The CJEU finds that Hungary and the Czech Republic breached the right to a lawyer through rules that generally allowed suspects to be questioned without legal counsel
Always see our news on Google
The unavailability of a lawyer and national time limits do not automatically justify questioning without legal assistance. The judgments allow solutions such as appointing another lawyer and, in exceptional circumstances, digital participation. Hungary also breached the safeguards concerning waiving the right to a lawyer.
On Thursday, 22 October 2026, the Court of Justice of the European Union found that Hungary and Czechia had breached European law through rules that generally allowed suspects to be questioned without a lawyer when counsel was unavailable within the time limits laid down by national legislation. The CJEU fully upheld the actions brought by the European Commission: the mere expiry of a time limit or the impossibility of contacting a lawyer, in themselves, do not justify restricting the right of defence.
In brief
The CJEU fully upheld the Commission’s actions against Hungary and Czechia. The unavailability of a lawyer or the expiry of national time limits does not automatically justify questioning without counsel.
In Hungary, a postponement of at least two hours after the lawyer had been informed was provided for. In Czechia, the 48-hour period concerned detention and appearance before a court, not a mandatory waiting period before questioning.
The lawyer must be present and participate effectively, in principle in person. Digital means remain possible in exceptional circumstances, provided that they fully ensure the right of defence.
Authorities may appoint another available lawyer. Questioning without a lawyer requires a valid waiver, where permitted, or an exceptional derogation, individually reasoned and subject to judicial review.
Hungary also breached its obligations concerning waiver of the right to a lawyer: clear information, a voluntary decision, recording, and the possibility of revocation. The Court assessed the situation in 2023, without taking into account the Hungarian amendment of December 2024.
The judgments impose no fines and do not automatically annul previous questioning or convictions. The states must comply, and individual breaches must be capable of being effectively challenged. There is no finding against Romania.
The Hungarian rules examined by the Court provided for questioning to be postponed for at least two hours after the lawyer had been informed, but allowed it to begin if the lawyer did not appear. In Czechia, the possibility of questioning without a lawyer was linked to counsel’s unavailability during the 48-hour period following detention. This period concerned bringing the suspect before a court to request detention or release; it was not a mandatory waiting period before interrogation.
The judges emphasised that the right of access to a lawyer entails the lawyer’s presence and effective participation in the questioning, not merely the suspect’s ability to contact one. Presence must, in principle, be in person. In exceptional circumstances, it may also be ensured by other means, including digital means, if these guarantee the full and effective exercise of the right of defence.
The absence of the chosen lawyer does not require the authorities to wait indefinitely, nor does it allow them to automatically continue without legal assistance. The Court points to the possibility of appointing another available lawyer. Questioning without a lawyer may take place if the person validly waives that right, where defence is not mandatory, or if the strict conditions for a temporary derogation are met. However, the appointment of a lawyer does not mean that assistance must be free of charge in every situation; state-funded legal aid is subject to its own conditions.
Derogations allowing questioning without a lawyer are reserved for exceptional circumstances before trial: an emergency to protect a person’s life, liberty or physical integrity, or an overriding need to act immediately to prevent serious jeopardising of the criminal proceedings. The decision must be reasoned in relation to the specific case, recorded, and subject to judicial review. The restriction must be proportionate, strictly limited in time, and must not affect the fairness of the proceedings.
In Hungary’s case, the CJEU also found that the safeguards concerning waiver of the right to a lawyer had not been transposed. Even though the right was regarded as inalienable under national legislation, the suspect’s decision not to exercise it had, in practice, the effect of a waiver. The person must receive clear information about the right and the consequences of waiving it, decide voluntarily and unequivocally, and have the choice and the circumstances surrounding it recorded. The waiver may subsequently be revoked, with effect for the future, and the person must be informed of this possibility.
The finding concerning Hungary relates to the legal situation at the expiry of the deadline set by the Commission in the pre-litigation procedure, in 2023. The Court did not take into account the legislative amendment published in December 2024, as it was subsequent to that point. The judgment therefore does not constitute a complete assessment of all Hungarian rules currently in force.
The two decisions are judgments against states for failure to comply with European obligations, not rulings in individual criminal proceedings. They do not automatically annul previous questioning, evidence or convictions. However, the Directive requires an effective remedy in cases of breaches of rights and respect for the defence and fairness of the proceedings when statements and evidence obtained without respect for the right to a lawyer are assessed.
Hungary and Czechia must comply with the judgments without delay. The Court ordered them to pay the Commission’s legal costs, without imposing fines in these cases; any failure to comply may lead to a new action in which the Commission seeks financial penalties. The interpretation of the Directive is also relevant to Romania, to which the same European safeguards apply, but the judgments do not find any breach by the Romanian authorities.
Latest News
14:49
14:47
14:40
14:32
14:28
See more news
NEWS ON THE SAME TOPICS
