IN JUDGMENT C-660/21, THE COURT OF JUSTICE HELD THAT EUROPEAN UNION LAW DOES NOT PRECLUDE A NATIONAL COURT FROM REVIEWING EX OFFICIO A BREACH OF THE OBLIGATION TO INFORM THE SUSPECT IMMEDIATELY OF HIS RIGHT TO REFUSE TO GIVE NOTICE.

#104In Judgment C-660/21, the Court of Justice held that European Union law does not preclude a national court from reviewing ex officio a breach of the obligation to inform the suspect immediately of his right to refuse to give notice

However, the suspect must not be deprived of an effective possibility of access to a lawyer, if necessary by recourse to legal aid. Not only the person himself but also his defense counsel must have the right of access to his file and the right to challenge the breach within a reasonable time.

Two persons were in a company car park near a lorry when they were seen by members of the judicial police, who began to investigate them on suspicion of having committed the offence of theft of fuel, without informing the persons of their rights, including the right to refuse to give evidence, and it was subsequently decided to detain them provisionally.

The Criminal Court of Villefranche-sur-Saône, France, in the context of criminal proceedings, held that the delay in giving the accused persons a briefing violated their rights guaranteed by European Union law. For that reason, all acts, including the search of the vehicle, and the provisional detention of the suspects should be declared null and void.

The Court of Cassation in France has interpreted the Code of Criminal Procedure to the effect that it prohibits the courts deciding the merits of a case from examining ex officio the breach of the obligation to immediately inform a suspect or accused person of his right to refuse to give a statement. For that reason, the Criminal Court of Villefranche-sur-Saône in France referred to the Court of Justice the question of whether European Union law precludes such a prohibition on the ex parte examination of criminal law issues.

The Court holds that the prohibition imposed by the Court of Cassation on the Criminal Court sitting in the main proceedings from examining the infringement in question ex officio, for the purposes of declaring the criminal proceedings void, respects the right to an effective remedy and the right to a fair trial, the right of the defense, where the suspects, the accused or their lawyer have had the opportunity to contest the infringement in question within a reasonable time and have had access to the file.

That is so only if the suspects or accused persons have contested the infringement within the time allowed and have effectively exercised their right of access to a lawyer, as provided for in European Union law. Where suspects or accused persons waive that possibility, they must bear the consequences, provided that the waiver is made in accordance with the conditions laid down by European Union law.

In conclusion, we submit that the suspected or accused person must be informed, orally or in writing in a language he or she understands, of the content of the right of access to a lawyer and of the possible consequences of waiving that right, and that the waiver must be made voluntarily and unequivocally.