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Imagine sitting at a police station. Your lawyer has been notified, but has not arrived. The officers wait for an hour, then an hour and a half. After that, questioning begins anyway. This was essentially how the rules in Hungary and the Czech Republic were structured. The Court of Justice of the European Union (EuGH) has now put a stop to this practice.
Two hours in Hungary, 48 in the Czech Republic: The clock is ticking against the suspect
In Hungary, the police were permitted to question a suspect if their lawyer failed to appear within two hours of being notified. In the Czech Republic, the period was 48 hours. There, it was even sufficient if the lawyer could not be reached at all. The European Commission considered both arrangements incompatible with EU law and brought proceedings before the Court. The judges have now fully upheld the Commission’s position.
Having a lawyer means that the lawyer is actually present
The right to a lawyer means more than a telephone call or a message in an inbox. Anyone suspected of an offence must actually have access to legal assistance during questioning. As a rule, this means the lawyer must be physically present and have a genuine opportunity to intervene. A mere time limit is not sufficient.
The 2013 EU Directive permits exceptions, for example where action is required to avert a serious risk to life or physical integrity. However, these exceptions are narrowly defined. They must be justified on a case-by-case basis and subject to judicial review. A blanket rule stating that “questioning may begin after two hours regardless” does not fall within these exceptions.
Waiving the right is not a blank cheque
The Hungarian case also raised a second issue. In Hungary, the right to a lawyer is regarded as non-waivable. Nevertheless, it was effectively circumvented when suspects simply failed to insist on exercising that right. The Court considers this to be a waiver through the back door.
Anyone wishing to waive the right must first understand what they are giving up and the consequences of doing so. The decision must be voluntary and unequivocal, documented, and capable of being revoked at any time. These safeguards were absent in Hungary, which is why the Court also found a violation on this point.
And Germany? There is no ticking clock here
Germany has no blanket waiting period. Anyone suspected of an offence may appoint a defence lawyer at any time. Suspects must be informed of this right before their first questioning. During police questioning, defence counsel may be present and will generally be notified in advance. However, there is no legal entitlement to have the questioning postponed because the lawyer is unavailable.
Two hours do not constitute a defence
Starting an interrogation after two hours does not mean that the lawyer has been forgotten. It means that the lawyer has been treated as an obstacle from the outset. It is a positive development that the EuGH has now made this clear in black and white. The troubling part is that legal proceedings were necessary to establish it.
A state governed by the rule of law that treats the defence as a matter of timing has failed to understand the meaning of the word “fair”.
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