CJEU strikes down police interrogations without a lawyer in Hungary and Czechia: a waiting deadline cannot replace counsel's presence

The Court of Justice of the European Union has declared unlawful the Hungarian and Czech systems that allowed suspects to be questioned without a lawyer whenever the appointed counsel failed to appear within a fixed window: two hours in Hungary, 48 hours in Czechia. In two judgments of 22 October 2026, cases C-660/24 (Commission v Hungary) and C-681/24 (Commission v Czech Republic), the Court upheld in full the infringement actions brought by the European Commission.

Although the cases concern two other Member States, the doctrine matters directly to Spanish practitioners: it spells out precisely what Directive 2013/48/EU requires on the right of access to a lawyer in criminal proceedings, the same instrument behind the legal assistance guarantees applied in every Spanish police station.

What the judgments actually say

The starting point is Article 3 of Directive 2013/48/EU: suspects and accused persons have the right to be assisted by a lawyer at the time and in the manner that allows them to exercise their defence rights "practically and effectively". The CJEU recalls that this right includes counsel being "present and participating effectively" during questioning, which means, in principle, physical presence, not mere telephone availability or a token wait. The judgment puts it in the Directive's own terms: physical presence is the rule, and derogation is possible only under the exceptions exhaustively laid down in the Directive itself.

The second pillar is the exhaustive nature of the exceptions. The Directive lists exhaustively the grounds for temporary derogations from legal assistance, such as an urgent need to avert serious danger to life or physical integrity. The Hungarian and Czech rules could not rely on those exceptions because they allowed questioning without a lawyer "as a general rule", turning the waiting window into ordinary practice rather than a justified exception.

In the Hungarian case, the Court added a third breach: the State had failed to transpose correctly the arrangements governing the suspect's right to waive legal assistance, a waiver the Directive only accepts when it is voluntary, informed and unequivocal.

Why it matters for Spanish practice

Spain transposed Directive 2013/48/EU through Organic Law 5/2015, which amended the Criminal Procedure Act to strengthen legal assistance from the moment of arrest. The general framework is covered in our piece on the Organic Law on the right of defence: the essentials.

These two rulings reinforce three lines of daily defence work. First, the lawyer's physical presence at questioning is not a formality: it is the rule, subject to listed exceptions, and police interviews conducted without counsel as a general rule because of a mere delay fall foul of EU law. Second, any domestic mechanism that turns the exception into the general rule is vulnerable. Third, waiver of legal assistance demands informed and verifiable consent, something especially sensitive in duty solicitor shifts, whose modules were updated by Royal Decree 824/2026.

Practical notes for duty shifts

For anyone covering detainee shifts, the judgment supplies concrete arguments. If a questioning begins without counsel because the appointed lawyer has not arrived, record the time of notification, the actual time of attendance and any statement given in the interval, because the validity of that evidence is now in doubt under the CJEU standard. Assistance does not end with the police-station interview: it extends to investigative acts, identification procedures and court appearances.

The deontological dimension is worth recalling too. Effective assistance requires the lawyer to be able to intervene, not merely observe, and the content of those conversations is protected by professional secrecy over client documents, as recent deontological doctrine has stressed.

Context: European protection of the defence is hardening

The two judgments sit within a consistent line of Luxembourg case law reading the procedural guarantees of Directive 2013/48/EU strictly. For Spanish practitioners the practical reference is unchanged: any exception to legal assistance must be construed narrowly and always documented. At a time when mediation and other ADR mechanisms as a procedural requirement dominate much of the procedural debate, the oldest guarantee, the presence of a lawyer from the first minute, is reaffirmed as the strongest.

We will follow the application of this doctrine in our News section.