In the case of Barało (C-530/23, 8.5.2025), the CJEU had to deal with the procedural safeguards for vulnerable persons under Directive 2013/48 (right of access to a lawyer in criminal proceedings) and Directive 2016/1919 (legal aid).

Facts of the case

The case arose from criminal proceedings in Poland against K.P., who was charged with possession of narcotic and psychotropic substances and driving under the influence of drugs. Following a traffic collision, K.P. was arrested and questioned by the police after being informed of his procedural rights, including the right to legal assistance.

Although he neither waived nor requested a lawyer, the police conducted no assessment of whether his apparent mental condition affected his ability to understand the proceedings. Subsequent medical evidence revealed that K.P. suffered from schizophrenia and schizoaffective disorders and had repeatedly been hospitalised for psychiatric treatment. He was later questioned again, while staying in a psychiatric hospital, without the assistance of a lawyer.

The referring Polish court considered that the investigation had failed to identify his vulnerability and to ensure the legal assistance required by EU law, and therefore sought guidance from the CJEU on the interpretation of Directives 2013/48 and 2016/1919, their direct effect and the consequences of their infringement.

Main findings by the CJEU

The CJEU held that Directives 2013/48 and 2016/1919 must be interpreted together, since the latter is intended to ensure the effective exercise of the former. It ruled that the competent authorities must assess and recognise a suspect’s vulnerability before any questioning or investigative measure takes place, so that vulnerable suspects can effectively exercise their rights of defence. Where vulnerability is established, legal aid must be granted without undue delay and, in any event, before questioning or investigative acts, even in the absence of a request by the suspect. While Member States are not required to establish a legal presumption of vulnerability, they must put in place procedures capable of identifying vulnerable persons at an early stage.

As regards remedies, the CJEU held that EU law requires an effective remedy for breaches of these rights but does not require the automatic exclusion of evidence obtained in violation of them. Instead, national courts must assess whether the criminal proceedings, considered as a whole, remained fair, taking into account in particular the importance of the impugned statements in the evidentiary case and the strength of the remaining evidence. It is ultimately for the national court to ensure that the rights guaranteed by Directives 2013/48 and 2016/1919, read in the light of Articles 47 and 48(2) of the EU-Charter, have been respected and to draw the appropriate consequences of any breach.

Observations

The judgment in Barało contains a mixture of confirmations of the Strasbourg case-law, useful clarifications regarding vulnerable suspects and, unfortunately, significant departures from the standards developed by the ECtHR under Article 6 of the Convention.

Confirmations of the Strasbourg case-law

The CJEU first confirms several principles already well established in the Strasbourg jurisprudence, in particular in Beuze v. Belgium.

As regards the timing of legal assistance, the CJEU reiterates that suspects must have access to a lawyer “without undue delay and, at the latest, before questioning by police, by another law enforcement authority or by a judicial authority, or before investigative or evidence-gathering acts are carried out” (§ 72). This is broadly consistent with Beuze. However, the Strasbourg case-law remains more demanding. According to the ECtHR,

“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 a suspect to consult with his or her lawyer prior to an interview, or even where there is no interview. Moreover, 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.” (Beuze, §§ 133-134)

Importantly, these guarantees apply in Strasbourg to all suspects, not merely to vulnerable persons.

Useful clarifications regarding vulnerable suspects

The judgment nevertheless contains useful developments complementing the Strasbourg case-law concerning vulnerable suspects.

First, the CJEU holds that vulnerability must be assessed before any questioning takes place (§§ 68 and 92). The investigative authorities are therefore under an obligation to identify possible vulnerability before any interview or investigative measure capable of affecting the rights of the defence.

Secondly, the Court makes clear that legal aid for vulnerable persons must be granted even in the absence of any request (§§ 69 and 92). Given the very vulnerability of the persons concerned, requiring them to request legal assistance would undermine the effectiveness of the protection intended by Directive 2016/1919.

These clarifications strengthen procedural safeguards and fit well within the overall logic of the Strasbourg jurisprudence.

The major divergence: remedies and the use of unlawfully obtained evidence

The more controversial aspect of the judgment concerns the consequences of a failure by the public authorities to comply with these requirements. More specifically, the question arises whether statements obtained in breach of the right of access to a lawyer may nevertheless be relied upon in criminal proceedings.

The CJEU gives a twofold answer, relying on Article 12(1) of Directive 2013/48 and Article 8 of Directive 2016/1919.

First, Member States must provide an effective remedy, although that remedy may be indirect rather than consisting in the exclusion of the evidence itself (§§ 95-101). Secondly, EU law does not require the automatic exclusion of evidence obtained in breach of those rights (§ 102). Instead, the national court must determine whether the criminal proceedings, viewed as a whole, remain fair:

“However, in accordance with the case-law of the European Court of Human Rights, which must be taken into account, as is clear from recitals 50 and 53 of the first of those directives and recitals 17 and 30 of the second, where a procedural defect has been identified, it is for the national courts to assess whether that procedural shortcoming has been remedied in the course of the ensuing proceedings.” (§ 102)

The CJEU continues:

“Thus, in the event that evidence has been collected in disregard of the requirements of those directives, it must be determined whether, despite that lacuna, at the time when the court hearing the case must give judgment, the criminal proceedings as a whole may be regarded as fair, taking into account a number of factors, including whether the statements taken in the absence of a lawyer are an integral or significant part of the probative evidence, as well as the strength of the other evidence in the file.” (§ 103)

It therefore concludes that:

“EU law does not require the Member States to provide for the possibility for a court to declare inadmissible incriminating evidence contained in statements made by a vulnerable person during questioning by the police, by a law enforcement authority or by a judicial authority in breach of the rights laid down by Directive 2013/48 or 2016/1919, provided, however, that, in criminal proceedings, that court is in a position to verify that those rights, read in the light of Article 47 and Article 48(2) of the Charter, have been respected and to draw all the inferences from that breach, in particular as regards the probative value of the evidence obtained in those circumstances.” (§ 104).

At first sight, this approach appears to follow the Strasbourg methodology of assessing the fairness of the proceedings as a whole. Yet a closer reading reveals important differences.

Why Barało departs from Beuze

It is hardly surprising that, when referring to the Strasbourg case-law in § 102, the CJEU does not cite any specific ECtHR judgment. There is, in fact, no Strasbourg authority supporting the proposition in the form presented by the Court.

While the ECtHR indeed assesses the fairness of the proceedings as a whole, that assessment is not the starting point. Before undertaking that examination, national courts must determine whether there existed compelling reasons capable of justifying the restriction on the right of access to a lawyer (Beuze, § 139).

The ECtHR has consistently emphasised the exceptional nature of such restrictions:

“The criterion of “compelling reasons” is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the suspect’s first police interview, restrictions on access to a lawyer are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case.” (Beuze, § 142)

The absence of compelling reasons has important consequences:

“Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer.” (Beuze, § 145; emphasis added).

What is striking in Barało is that this entire analytical framework is absent. The notion of exceptional compelling reasons, as the indispensable justification for restricting access to a lawyer, disappears altogether. Equally absent is the consequence flowing from the lack of such reasons, namely the application of very strict scrutiny creating, in practice, a strong presumption of a violation of the right to a fair trial.

Instead, the CJEU proceeds directly to an overall assessment of the proceedings, relying on its earlier judgment in Stachev, which had already adopted the same approach. As a result, the lower level of protection introduced in Stachev is now being perpetuated.

A further lowering of the Strasbourg standard stems from the factors which the CJEU identifies for assessing the fairness of the proceedings as a whole. The CJEU mentions only whether the statements obtained in the absence of a lawyer formed an integral or significant part of the evidence and the strength of the remaining evidence (§ 103).

This stands in marked contrast with the considerably broader, expressly non-exhaustive list set out in Beuze (§ 150). Besides the evidential weight of the statements, Strasbourg requires consideration of numerous additional factors, including:

• the particular vulnerability of the accused;
• the domestic legal framework and compliance with it;
• the possibility of challenging the evidence;
• the reliability and quality of the evidence;
• the nature of the unlawfulness by which the evidence was obtained;
• whether the statement was subsequently retracted;
• the nature of the tribunal deciding the case;
• the public interest in prosecuting the offence; and
• any other procedural safeguards afforded by domestic law.

The CJEU thus reduces what the ECtHR conceived as a comprehensive and context-sensitive balancing exercise to a much narrower inquiry focused primarily on the evidential importance of the impugned statements.

Some broader implications

Several conclusions emerge from Barało.

First, the judgment is yet another illustration of the CJEU’s failure to engage with Article 52(3) of the EU-Charter, which requires rights corresponding to those guaranteed by the Convention to be interpreted as providing at least the same level of protection as under the Convention. The Explanations relating to Article 52(3) expressly require that this minimum standard be determined in the light of the ECtHR’s case-law.

Secondly, the CJEU devotes considerable attention to establishing the direct effect of the relevant provisions of Directives 2013/48 and 2016/1919 (§§ 79 et seq.). Yet, irrespective of whether those directives are directly effective, Article 6 of the Convention remains fully applicable before national courts. It therefore continues to require the application of the higher Strasbourg standards. A failure by domestic courts to do so may ultimately give rise to proceedings before the ECtHR.

Finally, Barało illustrates once again the risks inherent in attempting to codify the case-law on the right to a fair trial through secondary EU legislation (on this, see also Spetsializirana prokuratura(trial of an absconded suspect). Such codification can never exhaust the richness and complexity of decades of Strasbourg jurisprudence. Inevitably, important gaps remain. By adopting a predominantly literal interpretation of Directives 2013/48 and 2016/1919, while disregarding the minimum-standard requirement flowing from Article 52(3) of the EU-Charter, the CJEU risks allowing those lacunae to become a vehicle for lowering, rather than preserving, the level of protection guaranteed by the Convention. This is precisely what appears to have occurred in Barało.