In the case of K.B. and F.S. (C-660/21, 22.6.2023), two suspects had been arrested in flagranti by the French police and interrogated without having been previously informed about their rights, notably the privilege against self-incrimination, the right to remain silent and the right to legal assistance by a lawyer. While this was a clear breach of Article 6 of the Convention (see Ibrahim and Others v. United Kingdom, § 273) and Article 3(1) and 4(1) of Directive 2012/13 on the right to information in criminal proceedings, French trial judges are prevented by Article 385 of the Code of Criminal Procedure, as interpreted by the Court of cassation, from raising that failure of their own motion in cases where it is open to the suspect or their lawyer to raise it themselves before the trial court with a view to the annulment of the procedure. The trial court in the case at hand interrogated the CJEU about the compatibility of this prohibition with EU law.

Relying on Salduz v. Turkey, the CJEU replied in substance that Union law did not preclude such a prohibition, provided that the suspect or the accused person concerned had had a practical and effective opportunity to have access to a lawyer (Art. 3 of Directive 2013/48/EU), had obtained legal aid if necessary (Directive 2016/1919) and had had access to their file and the right to invoke that breach within a reasonable period of time (Art. 8(2) of Directive 2012/13, read in the light of Articles 47 and 48(2) of the EU-Charter).

This solution is very much in line with the Strasbourg case-law on Article 6 of the Convention (right to a fair trial). In the landmark case of Ibrahim and Others v. United Kingdom, explicitly relied on by the CJEU, the ECtHR indeed stated:

In the light of the nature of the privilege against self-incrimination and the right to silence, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. … Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer and his right to silence and privilege against self-incrimination takes on a particular importance. (§ 273; in the same sense: Beuze v. Belgium, § 121)

This convergence with the Strasbourg case-law does not come as a surprise, since the CJEU had previously indicated that by virtue of Article 52(3) of the EU-Charter, when interpreting the rights guaranteed by the first and second paragraphs of Article 47 (right to an effective remedy and to a fair trial) and Article 48(2) of the EU-Charter (presumption of innocence and rights of the defence), it must take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (§ 41).

Perhaps more surprising is what the CJEU added on how to handle a failure to properly inform a suspect on their right to remain silent:

Under the case-law of the European Court of Human Rights, where a procedural defect has been identified, it falls to the domestic courts to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 ECHR (ECtHR, 28 January 2020, Mehmet Zeki Çelebi v. Turkey, …, § 51). Thus, where a suspect has not been informed in due time of the privilege against self-incrimination and the right to remain silent, it is necessary to assess whether, notwithstanding this failure, the criminal proceedings as a whole can be considered fair, taking into account a series of factors, including whether the statements taken without such information having been given formed an integral or significant part of the probative evidence, and the strength of the other evidence in the case (see, to that effect, ECtHR, 13 September 2016, Ibrahim and Others v. The United Kingdom, …, §§ 273 and 274). (§ 48)

The CJEU here goes for the lower Strasbourg protection standard, i.e. the test of the “proceedings as a whole”, even though under EU law there is no obligation to do so and there would be room for a higher protection standard, such as the finding that any failure to comply with any of the safeguards laid down in the invoked directives on procedural rights would entail a breach of EU law, with all consequences in terms of procedural acts to be annulled as a result.

It is indeed the case that while the directives on procedural rights to a large extent draw on the Strasbourg case-law relating to Article 6 of the Convention (right to a fair trial), they do not explicitly deal with the consequences of a breach of their provisions. The CJEU now seems to have identified that lacuna and, as already in HYA and Others, to be willing to fill it by adopting the “proceedings as a whole” approach, which is not explicitly laid down in the Convention either but rather is the result of the interpretation by the ECtHR of the notion of fair trial.

However that may be, the approach now adopted by the CJEU makes it easier for national judges to deal with breaches of procedural fundamental rights, as there is convergence between Strasbourg and Luxembourg on the need to consider the fairness of domestic proceedings as a whole when assessing the legal consequences of such breaches.

Theoretically, though, a “breach-by-breach” approach, which in the past was not without any support in the Strasbourg case-law (see the discussion in Beuze v. Belgium, §§ 140-141), would have been possible too, as it would represent a higher protection standard for the suspect and both Article 52(3) of the EU-Charter and Article 53 of the Convention, as well as the non-regression clauses featuring in the directives on procedural rights, all allow the application of higher protection standards. That said, under the Convention there is of course no obligation on any State to raise the minimum Convention standard.