Raising and lowering of the Strasbourg standards regarding judicial review of detention – judgment of the CJEU in Stachev  

In the case of Stachev (C-15/24 PPU, 14.5.2024), the CJEU answered several questions raised by the Sofia District Court on the consequences to be drawn, under Directive 2013/48 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, from the waiver by an accused person of his right to legal assistance.

The case in the main proceedings concerned an illiterate person, CH, who was accused of robbery with violence. He signed a written statement to the effect that he did not wish to be defended by a lawyer of his choice or by a court-appointed lawyer. However, the consequences of that waiver had not been explained to him. After his arrest, during an interview by the police, he admitted participating in the commission of a robbery with violence. On this occasion, CH had been informed about his right not to incriminate himself and to refuse to give evidence, but the interview had taken place in the absence of a lawyer.

In the case at hand, the referring court, which also had jurisdiction to rule on the merits of the case (§ 29), was to decide only on the pre-trial detention of CH. The questions it submitted to the CJEU in this connection concerned the validity of the waiver by CH of his right to a lawyer and, in case the waiver would be invalid, the consequences to be drawn from his incriminating statements made without the assistance of a lawyer, i.e. in breach of Directive 2013/48.

Depending on the subject matter, the answers given by the CJEU would appear to both raise and lower the protection level ensured by the Convention in this area.

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Strasbourg standard raised

The CJEU raised the Strasbourg protection level by applying Directive 2013/48 to proceedings for the judicial review of the lawfulness of a detention on remand, which under the Convention is governed by its Article 5. While Directive 2013/48 does not specify whether its scope, described in Article 2(1) as being criminal proceedings on the merits, also covers the judicial review of detentions on remand, the CJEU answers that question in the affirmative, relying notably on the Preamble to the Directive. Accordingly, the full range of requirements flowing from the right to a fair trial and the rights of the defence apply to the judicial review of detentions on remand (§§ 77, 88-91).

As a consequence, the rules concerning the waiver of the right to legal assistance, laid down in Art. 9 of Directive 2013/48, also apply to the proceedings on the lawfulness of the detention on remand in the case at hand, it being understood that regard is thereby to be had to the vulnerability of CH, in accordance with Art. 13 (§ 78).

This acknowledgment of a general right to legal assistance in proceedings for the judicial review of detentions on remand would appear to raise the Strasbourg protection level. It is indeed the case that the procedural guarantees under Article 5 of the Convention (right to liberty and security) are not necessarily the same as those provided for by Article 6 (right to a fair trial). As the ECtHR put it:

The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (A. and Others v. the United Kingdom [GC], 2009, § 203; Idalov v. Russia [GC], 2012, § 161).

The ECtHR does not go any further than the consideration that in proceedings concerning the lawfulness of detention “it may also be essential that the individual concerned … should also have the effective assistance of his lawyer” (Cernák v. Slovakia, § 78).

Strasbourg standard lowered

By contrast, on the question how to handle incriminating statements which were made, after an invalid waiver, without the assistance or presence of a lawyer, the CJEU seems to be lowering the Strasbourg protection level, which is much more problematic.

The CJEU does so by relying on the test of the criminal proceedings considered as a whole when addressing the question of the inferences which a domestic court assessing the lawfulness of a detention on remand must draw from the fact that evidence has been gathered in disregard of the requirements of Directive 2013/48, i.e. in the absence of legal assistance. The CJEU indeed stated:

In accordance with the case-law of the European Court of Human Rights, which, as stated in recitals 50 and 53 of Directive 2013/48, must be taken into account 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. …   

Thus, in the event that evidence has been collected in disregard of the requirements of that directive, it must be determined whether, despite that lacuna, at the time of the decision to be taken by the court hearing the case, 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 (see, by analogy, ECtHR, 13 September 2016, Ibrahim and Others v. the United Kingdom, CE:ECHR:2016:0913JUD005054108, § 273 and 274). (§§ 96-97)

What is noteworthy here is the fact that while the CJEU refers to Strasbourg case-law in support of its approach, it would appear to misrepresent that case-law in a twofold way.

First, there is misrepresentation of the said case-law in the sense that it is being transposed by the CJEU to an area, the deprivation of liberty, where it is not applied by the ECtHR. The test of the proceedings as a whole is being applied by the ECtHR in the field of Article 6 of the Convention, to assess the fairness of proceedings on the merits. It is not applied when it comes to assessing under Article 5 § 4 the lawfulness of deprivations of liberty.

Under the latter provision, proceedings for the judicial review of the lawfulness of detentions, by reason of the intensity of the interference which detentions represent, are considered under a separate provision, i.e. autonomously, not as just another element of the proceedings on the merits to be assessed under Article 6 of the Convention.

Moreover, because exceptions to the general principle, laid down in Article 5, that everyone has the right to liberty must be interpreted strictly (Buzadji v. Moldova, § 84), they do not lend themselves to the application of the test of proceedings as a whole.

Thus, to nonetheless apply this test to the judicial review of a person’s detention amounts to a reduction of the level of protection afforded under Article 5 of the Convention.

But what the CJEU has in mind here when referring to that test is, as quoted above, the possibility for incriminating statements made by an accused in breach of his right to a lawyer to nonetheless be taken into account (“not disregarded”) by the judge deciding on the accused’s detention, because of other corroborating available evidence. Only evidence on which a party is not in a position to comment effectively should be excluded from the criminal proceedings (§ 98). This brings us to the second misrepresentation of the Strasbourg case-law in this ruling.

For even in the event that this evidentiary rule could be applied under Article 5 of the Convention, which is doubtful for the reasons explained above, it is also being stripped of an essential element to which the ECtHR attaches great importance.

According to the ECtHR’s well-established case-law relied on by the CJEU, notably Ibrahim and Others v. United Kingdom, the absence of a lawyer during the interrogations of a suspect or an accused person is acceptable only if there are compelling reasons justifying that absence. Failing such reasons, “the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice” (§ 265). In practical terms, there will be a rebuttable presumption that the proceedings as a whole were unfair.

Against the background of this case-law, to simply drop the assessment of whether there are compelling reasons for the absence of a lawyer (as also provided for by Article 3(6) of Directive 2013/48), and the procedural consequences to be drawn from this assessment, is a misrepresentation lowering the protection level of the Strasbourg case-law on criminal proceedings on the merits which, it is erroneously suggested, can be transposed to proceedings for the judicial review of detentions. This is not just the application of Strasbourg case-law “by analogy”. This is a selective reading of that case-law.

On the contrary, this approach is raising a problem in terms of compliance with Art. 14 of the Directive and its Recitals 50 and 53, in addition to Articles 6 and 52(3) of the EU-Charter, which all require the EU protection level not to fall below the Strasbourg protection level.

For a recent Strasbourg case on an unvalid waiver of the right to legal assistance and its consequences under the Convention, see Bogdan v. Ukraine.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings for the judicial review of detentions on remand, where the Convention and EU law go different ways.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that they should go for Directive 2013/48 whenever it sets a higher standard, but that they should go for the Strasbourg standard when the issue is about incriminating statements made without the assistance of a lawyer. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.