2) Nowadays, the right of access to a lawyer (also referred to in some jurisdictions as the right to counsel) in criminal proceedings is considered a key component of the rights of the defence and, more broadly, of the right to a fair trial. ( 4 ) It is, inter alia, enshrined in Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union (‘the Charter’), in Article 6(3)(c) of the European Convention on Human Rights (‘the ECHR’), and in Article 14(3)(b) of the International Covenant on Civil and Political Rights. ( 5 )

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4) Recitals 12, 19 and 38 of Directive 2013/48 read:

‘(12) This Directive lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant … In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the [ECtHR], which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer. That case-law provides, inter alia, that the fairness of proceedings requires that a suspect or accused person be able to obtain the whole range of services specifically associated with legal assistance. In that regard, the lawyers of suspects or accused persons should be able to secure without restriction, the fundamental aspects of the defence.

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(19) Member States should ensure that suspects or accused persons have the right of access to a lawyer without undue delay in accordance with this Directive. …

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(38) Member States should clearly set out in their national law the grounds and criteria for any temporary derogations from the rights granted under this Directive, and they should make restricted use of those temporary derogations. Any such temporary derogations should be proportional, should be strictly limited in time, should not be based exclusively on the type or the seriousness of the alleged offence, and should not prejudice the overall fairness of the proceedings. …’

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17) The referring court harbours doubts as to the compatibility of those national provisions, as interpreted by the national courts, with Article 3(2) of Directive 2013/48 and Article 47 of the Charter. The Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona) therefore decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 47 of the [Charter] and, in particular, Article 3(2) of [Directive 2013/48] be interpreted as meaning that the right of access to a lawyer may justifiably be delayed where the suspect or accused fails to appear when first summoned by the court and a national, European or international arrest warrant is issued, and that the assistance of a lawyer and the entering of an appearance by the lawyer in the proceedings may be delayed until the warrant is executed and the suspect is brought to court by the police?’

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19) By its question, the referring court essentially asks whether Directive 2013/48, and in particular Article 3(2) thereof, interpreted in the light of Article 47 of the Charter, precludes a national provision or judicial practice interpreting that provision according to which, where the suspect fails to appear when first summoned by the court and a national arrest warrant is issued, the right of access to a lawyer may be delayed until the warrant is executed and the suspect appears before the court.

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46) As to the structural question raised by the Spanish Government, it is unlikely that the list contained in Article 3(3) of Directive 2013/48 captures in a closed and exhaustive manner all the elements of the concept of the right of access to a lawyer. As stated in the recitals to Directive 2013/48, suspects and accused persons must, in principle, be able ‘to obtain the whole range of services specifically associated with legal assistance’ (recital 12) and ‘freely to contact, consult and be assisted by a lawyer’ (recital 27). In turn, their lawyers ‘should be able to secure without restriction, the fundamental aspects of the defence’ (recital 12). ( 18 ) These terms clearly reflect what is provided for in the second paragraph of Article 47 of the Charter, according to which ‘everyone shall have the possibility of being advised, defended and represented’. ( 19 )

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48) In addition, the interpretation of Directive 2013/48 put forward by the Spanish Government would be at variance with the case-law of the ECtHR. That court has consistently stated that the fact that a defendant, in spite of having been properly summoned, does not appear in court, cannot, even in the absence of an excuse, justify depriving him of his right to be defended by counsel. ( 20 ) Such an interpretation would, therefore, not only contravene the general minimal guarantee provided for in Article 52(3) of the Charter, but would also go against the will of the EU legislature as specifically expressed by the legal instrument in question. According to recital 12, Directive 2013/48 ‘build[s] upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the [ECtHR], which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer’.

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61) In my view, such logic would be inconsistent not only with the provisions of the directive analysed above, but also with the rights enshrined in Articles 47 and 48 of the Charter (the right to an effective remedy and to a fair trial, and the presumption of innocence and the rights of the defence, respectively). ( 25 ) I am certainly not denying the general traction of the moral principle ‘no cookies for the bad guys’. The issue is rather that the supply of the specific cookie in question in the present case is, by virtue of the rather clear wording of Article 3(2) of the directive and the Charter rights just mentioned, non-negotiable.

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66) I propose that the Court answer the question referred for a preliminary ruling by the Juzgado de Instrucción No 4 de Badalona (Court of Preliminary Investigation No 4, Badalona, Spain) as follows:

• Article 3(2) of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, interpreted in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, precludes a national provision or judicial practice according to which, where the suspect fails to appear when first summoned by the court and a national arrest warrant is issued, the right of access to a lawyer may be delayed until the warrant is executed and the suspect appears before the court.