Unpacking Barało: Suspect Vulnerability, Procedural Rights, and the Challenge of Effective Remedies

Table of Contents: 1. Introduction. – 2. Case facts and questions raised. – 3. The Opinion of Advocate General Ćapeta and the Court’s decision. – 4. Barało and suspect vulnerability: another missed opportunity. – 4.1. Understanding vulnerability: a multifaceted concept deserving adequate legal protection. – 4.2. The ‘Suspect Vulnerability Saga’ in EU criminal procedure. – 4.3. Expanded rights and uncertain scope of application: the paradox of Barało. – 5. The quest for procedural sanctions. – 5.1 What makes a remedy effective? – 5.2. A hiccup along the way for an exclusionary rule? – 6. Concluding remarks. 

Abstract: For procedural rights to offer concrete legal protection to suspects and accused persons across the EU, their scope must be clear and precisely defined. Furthermore, in the absence of appropriate measures of redress when violations occur, such rights risk being insufficient or even illusory. The judgment delivered by the Court of Justice of the European Union in Barało provides an opportunity to reflect on these two crucial aspects of European procedural safeguards in the context of suspect vulnerability. Prima facie, the ruling appears to finally acknowledge the need to strengthen the protection of vulnerable suspects or accused persons. Notably, the CJEU elaborates on the content of the reasonable accommodation obligations arising under Directive 2013/48 on the right of access to a lawyer and Directive 2016/1919 on the right to legal aid. However, while the ruling shows an increased sensitivity to vulnerability in EU criminal procedure, a significant gap persists regarding the ratione personae scope of the procedural safeguards intended for this category. Additionally, the ruling has broader implications concerning the protection of procedural rights in the EU. This paper critically examines the role of Barało in shaping safeguards for vulnerable suspects in light of the evolving concept of vulnerability in the European legal space. Furthermore, based on the premise that there can be no right without a remedy, this paper zooms in on the issues of effective remedies and adequate redress for violations of procedural rights in criminal proceedings. 

Keywords: suspect vulnerability – EU procedural rights – Directive 2013/48 – Directive 2016/1919 – autonomous concept – effective remedies. 

1.   Introduction

On May 8th, 2025, the Court of Justice of the European Union (CJEU or the Court) delivered its ruling in the case C‑530/23 (Barało).[1] This judgment was particularly awaited by those researching suspect vulnerability and procedural rights in EU criminal procedure. The reason for this is that the questions referred by the District Court in Włocławek represented for the Court an opportunity to finally define the obligations that stem from Directives 2013/48[2] and 2016/1919,[3] respectively on the right to legal assistance and legal aid. While the questions concern in particular vulnerable suspects or accused persons, the judgment delivered by the Court has also broader implications. 

This paper reflects on the Barało judgment, with a particular focus on its specific significance for the protection of vulnerable suspects within the EU, as well as the Court’s approach towards the protection of procedural rights. In fact, in this paper it is argued that Barało is a missed opportunity to improve the legal protection of vulnerable persons accused of a crime at EU level, and a setback in the definition of appropriate redresses in case of violation of procedural rights in EU law. 

After briefly delineating the facts of the case (Section 2), this paper presents the key findings of the Court, as well as the Opinion of Advocate General (AG) Ćapeta (Section 3).[4] Subsequently, the relevance of this case for the rights of vulnerable suspects is considered in Section 4. While Subsection 4.1 will be devoted to the conceptualisation of vulnerability, sections 4.2 and 4.3 deal respectively with the evolution of the safeguards for vulnerable persons in the European legal space, and on the practical impact of Barało. Finally, Section 5 offers broader reflections on the judgment’s consequences on the development of effective remedies for violations of procedural safeguards offered by EU law. Specifically, section 5.1 focuses on the minimum requirements for an effective remedy, and section 5.2 examines the evolution of the CJEU’s jurisprudence on the exclusion of evidence and its relevance for the violation of the right to counsel.

2.   Case facts and questions raised 

The case concerns K.P., who is accused in criminal proceedings in Poland on two counts: possession of 8.50 grams of cannabis and 33.83 grams of amphetamine and driving under the influence of a substance with similar effects to alcohol and having amphetamine in his blood.[5]

According to the referring court, on July 21st, 2022, shortly before midnight, police officers noticed a vehicle that was driving in a strange manner and emitting strange sounds. They approached the vehicle driven by K.P., and, after speaking to him, drove away.[6] Shortly after, the same police officers were informed about a collision between two vehicles, and, thinking that K.P.’s vehicle matched the description of one of those implicated in the collision, they returned to where they had first seen him.[7] The police found K.P. outside the vehicle, acting nervous and speaking in a confused manner.[8] The police officers questioned him and asked him to hand over any objects that might be prohibited.[9] He was arrested at 00.05 on 22 July and transported to hospital for a blood test.[10]

Later that day, after the substances were identified as cannabis and amphetamine, K.P. was formally charged with possession of a narcotic product and a psychotropic substance.[11] He was informed of his right to legal assistance, but although he did not waive this right, no lawyer was appointed or was present during his questioning.[12] There is no record of any assessment of his mental state by the authorities at this stage,[13] except for an annotation from a police officer that ‘according to his statement, [K.P.] is of sound mind, is not receiving and has not received psychiatric, medical or neurological treatment’.[14] The interrogation was not audio-visually recorded, and K.P. neither acknowledged the charges nor signed the interrogation record.[15] He was released later that day.[16] After blood test results confirmed amphetamine in his system, he was also charged with driving under the influence of substances.[17] This second accusation was conveyed to K.P. in October 2022 while he was hospitalised in a psychiatric facility, where he was interrogated.[18] Again the interrogation took place without a lawyer, and without audio visual recording, despite strong indications that K.P.’s psychological condition did not allow him to take part in any proceedings.[19] Although he was informed of his procedural rights, K.P.’s request for access to the file was only fulfilled through written documents delivered to his mother.[20]

The indictment was eventually filed in December 2022.[21] Because of ‘serious deficiencies in the case file’[22] the referring court, the Sąd Rejonowy we Włocławku (District Court, Włocławek), ordered the prosecution to supplement the investigation by ensuring that K.P. be re-questioned in the presence of a defence counsel and that expert psychiatric opinions be obtained.[23]However, upon appeal by the prosecutor, such a decision was annulled by the Sąd Okręgowy we Włocławku (Regional Court, Włocławek).[24] Seeing that no individual assessment was carried out during the investigation in order to establish whether K.P. was in a situation of vulnerability requiring the appointment of a court-appointed lawyer, nor had it been established whether his mental health allowed him to take part in the proceedings or ensure his defence in an independent and reasonable manner,[25] the referring court expressed concerns as to the compatibility of Polish law with the safeguards for vulnerable suspects stemming from Directives 2013/48 and 2016/1919.[26]

The core issues raised include whether national authorities are required to identify a suspect’s vulnerability at the earliest stage of criminal proceedings and whether failure to do so renders subsequent procedural acts, such as police questioning without legal representation, incompatible with EU law.[27] The court seeks clarification on whether the Directives impose an obligation to provide legal aid without undue delay to vulnerable individuals, including the grant of provisional or emergency legal assistance before questioning or investigative measures.[28] The questions also addressed the extent to which national rules that condition access to legal aid on assessments of mental capacity are precluded by EU law, as well as the broader obligation on judicial authorities to disapply incompatible national law and directly apply the directives’ provisions.[29] Furthermore, the referring court raised concerns about the lack of effective remedies where procedural safeguards are denied and asked whether evidence obtained in breach of these obligations must be excluded.[30] Finally, questions related to broader structural issues regarding political control over the prosecution service.[31]

3.   AG Opinion and Court’s Decision 

Advocate General Ćapeta, in her Opinion, emphasised that police and prosecutors must be diligent in identifying whether a suspect or accused person may be vulnerable, particularly if they have difficulties understanding or participating in the procedure. She underscored that such identification should occur at the earliest stage.[32] The AG highlighted that Directive 2016/1919 is intended to make the right of access to a lawyer effective by ensuring legal aid, and that the Directives must be read together to achieve this objective.[33] When authorities become aware of a suspect’s potential vulnerability, they must promptly ensure legal representation and grant legal aid.[34] Furthermore, AG Ćapeta stressed that the provision of legal aid should not be delayed by procedural formalities, such as a means or merits test, and that emergency legal aid should be granted immediately if necessary.[35]

Regarding remedies, the AG pointed out that decisions concerning vulnerability and legal aid must be reasoned and subject to effective judicial review, and that all state authorities, including police and prosecutors, are bound by these obligations.[36] While the Advocate General addressed the question of whether national rules allowing political control over the prosecution service are compatible with EU law, she noted that this issue, although important, was not strictly necessary for the resolution of the case at hand and thus could be considered inadmissible.[37]

In Barało, the CJEU addressed several questions concerning the interpretation of procedural safeguards under EU law for vulnerable suspects and accused persons in criminal proceedings, specifically focusing on the right of access to a lawyer and the right to legal aid.

Following the AG’s reasoning, the Court clarified that Directives 2013/48 and 2016/1919 must be read together, as the right to legal aid is designed to make the right of access to a lawyer effective.[38] Member States are required to ensure that the vulnerability of a suspect or accused person is ascertained and acknowledged before questioning or investigative acts, and to provide access to a lawyer with legal aid without undue delay and at the latest before questioning.[39] Even though EU instruments on the protection of vulnerable suspects, such as the Commission Recommendation (Vulnerability Recommendation),[40] encourage Member States to establish a presumption of vulnerability for persons with mental health conditions, they are not binding, and EU law does not require such a presumption.[41] However, the specific needs of vulnerable persons must be taken into account, and a request for legal aid should not be a substantive condition for granting it to such persons. The Court emphasised that legal aid must be provided in a timely manner, and in urgent situations, police or prosecutors may temporarily grant aid if necessary.[42]

Regarding national law, the Court stated that national courts must interpret domestic provisions in conformity with EU law as far as possible. If this is not possible, they must disapply any incompatible national rules and apply the directly effective provisions of the directives.[43] All state authorities, including police and prosecutors, are bound by these obligations. The Court also ruled that decisions concerning the assessment of vulnerability and the refusal to grant legal aid must be reasoned and subject to an effective remedy.[44] However, EU law does not require national courts to automatically declare inadmissible evidence obtained in breach of the right to a lawyer, provided the court can verify that the rights of the defence and the fairness of the proceedings have been respected and can draw appropriate inferences regarding the probative value of such evidence.[45]

The Court did not answer questions regarding whether questioning a vulnerable suspect without a lawyer in a psychiatric hospital constitutes inhuman treatment, as the referring court did not provide sufficient factual context.[46] Similarly, questions about the independence of the public prosecutor from executive authorities were deemed inadmissible as they were not necessary for the resolution of the specific case.[47]

In summary, this judgment presents several important takeaways. By systematically interpreting the two Directives, the Court held that Member States are obligated to recognise the vulnerability of suspects or accused persons before any interrogation or investigative measure takes place. This requirement aims to ensure effective protection of their rights in criminal proceedings. However, the Court did not provide Member States with guidance on how to assess and identify such vulnerability.

Furthermore, the CJEU recognised the direct effect of Article 3, paragraphs 2 and 3 of Directive 2013/48, as well as Articles 4, paragraph 5, and Article 9 of Directive 2016/1919. This guarantees that vulnerable suspects or accused persons promptly receive assistance from a defence counsel under legal aid. The right to access a lawyer with the benefit of legal aid must be ensured immediately, or at the latest, before any police interrogation.

The Court also acknowledged the right of vulnerable suspects to be informed of the reasons for any decision denying them access to a lawyer or legal aid. This right is reinforced by the ability to effectively challenge such decisions. Nonetheless, the Court fell short of clarifying what constitutes an effective remedy in this context.

Finally, the Court stated that evidence gathered in violation of defence rights is not automatically excluded. Instead, the judge must have the discretion to assess the situation and take appropriate action, which may include disregarding the evidence. These takeaways will be critically discussed in the following sections.

4.   Barało and suspect vulnerability: another missed opportunity 

In this Section the concept of vulnerability is delineated as generally understood in the academic discussion, focusing on the problems it poses to the realisation of fair trial rights and the pressing need to protect this category in law. Subsequently, the Barało judgment is contextualised within the EU criminal procedural panorama, reflecting on the historical evolution of the protection of vulnerable suspects in EU law. Finally, this Section considers the actual implications of the ruling for procedural rights of vulnerable individuals within the Area of Freedom, Security and Justice (AFSJ).

4.1.  Understanding vulnerability: a multifaceted concept deserving adequate legal protection

According to vulnerability theory, vulnerability is inherent in the human condition,[48] influenced by disparities in social backgrounds, education, means, and cultural identities. According to Fineman, this state of disparity is especially pronounced in certain situations,[49]such as criminal proceedings. Traditionally, criminal justice systems have been based on a liberal understanding of the relationship between the state and individuals, assuming equality between all citizens.[50] However, acknowledging this ‘common misfortune’ inevitably leads to a rethinking of the state’s role in criminal justice, which becomes responsible for accommodating vulnerability and creating resilience.[51] In criminal proceedings, the tools to accommodate vulnerability are represented by procedural rights, such as the right to a lawyer, or the privilege against self-incrimination.[52] Some individuals, however, may be particularly vulnerable and unable to fully benefit from these rights, due to a wide variety of causes that may impair crucial sets of skills. This is precisely where the system has an enhanced duty to intervene to support ‘particularly vulnerable’ individuals, attempting to narrow the disparities between the advantaged and disadvantaged.[53]

The causes that result in the particular vulnerability of suspects can be dispositional and/or situational.[54] Dispositional factors, such as mental disorders or physical impairments, are innate vulnerabilities, while situational factors, like sleep deprivation or environmental stress, can elevate fragility temporarily.[55] Vulnerability is dynamic and interactive in character, in that it is dependent on the specific moment and situation;[56] for instance, it could be different prior to and during police questioning or manifest itself during other investigative acts. Furthermore, the vulnerability of suspects and accused is dependent on the relationship between the actors involved, with a strong role being played by the attitude of the police and judicial authorities, as well as the conduct of the defence lawyer or other support person.[57] Lastly, even when the vulnerability of a subject is established, its degree could fluctuate,[58] for example, when a vulnerable individual is under the influence of an antipsychotic drug, resulting in the symptoms disappearing.

Although, in light of the above, it becomes clear that defining vulnerability can be challenging, it is also evident that suspect vulnerability poses considerable challenges to the criminal justice system that cannot be underestimated. The susceptibility and compliance of vulnerable individuals can be particularly problematic in combination with certain interrogation practices,[59] if not adequately adapted. Because of impaired decision-making, memory retention or cognitive skills, vulnerable suspects are particularly prone to make inaccurate or unreliable statements.[60] These can result in inadmissible evidence or influence subsequent investigative choices leading to delays and waste of resources. Moreover, vulnerable individuals are more likely to give false confessions, which may result in wrongful convictions.[61] To further appreciate the magnitude of the issue, according to the Innocence Project, 29% of wrongful convictions overturned by DNA evidence in the United States involved false confessions, many of which were given by individuals with mental impairments (9%) or who were minors at the time of the interrogation (31%).[62]

4.2.  The ‘Suspect Vulnerability Saga’ in EU criminal procedure 

At the EU level, there is general understanding of the importance of adjusting a criminal trial to the needs of the vulnerable for the realisation of the right to a fair trial.[63] This is highlighted in several official documents[64] and stakeholder interviews,[65] but, first and foremost, it can be seen from the fact that the protection of vulnerability is one of the measures envisaged by the Council in 2009 for the achievement of a climate of mutual trust.[66] In fact, according to the Commission ‘only if all envisaged initiatives on procedural rights in criminal proceedings are implemented, an environment of enhanced mutual trust between judicial authorities will be in place’.[67]

The focus on vulnerable suspects began in 2003 with a Commission Green Paper,[68] which emphasised that rights for vulnerable suspects must be ‘practical and effective’.[69] At the time, the Commission proposed a broad, non-binding list of vulnerability categories, which includes foreign nationals, children, those who are vulnerable as a result of their mental or emotional state, those who are vulnerable as a result of their physical state, those who are vulnerable by virtue of having children or dependants, those who cannot write or read, persons with refugee status under the 1951 Refugee Convention,[70] and finally persons addicted to alcohol or drugs.[71] The definition provided in the Green Paper is a mix of categorisation of situations at risk, combined with the acknowledgement that a case by case assessment may be justified. This solution is not however immune to the risks of being under and over inclusive, as well as stigmatising.[72]

In 2004, the Commission proposed a Framework Decision (FD) aimed at strengthening procedural rights, including safeguards for vulnerable suspects.[73] On such occasion, the Commission recognised the difficulties surrounding the conceptualisation of vulnerability, and admitted that a categorisation approach is insufficient.[74] The proposed scope of application of the Council FD was to ‘persons who, owing to their age or their physical, medical or emotional condition, cannot understand or follow the proceedings’.[75] However, this attempt failed due to political resistance with the proposal abandoned in 2007.[76]

In 2009, a Roadmap was adopted identifying six priority areas to enhance mutual trust and fair trial rights across the EU, including special safeguards for vulnerable persons.[77] On such basis, from 2010 to 2016, the EU adopted several procedural rights Directives (known together as the ABC Directives): Directives 2010/64 on interpretation and translation,[78] 2012/13 on the right to information,[79] 2013/48 on the right to a lawyer, 2016/343 on the presumption of innocence,[80] and 2016/1919 on legal aid. While these contain references to vulnerability and a duty to take into account the needs of vulnerable persons, they lack a binding definition or detailed safeguards for vulnerable adults. Directive 2016/800 on procedural safeguards for children in criminal proceedings[81] remains the only binding instrument with concrete provisions tailored to a vulnerable group. 

Adult suspect vulnerability was only addressed in a Commission Recommendation,[82] which broadly defines a vulnerable person as someone ‘not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities’.[83] However, as opposed to the 2004 proposal for a framework decision, this definition excludes emotional factors and remains non-binding.[84] The Commission justified this soft-law approach due to challenges in developing a definition that could accommodate national procedural traditions and concerns about potential stigmatisation.[85] Nonetheless, this reasoning appears particularly flawed considering that the Commission’s impact assessment (IA) itself mentions that the lack of a common definition of vulnerable groups ‘will have a certain negative impact on the efficiency of such a measure’,[86] and that ‘it is unlikely that significant progress could be made in the protection of vulnerable persons’ rights ‘in the absence of major legislative developments’.[87] Furthermore, as argued by van der Aa, similar definitional problems have not stopped the Commission from legislating in the field of (vulnerable) crime victimisation.[88]

The 2021 Council Conclusions reaffirmed the importance of protecting vulnerable adults, particularly in light of the COVID-19 crisis[89] and demographic trends such as an ageing population.[90] The Council urged improved implementation of existing instruments, further research, and even consideration of binding minimum standards aligned with the UN Convention on the Rights of Persons with Disabilities (CRPD),[91] to which the EU is a party.[92]

The European Economic and Social Committee (EESC), in its Opinion on the EU Disability Rights Strategy 2021–2030,[93]echoed these concerns and called for mandatory training for justice professionals on procedural rights and vulnerability, especially for persons with disabilities.[94] The EESC also highlighted the need to evaluate Member States’ implementation of the 2013 Recommendation, suggesting that the identification of vulnerable suspects could be improved by better data collection and the eventual adoption of binding rules.[95]

Non-binding instruments such as the 2021 European Parliament Resolution on the European Arrest Warrant[96] and the 2022 Commission Recommendation on pre-trial detention[97] continue to draw attention to the particular vulnerability of certain groups, such as LGBTQI+ persons, persons with disabilities, or foreigners in detention. These instruments underline the situational nature of vulnerability but are limited in legal effect. The 2023 Proposal for a Regulation on the Transfer of Proceedings in Criminal Matters also reaffirms the relevance of the 2013 Recommendation, further signalling the EU’s reliance on soft law when addressing adult vulnerability.[98]

From a fundamental rights perspective, Article 6 ECHR and Articles 47 and 48 of the Charter of Fundamental Rights of the EU (CFR) are central. While the ECtHR has, through case law, identified certain categories of vulnerable individuals,[99] it has not given a full definition of ‘vulnerability’ or guidance on handling vulnerability, except for the suggestion that the right to a lawyer should not be waived.[100] Furthermore, the Strasbourg Court only recognised so far situations of very serious vulnerability, as it emerges by looking at cases such as Hasáliková v. Slovakia.[101] In that case, the ECtHR ruled that the defendant’s right to a fair trial was not violated by the absence of reasonable accommodation measures,[102] even though she presented an IQ of between 64 according to the Raven test and 69 according to the verbal part of the WAIS-R test,[103] which is approximately equivalent to the mental age of a nine to ten-year-old child.[104]

A similar approach can be observed at EU level. In Stachev (C-15/24),[105] a judgment delivered by the CJEU in May 2024, the Court analysed, inter alia, the question as to whether Articles 13 and 9 of Directive 2013/48 preclude national law allowing for vulnerable suspects to waive their right to a lawyer. In that case, the illiterate suspect signed a waiver form without fully understanding its implications. While the Court acknowledged that legal assistance is essential to safeguard equality of arms and recognised the suspect as vulnerable,[106] it nevertheless concluded that it cannot be derived from the words of Articles 13 and 9 of the Directive that vulnerable persons cannot waive their rights.[107] The court simply stated that ‘that fact [i.e. the vulnerability in question] must be duly taken into account in the context of such a waiver’.[108] Both the ruling and AG Collins’s Opinion[109]opted a literal interpretation of the Directive and a very cautious approach, even though a more protective, teleological reading was available. 

A final indication of the Court’s outdated and questionable approach emerges by considering the wording used by the CJEU in Rayonna prokuratura Lom, according to which ‘Persons of unsound mind must […] be considered vulnerable persons […] since, because of a serious mental disorder, they may not be capable of understanding the information provided to them about their rights’.[110] This not only highlights a restrictive interpretation of ‘vulnerability’ but it is also stigmatizing and potentially offensive, and should by all means be avoided in official judicial documents.

Given the general conservative stance taken by the EU, expectations for a stronger approach in Barało were modest. Still, the case offered a good opportunity for the Court to clarify the rights flowing from the Directives on the right to a lawyer and legal aid, and to define who qualifies as a ‘vulnerable adult suspect’ under EU law. The following section considers whether the Court met those expectations (spoiler: it did not).

4.3.  Expanded rights and uncertain scope of application: the paradox of Barało

In light of the tortuous evolution of the protective framework for vulnerable suspects and accused persons, as highlighted in Section 4.2, the questions raised by the Polish Court in Barało represented a golden opportunity for the CJEU. 

In its judgment, the Court clarified the content of the obligations flowing from Directives 2013/48 and 2016/1919. In particular, Member States are required to a) identify vulnerability before any questioning or investigative acts take place,[111] b) ensure that legal aid is granted automatically to vulnerable suspects, without the need for a request or any delay due to means tests,[112] and c)take their needs into account throughout the proceedings.[113] Furthermore, some of the obligations flowing from the Directives have direct effect, specifically Article 9 of Directive 2016/1919,[114] and must be respected by all authorities involved, including police and prosecutors.[115] In cases of violation, the Court established that an effective remedy must be available, and that national courts must be able to draw the necessary inferences where rights are breached, in particular as regards the probative value of the evidence obtained in those circumstances.[116]

While it is undeniable that the Court’s judgment in Barało is a step forwards for the protection of vulnerable suspects, it seems like a crucial piece of information is still missing, namely the definition of who counts as a vulnerable suspect or accused person.

The District Court in Włocławek referred to the CJEU questions regarding the personal scope of Article 13 of Directive 2013/48 and Article 9 of Directive 2016/1919. However, instead of providing such a definition, both the Court and AG Ćapeta decided to explicitly circumvent the question, by assessing only whether a person with a mental condition can be considered vulnerable under those provisions. AG Ćapeta analyses first the legal effects of the Vulnerability Recommendation, which remains not binding and not enforceable. Subsequently, following the Court of Justice’s previous approach, and in light of the ECtHR jurisprudence, AG Ćapeta recycles the unacceptable language used in Rayonna prokuratura Lom and suggests that persons who are ‘unsound of mind’, such as K.P. are vulnerable under EU law.[117]

Although the Court this time does not use the same language, i.e. ‘unsound of mind’, it does conclude in a similar vein that ‘persons with mental health conditions come within the definition of vulnerable persons’ for the purpose of Article 13 of Directive 2013/48 and Article 9 of Directive 2016/1919.[118] The Court refers to recital 23 of Directive 2016/1919, which states that Member States should respect the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.[119] In such a document, mention is made, inter alia, to individuals with mental illness and drug users.[120]

Furthermore, both the CJEU and AG Ćapeta concur that the Directives do not require a formal presumption of vulnerability to be introduced by the Member States.[121] The Vulnerability Recommendation suggests in Paragraph 7 that Member States introduce a presumption of vulnerability for persons with ‘serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders, hindering them to understand and effectively participate in the proceedings’. However, both the Court and AG Ćapeta agree that there is no obligation to establish such a presumption in EU law.[122]

The choice to explicitly avoid defining ‘vulnerable adult suspect’ deprives the rights flowing from the Directives of practical legal effects. The whole point of direct effect of EU Directives is that it can be invoked by individuals in front of national courts after the transposition period has passed. In this way, direct effect ensures that citizens can rely on and benefit from EU law in national proceedings regardless of whether the Member State in question has not transposed the instrument or has done so incorrectly. Among the conditions for a provision in a Directive to have direct effect, such provision must be sufficiently clear, precise, and unconditional.[123] The Court ruled in Barało that Article 9 of Directive 2016/1919 has in fact direct effect.[124] The Court recognised that such provision ‘[...] imposes on Member States a precise obligation as to the result to be achieved, which is not coupled with any condition regarding the application of the rule laid down by it’.[125]

While it would be ideal to have directly effective provisions granting rights to vulnerable persons, the Court’s reasoning here appears quite problematic. In fact, the reliance of vulnerable individuals on such provision is dependent on the Member States’ interpretation of how the needs of vulnerable persons are to be taken into account, and, first and foremost, on who counts as ‘vulnerable’. Considering that Member States have diverging approaches to the issue,[126] the resulting situation is that the protection to which vulnerable individuals are entitled under such a Directive varies depending on the Member States in which vulnerable persons find themselves. In practice, someone could be vulnerable in one Member State, but not in another, without a real possibility to rely on direct effect due to the vague phrasing of Article 9 and the absence of guidance from the Court. This inconsistent and fragmented application of EU Directives when it comes to vulnerable adult suspects, in an area where fundamental right protection is crucial such as the AFSJ, is inadequate in that it offers no legal certainty, discourages free movement, and significantly impacts mutual trust. 

Furthermore, the Court is inadvertently falling again into the categorisation rabbit hole. As suggested by AG Ćapeta, the Court limited itself to the assessment of whether the defendant was vulnerable in the case at hand. However, this translates in practice in a case-by-case delineation of vulnerable categories, the same categorisation approach that was used in the 2002 Green Paper. This approach has been recognised by several scholars,[127] as well as the Commission itself[128] as insufficient, outdated and stigmatising. It is underinclusive, as it ignores many causes of vulnerability which can be just as dangerous to cognition as mental disorders and drug addiction. Furthermore, categorisation is also overinclusive. Vulnerability is a dynamic and interactive concept which can fluctuate over time. Assuming that all mental or physical conditions make a suspect vulnerable, this results in an assessment that is reduced to ticking the boxes. A good illustration could be that, according to this approach, a person with a minor physical disability should be entitled to additional support, even where their set of cognitive abilities is not affected by the disability. This approach is not efficient, as it can result in a waste of resources, and in stigmatisation. Instead, what the Court should have empathised is, as referred to in Recital 51 of Directive 2013/48, that authorities must take into account any potential vulnerability that affects their ability to exercise procedural rights and take appropriate steps to ensure those rights are guaranteed. While the Court refers to this Recital, it remains a non-binding provision, which the Court does not elevate to an autonomous concept.

5.   The quest for procedural sanctions

In Barało the Court addresses a topic of fundamental importance in European (criminal) procedural law: the definition of the consequences arising from violations of the rights of the defence as outlined in the Procedural Rights Directives. Indeed, one of the core issues raised by the referring judge concerns the ways in which a violation of a fair trial right – specifically, a violation of the right to counsel and legal aid – can be asserted, what type of remedy national law should offer and, what procedural sanction – if any – should be applied.

This issue is particularly important because the Directives on the rights of the defence share a common problem: they do not define the consequences resulting from the violation of any of the rights provided therein.[129] Thus, although the EU legislator has detailed the substantive content of the fundamental prerogatives of the suspect (and the accused) within criminal proceedings, it has not given substance to the articles of the ABC Directives that address the issue of remedies in case of violations. In fact, the EU lawmakers have limited themselves to establishing, using rather similar wording in all the Directives, that suspects or accused persons in criminal proceedings ‘have an effective remedy under national law in the event of a breach of [their rights]’.[130]

However, there can be no right without a remedy.[131] Indeed, to speak of effective protection of the rights of the defence, it is necessary not only for national legislators to correctly implement the aforementioned Directives, but also for national legal systems to provide a remedy in the event of a violation by national authorities of any of the rights provided therein. Distinct from the concept of remedy, is the one of procedural sanctions.

Remedies refer to the right, held by the person under investigation or the accused and their defence counsel, to bring the matter before the judicial authority to challenge the validity of a potentially flawed act. Whereas procedural sanction stands for the legal consequences arising from a violation. For example, depending on the case and the seriousness of the violation, evidence inadmissibility or the nullification of part or the entirety of the proceedings.[132]

Therefore, the right to an effective remedy in the context of the rights of the defence has, or rather, should have, a dual meaning: to ensure that the holder of the right has the concrete possibility to challenge the potentially flawed act, and that, should a defect be identified, a sanction is provided.[133]

Interestingly, the Court in Barało, when answering the second group of questions,[134] deals with both these aspects of the Directives at stake in the case. Indeed, by analysing Articles 12 of Directive 2013/48 and 8 of Directive 2016/1919, read in light of Articles 47 and 48(2) of the Charter, the CJEU shed some lights on the requirements for an effective remedy in case of violation of the right to legal aid and receive legal assistance, and what the sanction could be.

In the following sub-sections, the focus will be on these two specific aspects: (5.1) the requirements to have an effective remedy, and (5.2) the procedural sanction that should stem from the violation of the rights to legal aid and legal assistance.

5.1.  What makes a remedy effective?

By virtue of the principle of procedural autonomy,[135] Member States do not have the obligation to introduce new procedural rules to ensure an effective remedy to suspect and accused persons under the procedural rights Directives. It is sufficient that, in their national systems, they provide a way for interested individuals to have access to a judicial authority.[136] Indeed, the Court affirmed that Member States are not under the obligation to introduce ad hoc remedies when implementing the Directives.[137]

However, there are some minimum requirements that Member States must meet in granting effective judicial protection. National procedural and substantive rules must not hinder rights derived from EU law.[138] Additionally, these rules ought to meet the principles of effectiveness (ensuring rights are practical and real) and equivalence (national rules for EU cases must be no less favourable than for similar domestic cases).[139] Notably, rights provided in EU instruments must be interpreted in line with Article 47 CFR. 

Against this background, in the context of a violation of the right to legal assistance and legal aid, the Court – in the case at hand – clarified that the decision not to grant access to a lawyer and to legal aid must be reasoned.[140] Consequently, national law enforcement and judicial authorities need to communicate to the affected individuals such a reasoned decision. Indeed, only in this way the affected person will have the possibility to effectively challenge the decision.[141]

The Court’s position has important consequences for the rights of the defence. Firstly, it guarantees that suspect and accused persons can meaningfully prepare their defence. Knowing the foundations of a decision taken by law enforcement or judicial authorities, is an essential step to challenge the decision itself. Secondly, it sets (one) of the requirements for a remedy to be effective. Without the information concerning the decision to limit the defendant’s rights, they would not be able to exercise their right to an effective remedy.

5.2.  A hiccup along the way for an exclusionary rule?

Another important aspect of Barało concerns the procedural sanctions deriving from the violation of the rights enshrined in the procedural rights directives. In this case, the Court held that judicial authorities should be able to assess the probative value of evidence collected in breach of the right to counsel and legal aid.

However, the Court’s position in this regard is problematic. The right to legal assistance is of fundamental importance to guarantee the rights of the suspect or accused person. More importantly, its relevance is even greater in the initial phases of the proceedings, especially during police interrogations. Indeed, any statement concerning the potential responsibility of the accused, could severely impair their position in the criminal proceedings. The presence of a lawyer could prevent the suspect from making any incriminatory statements and suggest the best defence strategy. 

Accordingly, an unjustified restriction of the right to counsel, and legal aid, during police interrogation should be rightly sanctioned. In this context, scholars have suggested the consequences that should derive from the violation of procedural rights, especially the right to counsel.[142] In the aftermath of the introduction of the Directive, it was argued that, considering the importance of this right and the seriousness of the violation, the most appropriate sanction would have been to put the accused back in the position had the violation not happened.[143] This interpretation was also based on the ECtHR’s judgment in Salduz,[144] in which the Court held that the most appropriate form of redress for a violation of Article 6 is to put the defendant in the position in which they would have been had this provision not been disregarded.[145] However, in a subsequent decision on the violation of the right to counsel, the ECtHR revolutionised its approach. In Ibrahim, the Court of Strasbourg argued that an unjustified denial of the right to access to a lawyer can be compensated by the overall fairness of the proceedings.[146] Hence, the violation of the right to counsel can be balanced by ensuring that other rights, such as, inter alia, the right to contest evidence and witnesses, and the impartiality of the judge, are respected.[147] This decision had significant drawbacks in the elaboration of a strong European-wide protection of the right to legal assistance.[148] Accordingly, the discussion on the appropriate sanction that should derive from the violation of this right has changed: in cases where the violation of the right to counsel results in the gathering of illegal evidence, these must be excluded.[149]

Even though the CJEU has usually adopted a remedial deterrence approach by refusing to define, in a clear and precise manner, a form of redress in case of violation of the procedural rights enshrined in the ABC Directives, recent cases might have reversed this trend.[150] Specifically, it would seem that the Court is developing an exclusionary rule of illegally obtained evidence, in violation of one or more fundamental rights of the suspect or accused person.

Indeed, starting from ‘the data retention saga’ the Court has developed a strand of jurisprudence in which it has found that illegally obtained evidence must be excluded.[151] In these cases, the Court of Luxembourg affirmed that evidence gathered through a general and indiscriminate retention of traffic and location data breach of EU law. Accordingly, on the basis of the principles of effectiveness and the protection of individual fundamental rights,[152] such evidence might also breach the fair trial rights of the persons involved in the criminal proceedings. In line with this, the Court held that, to avoid such a breach, the evidence must be excluded.

Following the decisions in La Quadrature du Net and Prokuratuur, the Court identified another area in which illegally gathered evidence ought to be excluded, namely judicial cooperation under the European Investigation Order Directive. Indeed, in MN (Encrochat) the CJEU,[153] on the basis of Article 14 of Directive 2014/41,[154] argued that evidence on which the accused person cannot effectively comment must be excluded. The Court motivated its decision by referring to the data retention case law, even though the context and applicable laws differ substantially.[155] Moreover, the data retention cases were purely internal cases, whereas the Encrochat case had a cross-border dimension.

The Court took a similar approach in Stachev.[156] The case concerned the violation of Directive 2013/48. Here, the CJEU found that the evidence gathered during an interrogation in which a lawyer was not present, and on which the accused person cannot effectively comment, must be excluded.[157] The decision is based on Article 12 of Directive 2013/48, read in light of Recital 50 of the same Directive, and Article 47 of the Charter.[158] Interestingly, the Court justified its reasoning by recalling, via analogy, theEncrochat case.[159]

Against this backdrop, the position taken by the Court in Barało appears to be a setback compared to the case law just presented. Indeed, one would have expected to see a confirmation of such an approach towards the exclusion of illegally obtained evidence in Barało too, especially considering the similarities with Stachev. Contrarily, the CJEU held that the referring court should be in a position ‘to draw all the inferences from that breach, in particular as regards the probative value of the evidence obtained in those circumstances’.[160]

The position of the Court has not been coherent in elaborating a redress in cases of violation of the accused’s fundamental rights. The only fil rouge that can be identified is the formula adopted by the judges in Luxembourg – illegally obtained evidence on which the accused cannot effectively contest, must be excluded – which was used in the cases discussed above. It has not substantiated this approach in general rules of evidence,[161] nor has defined a toolbox that the national judges can use when they are faced with similar cases. Nonetheless, the Court was carving the path for establishing an EU-wide exclusionary rule that could have been used in national and cross-border cases.[162] The hope is that Barało is only a hiccup in this process and not a turn back.

6.   Concluding remarks 

After presenting the Barało judgment and highlighting the main findings of the Court and AG Ćapeta, this paper focused on two main issues: the significance of the judgments for the procedural rights of vulnerable suspects and accused individuals, and its broader implications for the establishment of effective remedies when EU law is violated.

As highlighted in Section 4, the establishment of a European conceptualisation of suspect vulnerability is necessary to ensure consistent protection across the Member States. Furthermore, to make sure that procedural rights for vulnerable persons are ‘practical and effective’, it is necessary to clearly delineate what it means to take into account the needs of vulnerable persons in the application of the ABC Directives. In Barało, while the Court acknowledged, once more, the importance of protecting the vulnerable in the AFSJ, ruled that certain provisions in Directives 2013/48 and 2016/1919 have direct effect, and established some broad obligations to identify and act upon vulnerability, very little has been done to ensure that this will be applied in a ‘practical and effective’ manner. In fact, as argued in Section 2.3, due to the vague scope of application of these obligations and ‘directly’ effective rights, the possibility to rely on these procedural guarantees in front of national tribunals ends up being what the Commission itself referred to as ‘theoretical and illusory’.[163]

With regard to effective remedies and procedural sanctions, the ruling represents a step forward in detailing the characteristics of an effective remedy, and a step back in the development of procedural sanctions in cases of violation of procedural rights. However, this ruling should not call into question the important work that the Court is doing in advancing and expanding the rights of the defence within the Area of Freedom, Security and Justice.[164] It is hoped that the Court will follow the approach taken in Stachevin upcoming cases on the same issues. In fact, in light of the difficulties encountered by the EU legislator in reaching agreement on this matter, the path of judicial intervention appears the only viable option.

Because of the additional uncertainty caused by the vagueness and incoherence of this ruling, it is expected that more preliminary references for interpretation will be made by the Member States. In light of this, having pointed out the inherent link between the failure to accommodate vulnerability and fair trial rights violations, as well as having established the significant flaws of the current framework and the need for effective remedies to ensure fundamental rights protection, it is hoped that the EU will not miss the next opportunity to take a more significant step.