shall have the right to receive general information facilitating the choice of his or her lawyer. He or she is to have the right to communicate freely with his or her defence counsel, to meet that defence counsel in private, to receive advice and other legal assistance, including prior to the start of and during the questioning and any other procedural actions involving the accused person.

…’

11.      Article 164 of the same code, entitled ‘Searches’, states:

‘(1)      A search of a person in the course of preliminary proceedings, without authorisation from a judge of the court of first instance having jurisdiction or of the court of first instance in whose jurisdiction the act is carried out, shall be authorised:

1.      in the event of a deprivation of liberty;

2.      where there are sufficient reasons to believe that the persons present during the search of premises concealed objects or documents relevant to the case.

(2)      The search shall be conducted by a person of the same sex, in the presence of persons required to attend the proceedings who are of the same sex.

(3)      The record of the investigative act shall be presented to the court for approval without delay and within a maximum of 24 hours.’

12.      Under the title ‘Preliminary proceedings’, Article 212 of the NPK states:

‘(1)      The preliminary proceedings shall be initiated by order of the public prosecutor.

(2)      The preliminary proceedings shall be deemed to be initiated by the drawing up of a record of the first investigative act, where an inspection including a finding, search of premises, seizure or examination of witnesses is carried out, where the immediate performance of those acts constitutes the only opportunity to collect and preserve evidence, as well as where a search is carried out in accordance with Article 164.

(3)      The investigating authority that has carried out an act referred to in subparagraph 2 shall inform the public prosecutor without delay and within a maximum of 24 hours.’

13.      Article 219 of that code, entitled ‘Formal accusation and the accusation order’, states:

‘(1)      Where sufficient evidence has been gathered of the guilt of a person for having committed an offence under ordinary law and where there are no grounds for the termination of criminal proceedings, the investigating authority shall report to the public prosecutor and formally accuse the person by issuing an order to that effect.

(2)      The investigating authority may also formally accuse the person by drawing up a record of the first investigative act carried out in respect of him or her; it shall report this to the public prosecutor.

(3)      The accusation order and the record referred to in subparagraph 2 shall state:

1.      the date and place of issue;

2.      the issuing authority;

3.      the full name of the person accused, the offence of which he or she has been accused and its legal classification;

4.      the evidence on which the accusation is based, provided that this indication is not likely to impede the investigation;

5.      the restriction of liberty, if imposed;

6.      the rights of the accused resulting from Article 55, including his or her right to refuse to provide explanations and his or her right to have a lawyer commissioned or appointed.

…

(8)      Until the investigating authority has fulfilled its obligations under subparagraphs 1 to 7, it may not carry out investigative acts involving the participation of the accused person.’

III. Facts of the dispute, the procedure in the main proceedings and the questions referred for a preliminary ruling

14.      The dispute in the main proceedings, pending before the Rayonen sad Lukovit (District Court, Lukovit, Bulgaria, concerns a request by the prosecutor of the Rayonna prokuratura Lovech (District Public Prosecutor’s Office, Lovech, Bulgaria) for the approval, a posteriori, of a personal search and a seizure carried out against the person of AB.

15.      On 8 February 2022, three police officers from the city of Lukovit stopped and checked a vehicle driven by IJ in which his or her companions AB and KL were also present. Before the driver of the vehicle was tested for drugs and alcohol, AB and KL told police officers that they had a narcotic substance in their possession. This information was transmitted to the duty officer of the Lukovit district police station responsible for the investigation, who prepared a record of oral communication of the commission of an offence.

16.      As the result of the drug and alcohol test performed on the driver was positive, a police officer conducted an inspection of the vehicle. In addition, AB was subjected to a personal search and, as such, a record ‘of search and seizure carried out in an emergency and subject to a posteriori approval by the court’ was drawn up. In this record, the police officer responsible for the investigation indicated that this search was carried out on grounds relating to sufficient evidence of the possession of items prohibited by law and in the context of the preliminary proceedings initiated by the Rayonno upravlenye Lukovit (District police station, Lukovit, Bulgaria).

17.      During this search, a narcotic substance was found in AB’s possession. On 8 February 2022, the police officer responsible for the investigation informed the public prosecutor of the District Public Prosecutor’s Office, Lovech, of the results of the search and of the fact that he had initiated preliminary proceedings in this regard. As part of the preliminary proceedings already initiated, after the search had been carried out and once at the police station, AB gave written explanations and confirmed that the substances found in his possession were narcotics for his personal consumption.

18.      On 9 February 2022, the public prosecutor applied to the Rayonen sad Lukovit (District Court, Lukovit) for approval of the record of the personal search and seizure performed on AB.

19.      The referring court has doubts as to whether the judicial review provided for in national law on coercive evidence management measures in the preliminary phase of criminal proceedings constitutes a sufficient guarantee of respect for the rights of suspects and accused persons, as provided for in Directives 2012/13 and 2013/48.

20.      In particular, first, that court states that national law does not contain a clear rule on the scope of judicial review of coercive measures to obtain evidence in the context of preliminary proceedings and that, according to the case-law of national courts, the control of the property search, personal search and seizure shall be based on their formal legality. In this regard, it recalls that the European Court of Human Rights (‘the ECtHR’) has repeatedly condemned Bulgaria for infringing Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).

21.      Second, that court states that Bulgarian law does not recognise the concept of a ‘suspect’, but rather the concept of ‘an accused person’, by virtue of the decision of the public prosecutor or the investigating authority, and that, during the preliminary proceedings, there is a well-established practice by the police and the public prosecution service of delaying the point starting from which the person concerned is considered to be ‘accused’, which, in effect, has the consequence of circumventing obligations relating to the respect of the rights of defence of suspects.

22.      Lastly, it would appear, both from academic legal writing and from national case-law, that the court having jurisdiction, even if it is convinced that the rights of the defence of the person concerned have not been respected, cannot review the formal accusation of that person as this would undermine the constitutional prerogative of the public prosecutor to initiate proceedings in criminal matters. In such a case, the court supervising the coercive measures of the preliminary proceedings would have no option but to accept the investigative action if it was carried out under urgent conditions, even if this entails an infringement of rights of defence.

23.      In that regard, the referring court states that, even if national law does not recognise the concept of a ‘suspect’, Article 219(2) of the NPK could, in principle, guarantee the rights of the defence of persons for whom there is insufficient evidence of their guilt but who, due to the need to carry out investigative actions, will be formally ‘accused’ and will therefore be able to benefit from the rights set out in Article 55 of the NPK, which meet the requirements of Directives 2012/13 and 2013/48. However, it is thought that this procedural provision is unclear and is applied in an ambiguous and contradictory manner, or not at all.

24.      Nevertheless, the referring court has no doubt that, in the present case, AB has the status of a person ‘accused of an offence’ within the meaning of the ECHR, as interpreted by the case-law of the ECtHR, independently of national legal solutions. However, in the opinion of the referring court, under the national law in force, a person will only be able to benefit from his or her rights of defence if he or she has been formally accused, which depends on the will of the authority conducting the investigation under the supervision of the public prosecutor. In that regard, the referring court believes that the failure to provide information and to allow access to a lawyer at an early stage of the criminal proceedings constitutes an irremediable procedural defect, liable to vitiate the fair and equitable nature of the subsequent criminal proceedings as a whole.

25.      In those circumstances, the Rayonen sad Lukovit (District Court, Lukovit) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Do factual situations in which coercive measures in the form of personal search and seizure were carried out against a natural person believed by the police to be in possession of narcotics during the investigation of an offence relating to the possession of narcotics come within the scope of [Directives 2013/48 and 2012/13]?

(2)      If the first question is answered in the affirmative, what is the status of such a person within the meaning of the directives if national law does not recognise the legal concept of “suspect” and the person has not been formally "accused" by official notification, and must such a person be granted the right to information and access to legal counsel?

(3)      Do the principle of legality and the prohibition of arbitrary actions allow a national provision such as Article 219(2) of the [NPK], which provides that the investigating authority may formally accuse a person in the record of the first investigative act against him or her, if national law does not recognise the legal concept of "suspect" and the rights of the defence under national law arise only from the time at which the person is formally "accused", which in turn is at the discretion of the investigating authority, and does such a national procedure impair the effective exercise and the essence of the right of access to a lawyer under Article 3(3)(b) of [Directive 2013/48]?

(4)      Does the principle of practical effectiveness of EU law permit a national practice under which the judicial review of coercive measures to obtain evidence, including personal search and seizure during criminal investigation proceedings, does not allow for a review of whether a sufficiently serious breach has been committed of the fundamental rights of suspects and accused persons guaranteed by Articles 47 and 48 of [the Charter and by Directives 2013/48 and 2012/13]?

(5)      Does the principle of the rule of law permit national legislation and case-law according to which the court is not authorised to review the act of formally accusing a person, when it is precisely and exclusively this formal act that determines whether a natural person is granted the rights of the defence when coercive measures are taken against that person for purposes of investigation?’

IV.    Proceedings before the Court of Justice

26.      The order for reference dated 18 March 2022 was received at the Registry of the Court of Justice on that same day.

27.      The Hungarian and Netherlands Governments and the European Commission submitted written observations within the time limit prescribed in Article 23 of the Statute of the Court of Justice of the European Union.

28.      At the general meeting of 17 January 2023, the Court decided to proceed without a hearing.

V.      Legal analysis

A.      Preliminary comments

29.      According to Article 67 TFEU, the Union shall constitute ‘an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States’. Since mutual recognition of judgments and other decisions of judicial authorities is considered to be the cornerstone of judicial cooperation in civil and criminal matters within the European Union, it is clear that it presupposes mutual trust in the respective judicial systems. Mutual recognition of decisions in criminal matters can only be effective in a climate of trust, in which not only the judicial authorities but also all those involved in criminal proceedings consider the decisions of the judicial authorities of other Member States to be equivalent to their own. The approximation of criminal law legislation, including protection rules and procedural rights, is therefore one of the preferred means used to strengthen mutual recognition and to facilitate cooperation between competent authorities. (4)

30.      Directives 2012/13 and 2013/48 are part of a series of legislative measures aimed specifically at laying down common minimum rules on procedural rights. Directive 2012/13 contains standards to be applied in relation to the provision of information to persons suspected or accused of a criminal offence, while Directive 2013/48 introduces standards on the right of access to a lawyer in criminal proceedings. Those rights, which are the expression of the right to a fair and equitable trial in criminal matters, are enshrined in Articles 47 and 48 of the Charter and Article 6 of the ECHR, which gives them constitutional status in the EU legal order.

31.      The Republic of Bulgaria, like all other Member States, is obliged to transpose those directives into its domestic legal order. In this context, it is important to note that while the Commission has drawn attention to the fact that infringement proceedings have recently been opened against the Republic of Bulgaria in this respect, the Court’s role in this preliminary ruling procedure must nevertheless be limited to the interpretation of the relevant EU provisions, by virtue of the jurisdiction conferred on it by Article 267 TFEU. Of course, that does not prevent the national court from drawing the necessary consequences from an interpretation which might conflict with the precepts of national law for the purpose of ensuring the primacy of EU law.

32.      The first two questions referred for a preliminary ruling concern the applicability of Directives 2012/13 and 2013/48 to the circumstances of the case in the main proceedings. In contrast, the three other questions referred for a preliminary ruling relate, in essence, to the conformity with EU law of the Bulgarian legislation in force, with the latter being characterised by some specific features described by the referring court. In so far as the second and fifth questions present overlapping themes, I will address them together in my analysis. Lastly, the fourth question will be dealt with before the third question on the grounds that it requires an interpretation of Directives 2012/13 and 2013/48 in the light of Articles 47 and 48 of the Charter.

B.      The first question referred

1.      The criteria triggering the application of Directives 2012/13 and 2013/48

33.      By its first question, the referring court asks, in essence, whether factual situations in which a coercive act, in particular a search and/or seizure, was carried out in the course of an investigation against a person suspected of having committed a criminal offence fall within the scope of Directives 2012/13 and 2013/48. In order to answer that question, it is necessary first to establish the scope of these directives.

34.      As will be seen below, the main issue is to determine, by way of interpretation of the relevant provisions, at what stage of the criminal proceedings the procedural rights guaranteed by these directives must be granted to the person concerned. The type of measures to which the person concerned is exposed in the context of criminal proceedings is also an indication making it possible to determine the applicability of those directives.

35.      As regards the scope of Directive 2012/13, Article 2(1) thereof states that the directive applies to suspects or accused persons in criminal proceedings ‘from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the criminal offence, including, where applicable, sentencing and the resolution of any appeal.’ (5)

36.      As is apparent from recital 19 of Directive 2012/13, the right to information about the rights of suspects and accused persons is intended to ensure the fairness of criminal proceedings by allowing the effective exercise of the rights of defence from the outset of the proceedings. It is therefore specified, in the same recital, that ‘the information should be provided promptly in the course of the proceedings and at the latest before the first official interview of the suspect or accused person by the police or by another competent authority.’ (6)

37.      Similarly, Article 2(1) of Directive 2013/48 states that it applies ‘from the time when [suspects or accused persons] are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty’. (7) In addition, recitals 12 and 19 of Directive 2013/48 specify that, in order to ensure the fairness of proceedings, Member States should ensure that suspects or accused persons have access to a lawyer ‘without undue delay’. (8)

38.      As the Court has previously held, the respective scopes of Directives 2012/13 and 2013/48 are defined in almost identical terms in Article 2 of each of those directives. (9) It should, however, be noted that the most recent of the two directives, namely Directive 2013/48, contains the additional clarification that the information may be provided ‘by official notification or otherwise’. This clarification, which contributes to the effectiveness of the directives, can, in my view, be considered also to be transposable to Directive 2012/13.

39.      It therefore follows from a reading of the abovementioned provisions, as well as the relevant recitals, that Directives 2012/13 and 2013/48 apply from the time that two conditions are fulfilled: (i) the person concerned is  de facto suspected or accused of having committed a criminal offence, and (ii) has been made aware by the competent authorities, by official notification or otherwise, that they are suspected or accused. I will explain these two criteria in detail before applying them to the circumstances of the case in the main proceedings.

40.      Although, in the interest of an effective application of the directives to all possible circumstances, it is not desirable to impose excessively high requirements on the form of such notification, it seems necessary to me that there remain no doubt regarding the existence of suspicions against the person concerned. This requirement is important not only in order to protect the person concerned from any ambiguous legal situation, but also in view of the fact that the competent authorities have a number of obligations which, in the event of an infringement, may constitute procedural defects liable to vitiate the decisions taken by those authorities as unlawful. In order to avoid such a scenario, competent authorities should ensure that the person concerned is aware of any suspicion against him or her.

41.      Information in this regard should be provided ‘promptly’ and in any event ‘at the latest before the first official interview’ of the suspect or accused person by the police in the context of criminal proceedings. The fact that Directives 2012/13 and 2013/48 refer to a span of time and not to a specific moment ‘in the course of the proceedings’, as suggested in recital 19 of Directive 2012/13, allows it to be inferred that while the authorities have a certain discretion to choose when to inform the person concerned, there cannot be an undue delay in the provision of that information, which would prevent the person concerned from exercising his or her rights of defence. It follows that, in order to be effective, the communication regarding rights must necessarily take place at an early stage in the proceedings. (10)

42.      In that regard, it is important to clarify that the Court is aware of the importance of such communication in particularly sensitive circumstances, in particular where the liberty of the person concerned is at stake, having found that ‘persons suspected of having committed a criminal offence must be informed as soon as possible of their rights, from the moment when they are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures’. (11)

43.      Moreover, it should be noted, as regards the latest time by which the person concerned must be informed, that, as is apparent from recital 20 of Directive 2013/48, ‘for the purposes of this Directive, questioning does not include preliminary questioning by the police or by another law enforcement authority the purpose of which is … to determine whether an investigation should be started, for example in the course of a roadside check, or during regular random checks when a suspect or accused person has not yet been identified. (12)

2.      Application of the established criteria to the circumstances of the case in the main proceedings

44.      Applying these two criteria to the circumstances of the case in the main proceedings, the determining factor in answering the first question is whether, at the time the search and seizure took place, AB was already under de facto suspicion and if he was informed of this during the performance of the coercive actions. It is apparent from the statement of facts in the order for reference that AB had incriminated himself before the search and seizure by stating that he was in possession of narcotics. His confession was recorded in the record as an oral report of a criminal offence. On this basis, AB was asked to hand over the narcotics in his possession.

45.      It can be inferred from these facts that AB was suspected of having committed a criminal offence. The use of these specific procedural measures unequivocally indicates that AB was treated as a ‘suspect’. It appears to me that AB must have been aware of this, especially since his confession had the immediate consequence of him being the subject of a personal search and seizure. The two conditions for the application of Directives 2012/13 and 2013/48, mentioned in point 39 of this Opinion, therefore appear to me to be met from the time that AB declared to the police that he was in possession of narcotics.

3.      Factors that do not affect the applicability of Directives 2012/13 and 2013/48

46.      For the sake of completeness, I find it necessary to briefly set out the reasons why the fact that AB was not officially ‘informed’ by the police of the opening of criminal proceedings against him and of his status in those proceedings does not appear to me to have any bearing on the applicability of Directives 2012/13 and 2013/48 to the present case.

47.      First, it should be noted that it is clear from the case-law of the Court (13) that ‘information received from the competent authorities of a Member State by the person concerned is sufficient, in whatever form that information is communicated’ and that ‘the means by which such information reaches that person is irrelevant.’ That case-law relating to Directive 2013/48, which is also transposable to Directive 2012/13, confirms an interpretation according to which excessively high requirements regarding the form of such notification cannot be imposed.

48.      Second, the particular circumstances of the case in the main proceedings, namely the fact that AB took the initiative himself by declaring his possession of narcotics to the police, leave no doubt as to the initiation of such criminal proceedings. As I have already mentioned above, AB must have been aware of this because this confession resulted in a personal search and seizure by the police. Faced with such a situation, he had to reasonably expect to be treated from that moment on as a ‘suspect’. Consequently, the acts thus carried out must be considered equivalent to ‘information’ within the meaning of Article 2(1) of Directives 2012/13 and 2013/48.

49.      Third, I find it irrelevant, for the purposes of applying those directives, that the law of a Member State does not formally recognise the concept of ‘suspect’, as is apparently the case with Bulgarian law. In that regard, it should be noted that this is an autonomous concept of EU law which, as a legal criterion, leads to the application of Directives 2012/13 and 2013/48, and must therefore be interpreted uniformly in all Member States. In this context, I should point out that it is the responsibility of national law to comply with the internal legal framework of the European Union and not vice versa. In so far as Member States are obliged to correctly transpose those directives, and the specific concepts relating to them, into their respective national legal systems, they cannot legitimately rely on any shortcomings or inadequacies in their legislation in order to avoid their obligations.

4.      Answer to the first question referred

50.      In view of the foregoing considerations, the answer to the first question referred for a preliminary ruling should be that factual situations in which coercive acts, such as a personal search and/or a seizure, were carried out in the course of an investigation against a person suspected of having committed a criminal offence fall within the scope of Directives 2012/13 and 2013/48.

C.      The second and fifth questions referred

1.      The prohibition of arbitrarily restrictive practices that could prevent the effective exercise of procedural rights linked to the legal concept of ‘suspect’

51.      By its second and fifth questions, the referring court wishes, in essence, to know the status of a person within the meaning of Directives 2012/13 and 2013/48 if national law does not recognise the legal concept of ‘suspect’ and the person has not been ’accused’ by an official communication, as a ‘formal’ act. The referring court also asks whether that person should benefit from the right to information and the right of access to a lawyer. While the answer to this question may be inferred from the foregoing considerations, I nevertheless find it appropriate to deepen the analysis of certain legal aspects in the interests of clarity.

52.      As explained in the examination of the first question, the procedural status of a person in the circumstances described in the order for reference is that of a ‘suspect’ within the meaning of Directives 2012/13 and 2013/48. In so far as it is an autonomous concept of EU law, the person concerned enjoys that procedural status by virtue of the applicability of those directives to the present case, notwithstanding the fact that he has not been ‘accused’ by an official communication, as provided for in the national legislation in force. It is sufficient that the person concerned is de facto suspected of having committed a criminal offence, without it being necessary to formalise these suspicions in a specific act or communication.

53.      A conflicting interpretation, according to which the enjoyment of the rights guaranteed by Directives 2012/13 and 2013/48 should depend entirely on the adoption of a ‘formal’ act by the authorities, would be arbitrarily restrictive and would not ensure the effective exercise of the rights enshrined in the directives. There would be a significant risk of the person concerned incriminating himself or herself due to a lack of knowledge of his or her rights on the grounds that he or she had not received any communication from the national authorities. Such a result would certainly call into question the principles of fair proceedings in the area of criminal law. However, I should point out that, since the competent national authorities cannot legitimately rely on any shortcomings or inadequacies in their legislation in order to avoid their obligations under EU law, they are obliged to ensure the full enjoyment of the procedural rights guaranteed by the abovementioned directives.

54.      As is apparent from the examination of the first question, the communication regarding rights must necessarily take place at an early stage in the proceedings, (14) and the Court has specified that this information must be provided ‘as soon as possible … from the moment when [the persons concerned] are subject to suspicions which justify, in circumstances other than an emergency, the restriction of their liberty by the competent authorities by means of coercive measures’. (15) In the interest of effective protection of the person concerned, I would add that this rule should be applied not only when the person concerned is confronted with the most severe coercive measures, such as arrest or temporary deprivation of liberty, but also when they are subject to suspicions which justify other coercive acts that significantly interfere with fundamental rights.

55.      For those reasons, I find that an approach consistent with the provisions of Directive 2012/13 would have been to inform AB immediately of his rights when the police decided to carry out a personal search and seize the narcotics in his possession, in response to his confession. It is clear that AB was exposed to all the measures available to the competent authorities in the context of criminal proceedings from the time at which he incriminated himself in the presence of the police. Moreover, I should point out in this context that, although AB could have implicitly inferred that he had become a ‘suspect’ due to the coercive measures taken against him, this circumstance cannot be a substitute for full disclosure of his procedural rights.

56.      Specifically in respect of the right of access to a lawyer, it should be noted that Article 3(1) and (2) of Directive 2013/48 states that suspects and accused persons have the right of access to a lawyer ‘in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively’ or ‘without undue delay’, respectively, and in any event ‘before they are questioned by the police or by another law enforcement or judicial authority’ (emphasis added). While, as I have indicated in point 43 of this Opinion, preliminary questions asked by the police during a ‘roadside check’ or a ‘regular random check’ cannot be considered to be ‘questioning’ within the meaning of Article 3(2)(a) of Directive 2013/48, the information provided by the referring court makes it possible to infer that AB was, in any event, the subject of such questioning at a later stage of the investigations. More specifically, it is apparent from the order for reference that ‘as part of the preliminary proceedings already initiated, at a time and at a place not precisely determined (probably at the police station), [the judicial police officer in charge], after the search was carried out, asked AB to provide written explanations in accordance with the Law on the Ministry of Interior’. Accordingly, I find that AB should have had access to counsel at the latest at this stage of the proceedings.

2.      Answer to the second and fifth questions referred

57.      In view of the foregoing considerations, I propose that the answer to the second and fifth questions referred for a preliminary ruling should be that the concept of a ‘suspect’ within the meaning of Directives 2012/13 and 2013/48 is an autonomous concept of EU law. A person who is de facto suspected of having committed a criminal offence has the status of a ‘suspect’ within the meaning of these directives, even if national law does not recognise this procedural concept and does not confer on the suspect the rights due to him or her. These directives preclude national legislation and practice whereby the rights of the defence arise only from the time that the person concerned is formally ‘accused’, with this act being carried out, as a precondition for the application of procedural rights and guarantees under national law, with full respect for the discretionary power of the investigating authority, which is not obliged to inform the de facto suspect of the suspicions against him or her as soon as possible.

D.      The fourth question referred

1.      The compatibility of a right to an effective remedy of judicial review limited to compliance with formal requirements

58.      By its fourth question referred for a preliminary ruling, which I feel should be dealt with before the third, the referring court asks, in essence, whether Directives 2012/13 and 2013/48 and Articles 47 and 48 of the Charter are to be interpreted as precluding national case-law according to which, as part of the procedure for approval a posteriori by a court of coercive measures to obtain evidence for the purposes of a criminal investigation, the court cannot examine whether there has been an infringement of the fundamental rights of suspects and accused persons, which are guaranteed by these directives and articles.

59.      In that regard, the referring court states that, while, in accordance with Article 164(3) of the NPK, the personal search carried out on the basis of a record, as part of the preliminary phase of the criminal proceedings, must be subject to judicial review a posteriori, the latter shall, according to the relevant national case-law, only focus on the formal requirements on which the lawfulness of that measure and of the seizure resulting therefrom relies, and does not allow the court having jurisdiction to examine compliance with the rights guaranteed by Directives 2012/13 and 2013/48.

60.      In order to examine this question, I should point out at the outset that, under Article 47 of the Charter, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Furthermore, in accordance with Article 48(2) of the Charter, respect for the rights of defence of anyone who has been charged shall be guaranteed. The applicability of these provisions is indisputable in the present case, since the case in the main proceedings concerns a situation in which the Bulgarian authorities implement EU law within the meaning of Article 51 of the Charter. In so far as the Bulgarian legislation in question is aimed at implementing Directives 2012/13 and 2013/48, guaranteeing the right to information and the right of access to a lawyer for a suspect and/or an accused person in criminal proceedings, it falls within the scope of the Charter. As the Court has stated on multiple occasions, both directives build on the rights set out, inter alia, in Articles 47 and 48 of the Charter and seek to promote those rights. (16)

61.      As regards the interpretation of Directive 2012/13, it should be noted that Article 8(2) of that directive requires that ‘suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive’ (emphasis added). According to the case-law of the Court, having regard to the importance of the right to an effective remedy, protected by Article 47 of the Charter, and to the clear, unconditional and precise wording of Article 8(2) of Directive 2012/13, the latter provision precludes any national measure which impedes the exercise of effective remedies in the event of a breach of the rights protected by that directive. (17) The Court held that the same interpretation is required in relation to Article 12 of Directive 2013/48, according to which ‘suspects or accused persons in criminal proceedings … have an effective remedy under national law in the event of a breach of the rights under this Directive’. (18)

62.      Consequently, those two directives impose on Member States the obligation to provide for an effective remedy in the event of a breach of the rights enshrined in them, in order to guarantee the fairness of the proceedings and the effective exercise of the rights of defence. That being the case, it is important to point out that, according to Article 8(2) of Directive 2012/13 and Article 12(1) of Directive 2013/48, the right to challenge possible breaches of those rights is granted, respectively, in accordance with ‘procedures in national law’ and ‘national law’. Those provisions therefore do not determine the manner in which breaches of those rights may be alleged or the point, in the course of criminal proceedings, at which such allegations may be made, thus leaving Member States a certain margin of discretion in determining the specific remedies.

63.      This interpretation of the provisions of Directives 2012/13 and 2013/48 is confirmed by their respective recitals. Thus, recital 36 of Directive 2012/13 states that the right to challenge the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this directive ‘does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged’ (emphasis added). Recital 50 of Directive 2013/48 is to the same effect where it states, in essence, that the obligation for Member States to ensure that the rights of the defence and the fairness of the proceedings are respected should be without prejudice to national rules or systems regarding admissibility of evidence and ‘should not prevent Member States from maintaining a system whereby all existing evidence can be adduced before a court or a judge, without there being any separate or prior assessment as to admissibility of such evidence’ (emphasis added). It follows from the foregoing that the principle of procedural autonomy of the Member States is applicable, without prejudice to the limits laid down by EU law.

2.      Restriction of the procedural autonomy of the Member States by the principles of equivalence and effectiveness

64.      In accordance with settled case-law of the Court, in the absence of EU rules on the matter, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. On that basis, in accordance with the principle of sincere cooperation, now enshrined in Article 4(3) TEU, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness). Those requirements of equivalence and effectiveness express the general obligation for Member States to ensure the judicial protection of the rights which individuals derive from EU law, including the rights of the defence. (19)

65.      The need to take account of the principle of procedural autonomy of the Member States is explained by the fact that Directives 2012/13 and 2013/48 were adopted on the legal basis of Article 82(2) TFEU, which allows only the establishment of minimum rules on ‘rights of individuals’ in criminal proceedings. In adopting this approach, the Bulgarian legislature has aimed to facilitate the application of the principle of mutual recognition, to which I have referred in this Opinion. (20) However, it should be borne in mind that, in so far as these directives contribute to a minimal harmonisation of criminal proceedings in the area of freedom, security and justice of the European Union, they cannot be considered complete and exhaustive instruments. Consequently, these provisions leave the Member States free, as specified in recital 40 of Directive 2012/13 and recital 54 of Directive 2013/48, to extend the rights set out therein in order to provide a higher level of protection also in situations not explicitly dealt with therein, with the proviso that the level of protection should never fall below the standards provided by the ECHR as interpreted in the case-law of the ECtHR. (21)

66.      As regards the principle of equivalence, there is nothing in the case file before the Court that shows that this principle is disregarded by the national case-law in question, according to which, in the context of the procedure for the approval, a posteriori, by a court of coercive measures to obtain evidence for the purposes of a criminal investigation, judicial review shall only concern the formal requirements on which the lawfulness of such measures depends, and does not allow the court having jurisdiction to examine compliance with the rights guaranteed by Directives 2012/13 and 2013/48. That case-law tends to apply regardless of whether the coercive measure was adopted in breach of an individual right which is based on provisions of national law or EU law.

67.      In contrast, the referring court expresses doubts as to the conformity of that national practice with the principle of effectiveness. Referring to the case-law of the ECtHR, it points out that extrajudicial confessions by a suspect in the absence of the assistance of a lawyer, at this early stage, are likely to lead to a violation of the fairness of the trial, in contravention of Article 6(1) and (3) of the ECHR. According to the referring court, the case-law of the Bulgarian courts has unanimously refused to recognise information obtained from persons who are in fact suspects, but who are often questioned as witnesses about their own actions, as evidence. However, the referring court doubts whether this procedural sanction can, on an evidentiary basis, constitute a sufficient guarantee that the rights of the defence of citizens, as provided for in the Charter and referred to in detail in the Directives 2012/13 and 2013/48, will be respected.

68.      With regard to the abovementioned principle of effectiveness, it is important to point out at the outset that EU law does not have the effect of requiring Member States to establish remedies other than those established by national law, unless it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or the sole means of obtaining access to a court is effectively for individuals to break the law. (22)

69.      It also follows from the Court’s case-law that each case which raises the question of whether a national procedural provision renders the exercise of the rights conferred on individuals by the EU legal order impossible or excessively difficult must be analysed by reference to the place which that provision occupies in the procedure, in its progress and in its special features, viewed as a whole, before the various national instances. From that perspective, the basic principles of the national judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure, must, where appropriate, be taken into consideration. (23)

70.      According to the wording of that case-law, the assessment of compliance with the principle of effectiveness does not require an analysis of all the legal remedies available in a Member State, but a contextualised analysis of the provision which allegedly undermines that principle, which may entail the analysis of other procedural provisions applicable to the legal remedy the effectiveness of which has been called into question, or the analysis of legal remedies which have the same purpose as that remedy. (24) The Court holds that judgments handed down are thus merely the result of assessments on a case-by-case basis, taking account of each case’s own factual and legal context as a whole, which cannot be applied mechanically in fields other than those in which they were made. (25)

3.      The characteristics of the judicial review carried out by the Bulgarian courts

71.      As regards the examination of the present case, it appears to me to be apparent both from the wording and from the objectives of Article 8(2) of Directive 2012/13 and Article 12(1) of Directive 2013/48, as well as from the clarifications provided by the abovementioned recitals, that it is not inconsistent with EU law for a Member State to limit the judicial review of coercive measures to obtain evidence to their formal lawfulness if, subsequently, as part of the criminal proceedings, the court hearing the substance of the case is in a position to verify that the rights of the person concerned derived from those Directives, read in the light of the fundamental rights, have been guaranteed. The request for a preliminary ruling suggests that this is precisely the case in Bulgarian law. As stated in point 67 of this Opinion, the Bulgarian courts refuse to recognise information collected in contravention of the procedural rights guaranteed to suspects in criminal proceedings as evidence.

72.      In other words, the current case-law of the Bulgarian courts allows for the exclusion of information and evidence obtained in breach of the requirements of EU law, in this case Article 3 of Directive 2012/13, concerning the communication to the suspect of his or her rights, and Article 3 of Directive 2013/48, on access to a lawyer. Any irregularities that may be found in criminal proceedings therefore do not remain without a remedy. (26) On the contrary, it would appear that any suspect has the opportunity to claim there has been a breach of his or her rights in the context of criminal proceedings. Thus, the mechanism which the Bulgarian legal order seems to have adopted has similarities with the mechanisms developed in other Member States, whether they are provided for by written law (constitutional law/criminal law legislation) or by customary law. Furthermore, it is not uncommon for these mechanisms to have their origin precisely in the case-law of national courts. Accordingly, it appears that the rules of procedure in Bulgarian law, as interpreted by the relevant courts, are not such as to render practically impossible or excessively difficult the exercise of the suspect’s right to challenge, in accordance with national procedures, a breach of the aforementioned procedural rights. While the referring court has certain reservations in that regard, in particular as regards the ability of the mechanisms provided by Bulgarian law to safeguard the rights of the suspect, the request for a preliminary ruling does not contain sufficient evidence to support that argument.

73.      Moreover, it must be noted that the referring court does not indicate what measures could be adopted or developed by legislative means or through case-law in order to strengthen the protection of the suspect’s procedural rights in the context of criminal proceedings. Since the Bulgarian Government did not intervene in the present case, the only information on which the Court can rely is that provided by the referring court. That said, I consider that, in any event, it is not for the Court to suggest possible reforms to the competent authorities, particularly if account is taken of the diversity of mechanisms and remedies recognised in the different Member States for the purpose of transposing Directives 2012/13 and 2013/48. Rather, the role of the Court in this case must be limited to examining whether the exercise of the right to an effective remedy is made practically impossible or excessively difficult. In the light of the information available, this question should be answered in the negative.

74.      An analysis in the light of Articles 47 and 48 of the Charter, to which the referring court refers, does not seem to me capable of altering this conclusion. As regards, in particular, Article 47 of the Charter, which guarantees the right to effective legal protection, it should be borne in mind that EU law does not, in principle, require Member States to establish before their national courts, in order to ensure the safeguarding of the rights which individuals derive from EU law, remedies other than those established by national law. The position is otherwise only if it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law. (27) However, as the referring court itself admits, that is not the case in the present case.

75.      For the reasons set out in the previous paragraphs, I am inclined to conclude that the Bulgarian legislation on criminal proceedings, as interpreted by the national courts, does not raise doubts with regard to the principle of effectiveness. That principle does not preclude a judicial review of only the formal requirements of a coercive measure, such as a search, without verification of compliance with the rights derived from Directives 2012/13 and 2013/48, read in the light of the fundamental rights, provided that such compliance can be verified by the court hearing the substance of the case as part of the criminal proceedings, which will rule on AB’s guilt. However, it will be for the referring court, which has direct knowledge of the applicable rules of procedure, to carry out the appropriate checks and, where applicable, to draw all the necessary consequences from them in order to ensure the effectiveness of EU law.

76.      In this context, it is important to bear in mind that, according to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly. (28) In its case-law, the Court has held that Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48, as well as Article 47 of the Charter, are clear, unconditional and precise provisions. (29) Consequently, they have a direct effect. It follows that persons who are de facto ‘suspects’ under Bulgarian law, such as AB in the main proceedings, must be able to avail themselves directly of the remedies provided for in Article 8(2) of Directive 2012/13 and Article 12 of Directive 2013/48, read in conjunction with Articles 47 and 48 of the Charter.

4.      Answer to the fourth question referred

77.      In view of the foregoing, I propose that the fourth question referred for a preliminary ruling be answered to the effect that EU law, in particular the principle of effectiveness, does not preclude a Member State from limiting the judicial review of coercive measures to obtain evidence to their formal lawfulness if, subsequently, as part of the criminal proceedings, the court hearing the substance of the case is in a position to verify that the rights of the person concerned derived from Directives 2012/13 and 2013/48, read in the light of Articles 47 and 48 of the Charter, have been guaranteed.

E.      The third question referred

1.      Proposed rewording of the question

78.      By its third question referred for a preliminary ruling, the referring court seeks, in essence, to determine whether the principles of legality and of the prohibition of the arbitrary exercise of power and Directive 2013/48 and, more particularly, Article 3(3)(b) thereof, must be interpreted as precluding national legislation under which only persons formally ‘accused’ obtain the benefit of the rights derived from that directive, while the time of this formal accusation is left to the discretion of the investigating authority.

79.      The answer to this question seems clear to me based on a review of the previous questions. As I have already indicated in this Opinion, (30) an interpretation according to which the enjoyment of the rights guaranteed by Directives 2012/13 and 2013/48 should depend entirely on the adoption of a ‘formal’ act by the national authorities would be arbitrarily restrictive and would not ensure the effective exercise of the rights enshrined in the directives. It seems irreconcilable with the requirement, established in Article 3(2) of Directive 2013/48, that the person concerned must receive the assistance of a lawyer ‘without undue delay’,(31) to make the effective exercise of that right subject to the sole discretion of the competent authorities.

80.      While the third question may, at first glance, appear superfluous, in view of the foregoing considerations, it is important to bear in mind that, in its reply, the Court will necessarily have to take into account the particular circumstances of the dispute in the main proceedings, namely the fact that it concerns the application for approval,  a posteriori, by the court, of the search and the seizure of the substances found on AB. I will consider the third question below, taking these circumstances into account. When viewed from this angle, the question asked by the referring court seems rather to be aimed at determining whether Article 3 of Directive 2013/48 must be interpreted as precluding national legislation which allows a personal search and the seizure of illicit property to be carried out without the person concerned having the right of access to a lawyer.

81.      If the Court were to interpret the third question as proposed, it should be pointed out at the outset that Article 3(2) of Directive 2013/48 imposes strict requirements in so far as it states that suspects or accused persons must have access to a lawyer ‘without undue delay’ and, ‘in any event’, from whichever is the earliest of four specific events listed in that provision, points (a) to (d). Given that the search and the seizure of illicit property, as such, are not included in the events referred to in that provision, a breach of the right of access to a lawyer should, in principle, be ruled out, unless the circumstances of the case correspond to the criteria of one or more of those specific events, which is for the referring court to verify. The following considerations may be of assistance to the referring court for the purposes of applying that provision.

2.      The right to have access to a lawyer before the suspect is questioned by the police

82.      According to Article 3(2)(a) of Directive 2013/48, suspects or accused persons shall have access to a lawyer ‘before they are questioned by the police or by another law enforcement or judicial authority’. This provision is a codification of the ECtHR case-law, (32) according to which the right to a fair trial, enshrined in Article 6(1) of the ECHR, requires, as a general rule, that access to a lawyer should be provided ‘as from the first interrogation of a suspect by the police’, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict this right. (33) It follows from the request for a preliminary ruling that, after the search, AB was questioned at the police station, during which he gave explanations and confirmed his confession in writing. However, it would appear that AB was not informed of his right of access to a lawyer and did not effectively exercise that right, which is problematic in view of the rights guaranteed by Directive 2013/48. I believe that the authorities in charge of criminal investigations proceeding in such a manner cannot be considered to be in conformity with the requirements of that directive.

3.      The right to have access to a lawyer without undue delay after the deprivation of liberty of the suspect

83.      Regardless of the foregoing considerations, the question arises as to whether AB could have availed himself of his right of access to a lawyer at the time of the search, even though Article 3(2) of Directive 2013/48 does not explicitly mention that coercive measure. In my view, that would be the case if the situation in which AB found himself could be understood as a ‘deprivation of liberty’, in accordance with the hypothesis referred to in Article 3(2)(c) of that directive. Since the order for reference does not contain any clear information in this regard, the referring court will need to examine whether the circumstances of the case in the main proceedings can be classified as ‘deprivation of liberty’ within the meaning of that provision.

(a)    Considerations in the event that the search would have been carried out as part of the roadside inspection

84.      First, certain elements show that the search took place in situ, at the roadside, once the car had been stopped by the police and inspected. In such a case, it seems to me that AB cannot reasonably be considered to have been deprived of liberty. Such a coercive measure, carried out urgently, immediately after the appearance of indications that an offence had been committed, does not seem comparable to a ‘deprivation of liberty’ in my view. It should not be forgotten that AB had not been formally detained or questioned in police custody, but had simply been arrested as part of a roadside check. Although AB was not free to evade the roadside check, the circumstances of this case do not reveal any significant restriction on his freedom of action. Any assessment suggesting the contrary would seem to me not only to run counter to the wording of Article 3(2)(c) of Directive 2013/48, but it is also likely to widen its scope to a disproportionate extent, all the more so since such an approach is not necessary to ensure effective protection of fundamental rights in the context of a criminal investigation, as I will explain below.

85.      As I have indicated in this Opinion, the rights guaranteed by Directives 2012/13 and 2013/48 constitute the expression of the right to a fair trial in criminal matters. (34) In that context, reference should be made to the case-law of the Court, according to which Directive 2013/48 tends to favour, in particular, the right to be advised, defended and represented, as set out in the second paragraph of Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof. (35) Furthermore, it should be noted that, in accordance with recital 12 of Directive 2013/48, the directive relies on the rights set out in the Charter, and in particular Articles 6, 47 and 48 thereof, by developing Articles 5 and 6 of the ECHR as interpreted by the ECtHR. It follows that the provisions of that directive must be interpreted in the light of Article 6(3)(c) of the ECHR, which expressly provides for the right to have legal assistance.

86.      In that regard, it should be borne in mind that the ECtHR has held that a search during a roadside check, in which there were self-incriminating statements, does not entail any significant restriction on the freedom of action of the person concerned, which could be sufficient to activate a legal assistance requirement at this stage of the proceedings. It is important to note that the ECtHR relied, in essence, on the same arguments as presented in point 84 of this Opinion, specifically the absence of formal detention or questioning in police custody of the person concerned, namely, measures involving the deprivation of liberty, which may justify the intervention of a lawyer. In view of the considerations set out above, I consider that the fact that he was searched at the roadside, in the context of a road-side check, without having received legal assistance, does not in itself constitute a breach of Article 3(2)(c) of Directive 2013/48.

(b)    Considerations in the event that the search would have been carried out at the police station

87.      Conversely, a different assessment cannot be ruled out if the search had been carried out while AB was deprived of liberty, for example, if the search had taken place at the police station. In such a case, it could be argued that AB should have been granted the right of access to a lawyer ‘without undue delay’ on the grounds that his situation fell within the scope of Article 3(2)(c) of Directive 2013/48. Where appropriate, the referring court must take into account a series of criteria, which I will set out in the following paragraphs, in order to determine whether there is a ‘deprivation of liberty’ in the present case, within the meaning of that provision.

88.      The case-law of the ECtHR regarding the interpretation of Article 5(1) of the ECHR seems to me to be particularly relevant, since that provision provides an exhaustive list of the grounds on which a person may be deprived of his or her liberty. In proclaiming the ‘right to liberty’, it does not refer to mere restrictions on freedom of movement, which fall under Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, signed in Strasbourg on 16 September 1963, but concerns the physical freedom of the person; the purpose of this provision is to ensure that no one is arbitrarily deprived of it. (36) In accordance with Article 5(1)(c) of the ECHR, such is the case where the ‘arrest’ or ‘detention’ of the person concerned is effected for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence. The situation of AB seems to me to fall within this scenario, regardless of the fact that the procedure in question is only a preliminary stage of the criminal proceedings, namely the approval, a posteriori, by the court, of the coercive measures taken against AB. The purpose of these measures is to obtain the evidence necessary to decide whether to bring criminal proceedings against the person concerned. It therefore has to be concluded that the judicial procedure in question forms part of the criminal proceedings as a whole, meaning that Article 5(1) of the ECHR is applicable to the present case.

89.      As regards the concept of ‘deprivation of liberty’ referred to above, it should be noted that it includes both an objective aspect, namely the detention of a person in a certain restricted space for a significant period of time, and a subjective aspect, that is to say, the fact that the person concerned has not validly consented to the detention. (37) The objective factors to be taken into account include the possibility of leaving the place of detention, the intensity of supervision and control exercised over the movement of the detainee, the degree of isolation of the detainee and the opportunities for social contact available to the detainee. (38) The ECtHR has held that the starting point must be the individual’s specific situation and account must be taken of a range of factors such as the type, duration, effects and manner of implementation of the measure in question. (39) According to the ECtHR, the distinction to be drawn between ‘deprivation’ and ‘restriction’ of liberty is only of degree or intensity, not of nature or essence. Classification in one or the other of these categories would sometimes prove difficult because, in some marginal cases, it would be purely a matter of assessment. However, it would be imperative to make a choice, since the applicability or inapplicability of Article 5 of the ECHR depends on it. (40) The existence of an element of coercion in the exercise of police powers of arrest and search indicates a ‘deprivation of liberty’, notwithstanding the short duration of these measures. (41) The fact that a person is not handcuffed, put in cells or otherwise physically restrained would not constitute a decisive factor in establishing the existence of a ‘deprivation of liberty’. (42)

90.      Consequently, the ECtHR held that there is a ‘deprivation of liberty’ within the meaning of Article 5(1)(c) of the ECHR where the person concerned has been completely deprived of all freedom of movement, even if his or her arrest and search was only of a short duration. It is sufficient that the person concerned has been obliged to remain where he or she was and to submit to a search (43) and that a refusal would have exposed him or her to arrest, detention in police custody and/or criminal prosecution. (44) The use of force by the police is a determining factor for such a qualification, in particular when the person concerned is transported to the police station or detained there. (45) The ECtHR has held that being prevented from leaving the police station without authorisation is indicative of an element of coercion likely to meet the criteria imposed by Article 5(1)(c) of the ECHR. (46)

(c)    The checks to be carried out by the referring court

91.      In the absence of more precise information in the request for a preliminary ruling regarding the situation in which AB found himself at the police station, it seems essential to ask the referring court to carry out the necessary checks. I take the view that if the referring court were to establish that the search took place during a road-side check in a situation such as that described in point 84 of this Opinion, it should be able to rule out a breach of the right of access to a lawyer under Article 3(2)(c) of Directive 2013/48. In the absence of a significant restriction of AB’s freedom of action, it does not seem possible to me to qualify such a situation as a ‘deprivation of liberty’.

92.      In contrast, the referring court should, in principle, be able to find that there was a breach of that right had the search taken place at the police station, in circumstances constituting a ‘deprivation of liberty’, in accordance with the criteria mentioned in the preceding points of this Opinion. That said, it should be noted that it has long been recognised in the case-law of the ECtHR that, in exceptional circumstances, legal assistance may be postponed or temporarily restricted. However, it is clear from that case-law that, even where compelling reasons may exceptionally justify the refusal of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights derived from Article 6 of the ECHR. (47)

93.      The ECtHR stressed that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. (48) Consequently, the referring court must establish whether it was exceptionally justified by compelling reasons to restrict the right of access to a lawyer, while taking into account the consequences of such a restriction for the overall fairness of the proceedings. For the purposes of this analysis, it should be noted that the factual background, as shown in the case file, does not reveal any overriding reason that could justify the refusal of legal assistance.

94.      Lastly, for the sake of completeness, it should be noted that, to the extent that an administrative or judicial practice generally reflects the national rules in force, unless it is a case of an isolated breach of national law, the conclusions which the referring court will draw from its assessment of the facts should also enable it to establish whether Article 3(2)(c) of Directive 2013/48 precludes the national legislation in question.

4.      Answer to the third question referred

95.      For the reasons set out above, the answer to the third question referred for a preliminary ruling is that Article 3(2) of Directive 2013/48 must be interpreted as precluding national legislation which allows a personal search and the seizure of illicit property to be carried out without the person concerned enjoying the right of access to a lawyer without undue delay in the context of ‘questioning’ by the police (event specified in Article 3(2)(a)) or after a ‘deprivation of liberty’ (event specified in Article 3(2)(c)). It is for the referring court to assess whether the circumstances of the case in the main proceedings fall within one of those two scenarios.

VI.    Conclusion

96.      In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Rayonen sad Lukovit (District Court, Lukovit, Bulgaria), as follows:

(1)      Factual situations in which coercive acts such as a personal search and/or a seizure have been carried out in the course of an investigation against a person suspected of having committed a criminal offence fall within the scope 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, 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)      The concept of a ‘suspect’ within the meaning of Directives 2012/13 and 2013/48 is an autonomous concept of EU law. A person who is de facto suspected of having committed a criminal offence has the status of a ‘suspect’ within the meaning of these directives, even if national law does not recognise this procedural concept and does not confer on the suspect the rights due to him or her. Those directives preclude national legislation and practice whereby the rights of the defence arise only from the time that the person concerned is formally ‘accused’, with this act being carried out, as a precondition for the application of procedural rights and guarantees under national law, with full respect for the discretionary power of the investigating authority, which is not obliged to inform the de facto suspect of the suspicions against him or her as soon as possible.

(3)      EU law, in particular the principle of effectiveness, does not preclude a Member State from limiting the judicial review of coercive measures to obtain evidence to their formal lawfulness if, subsequently, as part of the criminal proceedings, the court hearing the substance of the case is in a position to verify that the rights of the person concerned derived from Directives 2012/13 and 2013/48, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, have been guaranteed.

(4)      Article 3(2) of Directive 2013/48 precludes national legislation which allows a personal search and the seizure of illicit property to be carried out without the person concerned enjoying the right of access to a lawyer without undue delay in the context of ‘questioning’ by the police or after a ‘deprivation of liberty’. It is for the referring court to assess whether the circumstances of the case in the main proceedings fall within one of those two scenarios.

1      Original language: French.

2      OJ 2012 L 142, p. 1.

3      OJ 2013 L 294, p. 1.

4      Zerouki-Cottin, D., ‘À propos de la directive du 22 octobre 2013 relative au droit à l’avocat et de ses suites’, Revue internationale de droit pénal, 2014/3-4, vol. 85, point 20; Suominen, A., ‘The sensitive relationship between the different means of legal integration: mutual recognition and approximation’, in Brière C. and Weyembergh A. (eds), The Needed Balances in EU Criminal Law, Hart Publishing, Oxford 2017, p. 170.

5      Emphasis added.

6      Emphasis added.

7      Emphasis added.

8      Emphasis added.

9      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 38).

10      See point 25 of my Opinion of 26 January 2023 in K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:52).

11      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 53). Emphasis added.

12      Emphasis added.

13      Judgment of 12 March 2020, VW (Right of access to a lawyer in the event of non-appearance) (C‑659/18, EU:C:2020:201, paragraphs 25 and 26). Emphasis added.

14      See point 41 of this Opinion.

15      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 53). Emphasis added.

16      See judgments of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, paragraphs 88 and 104); of 12 March 2020, VW (Right of access to a lawyer in the event of non-appearance) (C‑659/18, EU:C:2020:201, paragraph 44); of 14 May 2020, Staatsanwaltschaft Offenburg (C‑615/18, EU:C:2020:376, paragraph 71); and of 21 October 2021, ZX (Regularisation of the indictment) (C‑282/20, EU:C:2021:874, paragraph 26).

17      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 57).

18      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraph 58). Emphasis added.

19      See, to that effect, judgments of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 49); of 27 June 2013, Agrokonsulting-04 (C‑93/12, EU:C:2013:432, paragraphs 35 and 36); and of 1 August 2022, TL (Lack of interpretation and translation) (C‑242/22 PPU, EU:C:2022:611, paragraph 75).

20      See point 29 of this Opinion.

21      See, to that effect, judgment of 13 June 2019, Moro (C‑646/17, EU:C:2019:489, paragraphs 36 and 54), and, by analogy, judgment of 19 September 2018, Milev (C‑310/18 PPU, EU:C:2018:732, paragraph 47).

22      Judgment of 21 December 2021, Randstad Italia (C‑497/20, EU:C:2021:1037, paragraph 62).

23      Judgments of 14 December 1995, Peterbroeck (C‑312/93, EU:C:1995:437, paragraph 14); of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 33); and of 11 September 2019, Călin (C‑676/17, EU:C:2019:700, paragraph 42).

24      Judgment of 28 June 2022, Commission v Spain (Breach of EU law by the legislature) (C‑278/20, EU:C:2022:503, paragraphs 59 and 60).

25      See, to that effect, judgment of 21 November 2002, Cofidis  (C‑473/00, EU:C:2002:705, paragraph 37).

26      In my Opinion in K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:52, points 64 and 65), I drew attention to the fact that French legislation on criminal proceedings made it possible to exclude information and evidence obtained in breach of the requirements of EU law, in this case Articles 3 and 4 of Directive 2012/13. I argued that the existence of such procedural rules guaranteed the effectiveness of EU law and that the fact that the referring court is prohibited from raising of its own motion a plea of procedural invalidity based on the late notification to the accused of their right to remain silent – a ground of invalidity of a private nature – does not constitute a breach of the principle of effectiveness.

27      Judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 143).

28      Judgment of 1 July 2010, Gassmayr (C‑194/08, EU:C:2010:386, paragraphs 44 and 45).

29      Judgment of 19 September 2019, Rayonna prokuratura Lom (C‑467/18, EU:C:2019:765, paragraphs 57 and 58).

30      See point 53 of this Opinion.

31      See point 56 of this Opinion.

32      See, to that effect, Mitsilegas, V., EU Criminal Law, Hart Publishing, Oxford 2022 (2nd edition) p. 267.

33      ECtHR, 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102, § 55).

34      See point 30 of this Opinion.

35      Judgment of 5 June 2018, Kolev and Others (C‑612/15, EU:C:2018:392, paragraph 104).

36      ECtHR, 23 April 2015, François v. France (CE:ECHR:2015:0423JUD002669011, § 47).

37      ECtHR, 17 January 2012, Stanev v. Bulgaria (CE:ECHR:2012:0117JUD003676006, § 117).

38      ECtHR, 16 June 2005, Storck v. Germany (CE:ECHR:2005:0616JUD006160300, § 73).

39      ECtHR, 23 February 2017, De Tommaso v. Italy (CE:ECHR:2017:0223JUD004339509, § 80).

40      ECtHR, 9 April 2019, Tarek and Depe v. Turkey (CE:ECHR:2019:0409JUD007047212, § 53).

41      ECtHR, 21 June 2011, Shimovolos v. Russia (CE:ECHR:2011:0621JUD003019409, § 50).

42      ECtHR, 23 July 2013, M.A. v. Cyprus (CE:ECHR:2013:0723JUD004187210, § 193).

43      ECtHR, 11 October 2016, Kasparov v. Russia (CE:ECHR:2016:1011JUD005365907, § 46).

44      ECtHR, 12 January 2010, Gillan and Quinton v. United Kingdom (CE:ECHR:2010:0112JUD000415805, § 57).

45      ECtHR, 24 June 2008, Foka v. Turkey (CE:ECHR:2008:0624JUD002894095, § 78).

46      ECtHR, 26 June 2014, Krupko and Others v. Russia (CE:ECHR:2014:0626JUD002658707, § 36).

47      ECtHR, 13 September 2016, Ibrahim and Others v. United Kingdom (CE:ECHR:2016:0913JUD005054108, § 225).

48      ECtHR, 12 May 2017, Simeonovi v. Bulgaria (CE:ECHR:2017:0512JUD002198004, § 116).

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