Questioning without a lawyer: Can the police simply start?

Why were two or 48 hours insufficient?

The Hungarian rules examined allowed questioning without the absent lawyer after a postponement of at least two hours. In the Czech Republic, a detained person could be questioned without a lawyer if that lawyer could not be contacted within the 48-hour custody period. The CJEU rejected both statutory arrangements: the passage of time alone is no lawful ground for an exception (C-660/24, paragraphs 52 to 59; C-681/24, paragraphs 48 to 58).

These were infringement actions brought by the European Commission under Article 258 TFEU. The judgments establish that both Member States breached Directive 2013/48/EU. The Court did not assess Hungarian legislative changes from December 2024 because the relevant assessment date was earlier. The decisions therefore do not describe every national rule currently in force (C-660/24, paragraphs 66 to 68).

What does the right to defence counsel include?

The right is not exhausted by an opportunity to dial a telephone number. It includes timely access to a lawyer, private consultation before questioning, and the lawyer’s presence and effective participation. Presence generally means being physically there. In exceptional circumstances, digital means may suffice if they guarantee the full and effective exercise of defence rights (C-660/24, paragraphs 37 to 50; C-681/24, paragraphs 33 to 46).

If the chosen lawyer is unavailable, the CJEU identifies appointing an available lawyer as one possible solution. This does not create a general entitlement to free legal representation or a blanket duty to appoint counsel for every interview. The applicable conditions require a separate assessment (C-681/24, paragraphs 65 and 66).

When may an exception or waiver apply?

Article 3(6) of the Directive permits temporary derogations before trial only in exceptional circumstances: where urgently needed to protect life, physical integrity or liberty, or where immediate action is imperative to prevent serious jeopardy to criminal proceedings. Article 8 also requires, among other things, proportionality, strict time limits and a duly reasoned decision in the individual case. General scheduling difficulties do not suffice.

A waiver requires clear, understandable information about the right and the consequences. It must be voluntary, unequivocal and recorded. The person must be informed that it can be revoked for the future. Mandatory national rules on legal assistance remain unaffected. A failed attempt to reach a lawyer is not, by itself, a valid waiver (C-660/24, paragraphs 79 to 84 and Article 9 of the Directive reproduced in the judgment).

What applies to questioning in Germany?

Under section 136(1) of the German Code of Criminal Procedure (StPO), suspects may remain silent about the allegation and consult defence counsel before questioning. Those requesting advice must receive information facilitating contact, including information about existing lawyers’ emergency services. Section 137 StPO provides for assistance by defence counsel at every stage. Section 163a(4) StPO applies key information and participation rules to police questioning of suspects.

At the same time, section 168c(5), sentence 3, StPO provides no entitlement to postponement because someone entitled to attend is unavailable. Through section 163a(4), this also applies to defence counsel during police questioning. Our assessment: this cannot be treated as blanket permission to disregard effective access to legal assistance. The specific procedural arrangements must be assessed in light of EU law. The CJEU judgments do not invalidate the German provision as a whole or automatically lead to exclusion of evidence or acquittal.

What practical steps should suspects take?

Our practical recommendation: state clearly if you wish to obtain legal advice first and do not wish to comment on the allegation until then. Ask for your request, attempts to contact counsel and any reasons for refusal to be recorded. Remaining silent about the allegation is separate from other duties: for example, suspects must attend when summoned by the public prosecutor (section 163a(3) StPO). Do not disregard appointments without checking the position.

• Keep the summons, case reference and stated allegation available.
• Note the times of rights information, attempts to contact counsel and the start of questioning.
• Preserve available records and statements concerning any alleged waiver.
• Have the procedure assessed even if you have already made a statement; the legal consequences depend on the individual case.