EU court says a late lawyer is no green light for police questioning

Questioning without counsel requires a genuine emergency or an informed waiver, EU judges found, also faulting Hungary’s safeguards for suspects who forgo legal help.(CN) — The clock cannot run out on a suspect’s right to a lawyer, the EU’s top court ruled Thursday, rejecting police questioning rules in Hungary and the Czech Republic.Hungary allowed questioning after a wait of at least two hours following notification of a lawyer. Czech rules allowed it when the chosen lawyer could not be reached within the 48-hour custody period. Both countries argued investigations could not be left waiting indefinitely.The Court of Justice of the European Union upheld the European Commission’s challenges to both systems and to Hungary’s safeguards for suspects who gave up legal assistance. Giving someone a chance to contact a lawyer was insufficient, the court found: Suspects were entitled to the lawyer’s presence and effective participation during questioning.Countries could regulate how lawyers participated, but could not use that flexibility to make their attendance optional. A missed deadline established that a lawyer was unavailable, not that questioning without one was justified.Exceptions required specific, urgent circumstances, such as preventing serious harm to someone’s life, freedom or physical safety, or averting serious damage to criminal proceedings. Concerns that suspects might deliberately stall an investigation did not justify a blanket shortcut. Police had alternatives, including appointing an available lawyer; questioning could also proceed after a valid waiver or under a genuine emergency exception.The court left room for flexibility in how lawyers attended. In the Czech judgment, issued in French, the court wrote: “That said, it cannot be ruled out that, in certain exceptional circumstances, the lawyer’s presence could be ensured by other means, notably digital means, provided they guarantee the full and effective exercise of the rights of the defense.”Chryssa Mela, director of the criminal justice rights organization Fair Trials, stressed the stakes before anyone entered a courtroom. “The earliest stages of criminal proceedings are particularly critical, as this is often when crucial evidence is gathered and the foundations of the prosecution’s case are established,” she said. Effective assistance from the outset is essential to the fairness of the whole process, she added.A 2013 EU law established common safeguards for suspects, intended to help countries trust one another’s criminal justice decisions. The commission opened proceedings against Hungary and the Czech Republic in 2021 and announced court referrals in July 2024. Each government backed the other’s defense.Yvonne Daly, professor of criminal law and evidence at Dublin City University, said effective legal assistance requires organization. Lawyers have court appearances and client meetings to manage. “It is not always feasible for them to drop everything and attend, unexpectedly, to provide legal assistance to a suspect,” she said.Daly pointed to duty lawyer schemes and, where possible, planned arrests and interviews. Some countries might need to review their arrangements to keep lawyers available throughout questioning when suspects had not waived their rights, she said.Hungary also argued that choosing not to use a lawyer differed from formally surrendering a right its law treated as inalienable. The court rejected that distinction because either choice left a suspect facing proceedings without legal assistance. What mattered was whether suspects received clear information about the consequences and understood that they could change their minds.Hungary cited legislation published in December 2024, but the court assessed compliance at the commission’s earlier deadline. Those later changes therefore did not affect its findings on either complaint.The European Commission and the Hungarian and Czech governments did not respond to requests for comment.The judgments cannot be appealed. Both countries must comply and pay the commission’s litigation costs in their respective cases. Neither received a fine, but continued noncompliance could bring them back before the court for financial penalties.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads