A lawyer’s failure to arrive within a prescribed period does not, by itself, authorize questioning without counsel under EU law.
The Court of Justice of the European Union reached that conclusion on October 22 in infringement proceedings against Hungary and the Czech Republic.
The challenged rules generally permitted questioning without a lawyer after two hours in Hungary and 48 hours in the Czech Republic. The Czech rules also allowed questioning where the lawyer could not be reached. CJEU: judgments in C-660/24 and C-681/24 (PDF).
Effective access, not an expired clock
The Court held that these general exceptions did not fit the exhaustive grounds for temporary derogation under the EU access-to-a-lawyer directive.
It also explained that effective participation ordinarily entails the lawyer’s physical presence. Hungary separately failed to implement the directive’s safeguards governing waiver. CJEU: judgments in C-660/24 and C-681/24 (PDF).
The judgments distinguish an administrative timetable from a legally justified exception.
Absence is not waiver
A fixed period may provide operational certainty. It cannot substitute for the conditions that EU legislation requires before a suspect loses the benefit of counsel’s participation.
For criminal practitioners, the distinction between absence and waiver is equally significant. A suspect’s decision not to exercise a right requires the applicable safeguards; it should not simply be inferred from a lawyer’s non-attendance.
For Canadian readers, these are EU-law judgments. Canadian rules governing access to counsel and counsel’s presence during questioning require their own analysis.
A comparative lesson for Canada
The comparative value lies in the practical character of the protection. A right can be formally recognized yet weakened by procedures that routinely permit questioning before meaningful assistance is available.
Institutions responding to the judgments will need to examine the rules and practices used when counsel is delayed or unreachable. The question is whether an exception satisfies the governing legal conditions, rather than whether enough time has passed.
An expired waiting period does not supply the legal justification that an exception requires.
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