1.

In the European Union, criminal procedures are predominantly a matter for the Member States. Nevertheless, in order to strengthen mutual trust, the European Union has adopted a series of minimum harmonisation directives protecting certain rights in such procedures. ( 2 )

2.

The present case gives the Court the opportunity to clarify some of those rights as applied to children who are suspects or accused persons in criminal proceedings.

3.

The questions were referred to the Court by the Sąd Rejonowy w Słupsku (District Court, Słupsk, Poland), hearing a case based on criminal charges against three persons, M.S., J.W. and M.P. They were all minors when the criminal investigations were initiated, but (at least one of them) turned 18 during the procedure.

4.

The referring court asks for the interpretation of several provisions of Directive (EU) 2016/800 (on the rights of children in criminal proceedings), ( 3 ) read together with Directive 2013/48/EU (on access to a lawyer), ( 4 ) Directive 2012/13/EU (on the right to information), ( 5 ) and Directive (EU) 2016/343 (on the presumption of innocence and the right to be present at the trial). ( 6 )

5.

The Prokurator Rejonowy w Słupsku (District Prosecutor, Słupsk, Poland) brought charges against M.S. before the referring court for repeatedly breaking into a holiday centre in the period between December 2021 and January 2022. Likewise, charges were brought against J.W. and M.P. for the same offence but based on only one occurrence. All three accused were 17 years old at the time when the offences were committed.

6.

The police did not inform M.S. of his right to have a lawyer present during questioning or of his right to access the file of the case. Likewise, the police did not allow M.S.’s mother to accompany him during questioning and denied her access to information regarding the progress of the investigation phase.

7.

During the police’s questioning, which was not recorded in the form of an audio-visual recording, M.S. disclosed a number of self-incriminating facts while giving a detailed report of the events that transpired at the holiday centre. The prosecution subsequently modified the charges against M.S. from a single break-in to multiple break-ins of the holiday centre.

8.

At the end of questioning, the police gave M.S. a document outlining his general rights and obligations during criminal proceedings. M.S. signed that document but, due to its length and complexity, did not read its contents.

9.

Similar actions were carried out against J.W. and M.P. Unlike in the case of M.S., the parents of those two accused persons were allowed to accompany their children during questioning. The course of action taken in both cases was otherwise very similar to that taken vis-à-vis M.S., with the exception of the charge of a single break-in which was not modified in relation to them.

10.

During the pre-trial proceedings, no individual assessment of the suspects was carried out.

11.

The indictments against the accused persons were signed by the public prosecutor’s office on 31 May 2022 and sent to the referring court. As the accused persons did not have appointed lawyers, that court appointed a defence counsel for each of them.

12.

With regard to each of the accused persons, their respective defence counsels requested that their pre-trial statements be disregarded, pointing out that the evidence had been obtained in breach of the law, that is to say, in police questioning without the presence of a lawyer, whose participation was mandatory. They considered that the evidence thus obtained could not form a basis for establishing the facts.

13.

In each case, the referring court accepted those requests and rejected as inadmissible the public prosecutor’s requests for evidence to be taken from statements made by the accused persons in the course of the pre-trial proceedings without the presence of a lawyer.

14.

M.P. turned 18 in August 2022 during the trial stage of the proceedings. His defence counsel requested to continue to represent him and the referring court granted that request. There is no specific information on J.W. and M.S. turning 18 throughout the proceedings before the submission of the preliminary reference.

15.

Aside from submitting questions to the Court concerning the interpretation of Directive 2016/800 in respect of the manner in which the pre-trial stage was conducted, the referring court, sitting as a single judge, also referred questions concerning judicial independence based on events that took place prior to the main proceedings.

16.

As explained in the order for reference, the same judge, in a different case and by order issued on 29 November 2021, accepted the request by a party to exclude another judge based on the lack of confidence in a court composed in a manner contrary to EU law and to the European Convention on Human Rights (ECHR). The order was issued because of the appointment of that other judge in the procedure involving the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) constituted after 2018.

17.

In response, the District Prosecutor in Słupsk notified the Regional Prosecutor in Gdańsk (Poland) of the order issued by the judge of the referring court, who in turn notified the Deputy Disciplinary Officer for Ordinary Court Judges, appointed to that position by the Minister for Justice, and the deputy notified the Minister for Justice. That chain of notifications resulted in the temporary removal from service of the judge of the referring court from 9 February to 8 March 2022, which is prior to the trial of M.S., J.W. and M.P.

18.

In light of those facts, the referring court submitted the following questions to the Court of Justice for a preliminary ruling:

19.

Written observations were submitted by the District Prosecutor in Słupsk, the Czech and Polish Governments and the European Commission.

20.

A hearing was held on 15 November 2023 at which the Polish Government and the Commission presented oral argument.

21.

Article 2(1) and (3) of Directive 2016/800 determine the scope of that directive as follows:

‘1.   This Directive applies to children who are suspects or accused persons in criminal proceedings. It applies until the final determination of the question whether the suspect or accused person has committed a criminal offence, including, where applicable, sentencing and the resolution of any appeal.

…

3.   With the exception of Article 5, [ ( 7 )] point (b) of Article 8(3), [ ( 8 )] and Article 15, [ ( 9 )] in so far as those provisions refer to a holder of parental responsibility, this Directive, or certain provisions thereof, applies to persons as referred to in paragraphs 1 and 2 of this Article, where such persons were children when they became subject to the proceedings but have subsequently reached the age of 18, and the application of this Directive, or certain provisions thereof, is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned. Member States may decide not to apply this Directive when the person concerned has reached the age of 21.’ ( 10 )

22.

Article 4 of Directive 2016/800 sets out the right to information:

‘1.   Member States shall ensure that when children are made aware that they are suspects or accused persons in criminal proceedings, they are informed promptly about their rights in accordance with Directive 2012/13/EU and about general aspects of the conduct of the proceedings.

Member States shall also ensure that children are informed about the rights set out in this Directive. That information shall be provided as follows:

2.   Member States shall ensure that the information referred to in paragraph 1 is given in writing, orally, or both, in simple and accessible language, and that the information given is noted, using the recording procedure in accordance with national law.

3.   Where children are provided with a Letter of Rights pursuant to Directive 2012/13/EU, Member States shall ensure that such a Letter includes a reference to their rights under this Directive.’

23.

Article 6 of Directive 2016/800 regulates the right of access to a lawyer:

‘1.   Children who are suspects or accused persons in criminal proceedings have the right of access to a lawyer in accordance with Directive 2013/48/EU. Nothing in this Directive, in particular in this Article, shall affect that right.

2.   Member States shall ensure that children are assisted by a lawyer in accordance with this Article in order to allow them to exercise the rights of the defence effectively.

3.   Member States shall ensure that children are assisted by a lawyer without undue delay once they are made aware that they are suspects or accused persons. In any event, children shall be assisted by a lawyer from whichever of the following points in time is the earliest:

4.   Assistance by a lawyer shall include the following:

5.   Member States shall respect the confidentiality of communication between children and their lawyer in the exercise of the right to be assisted by a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law.

6.   Provided that this complies with the right to a fair trial, Member States may derogate from paragraph 3 where assistance by a lawyer is not proportionate in the light of the circumstances of the case, taking into account the seriousness of the alleged criminal offence, the complexity of the case and the measures that could be taken in respect of such an offence, it being understood that the child's best interests shall always be a primary consideration.

In any event, Member States shall ensure that children are assisted by a lawyer:

Member States shall also ensure that deprivation of liberty is not imposed as a criminal sentence, unless the child has been assisted by a lawyer in such a way as to allow the child to exercise the rights of the defence effectively and, in any event, during the trial hearings before a court.

7.   Where the child is to be assisted by a lawyer in accordance with this Article but no lawyer is present, the competent authorities shall postpone the questioning of the child, or other investigative or evidence-gathering acts provided for in point (c) of paragraph 4, for a reasonable period of time in order to allow for the arrival of the lawyer or, where the child has not nominated a lawyer, to arrange a lawyer for the child.

8.   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:

Member States shall ensure that the competent authorities, when applying this paragraph, shall take the child's best interests into account.

A decision to proceed to questioning in the absence of the lawyer under this paragraph may be taken only on a case-by-case basis, either by a judicial authority, or by another competent authority on condition that the decision can be submitted to judicial review.’

24.

Article 18 of Directive 2016/800 sets out the right to legal aid:

‘Member States shall ensure that national law in relation to legal aid guarantees the effective exercise of the right to be assisted by a lawyer pursuant to Article 6.’

25.

Finally, Article 19 of Directive 2016/800 regulates remedies:

‘Member States shall ensure that children who are suspects or accused persons in criminal proceedings and children who are requested persons have an effective remedy under national law in the event of a breach of their rights under this Directive.’

26.

The European Union does not have one common law on criminal procedure. Quite the contrary, criminal procedures is still a matter governed by the Member States, necessarily resulting in regulatory divergence.

27.

Nevertheless, while criminal procedures vary, individuals in the European Union may rely on the assumption that the guarantees of fundamental rights are the same. ( 11 )

28.

The main reason for that is the ECHR, to which all the Member States are parties. Through its interpretation of ECHR rights – especially the right to a fair trial guaranteed by Article 6 thereof – the European Court of Human Rights (ECtHR) has harmonised criminal procedure rights across the European continent.

29.

Under Article 52(3) of the Charter of Fundamental Rights of the European Union (‘the Charter’), rights as protected by the ECHR represent the minimum level of protection that must be afforded to individuals in situations within the scope of EU law.

30.

Nevertheless, the EU legislature has considered that the membership of each Member State in the ECHR does not always, in and of itself, provide a sufficient degree of trust in the criminal justice systems of other Member States. ( 12 ) Such trust, however, is a necessary precondition for mutual recognition in criminal matters, and therefore a basis for cooperation in the field of criminal law, as it is being built based on the TFEU. ( 13 )

31.

Therefore, in order to boost mutual trust, the EU legislature has enacted a number of minimum harmonisation directives regulating criminal procedures in the Member States. ( 14 )

32.

Among those directives is Directive 2016/800, which has a unique place. Children, as vulnerable persons, ( 15 ) deserve additional care and enhanced protection. ( 16 ) That, among other, follows from Article 24 of the Charter, which provides for an obligation on all public authorities and private institutions to ensure that the best interest of the child is of primary consideration. ( 17 )

33.

Thus, Directive 2016/800 should be understood as a lex specialis, ( 18 ) providing at least the same, if not stronger, protection for children who are suspects or accused persons, when compared to other minimum harmonisation directives regulating rights in the criminal procedure.

34.

Unlike those other directives, which regulate specific procedural rights, Directive 2016/800 focuses instead on a category of suspects or accused persons and covers multiple rights.

35.

The Court has so far dealt with Directive 2016/800 only in Piotrowski, ( 19 ) in which it interpreted Article 17 thereof in the context of a European arrest warrant where the person sought was a minor. That provision is not relevant in the present case, which makes the present preliminary reference the first opportunity for the Court to interpret a number of procedural rights of children who are suspects or accused persons in a criminal procedure.

36.

The majority of the questions submitted by the referring court concern the interpretation of the rights of children in the criminal procedure as they are guaranteed by the minimum harmonisation directives, principally by Directive 2016/800.

37.

Before analysing the substance of those questions, I will address the objections to admissibility raised principally by the Polish Government (C).

38.

In that respect, part of Question 13 and Question 14 in its entirety are not connected to the interpretation of the directives on guarantees in the criminal procedure, but are of a more general nature. The referring court asks for the interpretation of Articles 2 and 19(1) TEU, Article 47 of the Charter, and the principle of judicial independence. As I will explain, those questions are inadmissible in the context of the present reference, and I will therefore not deal with their substance.

39.

Turning to the merits, I will offer an interpretation of the scope of the right of access to a lawyer for children (D), as requested by the referring court by Questions 1 and 2. This will also include looking into the derogations of that right permitted by Directive 2016/800.

40.

I will then explain whether the right of access to a lawyer continues to apply after a child turns 18 in the course of the criminal procedure, and whether the relevant provision leaves any choice to Member States as to how to transpose it (E). That will address Question 5 of the referring court.

41.

I will continue by answering Questions 8, 9 and 10 concerning the extent of the right of children and the holders of parental responsibility to be informed about their procedural rights (F). This will include answering whether that obligation also exists for the prosecution authorities participating in the pre-trial stage of the proceedings.

42.

I will then explain the extent to which EU law affects the rules on (in)admissibility of evidence gathered in breach of one or more rights granted to children by the relevant directives (G), thereby answering Question 11.

43.

Finally, I shall briefly restate the consequences that follow from direct effect and the primacy of EU law for the national courts (H). To answer part of the concerns raised by the referring court in Question 13, I will explain that direct effect is a concept addressed not only to courts, but also to all the institutions of the Member States, including public prosecutors.

44.

The reader will have noticed that within this structure I have not included Questions 3, 6 and 12 of the referring court. Those questions cite specific provisions of Polish law and ask the Court to confirm whether EU law precludes their application. However, as is well known, the Court, by virtue of Article 19(1) TEU and Article 267, first paragraph, TFEU, has jurisdiction to interpret only EU law, whereas national courts have the exclusive power to interpret national law. ( 20 )

45.

According to that strict division of labour between the Court of Justice and national courts, the former does not have the power to rule on the compatibility of national law with EU law. ( 21 ) It is for the referring court, once it has received the response from the Court, to draw the necessary consequences for the applicable national law. ( 22 ) In that respect, the referring court will be able to resolve the issue of the provisions of national law cited in those three questions on the basis of the answers given to the remaining questions.

46.

The Polish Government challenged the admissibility of the preliminary reference because the referring court, by excluding the evidence collected without the presence of a lawyer at the pre-trial stage and by appointing a lawyer to the accused minors – including by prolonging that appointment when one of the accused turned 18 – already remedied any possible infringements of Directive 2016/800. In other words, the preliminary reference is not necessary for the referring court to resolve the case before it.

47.

It is well established in the case-law of the Court that questions from a national court, ‘in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance’. ( 23 ) Nevertheless, if the Court considers that the answer to the questions referred is not necessary to enable the referring court to give judgment in the case before it, it will decline its jurisdiction. ( 24 )

48.

That might be the case if the referring court has already decided on the issues on which it asks for an interpretation from the Court. In such a case, the answer that the Court will provide may no longer be necessary. Nevertheless, if in the case that is pending before it the referring court still has the possibility to alter its decision on the particular issue before finally deciding the case, the answer to the questions referred might be considered useful for that concrete procedure. ( 25 )

49.

While it does appear that the referring court had already decided to exclude the evidence gathered without the presence of a lawyer, and that it prolonged the appointment of a lawyer to one of the defendants who turned 18, no proof was submitted to the Court that the referring court cannot change its decision before closing the case.

50.

I therefore consider that the interpretation of the scope of procedural rights in question is useful to enable the referring court to decide the case in the main proceedings.

51.

Nevertheless, I am of the view that part of Question 13 and Question 14 in its entirety raise issues of admissibility.

52.

Question 13 may be divided into two parts. In one part, it asks whether the direct effect of the rights granted to children (to a lawyer and to information) also binds the public prosecutor, who would thus be under an obligation to grant those rights and disapply any contrary national rules. The answer to that question will allow the referring court to conclude whether the public prosecutor breached the rights of children at the pre-trial stage of the criminal procedure; it is therefore admissible.

53.

However, the other part of that question asks a more general question concerning the requirement that a public prosecutor be independent. That does not seem to me to be of direct relevance to the criminal procedure pending before the referring court. Regardless of the public prosecutor’s independence from the executive, he or she is under an obligation to ensure the rights of children in the criminal procedure, which they enjoy based on EU law.

54.

Finally, in Question 14, the referring court asks whether Article 2 TEU, Article 19(1) TEU, the rule of law, the principle of judicial independence and Article 47 of the Charter preclude national rules that provide for the possibility of the Minister for Justice to order an immediate suspension of a judge. The referring court’s concern results from the personal experience of the judge having been temporarily suspended in an earlier case. In the present case, the fear that a suspension may be ordered again arises because of the preliminary reference to the Court which puts the validity of national law into question.

55.

The Court has already explained in two infringement proceedings against the Republic of Poland that national law which prevents judges from referring questions of interpretation of EU law to the Court, under the threat of disciplinary sanctions, is unacceptable under EU law. ( 26 )

56.

Inasmuch as such threats to the independence of judges are unacceptable, such a threat seems merely hypothetical in the case at hand. The earlier suspension of the judge of the referring court has no connection to the present case in the context of which the questions were referred to the Court.

57.

Therefore, as the Court explained in Miasto Łowicz and Prokurator Generalny, ( 27 ) the answer to the question referred is not necessary for the resolution of the dispute before the referring judge, thus rendering the question inadmissible. ( 28 )

58.

The present situation therefore differs from the one that gave rise to the judgment in YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), in which the Court considered that questions which aim to settle, in limine litis, procedural difficulties such as those relating to the jurisdiction of the referring court to hear a case may be answered in a preliminary ruling procedure. ( 29 ) The referring court in that case doubted its own jurisdiction to hear the case, which had been transferred to it only because the judge originally hearing the case had been suspended for referring to the Court.

59.

In conclusion, I suggest that the Court find part of Question 13 and the entirety of Question 14 inadmissible. There is nothing, however, preventing the Court from answering the remaining questions.

60.

The first and second questions of the referring court concern the scope of the right of access to a lawyer under Article 6 of Directive 2016/800. More specifically, the referring court wishes to know whether the authorities in the pre-trial stage of a criminal procedure must ensure that a child is assisted by a lawyer (1) and whether there are derogations from that right (2).

61.

A suspect below the age of 18 is charged: does that automatically trigger an obligation for the authorities to ensure that the child is assisted by a lawyer, that the lawyer participates in the pre-trial proceedings, and that the child cannot be questioned without the participation of that lawyer?

62.

As I explained in section A, the ECHR represents the minimum level of protection under Article 52(3) of the Charter. That means that any interpretation of Directive 2016/800 must provide for protection at least at the level of the ECHR. Conversely, the protection provided by the European Union may be higher than the ECHR. The ECHR is thus a useful starting point for determining the scope of the right of access to a lawyer for children in criminal proceedings.

63.

We know that, according to the ECtHR, the right to counsel is an essential feature of a fair trial. ( 30 ) Access to a lawyer must be effective and practical so as to be able to influence the development of criminal proceedings. ( 31 )

64.

In Salduz v. Türkiye, ( 32 ) the ECtHR found that the right to a fair trial requires that access to a lawyer be provided from the very first interrogation by the police, unless there are compelling reasons that exceptionally justify the denial of such access; nevertheless, the right to a fair trial is irretrievably breached when there is no right of access to a lawyer in the pre-trial proceedings, where self-incriminating statements are made and then used as a basis for the conviction.

65.

Those findings, as well as extensive case-law of the ECtHR on the rights of defence, were incorporated into Directive 2013/48. ( 33 )

66.

According to Article 6(1) of Directive 2016/800, the scope of children’s right to a lawyer is the same as that of any other suspect or accused person under Directive 2013/48.

67.

In my view, Article 6 of Directive 2016/800 requires the following.Children should have access to a lawyer without undue delay, which should, as a rule, mean that they have access before they are questioned by the police or another law enforcement or judicial authority under Article 6(3)(a) of that directive.

68.

That means that authorities involved in the pre-trial stage of a criminal procedure, such as public prosecutors and the police, cannot question a child as a suspect or accused person without the presence of a lawyer.

69.

A combined reading of Articles 6 and 18 of Directive 2016/800 further suggests that if a child does not have a lawyer, the authorities are under an obligation to provide that child with a public defence lawyer before initiating their questioning. ( 34 )

70.

Unlike Article 9 of Directive 2013/48, Directive 2016/800 does not have a provision according to which children are able to waive their right of access to a lawyer. That leads me to conclude that the right to legal aid for adults turns into an obligation to provide legal representation to children in the criminal procedure.

71.

In conclusion, the scope of the right of access to a lawyer for children who are suspects or accused persons in criminal proceedings appears to be very broad: public authorities have an obligation to ensure children are represented by a lawyer before they are questioned for the first time, if necessary by providing a public defence counsel.

72.

Nevertheless, several other paragraphs of Article 6 of Directive 2016/800, most notably paragraphs 6 and 8, provide for possible derogations from the right to be assisted by a lawyer at the pre-trial stage. In that light, the referring court seeks clarification as to whether any of those derogations allow for police questioning of minor suspects without the presence of a lawyer at the pre-trial stage.

73.

As I have already mentioned, Article 6(1) of Directive 2016/800 provides that nothing in that directive shall affect the right of access to a lawyer under Directive 2013/48. That means that no derogation allowed by the other paragraphs of Article 6 of Directive 2016/800 may be interpreted as reducing the rights of minors in relation to the general rights provided for under Directive 2013/48. I will thus first turn to possible derogations under the latter directive.

74.

The Court interpreted Directive 2013/48 in VW (Right of access to a lawyer in the event of non-appearance), in which it found that Article 3(5) and (6) of Directive 2013/48 exhaustively regulate limitations to the right of access to a lawyer. That means that such a right may not be limited in any other situation. ( 35 )

75.

Additionally, under Article 8(2) of Directive 2013/48, any decision derogating from the right of access to a lawyer must be duly reasoned and made on a case-by-case basis, either by a judicial authority or by another competent authority, on condition that the decision may be submitted to judicial review.

76.

Article 3(6) of Directive 2013/48, referred to in VW (Right of access to a lawyer in the event of non-appearance) as one of the two possible derogations from the right to a lawyer, corresponds to Article 6(8) of Directive 2016/800. That provision exceptionally enables a temporary derogation from the right to be assisted by a lawyer if there is urgency to avert serious consequences on someone’s life, liberty or physical integrity, or if immediate action is imperative in order not to jeopardise criminal proceedings.

77.

However, as claimed by the Commission, Article 6(8) of Directive 2016/800 concerns a situation different from the one in the main proceedings and is, therefore, not applicable. Indeed, there was no urgent need to avert serious adverse consequences for someone’s life, liberty or physical integrity, nor does it follow from the facts of the case that immediate action by the investigating authorities was imperative in order not to jeopardise the criminal proceedings.

78.

The other derogation from the right to a lawyer under Article 3(5) of Directive 2013/48 reads: ‘In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure the right of access to a lawyer without undue delay after deprivation of liberty.’ As recital 30 of Directive 2013/48 clarifies: ‘During such a temporary derogation, the competent authorities should not question the person concerned or carry out any of the investigative or evidence-gathering acts provided for in this Directive.’

79.

No similar derogation is provided for in Directive 2016/800. In the legislative procedure in which that directive was adopted, the Council accepted the European Parliament’s request that the ‘geographical remoteness’ derogation not be transferred to Directive 2016/800. ( 36 ) In any case, it does not appear that the circumstances of the case at hand would require its application.

80.

That leaves us with Article 6(6) of Directive 2016/800.

81.

Article 6(6) of Directive 2016/800 introduces another possible derogation from the right to be assisted by a lawyer, which does not correspond in its wording to any derogation permissible under Directive 2013/48. Regardless of how we interpret that provision, Article 6(1) thereof mandates that that derogation cannot be read as narrowing the right to a lawyer when minors are concerned, when compared to the scope of that same right under Directive 2013/48. Therefore, it is difficult to defend allowing for additional derogations from the right to be assisted by a lawyer when children are concerned.

82.

During the legislative procedure leading to Directive 2016/800, Article 6 proved to be the ‘most controversial article of the entire directive’. ( 37 ) The original proposal provided for a mandatory representation by a lawyer. However, during that legislative procedure, some Member States insisted that there was no need for a child to be assisted by a lawyer for minor and less serious offences. ( 38 ) As reported in the Council’s document preparing the eighth trilogue in that legislative procedure, the Parliament ‘was not amused’ by such a request to further diminish the obligation that a child be questioned in the presence of a lawyer. ( 39 )

83.

The final wording of Article 6 is thus a watered-down version whereby a proportionality analysis may lead to access to a lawyer being restricted in the pre-trial procedure. ( 40 )

84.

In its wording, Article 6(6) of Directive 2016/800 seems to add another limitation of the right of access to a lawyer, grounded in the proportionality test. ( 41 )

85.

That is so despite two safety requirements, which remain in that provision: the right to a fair trial must be complied with and the best interest of the child must be of primary consideration.

86.

At the pre-trial stage, therefore, the wording of the first subparagraph of Article 6(6) of Directive 2016/800 suggests that Member States may derogate from the obligation that a child be assisted by a lawyer. If the lawyer is not present, the third subparagraph of that provision determines that a custodial sentence cannot be imposed.

87.

We may thus conclude that the mandatory access to a lawyer, with no possible derogations whatsoever, applies only to situations of detention and when the criminal procedure results in the deprivation of liberty. ( 42 )

88.

In the present case, the application of that provision would result in the prohibition to sentence the accused to a deprivation of liberty. Yet even that condition is qualified, allowing for the lack of access to a lawyer to be remedied only if the child is assisted by a lawyer in such a way as to allow the child to exercise his or her rights of defence effectively and, in any event, during the trial hearings before a court.

89.

I cannot but conclude that on the basis of its wording, Article 6(6) of Directive 2016/800 allows for the exclusion of the right to a lawyer which would not be allowed under Directive 2013/48. Article 6(6) of Directive 2016/800 is, therefore, in contradiction with Article 6(1) thereof.

90.

I could find only one way to reconcile Article 6(6) of Directive 2016/800 with Article 6(1) thereof and, ultimately, with Directive 2013/48.

91.

If questioning a child without a lawyer would be in the best interest of that child, such a possibility to derogate from the mandatory presence of a lawyer would not run contrary to the requirement that children’s rights are protected at least to the degree of other suspects or accused persons. Article 6(6) of Directive 2016/800 could therefore be interpreted as only applying to a situation when questioning a child without a lawyer is better for that child than questioning him or her in the presence of one. I find it difficult to imagine such a situation arising. Nevertheless, such an interpretation would allow for the conformity of Article 6(6) with the rest of the scheme of Directive 2016/800.

92.

In conclusion, I consider that Article 6 of Directive 2016/800 contains a directly effective right for a child to be assisted by a lawyer, if necessary a public defence lawyer, from the moment of pre-trial questioning. The authority responsible for the questioning may decide to proceed with questioning without a lawyer only at the pre-trial stage, after a case-by-case assessment has been carried out – taking into account the circumstances under the first subparagraph of Article 6(6) – and only if it is in the best interests of the child and safeguards the child’s rights under Articles 47 and 48 of the Charter. The decision to proceed without a lawyer must be duly reasoned and must meet the conditions provided for by Article 8(2) of Directive 2013/48.

93.

Article 3(1) of Directive 2016/800 defines the term ‘child’ as ‘a person below the age of 18’. ( 43 )

94.

In the present case, at least one of the accused, M.P., turned 18 during the course of proceedings. The referring court thus asks if the rights granted to children under Directive 2016/800 continue to apply until the final conclusion of the proceedings, regardless of whether the accused is no longer a child according to that directive.

95.

Looking into the legislative history of Article 2(3) of Directive 2016/800, the initial proposal of the Commission provided for an automatic application of the directive to all suspects or accused persons who turn 18 during the course of criminal proceedings. However, that proposal was met with opposition during the legislative procedure. ( 44 )

96.

The compromise that is now in the final text of Article 2(3) of Directive 2016/800 does not make the prolongation of rights of minors automatic. Rather, it grants the authority involved in the procedure the right to decide whether such a prolongation of rights – and of which rights – is appropriate, taking into account all the circumstances of the case.

97.

Could Member States transpose that provision by choosing to exclude the possibility of its prolonged application after the suspects or accused person reaches the age of 18?

98.

To my mind, no.

99.

I agree with the Commission in that respect. Article 2(3) of Directive 2016/800 imposes an ‘explicit and unconditional’ obligation on the Member States to allow, in their legislation, that the competent national authority may find that the prolonged application of the directive, or certain provisions thereof, is appropriate given the circumstances of the case.

100.

The Commission accordingly argues that that provision meets the requirements of direct effect. I agree with that assessment. Article 2(3) of Directive 2016/800 grants the relevant public authority the right to assess whether suspects or accused persons who turn 18 during the course of criminal proceedings require continued legal representation.

101.

That authority is under an obligation to assess the need for the treatment as a child to be prolonged in light of the circumstances of the case at hand. When transposing that directive, the Member States may not curtail the right of the suspect or accused person to have their situation assessed by the competent authority on a case-by-case basis.

102.

Therefore, to answer Question 5 of the referring court, Article 2(3) of Directive 2016/800 has direct effect. It grants the right to a child who turned 18 years during the criminal procedure that the need for the continuation of their treatment as a child is assessed by the competent authority on a case-by-case basis. That includes assessing whether or not to prolong the right of access to a lawyer that is enjoyed by children. Member States cannot exclude such a right.

103.

With those three questions, the referring court asks whether Article 4 of Directive 2016/800 requires that the competent authorities, before the initial, official questioning of a suspect at the latest, promptly inform both the child suspect and, at the same time, the holder of parental responsibility of the rights which are essential for safeguarding the fairness of the proceedings and of the procedural steps in those proceedings.

104.

In addition, that court asks whether the competent authorities are obliged to instruct a child suspect as to the right to remain silent and the right not to incriminate himself or herself, in a manner intelligible and appropriate to the age of the suspect.

105.

Finally, the referring court asks how that information should be given to the child: does Article 4 of Directive 2016/800 preclude the provision of general instructions shortly before questioning, without regard to the specific rights arising from the scope of that directive, and the provision of such instructions is only available to a suspect acting without a defence counsel, without the involvement of the holder of parental responsibility, and in a situation in which such instructions are phrased inappropriately to the age of the suspect?

106.

The first subparagraph of Article 4(1) of Directive 2016/800 makes explicit reference to the level of protection under Directive 2012/13 as the benchmark when the right to information in criminal proceedings is concerned.

107.

Accordingly, it is useful to recall that Article 3(2) of Directive 2012/13 provides that ‘Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons’.

108.

Article 5(1) of Directive 2016/800 provides that ‘Member States shall ensure that the holder of parental responsibility is provided, as soon as possible, with the information that the child has a right to receive in accordance with Article 4’.

109.

Various other instruments stress both the need adequately to inform children of their rights and the need to inform the same to the persons holding parental responsibility.

110.

Thus, for instance, the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice stipulate that ‘from their first involvement with the justice system or other competent authorities (such as the police, immigration, educational, social or health care services) and throughout that process, children and their parents should be promptly and adequately informed’ about their rights as well as about the instruments available to remedy possible breaches of those rights. ( 45 )

111.

The assessment of the European Union Agency for Fundamental Rights of the implementation of Directive 2016/800 emphasises that due to children’s vulnerability, especially in the early stages of the criminal proceedings, Member States should take special care to provide adequate and timely information to children who are suspects or accused persons. ( 46 )

112.

The ECtHR stated in Panovits v. Cyprus that ‘the lack of provision of sufficient information on the applicant’s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant’s defence rights’. ( 47 )

113.

It is clear that the second subparagraph of Article 4(1) of Directive 2016/800 requires the competent authorities to inform the children in the main proceedings of their right of access to a lawyer, of their right to have the holder of parental responsibility informed, and of any remaining necessary information listed in that provision. ( 48 )

114.

Furthermore, Article 4(2) of Directive 2016/800 requires that the information be provided in simple and accessible language and that the information given must be recorded.

115.

In conclusion, Articles 4 and 5 of Directive 2016/800 bestow upon minors the right that they and the holders of parental responsibility be informed of the procedural rights in criminal proceedings. Those provisions are sufficiently precise and are not conditional, and minors can rely on them before national courts. It is equally clear that the obligation to inform children and the holders of parental responsibility of their procedural rights pertains to the authority competent to conduct the respective part of the criminal procedure. In the pre-trial stage of the criminal procedure, such an obligation to inform the child in question lies with the police and the public prosecutor. That right ensures that the children’s rights of defence are protected throughout the entire course of the criminal procedure.

116.

The criminal procedure is an area where the European Union’s competence is limited to minimum harmonisation under Article 82(2) TFEU. Although the European Union is empowered under Article 82(2)(a) TFEU to introduce minimum harmonisation of the mutual admissibility of evidence, this has not yet happened.

117.

All directives harmonising rights in the criminal procedure expressly impose an obligation on the Member States to provide effective remedies to persons whose rights under those directives have been breached. ( 49 ) However, those directives do not specify the appropriate remedies, but instead leave that choice to the Member States, requesting only that the chosen remedy be effective. ( 50 )

118.

With its questions on the admissibility of evidence gathered in a possible infringement of the relevant directives, the referring court joined an ever-increasing number of cases where national courts ask questions to that effect. ( 51 )

119.

As I have already emphasised in another Opinion, ( 52 ) there is currently nothing in EU law that regulates the admissibility of evidence in national criminal procedures. The issue of the admissibility of evidence is, for the time being, a matter of national law.

120.

However, where EU law applies, relevant national provisions must not infringe Articles 47 and 48 of the Charter, ( 53 ) and most certainly the best interests of the child must always be of primary consideration under Article 24(2) thereof.

121.

For its part, the ECtHR follows a similar approach by stating that the ECHR does not regulate the admissibility of evidence, ( 54 ) whereas national courts should assess whether the overall fairness of the procedure has been prejudiced. ( 55 )

122.

The overall fairness of proceedings as the relevant standard was recently taken up by the Court, referring directly to the case-law of the ECtHR. ( 56 )

123.

At the hearing, the Commission was asked about the status of EU law when it comes to the admissibility of evidence and how national courts should approach this issue if faced with an infringement of any of the minimum harmonisation directives. In its response, the Commission confirmed that EU law indeed does not impose requirements when it comes to the rules on admissibility of evidence; however, it also stated that what is necessary, as a matter of EU law, is that national courts are not prevented from making such a finding in the exercise of their freedom of appraisal.

124.

I agree with such a view. Indeed, respect for the fundamental rights as enshrined in Articles 47 and 48 of the Charter requires that, at the trial stage, national judges have the flexibility necessary to assess the overall fairness of the procedure. Should they consider that a piece of evidence should be excluded because it was collected in breach of procedural rights that amounts to a breach of the rights of the defence, they should be free to exclude it.

125.

In other words, EU law does not regulate the admissibility of evidence, but it prevents national law from limiting the powers of the trial judges freely to evaluate evidence and draw from such an assessment any consequence they deem necessary. ( 57 )

126.

When the criminal procedure is conducted against children, the judge deciding the case is under the obligation, based on Article 24(2) of the Charter, to take particular care of the best interests of the child and to balance them in relation to other interests of the criminal prosecution.

127.

In conclusion, it pertains to the referring court to ensure the full effect of the rights enshrined in the invoked directives, as interpreted by the Court. That may be achieved by excluding the evidence gathered in contravention to those instruments, if the referring court considers that the rights under Articles 24(2)47 and 48 of the Charter would otherwise be breached.

128.

Included in many of its questions, and particularly elaborated upon in Questions 4, 7 and 11, the referring court asks about the consequences that must be drawn from the direct effect of the relevant provisions of the directives at issue. As the Court has already explained the matter in its case-law on many occasions, I will limit myself to repeating only the most important consequences that concern the present case.

129.

According to the principle of direct effect, individuals may claim their EU law-based rights by directly relying on the provisions of EU law before the national courts. ( 58 )

130.

If those rights clash with what is provided for under national law, EU law empowers national courts to set aside such contrary provisions of national law. That empowerment results from the combined effect of EU constitutional principles of direct effect and the primacy of EU law. ( 59 )

131.

Another avenue at the disposal of national courts is to interpret national law in a way that would lead to the same result for the holder of an EU right as it would if EU law had been applied directly. That avenue allows national courts to avoid any conflict between EU law and national law. ( 60 )

132.

The minors whose criminal liability the referring court is deciding on may rely on the rights granted in the invoked directives. Those include the right of access to a lawyer, to information about their procedural rights, and the assessment of the need of continued application of Directive 2016/800 after turning 18, of which the referring court requested an interpretation by the Court. There are other rights under those directives, as well as the rights to a fair trial and effective defence as they flow from the Charter.

133.

The referring court should try to do away with any possible obstacle to the recognition of such rights by interpreting the relevant provisions of national law in a conform manner. If conform interpretation proves impossible, the referring court must set aside the conflicting national rules and afford protection to rights under EU law.

134.

Finally, it is not only national courts who are to give full effect to provisions of EU law, but also national administrative authorities, ( 61 ) and all other State organs. ( 62 ) Thus, direct effect, conform interpretation, and the primacy of EU law bind all State bodies, which are also required to recognise rights under EU law.

135.

That means that, during the pre-trial stage of the criminal procedure, the public prosecutor and the police must recognise rights of children and their own correlative obligations directly based on the relevant directives. They must interpret national law in conformity with the results as required by those directives. Alternatively, they are under an obligation to set aside the rules of national law in order to enable the protection of children, also as required by those directives. If they fail to do so, the court before which the criminal trial is pending must find that those State bodies have breached their obligations under EU law.

136.

In light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Rejonowy w Słupsku (District Court, Słupsk, Poland) as follows: