(AGENPARL) – gio 22 giugno 2023 PRESS RELEASE No 106/23
Luxembourg, 22 June 2023
Judgment of the Court in Case C-660/21 | K.B. and F.S. (Raising ex officio of an infringement in criminal
proceedings)
Protection of fundamental rights: EU law does not preclude, in principle, a
prohibition on a national court raising of its own motion a breach of the
obligation to inform a suspect promptly of his or her right to remain silent
However, the suspect must not have been deprived of a practical and effective opportunity to have access to a
lawyer, having obtained legal aid if necessary, and must, like his or her lawyer (if any), have had a right of
access to the file and the right to invoke that breach within a reasonable period of time
Two individuals who were near a heavy goods vehicle in a company car park at night attracted the attention of
police officers, who immediately initiated an on-the-spot investigation for theft of fuel. The individuals were
questioned at the scene without having been notified of their rights and were then placed in custody. They were not
informed of their rights, including the right to remain silent, until a little later.
In the criminal proceedings, the tribunal correctionnel de Villefranche-sur-Saône (Criminal Court, Villefranche-surSaône, France) considers the rights of the accused persons, guaranteed by EU law 1, to have been infringed because
of that late notification. In those circumstances, the vehicle search, the suspects’ detention in custody and all the
consequential acts should, in principle, be annulled. However, the French Cour de cassation (Court of Cassation) has
interpreted the French Code of Criminal Procedure as prohibiting trial courts from raising of their own motion a
breach of the obligation to inform a suspect or an accused person promptly of his or her right to remain silent.
The Criminal Court therefore asked the Court of Justice whether EU law precludes such a prohibition on a court
raising such a breach of its own motion.
In its judgment, delivered today, the Court of Justice rules that the prohibition on a trial court raising the breach in
question of its own motion with a view to the annulment of the criminal proceedings respects, in principle, the
right to an effective remedy and the right to a fair hearing as well as the rights of the defence, where the
suspects or accused persons or their lawyers have had a practical and effective opportunity to invoke the
breach concerned within a reasonable period of time and for that purpose have had access to the file.
The Court notes however that, in order to ensure that the right to remain silent has practical effect, that finding
applies only in so far as, throughout the period within which the suspects or accused persons could invoke such a
breach, they – practically and effectively – had the right of access to a lawyer as laid down by EU law and as
facilitated by the system of legal aid. It also makes clear that if they waive that opportunity, they must, in
The obligation for the authorities to provide information promptly about the right to remain silent is laid down in Articles 3 and 4 of Directive
2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012, L 142, p.1),
transposed into national law.
Communications Directorate
Press and Information Unit
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principle, bear the possible consequences of that waiver where it has been given in accordance with the
conditions laid down by EU law, which provides in particular that the suspect or accused person must have been
provided, orally or in writing, with clear and sufficient information in simple and understandable language about the
content of the right of access to a lawyer and the possible consequences of waiving it, and that the waiver must be
given voluntarily and unequivocally.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which
have been brought before them, to refer questions to the Court of Justice about the interpretation of European
Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the
national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on
other national courts or tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice.
The full text and the resume of the judgment is published on the CURIA website on the day of delivery.
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Communications Directorate
Press and Information Unit
curia.europa.eu