Delivered on 14 July 2022 (1)

Case C‑242/22 PPU

TL,

with the intervention of:

Ministério Público

(Request for a preliminary ruling from the Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal))

(Preliminary ruling procedure – Directives 2010/64/EU and 2012/13/EU – Scope – Right to interpretation, translation and information in criminal proceedings – Concept of essential document – Declaration of identity and residence in the language of the proceedings, which is not understood by the suspected or accused person – Lack of interpretation and translation – Breach of the conditions for suspending execution of a sentence due to absence from the designated address – Final order revoking the suspension of execution of the sentence – Revocability – Res judicata)

1.This request for a preliminary ruling concerns the application of Directives 2010/64/EU (2) and 2012/13/EU (3) to criminal proceedings in which a Portuguese court sentenced an individual (‘TL’) of Moldovan nationality, who only understands Romanian, the official language of his country, to three years’ imprisonment.

2.In passing sentence, the court ordered that the execution of the sentence be suspended on certain conditions. One of the conditions was that it must be possible to locate TL at the address he had given in the ‘declaration of identity and residence’ (‘DIR’) procedure. As he was not found at that address, the suspension was revoked and TL was sent to prison to serve his sentence.

3.In view of the fact that there was no interpreter present during the DIR and other procedural steps, and that certain documents were not translated into Romanian, the Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal), is asking the Court of Justice about the interpretation of the two aforementioned directives in connection with the nullity of acts which do not comply with the directives’ requirements.

4.Article 1 (‘Subject matter and scope’) provides as follows:

…

5.Article 2 (‘Right to interpretation’) establishes that:

…

6.Article 3 (‘Right to translation of essential documents’) stipulates that:

…

7.Article 2 (‘Scope’) states:

…

8.Article 3 (‘Right to information about rights’) stipulates that:

…

(d) the right to interpretation and translation;

…

9.Article 8 (‘Verification and remedies’) provides that:

…

10.According to Article 57 (‘Status of “arguido”’), an ‘arguido’ is someone who has been charged or who is the subject of a criminal investigation.

11.Paragraph 1(h) of Article 61 (‘Procedural rights and duties’) grants ‘arguidos’, during any stage of the proceedings, save where otherwise provided by law, the right to be informed of their rights by the judicial authority or criminal police body before which they are required to appear.

12.Article 92 (‘Language of acts and appointment of interpreter’) provides that the Portuguese language is to be used in both written and oral procedural acts, but that where a person with no knowledge or command of Portuguese is required to take part in proceedings, an interpreter must be appointed.

13.Paragraph 10 of Article 113 (‘General rules on notification’) provides that notifications may be served on ‘arguidos’ via their lawyer or defender. That provision does not apply to notifications concerning the charge, the decision to commence a judicial investigation and notice of the date set for the trial and for judgment, and notifications concerning the application of coercive measures, of which the lawyer must also be notified.

Article 119 (‘Irremediable nullity’) establishes six circumstances of irremediable nullity which must be assessed ex proprio motu at any stage of the proceedings. (5)

14.Under paragraph 1 of Article 120 (‘Nullity dependent on challenge’), any nullity other than that referred to in Article 119 must be pleaded by the person concerned. Paragraph 2 of the article specifies the circumstances that constitute nullity which is dependent on challenge, which include ‘failure to appoint an interpreter, in cases where the law deems it mandatory’ (subparagraph (c)).

…

Article 120(3) establishes that, in those cases where nullity is dependent on challenge, it must be pleaded:

–in the event of the nullity of an act at which the person concerned is present, before that act is concluded (subparagraph (a));

–in the event of nullity in connection with a judicial investigation or preliminary judicial stage, before the end of the deliberation over the investigation or, where there is no preliminary judicial stage, within five days of notification of the order closing the investigation (subparagraph (c)).

Article 196 (‘Declaration of identity and residence’) provides that the judicial authority or criminal police body must require any individual under investigation to make a DIR. For notification purposes, individuals must state their residence, place of work or other address of their choice.

Article 196(3) establishes that the DIR must state that the ‘arguido’ has been informed:

–of the obligation to appear before the competent authority or to remain at that authority’s disposal where required by law or where the person has been duly notified;

–of the obligation not to change residence or to be absent from that residence for more than five days without notifying the new residence or the place where he or she may be located;

–that subsequent notifications will be effected by ordinary post to the address indicated, unless the person under investigation notifies another address by request delivered or sent by registered post to the registry of the court in which the proceedings are being heard at that time;

–that failure to comply with the provisions of the previous paragraphs will legitimise his or her representation by a lawyer in all the procedural acts in which he or she is entitled or required to participate in person, and the holding of the trial in his or her absence, in accordance with the terms of Article 333.

Article 495 (‘Failure to comply with the conditions of the suspension’) governs the procedures that may lead to revocation of the suspension of the sentence.

II. Facts, proceedings and question referred for a preliminary ruling

On 10 July 2019 an order was issued making TL, who does not understand or speak Portuguese, an ‘arguido’.

The decision was ‘drawn up in Portuguese and translated into Romanian, the official language of Moldova, as recorded in the order, which was signed by [TL]’.

On the same date the DIR was made; there was no Romanian interpreter present, and the document was not translated into that language.

TL was present in person at his trial, at which he was heard and was defended by his lawyer. At the trial he was also provided with an interpreter ‘appointed to translate the proceedings at the trial’.

By judgment of 11 July 2019, which became final on 26 September 2019, the Tribunal judicial da comarca de Beja (District Court, Beja, Portugal) sentenced TL to three years’ imprisonment, but suspended the sentence.

The Direção-Geral de Reinserção e Serviços Prisionais (Directorate-General of Rehabilitation and Prison Services, Portugal), tried unsuccessfully on a number of occasions to locate TL at the address given in the DIR.

On 7 January 2021 the sentencing court issued a summons for TL to appear for the purposes of verifying compliance with the conditions for the suspension of the sentence. On 12 January 2021 a summons was sent to him by registered post at the address given in the DIR. On 6 April 2021 a repeat summons was sent by the same method.

TL failed to appear in court on the date stated in the summonses.

On 9 June 2021 the Tribunal judicial da comarca de Beja (District Court, Beja) made an order revoking the suspension of TL’s sentence and ordering his arrest.

Notification of the revocation order, which was drafted in Portuguese without a Romanian translation, was sent on 25 June 2021 to the address given in the DIR and to TL’s lawyer. No appeal was lodged by the deadline, and the order therefore became final on 20 September 2021.

On 30 September 2021 TL was arrested for the purpose of serving his sentence. He has been held in detention since that date.

On 11 October 2021 TL appointed a new lawyer to assist him, and on 18 November 2021 he lodged an application for the annulment of the order making him an ‘arguido’, the DIR, the summons to appear for the purposes of clarifying the circumstances of the breach of the conditions for the suspension of the sentence, the attempts to notify him, and the order revoking the suspension.

In support of the application for the annulment of those acts, TL stated that he had not received the notifications because he had moved to another residence. He had not notified that fact because he was unaware of the requirement to do so, or of the consequences of the failure to comply, because the DIR had not been translated into Romanian.

The Public Prosecutor’s Office opposed the application for annulment, arguing that the defects complained of could, at most, result in the relative nullity provided for in Article 120 of the CPP, but that the acts had been notified to TL’s lawyer, who had not objected or appealed against them by the stipulated deadline.

By order of 20 November 2021 the sentencing court dismissed the application for annulment, arguing the following.

–The defects concerning the lack of an interpreter and failure to translate the DIR and the order revoking the suspension of TL’s sentence are defects that give rise to relative nullity, which may only be pleaded through the appeals established by law. Once the deadline for lodging an appeal has passed, the nullity is deemed to have been cured.

–TL attended the trial in person, was heard, and was defended by a lawyer. His right to take a position on every decision that might affect him personally was respected and could have been exercised by his lawyer. His lawyer received all the notifications of the procedural acts performed during the proceedings, in particular the judgment, the summons for the hearing to assess compliance with the conditions for suspending the sentence, and the order revoking the suspension.

–All the decisions which had been notified had acquired the force of res judicata because they had not been appealed, and consequently any procedural defect must be considered to have been cured.

TL lodged an appeal against the order with the Tribunal da Relação de Évora (Court of Appeal, Évora), which has referred the following question to the Court for a preliminary ruling:

‘Is it possible to interpret Articles 1 to 3 of [Directive 2010/64] and Article 3 of [Directive 2012/13] of the European Parliament and of the Council, alone or in conjunction with Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)], as meaning that they do not preclude a provision of national law which imposes a penalty of relative nullity, which must be pleaded, for failure to appoint an interpreter and to translate essential procedural documents for an accused person who does not understand the language of the proceedings, and which permits the rectification of that type of nullity owing to the passage of time?’

III. Proceedings before the Court of Justice

The request for a preliminary ruling was lodged with the Court on 6 April 2022.

On 12 May 2022 the Court granted the application for the reference to be dealt with under the urgent procedure.

Written observations were submitted by TL, the Portuguese Government and the European Commission. Only the latter two appeared at the hearing held on 27 June 2022.

Although TL applied for the annulment of other acts in the criminal proceedings, the three acts on which the referring court focuses its attention are: (a) the DIR; (b) the summons for TL to appear for the purposes of clarifying the circumstances surrounding breach of the conditions for suspending the sentence; and (c) the revocation of the suspension.

The request for a preliminary ruling is based on the following premises:

–the relevant provisions of Directives 2010/64 and 2012/13 apply to the proceedings, even though those directives have not been implemented in national law;

–the provisions relied on have ‘vertical direct effect’, since the rules are clear, precise, unconditional and confer rights on individuals;

–the three acts listed in point 40 can be considered to fall within the definition of ‘essential documents’ in criminal proceedings;

–the lack of an interpreter and the failure to translate the documents relating to those acts into Romanian gives rise to relative (rather than absolute) nullity, which falls within the types listed in Article 120 of the CPP;

–the question that arises is whether, as ruled by the court of first instance, the nullity prompted by the lack of interpretation and translation can be considered to be ‘covered’ by the fact that no appeal was lodged at the appropriate time against the procedural acts in question.

Article 2 of Directive 2010/64 governs the right to oral interpretation (of oral statements), while Article 3 thereof enshrines the right to written translation of certain essential documents.

Under Article 3(1)(d) of Directive 2012/13, suspects or accused persons must be provided promptly with information on both rights (to interpretation and to the translation of essential documents).

Both Article 1(2) of Directive 2010/64 and Article 2(1) of Directive 2012/13 set the start and end points of the period during which the directives are to apply to criminal proceedings:

–the start point is the point when a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he or she is suspected or accused of having committed a criminal offence;

–the end point is the point of the ‘conclusion of the proceedings, which is understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal’.

In this case it is relevant to consider the end point of the period during which Directives 2010/64 and 2012/13 apply, namely the conclusion of the proceedings, as defined above. It follows that the two directives do not apply during the stages following the judgment which brought the deliberation over the commission of the criminal offence to a close (with the exception, naturally, of any appeals against that judgment).

While the ‘enforcement of a final judgment delivered by a criminal court in respect of a person found guilty of a criminal offence’ forms part of criminal proceedings for other purposes,

it is not therefore subject to Directives 2010/64 and 2012/13. That is so even where measures are ordered during that phase which restrict the convicted person’s freedom, such as the measures in the present case or any measures adopted while a prison sentence is being served (for example, decisions to cancel release on temporary licence or to revoke authorisation to serve the sentence in an open prison, and similar decisions).

The Court has had occasion to define the confines of the scope of those two directives:

–Article 1(1) of Directive 2010/64 must be interpreted as meaning that the directive does not apply to a procedure which ‘takes place, by definition, after the final determination of whether the suspected or accused person committed the offence and, where applicable, after the sentencing of that person’; (13)

–it follows from Article 1 and Article 2(1) of Directive 2012/13 ‘that proceedings the purpose of which is not to determine a person’s criminal liability cannot come within the scope of Directive 2012/13’. (14)

The exclusion of the stages after sentencing is not an oversight but a conscious decision by the EU legislature, which declined to extend the rights recognised by the aforesaid directives to those stages.

Therefore, as far as the execution of the sentence passed after a guilty verdict is concerned, Directives 2010/64 and 2012/13 do not confer on convicted persons the same rights they confer on suspected or accused persons.

Consequently, any events in connection with the suspension of the sentence, which occur during the enforcement phase of the judgment (in other words, after judgment has been given), are not subject to those directives. For the purposes of revoking a suspension of the sentence, neither directive requires convicted persons to have the rights which the directives seek to protect.

2.In the main proceedings

As far as these proceedings are concerned, the DIR (which is the most controversial act, in that it sowed the seed for what happened during the suspended sentence phase) took place prior to the trial and the guilty verdict.

The purpose of the DIR is not ‘to determine a person’s criminal liability’, since it is a procedure which records the identity and residence of the ‘arguido’ for the purpose of subsequent notifications. By the same token, there is no reason why the DIR should influence the decision on whether or not that individual has committed the offences of which he or she is accused.

However, the DIR can have consequences for individuals who are required to make that declaration, (15) the effects of which also apply where the accused is tried in absentia (which is permitted under Article 196(3)(d) of the CPP in the event of failure to comply with the obligations in the DIR) and where the suspension of the sentence is revoked, which is what happened here. (16)

In the present case, the revocation of the suspension of TL’s sentence is inextricably linked to the defects in the DIR: the two must be considered together if one’s view of what happened during the criminal proceedings is not to be distorted. (17)

Given the situation, and bearing in mind the repercussions which the DIR has on subsequent procedural steps, it is logical for the referring court to emphasise its importance and to class it as an essential document. A translation of the document is essential to ensuring that suspected or accused persons who do not speak or understand the language of the criminal proceedings are able to exercise in full their right of defence and to ensuring a fair trial (Articles 47 and 48 of the Charter of Fundamental Rights of the European Union; ‘the Charter’).

To summarise, I consider that:

–in principle, Article 1(2) of Directive 2010/64 and Article 2(1) of Directive 2012/13 do not apply to procedural acts which take place during execution of the judgment and whose purpose is to revoke the decision to suspend a custodial sentence;

–however, the aforesaid provisions will apply where those procedural acts stem from the breach of an obligation imposed in the DIR (during the pre-judgment phase) and the ‘arguido’ could not know the consequences of such a breach, because he or she did not understand the language in which the DIR was performed and was not provided with a translation of its contents.

Direct effect of Directives 2010/64 and 2012/13

The referring court takes it for granted that Articles 2(1) and 3(1) of Directive 2010/64 and Article 3(1)(d) of Directive 2012/13 have direct effect.

I share that view, since those provisions contain precise, unconditional statements addressed to Member States, whose authorities, in particular their judicial authorities, are required to ensure respect for the rights they confer.

Those articles therefore have direct effect, meaning that they can be relied on by individuals before national courts.

Article 3 of Directive 2010/64 refers specifically to three types of essential document (namely, ‘any decision depriving a person of his liberty, any charge or indictment, and any judgment’ (paragraph 2)), (18) but leaves the door open for competent authorities to decide ‘in any given case, … whether any other document is essential’ (paragraph 3). (19)

In view of the way in which it is configured, in my view Article 3 of Directive 2010/64 is also a precise and unconditional precept, even though it does not contain a closed list of essential documents, and other documents can be deemed essential, depending on the assessment made by the judicial authority. All suspected or accused persons are entitled to a translation of all such documents, regardless of which paragraph of Article 3 of the directive they fall under.

Breach of the rights to interpretation and translation and to information about those two rights

63.The referring court accepts – as did the court of first instance – that TL’s right to interpretation and translation of essential documents under Directive 2010/64 were infringed in this case.

64.However, the order for reference pays less attention to a possible infringement of the right to information enshrined in Directive 2012/13, despite making express reference to it.

65.I shall address those two groups of infringements separately.

Rights to interpretation and translation

66.The finding by the court of first instance and the referring court that those rights were infringed makes any further comment by me on this point unnecessary.

With regard to translation, the ‘essential documents’ in the criminal proceedings must be provided to suspected or accused persons, together with a version in the language they understand. As Directive 2010/64 ‘does not contain any reference to national laws, [it] must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union’.

I have already said that there is no reason why the referring court should not declare the DIR to be an essential document in these proceedings.

With regard to oral interpretation, accused persons who do not understand or are not competent in the language of the procedure in which they are required to provide a DIR must be provided with an interpreter to enable them to understand what it means.

The legislation raises no further problems of interpretation and, in fact, the appointment of an interpreter for the DIR is required not only under Directive 2010/64, but also under national law (Article 92 of the CPP). Subject to confirmation by the referring court, Portuguese procedural legislation governing interpretation in all procedural acts protects that right, which is available to anyone who does not know Portuguese. Whether or not the right recognised in domestic law is respected in practice in proceedings is another question.

71.Although the referring court pays less attention to information about the rights to interpretation and translation in a language understood by the accused or suspected person, we need to examine how it applies in the present case.

The right to information is directly related to the rules in Directive 2010/64. The aim of that directive is, in turn, ‘to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial’.

73.The right of all suspects or accused persons to be informed of the rights to interpretation and translation is enshrined in Article 3(1)(d) of Directive 2012/13.

In my view, Portuguese criminal procedural legislation provides for that right to information to be respected, if Article 61(1)(h) of the CPP is applied correctly. Again, any failures in operation are not the fault of the law itself, but of the way in which it is applied in practice.

Since Article 61(1)(h) of the CPP confers on ‘arguidos’ the right to be informed of their rights by the judicial authority or criminal police body before which they are required to appear, when interpreted in accordance with Directive 2012/13 it must lead those authorities to inform those persons that they will be provided with interpretation and translation in accordance with the terms of Directive 2010/64.

While it is for the referring court to make such a finding, all the indications are that, in the present case, that right to information was ignored from the point when the DIR was performed without a Romanian interpreter. The lack of an interpreter therefore meant that TL was unaware of the rights available to him in that judicial act.

Nullity inherent in the breach of the rights conferred by Directives 2010/64 and 2012/13

77.Directives 2010/64 and 2012/13 do not contain any rule requiring that the breach of the rights which they confer must inevitably result in a declaration of absolute nullity of the criminal procedural acts which breached those rights.

78.According to settled case-law of the Court, ‘in the absence of EU rules on the matter, it is for the national legal order of each Member State, in accordance with the principle of procedural autonomy, to establish procedural rules for actions intended to safeguard the rights that individuals derive from EU law, provided, however, that those rules are no less favourable than the rules governing similar situations subject to domestic law (the principle of equivalence) and do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness)’.

79.In the present case, what is important therefore is that national rules ensure that accused and suspected persons are able to react in law to the breach of the rights enshrined in Directives 2010/64 and 2012/13, in order that those rights prevail.

80.According to the order for reference, under the CPP, infringement of those rights gives rise to the (relative) nullity of the procedural acts concerned, which must be pleaded by the interested parties.

81.In particular, under Article 120(2)(c) of the CPP, relative nullity is the sanction established for failure to appoint an interpreter where required to do so by law (in this case, the directive). As I have argued in connection with another provision of the CPP, that same sanction should apply to failure to provide a translation of an essential document in the proceedings.

* * *

ECLI:EU:C:2022:140

15

In the abstract, the criminal procedural regime established by Articles 119 and 120 of the CPP is, in my view, unobjectionable from the perspective of EU law. Under the principle of procedural autonomy, Member States may restrict the application of ‘irremediable nullity’ to cases arising from certain defects, and provide for other defects to give rise to ‘nullity dependent on challenge’, provided that the principles of equivalence and effectiveness are preserved.

As far as those two principles are concerned:

–Articles 119 and 120 of the CPP apply irrespective of whether the defects in the procedural act arise from infringement of a domestic law or EU law; therefore, infringement of the principle of equivalence can be ruled out;

–as a general rule, there is nothing to prevent a declaration of nullity from being conditional on the act being challenged by the interested party. However, for such a challenge to be possible (that is, in order to respect the principle of effectiveness), it is essential that the interested party is aware, with sufficient certainty, of the content of that act, in so far as it may be detrimental to his or her interests.

Where accused or suspected persons are not in a position to understand the meaning of the procedural act in question and its implications, because they do not understand the language of the criminal proceedings, the scope for mounting an effective challenge in order to enforce its (relative) nullity is illusory.

It follows that, as a rule, the principle of effectiveness is not satisfied by a rule of national law (in this case, Article 120 of the CPP) which imposes a limitation period on bringing a challenge to an act vitiated by nullity where the individual affected by the act cannot understand its content, because it has not been interpreted or translated into a language in which he or she is competent.

In that case, in order for the right to interpretation and translation protected by Directive 2010/64 and the right to information guaranteed by Directive 2012/13 to be effective, it is essential that the period for challenging the act vitiated by nullity begin to run from the point when the interested party becomes fully aware of its content, in a language which he or she understands. (26)

Otherwise there would be a breach of Article 6 ECHR, alluded to by the referring court, and of Articles 47 and 48 of the Charter, which enshrine the right to a fair trial and respect for the accused person’s right of defence. (27)

Although, as worded, the question from the referring court restricts itself to the issue of determining whether Directives 2010/64 and 2012/13 are incompatible with a provision of national law which imposes a penalty of relative nullity for failure to provide interpretation and translation of essential procedural acts, other factors were highlighted during the proceedings and at the hearing which may be relevant in providing the referring court with a helpful response.

The first factor is that, as indicated in the order for reference, TL was assisted by a lawyer, who was notified of the key decisions (including the order revoking the suspension of the sentence), and who did not appeal against them. (28)

It is true that TL’s lawyer could have challenged any of those decisions within the relevant time period and argued that they were void because the client could not know what obligations he was accepting by making the DIR, precisely because there was no interpreter and the documents were not translated.

The involvement of a lawyer is provided for by Article 8(2) of Directive 2012/13 in particular: suspects or accused persons or their lawyers have ‘the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information’ on their right to interpretation and translation.

The right of challenge is therefore granted not only to suspects or accused persons but also to their lawyers, in accordance with national law. While the interpretation of that law is a matter for the referring court, all the indications are that it is consistent with the relevant provision of Directive 2012/13.

The second factor, which is linked to the first, is that no appeal was lodged against procedural measures which were burdensome for TL (in particular, the order revoking the suspension of the sentence), in spite of the fact that they were clearly void, because of the passive attitude of his lawyer. (29)

In that respect, I should point out that, irrespective of the existence of legal representation, it is for the judicial authority to ensure that suspected or accused persons (in this case, the ‘arguido’) receive appropriate information on their right to interpretation and translation. The right to that information derives directly from Article 3 of Directive 2012/13, is enshrined in Article 61 of the CPP, and is conferred on accused or suspected persons as interested parties, that is to say, irrespective of whether or not they are assisted by a lawyer.

Therefore, where interested parties are assisted by a lawyer, this does not excuse the judicial authorities, or the police authorities, as the case may be, from informing them of their right to receive a translation of documents essential to the criminal proceedings and to have oral statements interpreted into a language they understand. (30)

In the event that the Portuguese criminal procedural system does not contain mechanisms for the review (31) of acts vitiated by relative nullity which have acquired the force of res judicata, it is for the referring court to determine whether it would still be possible to reconsider a void decision such as the one at issue here, so that the outcome is once again compliant with EU law. (32)

Without wishing to supplant that court’s assessment, I wonder whether the revocation of the suspension of a custodial sentence does actually have the force of res judicata, or whether it can instead be amended in pursuit of the principles which underpinned the conditional suspension of the sentence.

In general, those principles stem from a desire to restrict the criminal law response to certain offences where there is a reasonable expectation of future rehabilitation and the convicted person is unlikely to re-offend. The courts have – again, in general – broad powers to determine, having regard to changing circumstances, whether it is appropriate to suspend the sentence at any given time, without necessarily being bound by previous decisions taken in the light of the relevant factors at the time.

Therefore, in order to determine whether the fact that the operating resources, namely the buses, were not transferred precludes the classification as a transfer of an undertaking, the referring court must take account of the particular circumstances of the case before it.

From that perspective, I do not believe there would be anything to prevent the same court, which, without hearing the interested party, proceeded to revoke the suspension of his sentence, from subsequently deciding, on application by the interested party and after hearing his explanation for his failure to comply with the DIR, to suspend the prison sentence once again.

In taking that action, in spite of the difference in circumstances, the court which suspended the sentence could draw on the criteria in Directive (EU) 2016/343 (33) which govern the reopening of criminal proceedings where the convicted person has been tried in absentia. (34)

It is true that the right to be present at the trial provided for in Directive 2016/343 does not apply to the suspension of a sentence (which, by definition, occurs after the trial). However, where, as in this case, the procedural decision at issue entails the deprivation of liberty and, through no fault of his own, the interested party was unaware of his right to be heard before the decision was taken, (35) I consider that Directive 2016/343 provides criteria which can be extrapolated to this case by analogy.

If those criteria are applied, then where individuals have, for reasons beyond their control (namely because they did not understand the language of the proceedings, were not provided with translation and interpretation, and were therefore unaware of the obligations imposed by the DIR), failed to attend the hearing concerning revocation of the suspension of their sentence, after the hearing has taken place and once they have been located, they must be informed of the action taken in their absence. After that, they can decide either that they will not call the lawfulness of that act into question in reliance on their non-appearance, or that they want the act to be repeated so that they can participate in it. (36)

Those considerations demonstrate that the protection which, in the interests of legal certainty, is provided by the irreversible nature of res judicata does not, in my view, apply to judicial decisions, such as the one under consideration here, which are taken in the absence of the interested party where, through no fault of that person, he or she was unaware of the obligation (not to change residence) whose breach resulted in imprisonment.

If, notwithstanding those observations, the referring court continues to maintain that the judicial decisions at issue have the force of res judicata, then it would have to determine to what extent res judicata is an insurmountable obstacle to the application of the rules of EU law, which that court had itself recognised as having been infringed.

Under the case-law of the Court of Justice, the treatment of res judicata as a restriction on the primacy of the application of EU law has not yet, in my opinion, become sufficiently well-established to dispel all the uncertainties which arise from that legal mechanism, in cases where national judicial decisions are contrary to EU law. (37)

In its initial consideration of the issue, the Court has accepted that res judicata, which is a corollary of the principle of legal certainty, can prevail over other considerations concerning the breach of EU laws, meaning that judicial decisions which have become final because they have not been challenged within the statutory time period cannot subsequently be questioned. (38)

As from the judgment in Lucchini, (39) the Court has, however, provided greater clarity and has introduced exceptions to the absolute supremacy of res judicata, applying to that concept the principles of equivalence and effectiveness which govern the interaction between EU law and laws adopted by Member States in accordance with their procedural autonomy. (40)

Recent judgments of the Court (41) have extended the scope of the exceptions to the irreversible nature of national judicial decisions which have acquired the force of res judicata; in so doing they have relied, precisely, on the principle of effectiveness to solve the problem of the failure to apply the rules of EU law. (42)

With regard to the principle of effectiveness, the case-law of the Court requires national laws to be analysed by reference to the position they occupy in the proceedings as a whole. Account ‘must be taken, where appropriate, of the principles which form the basis of the national judicial system concerned, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings’. (43)

In situations such as the present one, in which the breach of EU law entails, in turn, the breach of Article 47 and Article 48(2) of the Charter, which enshrine the right to a fair trial and respect for the accused person’s right of defence, national courts must ensure that those rights are not rendered devoid of substance and must find a procedural solution within their own legal order which gives effect to them.

At the hearing, the Portuguese Government stressed that such a solution can be found in the CPP, which authorises the sentencing court to reconsider the revocation of the suspension of the sentence, even where no appeal was lodged within the time allowed.

In the light of the above, I suggest that the Court should reply to the Tribunal da Relação de Évora (Court of Appeal, Évora, Portugal) as follows:

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings:

– do not apply to procedural steps taken after the final determination of the question whether the suspected or accused person has committed the offence for which he or she is being tried;

– do, however, apply to procedural steps taken prior to that final determination which breach the rights in question, and to any consequences which those steps have for subsequent acts;

– do not preclude a provision of national law which imposes a penalty of relative nullity, which is dependent on challenge, for failure to appoint an interpreter and to translate essential procedural documents for an accused or suspected person who does not understand the language of the proceedings, provided that: (a) the reasonable period of time allowed in which to challenge the void act begins to run from the point when that person has been informed, in a language which he or she understands, of his or her right to interpretation and translation; and (b) Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, which enshrine the right to a fair trial and respect for the accused person’s right of defence, are respected.

* * *

(1) Original language: Spanish.

Directive of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1).

Directive 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).

Code of Criminal Procedure, DL No 78/87 of 17 February 1987 (‘the CPP’).

Those circumstances, to which are added other cases established by other legal provisions, are: (a) failure to have the correct number of judges or jurors, or breach of the legal rules on determining the composition of the bench or jury; (b) failure on the part of the Public Prosecutor’s Office to proceed with the case, within the terms of Article 48, or failure of the prosecution to appear in acts where its appearance is required; (c) absence of the accused or of the defence counsel, where either is required by law to appear; (d) failure to conduct an investigation or preliminary judicial stage, where one is required by law; (e) breach of the rules of jurisdiction, without prejudice to Article 32(2); (f) use of the special procedure other than as provided for by law.

Order for reference, Section II.III. A few lines further down the same section, it is recorded that no interpreter was appointed to assist the ‘arguido’ in that act or in the DIR.

Section I.II of the order for reference.

Specifically, the order making him an ‘arguido’ and the summonses to appear (see point 32 of this Opinion).

The same approach was adopted by the court of first instance, which considered that TL had relied on the nullity of the DIR, the notification given, in Portuguese, pursuant to Article 495(2) of the CPP, and the order revoking the suspension of the sentence.

According to the order for reference, the two directives were not formally implemented as such in Portuguese law by the deadline for implementation. The Commission states (footnote 3 to its written observations) that in 2021 it commenced infringement proceedings against Portugal for failing to implement the two directives correctly. The Portuguese Government contended at the hearing that the way in which the rules of the CPP are applied in practice is consistent with the content of Directives 2010/64 and 2012/13.

Judgment of 15 October 2015, Covaci (C‑216/14, EU:C:2015:686, paragraph 30).

In support of the opposing viewpoint, the Commission cites paragraphs 54 and 55 of the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices, Lübeck and Zwickau) (C‑508/18, EU:C:2019:456), concerning arrest warrants and surrender. Paragraph 54 of the judgment states that the word ‘“proceedings”, … which should be understood in a broad sense, is capable of encompassing the entirety of criminal proceedings, namely the pre-trial phase, the trial itself and the enforcement of a final judgment delivered by a criminal court in respect of a person found guilty of a criminal offence’.

Judgment of 9 June 2016, Balogh (C‑25/15, EU:C:2016:423, paragraph 37); italics added.

Judgment of 16 December 2021, AB and Others (Revocation of an amnesty) (C‑203/20, EU:C:2021:1016, paragraph 70).

In the CPP, the DIR is included within the ‘coercive measures’.

In the event of a guilty verdict, the DIR continues to have effect until the extinction of the sentence.

A similar connection between procedural acts can be found in the judgment of 12 October 2017, Sleutjes (C‑278/16, EU:C:2017:757, paragraphs 30 and 31).

In line with the comments made in points 44 to 50 of this Opinion, I consider that a decision ‘depriving a person of his liberty’ must be interpreted in this context as meaning any decision issued before the judgment, but not decisions issued in execution of the judgment. Otherwise it would go beyond the scope of Directive 2010/64.

Judgment of 15 October 2015, Covaci (C‑216/14, EU:C:2015:686, paragraph 50): ‘it is therefore for the referring court, taking into account in particular the characteristics of the procedure applicable to the penalty order concerned in the main proceedings, … and of the case brought before it, to establish whether the objection lodged in writing against a penalty order should be considered to be an essential document, the translation of which is necessary’.

Judgment of 3 September 2014, Deckmyn and Vrijheidsfonds (C‑201/13, EU:C:2014:2132, paragraph 15).

22(Recital 25 of Directive 2012/13.)

23(Recital 14 of Directive 2010/64. In the list of procedural rights set out in Article 3(1) of Directive 2012/13, which are cumulative, the rights to interpretation and translation play a key role: without them, information on the other rights may be rendered ineffective.)

24(Those principles are set out in paragraphs 41 to 44 of the judgment of 2 March 2021, Prokuratuur (Conditions of access to data relating to electronic communications) (C‑746/18, EU:C:2021:152), and endorsed in the judgment of 5 April 2022, Commissioner of An Garda Síochána and Others (C‑140/20, EU:C:2022:258), paragraph 127. Both judgments addressed the admissibility of certain evidence obtained in criminal proceedings in contravention of EU rules. The case-law can be applied, mutatis mutandis, to other infringements of provisions of EU law applicable to criminal proceedings.)

25(See footnote 21 to this Opinion. The Commission shares this view (paragraph 31 of its written observations), adding that ‘the referring court seems to start from the principle that this provision (Article 120(2)(c) of the CPP) can be applied, by analogy, to the lack of translation’.)

26(At the hearing, the Portuguese Government not only affirmed that this is permitted by the CPP, but also stated that, where the courts consider that there has been an infringement of the type which occurred here, they must take the appropriate steps to rectify any defects.)

27(Recital 5 of Directive 2010/64 states that ‘this Directive respects those rights and should be implemented accordingly’.)

28(At the hearing, however, both the Commission and the Portuguese Government stated that no assistance was provided by a lawyer at the DIR. The referring court will need to verify this point.)

29(The European Court of Human Rights considers that, under Article 6(3)(c) ECHR, an accused person is entitled to legal assistance which is practical and effective and not theoretical or illusory. Legal assistance cannot be considered to be effective where the lawyer who has been appointed fails to fulfil his or her obligations. See the judgment of the ECtHR of 26 July 2011, Huseyn and Others v. Azerbaijan (CE:ECHR:2011:0726JUD003548505), § 180.)

30(The Portuguese Government remarked at the hearing that the intervention of a lawyer does not replace the need, established in Article 63(1) of the CPP, for suspected or accused persons to be informed of certain procedural acts in person, in a way they can understand.)

31(By which I mean an extraordinary remedy which, in some legal systems, permits procedural acts which have become final to be challenged on specified grounds.)

32(The Portuguese Government argued at the hearing that the sentencing court has such a power, even where an appeal has not been lodged within the time allowed.)

33(Directive of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).)

34(See the judgment of 19 May 2022, Spetsializirana prokuratura (Trial of an absconded suspect) (C‑688/18, EU:C.2022:401), on the application of Directive 2016/343 to persons convicted in absentia.)

35(Article 495(2) of the CPP requires the convicted person to be heard during the procedure for deciding whether the conditions for suspending the sentence have been met.)

36(This is the situation which arose in the case under consideration in the judgment of 13 February 2020, Spetsializirana prokuratura (Hearing in the absence of the accused person) (C‑688/18, EU:C:2020:94), paragraph 49.)

37(See Turmo, A., ‘National res judicata in the European Union: Revisiting the tension between the temptation of effectiveness and the acknowledgement of domestic procedural law’, Common Market Law Review, 2021, Vol. 58, No 2, pp. 361 to 390.)

38(The Court has noted ‘the importance, both in the legal order of the European Union and in national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that decisions of courts or tribunals which have become definitive … after expiry of the time limits provided for in that connection can no longer be called into question’. Judgment of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662), paragraph 28.)

39(Judgment of 18 July 2007 (C‑119/05, EU:C:2007:434), paragraph 63): EU law ‘precludes the application of a provision of national law, such as Article 2909 of the Italian Civil Code, which seeks to lay down the principle of res judicata in so far as the application of that provision prevents the recovery of State aid granted in breach of [EU] law which has been found to be incompatible with the common market in a decision of the Commission which has become final’.)

40(Judgment of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067), paragraph 54): ‘in the absence of EU legislation in this area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States, but must be consistent with the principles of equivalence and effectiveness’.)

41(Judgments of 2 April 2020, CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18)

EU:C:2020:260

paragraphs 95 and 96); of 17 May 2022, MA (C‑600/19, EU:C:2022:394); of 17 May 2022, SPV Project 1503 and Others (C‑693/19, EU:C:2022:395); of 17 May 2022, Impuls Leasing România (C‑725/19, EU:C:2022:396); and of 17 May 2022, Unicaja Banco (C‑869/19, EU:C:2022:397).

Problems do not usually arise over the principle of equivalence; the force of <span class="coj-italic">res judicata</span> applies irrespective of whether national or EU law is being applied, thus excluding the possibility of breach of that principle.

Judgment of 6 October 2015, Târșia (C‑69/14, EU:C:2015:662, paragraphs 36 and 37). Italics added.