ECLI:EU:C:2026:203

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OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 12 March 2026 (1)

Case C‑681/24

European Commission

Czech Republic

( Failure of a Member State to fulfil obligations – Article 258 TFEU – Area of freedom, security and justice – Judicial cooperation in criminal matters – Directive 2013/48/EU – Right of access to a lawyer in criminal proceedings – Article 3(3)(b) – Right to have a lawyer present during questioning – Article 3(6) – Temporary derogation – National legislation providing for suspects or accused persons to be questioned without a lawyer if the lawyer does not appear within a specified time period – Incorrect transposition )

I. Introduction

1. In the present case, the European Commission has brought infringement proceedings against the Czech Republic under Article 258 TFEU for failing to fulfil its obligations under EU law to transpose correctly certain provisions of Directive 2013/48/EU, (2) which concerns the right of access to a lawyer in criminal proceedings.

2. This case essentially arises from a fundamental disagreement between the Commission and the Czech Republic, along with Hungary which has intervened in these proceedings, as to how the right of access to a lawyer and derogations from that right, as set out in the provisions of Article 3(3) and (6) of that directive, are to be understood.

3. A similar issue is also before the Court in Case C‑660/24, Commission v Hungary, in which my Opinion is being delivered on the same day.

II. Legal framework

A. European Union law

4. Article 3 of Directive 2013/48, entitled ‘The right of access to a lawyer in criminal proceedings’, 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.

…

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. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;

…

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:

(a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;

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

B. Czech law

5. Paragraph 76 of zákon č. 141/1961 Sb., o trestním řízení soudním (trestní řád) (Law No 141/1961 on Criminal Procedure (Code of Criminal Procedure)), as amended (‘the Code of Criminal Procedure’), provides:

‘…

(3) The police authority that carried out the arrest shall question the arrested person and draw up a report of the questioning, in which it shall indicate the place, time and circumstances of the arrest and record the personal data concerning the arrested person and the substantive reasons for the arrest.

(4) The police authority that carried out the arrest or to which the person caught in the act of committing an offence under subparagraph 2 was surrendered shall immediately release that person if the suspicions are dispelled or if the grounds for the arrest cease to exist for any other reason. If the person arrested is not released, the police authority shall forward to the public prosecutor the report of the questioning of the arrested person, together with a copy of the order to initiate criminal proceedings and other evidence, so that the public prosecutor may, if necessary, apply for the person to be remanded in custody. The police authority must submit the application without delay so that the person arrested under this law can be brought before the court no later than 48 hours after the arrest; otherwise, the arrested person must be released.

…

(6) The arrested suspect shall have the right to demand the presence of a lawyer during questioning as provided for in subparagraph 3, unless the lawyer cannot be contacted within the time limit set out in subparagraph 4.’

III. Pre-litigation procedure and procedure before the Court

6. On 23 September 2021, the Commission sent the Czech Republic a letter of formal notice, in accordance with Article 258 TFEU, considering that a number of provisions of Directive 2013/48, including Article 3(6)(b), had been incorrectly transposed, and invited that Member State to submit its observations within two months.

7. On 23 November 2021, the Czech Republic responded to that letter and contested the Commission’s arguments.

8. On 28 September 2023, the Commission addressed a reasoned opinion to the Czech Republic, alleging, in particular, that Article 3(6)(b) of Directive 2013/48 was still not correctly transposed, and invited it to comply with that reasoned opinion within two months of receiving it.

9. On 24 November 2023, the Czech Republic responded to the reasoned opinion, maintaining that it had correctly transposed Article 3(6)(b) of Directive 2013/48.

10. Consequently, by its application lodged on 15 October 2024, the Commission brought the present action before the Court under Article 258 TFEU. It claims that the Court should:

– declare that the Czech Republic has failed to fulfil its obligations under Article 3(6), read in conjunction with Article 3(3), of Directive 2013/48 by not correctly transposing those provisions; and

– order the Czech Republic to pay the costs of the proceedings.

11. In its defence lodged on 31 December 2024, the Czech Republic claims that the Court should:

– dismiss the present action as unfounded; and

– order the Commission to pay the costs of the proceedings.

12. The Commission and the Czech Republic also lodged a reply and a rejoinder on 12 February 2025 and 20 March 2025, respectively.

13. On 30 January 2025, the President of the Court granted Hungary leave to intervene in the present case in support of the form of order sought by the Czech Republic.

14. On account of the similarities between the present case and Case C‑660/24, Commission v Hungary, the Court organised, pursuant to Article 77 of its Rules of Procedure, a joint hearing in those two cases. That hearing was held on 10 December 2025 at which the Commission, the Czech Republic and Hungary presented oral argument.

IV. Analysis

15. My analysis is structured in two main parts. First, I consider it useful to provide some preliminary observations concerning Directive 2013/48 and its place in the area of freedom, security and justice (AFSJ) (A). Second, I will examine the merits of the complaint concerning infringement of Article 3(6), read in conjunction with Article 3(3), of Directive 2013/48 (B).

16. On the basis of that analysis, I have come to the conclusion that that complaint is well founded.

A. Preliminary observations on Directive 2013/48 and the AFSJ

17. To begin with, as noted in my previous Opinions, (3) the European Union has adopted a number of directives based on the European Union’s competence under Article 82(2)(b) TFEU to enact minimum rules concerning the rights of individuals in criminal procedure. That set of six directives includes Directive 2013/48. (4)

18. Those directives are sometimes referred to as the ‘roadmap’ directives, since it was the 2009 Council Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (5) which set them in train. The resolution was approved by the European Council’s Stockholm Programme on the AFSJ, (6) which affirmed that ‘the protection of the rights of suspected and accused persons in criminal proceedings is a fundamental value of the Union, which is essential in order to maintain mutual trust between the Member States and public confidence in the Union’. (7)

19. Indeed, as reflected in the recitals of Directive 2013/48, (8) the justification for establishing common minimum rules on criminal procedural rights for individuals in those directives is to strengthen mutual trust in national criminal justice systems, as ‘the basis for mutual recognition, which has itself been elevated to become a cornerstone of the construction of the area of freedom, security and justice’. (9) Such rules are also intended to remove obstacles to the free movement of citizens in the European Union and to build upon the standards regarding the right to a fair trial and the right of defence guaranteed, in particular, by Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as comparable provisions of Article 6 of the European Convention on Human Rights (ECHR). (10)

20. Directive 2013/48 establishes common minimum rules relating to the right for suspects and accused persons to have access to a lawyer at all stages of criminal proceedings. (11) That right is fundamental to a fair trial (12) and helps ensure that other criminal procedure rights are respected. (13)

21. The right of access to a lawyer in criminal proceedings is expressed in Article 3 of Directive 2013/48.

22. Article 3(1) of Directive 2013/48 lays down ‘the fundamental principle’ that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to enable them to exercise their rights of defence practically and effectively. (14)

23. That principle is fleshed out in Article 3(2) of Directive 2013/48 with respect to the moment from which that right must be granted, which includes being questioned by the authorities. (15)

24. That principle is further fleshed out in Article 3(3) of Directive 2013/48, which delineates the content of the right of access to a lawyer. In particular, Article 3(3)(a) requires Member States to ensure that suspects and accused persons have the right to meet in private and communicate with their lawyer, including prior to questioning, (16) while Article 3(3)(b) requires Member States to ensure that such persons have the right for their lawyer to be present and participate effectively when questioned. (17)

25. Under Article 3(6) of Directive 2013/48, Member States are permitted to derogate temporarily from the rights in Article 3(3) thereof ‘in exceptional circumstances and only at the pre-trial stage’ where justified in ‘the particular circumstances of the case’ and based on ‘compelling reasons’ pertaining to: (a) ‘an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person’; or (b) ‘where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings’. Any temporary derogation under Article 3(6) of Directive 2013/48 must also comply with the general conditions set out in Article 8 of that directive. (18)

26. The core of the present case lies in the different way in which the Commission, on the one hand, and the Czech Republic and Hungary, on the other, understand the substance of the right of access to a lawyer and the possible derogations from that right.

27. In essence, and before I explain the positions of the parties in more detail, the Commission interprets the substance of the right of access to a lawyer as set out in Directive 2013/48 as requiring, as a rule, the presence of a lawyer during questioning, and the only exceptions to that rule (that is, when suspects or accused persons may be questioned without the presence of a lawyer) are the situations elaborated in Article 3(6) of that directive. In addition, those persons may waive the right that a lawyer is present under the conditions determined in Article 9 thereof. On the contrary, the Czech Republic and Hungary submit that the right of access to a lawyer is satisfied when those persons are given the opportunity to have the presence of a lawyer. For that reason, the possibility to carry out questioning if the lawyer does not appear within a certain time period is not a derogation from the right of access to a lawyer.

B. The complaint, alleging infringement of Article 3(6), read in conjunction with Article 3(3), of Directive 2013/48

1. Summary of the arguments of the parties

28. The Commission submits that the Czech Republic has incorrectly transposed Article 3(6), read in conjunction with Article 3(3), of Directive 2013/48 because Paragraph 76(6) of the Code of Criminal Procedure (‘the disputed Czech legislation’) generally allows suspects or accused persons to be questioned in the absence of their lawyer in situations where the conditions of Article 3(6) of that directive are not met. That paragraph provides that such persons may be questioned by the authorities in pre-trial proceedings without access to a lawyer if the lawyer does not appear within the specified time period. Thus, the allowance for questioning without a lawyer is linked to the mere fact that the lawyer cannot be contacted in a given time without any concrete assessment of the need for such questioning on the basis of compelling reasons referred to in Article 3(6) of Directive 2013/48. (19)

29. The Commission emphasises, inter alia, that the Czech Republic’s position – that, in order to guarantee the right of access to a lawyer, it is sufficient that the person has been given the opportunity to contact and choose a lawyer who may be present during questioning – is contrary to Article 3(3)(b) of Directive 2013/48, which clearly refers to both aspects of the right of access to a lawyer, namely the presence of the lawyer and the effective participation by the lawyer during questioning. It follows from Article 3(1) of Directive 2013/48 that no situations arise in which the person is questioned without the presence of a lawyer, except where Member States have made use of the temporary derogation in Article 3(6) of that directive or the person has waived the right in accordance with Article 9 thereof.

30. For the Commission, the need to release the person within 48 hours does not justify the need for questioning that person without a lawyer, and it is possible for national authorities to address potential abuse to the conduct of criminal procedure by other means, such as recourse to another lawyer who is available for assisting the person during questioning. As the Commission stressed at the hearing, Directive 2013/48 is still infringed, regardless of whether the disputed Czech legislation would be regarded as consistent with the case-law of the European Court of Human Rights (ECtHR).

31. The Czech Republic submits that the disputed Czech legislation is consistent with Article 3(3) of Directive 2013/48 and is not a derogation under Article 3(6) thereof. Article 3(3)(b) of that directive does not require Member States to ensure that the questioning of suspects or accused persons must always be carried out in the presence of a lawyer; rather, it only requires Member States to ensure that those persons had the opportunity to access a lawyer and that the lawyer chosen has been allowed to be present during questioning.

32. For the Czech Republic, there would be a derogation under Article 3(6) of Directive 2013/48 if the person were not allowed to choose a lawyer who could be present during questioning. However, if the person had the opportunity to choose a lawyer, but for whatever reason that lawyer could not be present, there is no such derogation. That is precisely the case with the disputed Czech legislation, which fully complies with Article 3(3)(b) of that directive, since it is the procedures under national law that, in the exceptional situation of a person being apprehended, require the person to be questioned within 48 hours and to have sufficient leeway to choose a lawyer who will be present during questioning. (20) The Czech Republic adds that, even if that legislation were considered to depart from Article 3(3)(b), it would comply with Article 3(6), since it (i) applies only exceptionally in urgent cases, (ii) applies to prevent a serious threat to criminal proceedings, and (iii) requires an individual assessment by the competent authorities taking into account the circumstances of the case.

33. The Czech Republic emphasises, inter alia, that that piece of national legislation is a safeguard for specific and exceptional cases in which a suspect deliberately chooses a lawyer that is unavailable and thus de facto abuses the right to choose a lawyer in order to be released and escape justice. Its position is also consistent with the ECtHR case-law, (21) which regards as problematic a situation in which the person concerned has no possibility of communicating with a lawyer, and not where a particular act is carried out without the presence of a lawyer, in particular where that is due to the insistence by the person to have a lawyer who is not available at that time. As the Czech Republic stressed at the hearing, Directive 2013/48 does not preclude questioning of suspects or accused persons from taking place in the absence of their lawyer, based on its wording, the legislative history and the comparison with Directive 2016/800 relating to children, and Directive 2013/48 does not go beyond the ECtHR case-law, since its provisions correspond to that case-law and there are no such indications in the preparatory works.

34. Hungary adds that, by virtue of the wording in Article 3(3)(b) (‘in accordance with procedures under national law’), Directive 2013/48 brings within the scope of national law the possibility of defining and clarifying the right of a lawyer to be present, and that requirement is met by national legislation which ensures that suspects or accused persons have sufficient room for manoeuvre to choose a lawyer who will be present during questioning. If it were mandatory to ensure the actual presence of a lawyer in all cases, this could lead to abuses and obstacles to the performance of criminal proceedings and could impede the rights of suspects and accused persons. As Hungary indicated at the hearing, the ECtHR case-law does not impose an absolute requirement of presence.

2. Assessment

35. The arguments of the parties reveal, as I have briefly explained above (see points 26 and 27 of the present Opinion), that the complaint arises because of the difference in understanding of the provisions of Directive 2013/48. The dispute thus turns on the interpretation of the provisions of Article 3(3) and (6) of Directive 2013/48 and how the right of access to a lawyer during questioning in Article 3(3)(b) of that directive should be understood. Those issues have not yet been directly addressed by the Court.

36. I consider that, based on the wording, legislative history, context and objectives of Directive 2013/48, along with the ECtHR case-law, the Commission’s interpretation of the meaning of and relationship between Article 3(3) and (6) of Directive 2013/48 must be upheld.

(a) Wording

37. As one of the components of the right of access to a lawyer in Article 3(3), point (b) thereof expressly requires Member States to ensure that suspects or accused persons have ‘the right for their lawyer to be present and participate effectively when questioned’. (22)

38. Recital 25 of Directive 2013/48 further states that: ‘Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings.’ (23)

39. To my mind, and as indicated by the Commission, presence means physical presence, that is, suspects or accused persons have the right for their lawyer to be there in person when they are questioned by the authorities. (24)

40. It follows that Article 3(3)(b) of Directive 2013/48 provides for a general right of suspects or accused persons to have their lawyer there during questioning by the authorities. However, that right is not absolute and thus, as provided for by that directive, may be subject to temporary derogations under Article 3(6) thereof or to a waiver of that right under Article 9 thereof.

41. As the Court has ruled, the temporary derogations in Directive 2013/48 are exhaustive. (25)

42. As indicated by the Commission and contrary to the arguments put forward by the Czech Republic, it is apparent that the disputed Czech legislation does not meet all of the requirements for a possible temporary derogation as set out in Article 3(6), along with Article 8, of Directive 2013/48. Indeed, it is evident that, as substantiated by the Commission, that legislation establishes a rule that applies generally in situations where the lawyer does not appear within the specified time period of 48 hours and thus is not limited to individual cases (‘to the extent justified in the light of the particular circumstances of the case’) as mandated by Article 3(6) of that directive. Nor has it been demonstrated that ‘compelling reasons’ specifically pertaining to ‘an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person’ or ‘where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings’ are required to be shown in that regard.

43. As a result, in my view, the disputed Czech legislation, which on a general basis allows for suspects or accused persons to be questioned without the presence of their lawyer simply because the lawyer has not been able to appear within a period of 48 hours, is contrary to the provisions of Article 3(3)(b), read together with Article 3(6), of Directive 2013/48. (26)

44. Furthermore, as indicated by the Commission and contrary to the arguments advanced by Hungary, it should be pointed out that the reference to national law in Article 3(3)(b) of Directive 2013/48 pertains to the effective participation of the lawyer, not the lawyer’s presence itself. That is apparent from the wording of that provision (‘Such participation shall be in accordance with procedures under national law’) and recital 25 thereof (‘Such participation should be in accordance with any procedures under national law which may regulate the participation of a lawyer during questioning’).

45. To my mind, this does not conflict with the fact that Article 3(3)(b) of Directive 2013/48 must be read as requiring both presence and effective participation; rather, it implies that, while there is some leeway afforded to Member States under Directive 2013/48 in respect of national rules regulating certain modalities of a lawyer’s effective participation (subject to the requirement that such rules cannot ‘prejudice the effective exercise and essence’ of that right), there is no such leeway when it comes to presence, as suspects or accused persons as a rule have the right of access to a lawyer during questioning under Article 3(3)(b) of that directive. Presence means presence, and either the lawyer is there or is not.

46. The fact that Article 3(3)(b) of Directive 2013/48 refers to ‘their lawyer’ should not be understood as always referring to a lawyer chosen by suspects or accused persons. That wording does not prevent that, as indicated by the Commission, possible abuse of the right of access to a lawyer, which can create obstacles to the conduct of criminal proceedings, can be dealt with by the Member State authorities by making arrangements for those persons to have a lawyer appointed to assist them during questioning in the place of the chosen lawyer who could not be present. The appointed lawyer becomes ‘their lawyer’.

(b) Legislative history

47. The Czech Republic argued at the hearing that Directive 2013/48 regulates the right of access to a lawyer but not the mandatory presence of one, and that the legislative history of that directive indicates that provisions concerning the mandatory presence of a lawyer were raised as an alternative, but were ultimately not chosen. The rejection of provisions on the mandatory presence of a lawyer signifies, in its view, that Directive 2013/48 does not require that a lawyer must always be present during questioning.

48. To my mind, that line of argument advanced by the Czech Republic rests on an incorrect understanding of the requirement of the mandatory presence of a lawyer.

49. It is true that, as part of the legislative history of Directive 2013/48, (27) there was a policy option put forward in the Commission’s Impact Assessment that envisaged, in particular, provisions imposing mandatory defence across the board. That signified that suspects or accused persons must always be assisted by a lawyer in the sense that waiving that right would be impermissible. In other words, the mandatory nature of the defence means that a right cannot be waived. However, the policy option that prevailed was to allow for a waiver of the right of access to a lawyer to be subject to common minimum rules.

50. Therefore, contrary to the Czech Republic’s arguments, the concept of the mandatory presence of a lawyer and the general right of access to a lawyer should be distinguished.

51. It is apparent from the provisions of Directive 2013/48 (28) that the mandatory presence of a lawyer means that the suspect or accused person cannot waive the right of access to a lawyer and must always have a lawyer, while the right of access to a lawyer in Article 3(3) of that directive means that a suspect or accused person has a general right to have a lawyer, and in particular to have him or her present during questioning under point (b) of that paragraph, but that that person can waive that right, provided that the requirements of Article 9 have been met (or there can be a temporary derogation under Article 3(6)). In other words, the fact that there is no mandatory presence of a lawyer under that point (b) does not in any way affect the general right afforded to suspects or accused persons to have the lawyer present during questioning, unless they have waived that right in accordance with Article 9.

52. It might be added that the issue of waiting until the lawyer arrives before questioning was in fact raised in the Council, with proposals put forward to address this in the text of the directive, which would refer back to the Member States’ legal systems. (29) However, those proposed provisions were deleted as negotiations with the European Parliament were finalised. (30)

53. Even though the legislative history is not conclusive, it does not preclude the interpretation that the legislative intention is to ensure that suspects and accused persons must in principle be afforded the right to have their lawyer present during questioning.

54. Other provisions of Directive 2013/48 and of other ‘roadmap’ directives seem to lend further support to the interpretation of Article 3(3)(b), read together with Article 3(6), of that directive put forward by the Commission.

55. In particular, as seen in point 22 of the present Opinion, Article 3(1) of Directive 2013/48 makes clear, as a general principle, that Member States must ensure that suspects and accused persons are afforded 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’. Read together with Article 2(1) of that directive, this means that Member States are obliged to ensure, without exception, that that right is exercised ‘practically and effectively’ at all stages of the criminal proceedings. In my view, and as indicated by the Commission, the fact that a suspect or accused person can be questioned by the authorities in the absence of their lawyer simply because the lawyer does not appear within the specified time period is liable to seriously undermine the practical and effective exercise of the person’s defence rights.

56. The Czech Republic argued at the hearing that further support for the fact that Directive 2013/48 does not require a lawyer to always be present during questioning can be taken from the comparison with Directive 2016/800 relating to children who are suspects or accused persons in criminal proceedings (see point 17 of the present Opinion). The Czech Republic points out that, according to Article 6(2) of Directive 2016/800, Member States must ensure that children are assisted by a lawyer and, under Article 6(4)(b) thereof, Member States must ensure that children are assisted by a lawyer during questioning. In its view, the fact that it is clear from those provisions that the presence of a lawyer during questioning is mandatory and that those provisions are included in Directive 2016/800 on account of the vulnerability of children indicates that it is a derogation from the general regime established by Directive 2013/48; logically, if the mandatory presence of a lawyer were established by Directive 2013/48, it would not be necessary to establish that obligation in Directive 2016/800 only for certain suspects or accused persons.

57. Once again, to my mind, that line of argument rests on an incorrect understanding of the requirement of the mandatory presence of a lawyer.

58. It is true that, unlike Directive 2013/48, Directive 2016/800 provides for the mandatory presence of a lawyer during questioning on account of the particular situation of children as being vulnerable and not always able to fully understand and follow criminal proceedings. (31) However, as discussed above, the mandatory presence of a lawyer during questioning means that no waiver is allowed and it is therefore not the same as the general right for a lawyer to be present during questioning, where a waiver is allowed.

(d) Objectives

59. As mentioned above in part IV.A of the present Opinion, Directive 2013/48 contributes to the building of the AFSJ by establishing a set of common minimum rules on the right of access to a lawyer in criminal proceedings, with a view to furthering the mutual trust of Member States in their criminal justice systems and the confidence of EU citizens when moving through the European Union. Going back to the Stockholm Programme, that directive is envisaged not just to codify, but to strengthen the right of access to a lawyer in criminal proceedings across the Member States.

60. With that in mind, interpreting Directive 2013/48 so as to allow a Member State to permit questioning of suspects or accused persons without affording them the right to have their lawyer present simply because the lawyer has not appeared within a period of 48 hours would seem to me to undermine the objectives of Directive 2013/48 to ensure a common level of fair trial rights to suspects or accused persons throughout the European Union.

(e) The ECtHR case-law

61. The Czech Republic and Hungary invoked the ECtHR case-law in support of their position, and the Czech Republic argued at the hearing in particular that Directive 2013/48 corresponds to what is required by the ECtHR case-law.

62. It should be emphasised that the complaint is based on the alleged infringement of the provisions of Article 3(3) and (6) of Directive 2013/48. Thus, the question whether the disputed Czech legislation were to be considered consistent with Article 6 ECHR as interpreted in the ECtHR case-law is not dispositive.

63. In that respect, as I have explained in previous Opinions, (32) the obligation to interpret the ‘roadmap’ directives in a way that is consistent with fundamental rights means that the rights contained in a particular directive cannot offer protection lower than that guaranteed by the Charter and the ECHR, but it does not mean that the EU legislature cannot grant rights that are more extensive. In other words, as the ECHR represents the minimum level of protection under Article 52(3) of the Charter, (33) any interpretation of a particular directive must provide for protection at least at the level of that convention, while the protection provided by the European Union may be higher.

64. Thus, in the present case, regardless of how the ECtHR case-law is interpreted, this does not necessarily mean that the provisions of Directive 2013/48 could not be interpreted as requiring an even higher level of protection.

65. That said, contrary to arguments of the Czech Republic and Hungary, the ECtHR case-law would seem to lend support that under the ECHR there is also a requirement for the physical presence of a lawyer.

66. The ECtHR has held that the right of everyone charged with a criminal offence to be effectively defended by a lawyer as guaranteed by Article 6(3)(c) ECHR is one of the fundamental features of a fair trial in the context of criminal proceedings. (34)

67. In particular, in Beuze v. Belgium, (35) the ECtHR has emphasised that, as regards the aims of that right, access to a lawyer at the pre-trial stage of proceedings contributes to the prevention of miscarriages of justice and, above all, to the fulfilment of the aims of Article 6 ECHR, notably the equality of arms between the authorities and the accused; prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody and is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police. Moreover, one of the lawyer’s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself or herself and for his or her right to remain silent, rights which are thus complementary to the right of legal assistance.

68. Furthermore, as regards the content of the right of access to a lawyer, the ECtHR has considered that Article 6(3)(c) ECHR does not specify the manner of exercising the right of access to a lawyer or its content. While it leaves to the States the choice of the means of ensuring that it is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the ECHR, namely to guarantee rights that are practical and effective. (36)

69. In order for the right to a fair trial to remain sufficiently practical and effective, Article 6(1) ECHR requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police. (37)

70. Assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused, and to that end, certain minimum requirements must be met. (38) First, suspects must be able to enter into contact with a lawyer from the time when they are taken into custody; it must therefore be possible for them to consult with their lawyer prior to an interview. (39) Second, the ECtHR has found in a number of cases that ‘suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings … Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract …, and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced’. (40)

71. Those findings in Beuze v. Belgium have been affirmed in subsequent case-law. (41)

72. Additionally, in Soytemiz v. Turkey, (42) the ECtHR underlined that the presence of a lawyer during the investigative actions, including police questioning, is an inherent aspect of the safeguard enshrined in Article 6(3)(c) ECHR, as it is difficult to see how the specific services associated with ‘legal assistance’, which Article 6(3)(c) ECHR speaks of, may be exercised in the absence of a lawyer. Therefore, the right to be assisted by a lawyer requires not only that the lawyer is permitted to be present, but also that he or she is allowed to actively assist the suspect during, inter alia, questioning by the police and to intervene to ensure respect for the suspect’s rights, as a person charged with a criminal offence should be able to obtain the whole range of services specifically associated with legal assistance, not only in the course of trial but also during the pre-trial stage given its particular importance for the preparation of the criminal proceedings. Moreover, the right to be assisted by a lawyer applies throughout and until the end of questioning by the police: ‘The lawyer’s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police.’ (43)

73. The ECtHR also recalled that the police are, in principle, under an obligation to refrain from or adjourn questioning in the event that a suspect has invoked the right to be assisted by a lawyer during the interrogation until a lawyer is present and is able to assist the suspect. The same considerations also hold true in case the lawyer has to – or is requested to – leave before the end of questioning of the police and before the reading out and the signing of the statements taken. (44)

74. Consequently, as illustrated by the foregoing ECtHR case-law, emphasis is put on the fact that suspects and accused persons must be able to benefit from the right to have the actual physical presence of a lawyer during questioning as guaranteed by the right of access to a lawyer under Article 6(1) and (3)(c) ECHR. (45) Thus, contrary to the arguments of the Czech Republic and Hungary, that case-law suggests that there is a need for the physical presence of the lawyer in principle, unless a restriction of that right can be duly justified.

75. It might be added that certain ECtHR case-law relied on by the Czech Republic and Hungary seems to be inapposite. In Yoldaş v. Turkey, (46) the ECtHR held that there was no violation of Article 6(1) and (3)(c) ECHR in a situation where the applicant had waived the right to be assisted by a lawyer, which was found to be in compliance with the requisite standards. In Hovanesian v. Bulgaria, (47) the ECtHR found no violation of Article 6(1) and (3)(c) ECHR in a situation where the applicant’s right to the assistance of a lawyer had been restricted during the first 24 hours of his police custody, which was considered in the particular circumstances of the case to be justified in the light of the fairness of the proceedings as a whole. Neither waiver nor application of exceptions to the general right of access to a lawyer have been called into question in the complaint. If anything, those two cases respectively highlight the importance of having sufficient requirements for waiver of the right of access to a lawyer and the stringent regime for temporary derogations under Directive 2013/48.

76. In the light of the foregoing reasons, the complaint raised by the Commission is well founded.

V. Costs

77. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 140(1) of those rules, the Member States that intervened in the proceedings are to bear their own costs. Accordingly, since the Commission has applied for costs and the Czech Republic has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. Hungary is to bear its own costs.

VI. Conclusion

78. In the light of the foregoing considerations, I propose that the Court should:

(1) Declare that the Czech Republic has failed to fulfil its obligations under Article 3(6), read in conjunction with Article 3(3), of Directive 2013/48 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 by not correctly transposing those provisions;

(2) Order the Czech Republic to bear its own costs and to pay those of the European Commission; and

(3) Order Hungary to bear its own costs.

1 Original language: English.

2 Directive 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 (OJ 2013 L 294, p. 1).

3 See my Opinion in BK (Reclassification of the offence) (C‑175/22, EU:C:2023:436, in particular points 22 and 23) and my Opinion in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, in particular points 26 to 31).

4 In addition to Directive 2013/48, these directives include: Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1); Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1); Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1); Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ 2016 L 297, p. 1); and Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ 2016 L 132, p. 1).

5 Council Resolution of 30 November 2009 (OJ 2009 C 295, p. 1).

6 See, in that regard, recitals 9 and 10 of Directive 2013/48.

7 European Council, The Stockholm Programme – An open and secure Europe serving and protecting citizens (OJ 2010 C 115, p. 1), point 2.4.

8 See, in particular, recitals 1 to 8 and 12 of Directive 2013/48.

9 Opinion of Advocate General Bot in Covaci (C‑216/14, EU:C:2015:305, point 30). See also, for example, Report from the Commission to the European Parliament and the Council on the implementation of [Directive 2013/48] (COM(2019) 560 final), 26 September 2019, point 1.1.

10 As the Court has recognised, the fundamental principle of effective judicial protection of rights, reaffirmed in Article 47 of the Charter, and the concept of ‘a fair trial’, referred to in Article 6 ECHR, consist of various elements, which include, in particular, respect for the rights of the defence and the right to be advised, defended and represented. Similarly, respect for the rights of the defence is, in all proceedings in which penalties may be imposed, a fundamental principle of EU law which has been enshrined in Article 48(2) of the Charter. See, for example, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraphs 203 and 204).

11 See, in particular, Articles 1 and 2 and recitals 8, 12 and 57 of Directive 2013/48.

12 See, in that regard, Opinion of Advocate General Bobek in VW (Right of access to a lawyer in the event of non-appearance) (C‑659/18, EU:C:2019:940, point 2) and my Opinion in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, point 63).

13 In that respect, the right of access to a lawyer has been regarded, for example, as the ‘gateway’ (see Sayers, D., ‘Article 48 (Criminal Law)’, in Peers, S., Hervey, T., Kenner, J. and Ward, A. (eds), EU Charter of Fundamental Rights: A Commentary, Second Edition, Hart Publishing, Oxford, 2021, p. 1413, in particular p. 1450) or the ‘cornerstone’ (see Mitsilegas, V., EU Criminal Law, Second Edition, Hart Publishing, Oxford, 2022, p. 265) of criminal procedure rights, since it permits the exercise of other rights and helps make them real and effective.

14 See, for example, judgments 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 31), and of 8 May 2025, Barało (C‑530/23, EU:C:2025:322, paragraph 59).

15 See, for example, judgments 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 31), and of 14 May 2024, Stachev (C‑15/24 PPU, EU:C:2024:399, paragraph 48).

16 See also recital 23 of Directive 2013/48.

17 See also recital 25 of Directive 2013/48.

18 See also recital 38 of Directive 2013/48.

19 The Commission stated at the hearing that the complaint is based on an alleged infringement of Article 3(3) and (6) of Directive 2013/48 read together, and while the disputed Czech legislation could be considered in the light of the derogation specified in either point (a) or point (b) of Article 3(6), the Hungarian legislation at issue in Case C‑660/24 could in turn be considered in the light of the derogation specified in Article 3(6)(b). This would explain why the Commission framed the complaints in the two cases differently, but what is decisive is that each of those two pieces of national legislation goes far beyond the possible derogations under that directive.

20 The Czech Republic indicates that the procedure whereby a suspect may choose a lawyer is governed by the Police Directorate Internal Instruction No 103/2013, according to which persons are informed in good time of their rights and are assisted in trying to contact a lawyer of their choice or to choose another lawyer on the basis of the list of lawyers kept by the Czech Bar Association or the telephone directory.

21 The Czech Republic refers, in particular, to ECtHR, 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102); ECtHR, 23 February 2010, Yoldaş v. Turkey (CE:ECHR:2010:0223JUD002750304); ECtHR, 21 December 2010, Hovanesian v. Bulgaria (CE:ECHR:2010:1221JUD003181403); and ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910).

22 Emphasis added.

23 Emphasis added.

24 As was discussed at the hearing – although not directly relevant for the present case – the development of technology might allow for the presence of a lawyer in ‘digital form’ to be understood as a physical presence, provided that such presence is comparable to the ‘flesh and blood’ of a lawyer. In that respect, the Commission submitted at the hearing that the presence of a lawyer by videoconferencing may be compatible in certain situations with Article 3(3)(b) of Directive 2013/48 but should be regarded as an exception, not an alternative, to the physical presence of the lawyer, provided that the conditions laid down in that directive are met. In particular, the Commission stressed that the presence and participation of the lawyer by videoconference should only be possible if the person is able to exercise the rights of defence in a practical and effective manner under Article 3(1) of that directive; that presence and participation should be subject to the person’s informed consent; and the needs of vulnerable persons and practical aspects must be taken into account. Hungary also considered such presence of a lawyer possible, as the use of remote questioning is a tool widely used in criminal proceedings since the COVID-19 pandemic and is not per se incompatible with the right to a fair trial. The Czech Republic, however, took the position that this issue is de lege ferenda and, were the use of videoconferencing to be considered necessary to strengthen fair trial rights, it should be dealt with through the EU legislative process.

25 See 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 42 to 45), in which the Court ruled that the temporary derogations from the right of access to a lawyer which Member States may provide for are set out exhaustively in Article 3(5) and (6) of Directive 2013/48. The Court considered that interpreting Article 3 of Directive 2013/48 as allowing Member States to provide for derogations other than those exhaustively set out in that article would run counter to its wording and to the objectives and scheme of that directive, and would render that right redundant.

26 Such a position is also upheld by scholars and expert reports. See, to that effect, Ogorodova, A. and Spronken, T., ‘Legal advice in police custody: From Europe to a local police station’, Erasmus Law Review, Vol. 7, 2014, p. 191, in particular p. 199; Hodgson, J., ‘Criminal procedure in Europe’s area of freedom, security and justice: The rights of the suspect’, in Mitsilegas, V., Bergström, M. and Quintel, T. (eds), Research Handbook on EU Criminal Law, Second Edition, Edward Elgar Publishing, Cheltenham, 2024, p. 135, in particular p. 155; European Union Agency for Fundamental Rights, Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings, Publications Office of the European Union, Luxembourg, 2019, proposed FRA opinion 3 and point 3.3.4.

27 See Commission Staff Working Document – Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the rights of access to a lawyer and of notification of custody to a third person in criminal proceedings (SEC(2011) 686 final), 8 June 2011, in particular points 5.3 and 6.

28 See, in that regard, the second subparagraph of Article 3(4), Article 9 and recitals 19, 28 and 39 to 41 of Directive 2013/48.

29 See, for example, Council document 7337/12 of 9 March 2012, point 7 and proposed recital 19a; Council document 10064/12 of 16 May 2012, proposed recital 20.

30 See, for example, Council document 10190/13 of 31 May 2013.

31 See Article 6(4)(b) and recitals 25 and 27 of Directive 2016/800. See also judgment of 5 September 2024, M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:685, paragraph 106), and my Opinion in that case (C‑603/22, EU:C:2024:157, points 67 to 71).

32 See my Opinion in BK (Reclassification of the offence) (C‑175/22, EU:C:2023:436, points 53 to 76) and my Opinion in M.S. and Others (Procedural rights of minors) (C‑603/22, EU:C:2024:157, point 62).

33 Under settled case-law, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the ECHR, which does not preclude EU law from affording more extensive protection. When interpreting the rights guaranteed by the second paragraph of Article 47 and Article 48(2) of the Charter, the Court must, therefore, take account of the corresponding rights guaranteed by Article 6 ECHR, as interpreted by the ECtHR, as the minimum threshold of protection. See, for example, judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraph 41).

34 See, for example, ECtHR, 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102, § 51), and ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, § 123).

35 See ECtHR, 9 November 2018 (CE:ECHR:2018:1109JUD007140910, §§ 125 to 129).

36 See ECtHR, 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102, § 51), and ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, § 131).

37 See ECtHR, 27 November 2008, Salduz v. Turkey (CE:ECHR:2008:1127JUD003639102, § 55), and ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, § 137).

38 See ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, §§ 131 and 132).

39 See ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, § 133).

40 ECtHR, 9 November 2018, Beuze v. Belgium (CE:ECHR:2018:1109JUD007140910, § 134) (emphasis added).

41 See, for example, ECtHR, 23 May 2019, Doyle v. Ireland (CE:ECHR:2019:0523JUD005197917, § 74), in which the ECtHR even referred to the provisions of Article 3(1) to (3) of Directive 2013/48 as part of the relevant material; see also ECtHR, 4 June 2019, Farrugia v. Malta (CE:ECHR:2019:0604JUD006304113, § 97), and ECtHR, 18 January 2022, Atristain Gorosabel v. Spain (CE:ECHR:2022:0118JUD001550815, § 49).

42 See ECtHR, 27 November 2018 (CE:ECHR:2018:1127JUD005783709, §§ 43 and 44).

43 See ECtHR, 27 November 2018, Soytemiz v. Turkey (CE:ECHR:2018:1127JUD005783709, § 45) (emphasis added).

44 See ECtHR, 27 November 2018, Soytemiz v. Turkey (CE:ECHR:2018:1127JUD005783709, § 46).

45 See, in that regard, Giannoulopoulos, D., ‘Strasbourg jurisprudence, law reform and comparative law: A tale of the right to custodial legal assistance in five countries’, Human Rights Law Review, Vol. 16, 2016, p. 103.

46 See ECtHR, 23 February 2010 (CE:ECHR:2010:0223JUD002750304, §§ 51 to 55).

47 See ECtHR, 21 December 2010 (CE:ECHR:2010:1221JUD003181403, §§ 32 to 44).

Opinion of Advocate General Ćapeta delivered on 12 March 2026.###

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