Author Archives: johan-callewaert

Programm des Kolloquiums

Liebe Hörerinnen und Hörer,

im Hinblick auf die erste Sitzung des Kolloquiums zu den Leiturteilen des Europäischen Gerichtshofs für Menschenrechte an diesem Donnerstag um 19.15 Uhr lege ich die vorläufige Liste der Themen aus der Rechtsprechung des EGMR bei, die zur Behandlung anstehen.

Wie bereits angekündigt, besteht für Sie auch die Möglichkeit – jedoch nicht die Pflicht – die Präsentation eines der aufgeführten Urteile zu übernehmen und somit einen Leistungsschein zu erwerben. Anhand beiliegender Liste können Sie sich schon überlegen, ob Sie eine solche Präsentation halten möchten und, wenn ja, zu welchem Thema.

Bis Donnerstag,

Johan Callewaert

EU accession to the European Convention on Human Rights

On 8 October 2019, the EU Justice and Home Affairs Council mandated the European Commission to quickly resume negotiations with the Council of Europe with a view to allowing the EU to accede to the Convention, pursuant to Article 6(2) TEU. The following statement was thereby issued:

“The Council reaffirmed its commitment to the EU’saccession to the European Convention on Human Rights (ECHR).

The Council agreed to supplementary negotiating directives in order to allow for a swift resumption of the negotiations with the Council of Europe. Those amended negotiating directives are designed to take into account the Court of Justice’s opinion of 2014.

Negotiations on an agreement with the Council of Europe started in 2010. In 2013, a draft agreement was submitted by the Commission to the Court of Justice for an opinion on its compatibility with the EU treaties. At the end of 2014, the Court stated that the draft agreement was not compatible with the treaties on a number of points. In October 2015, the Council reaffirmed the EU’s commitment to accede to the ECHR and invited the Commission to work on an analysis of all legal issues raised by the Court. Last May, the Commission submitted to the Council a written contribution which comprehensively addresses all of the objections raised by the Court of Justice.

The Treaty on European Union provides for the accession of the EU to the ECHR. The objective is to reinforce the common values of the Union, improve the effectiveness of EU law and enhance the coherence of fundamental rights protection in Europe. “

https://www.consilium.europa.eu/en/meetings/jha/2019/10/07-08/

Judgment of the CJEU in the case of Dorobantu

In the case of Dumitru-Tudor Dorobantu (15.10.2019), a Grand Chamber of the CJEU confirmed and specified its case-law on the execution of a European arrest warrant in the face of a real risk of inhuman or degrading treatment, in this case a risk arising out of the conditions of detention in the issuing Member State. Relying on Article 52(3) of the EU-Charter, the CJEU confirmed the absolute nature of the prohibition of ill-treatment as it resulted from Article 4 of the EU-Charter, which corresponded to Article 3 of the Convention. Still on the basis of Article 52(3) of the EU-Charter, the CJEU referred to the Mursic-jurisprudence of the ECHR (20.10.2016) for the assessment of the level of severity of conditions of detention. Interestingly, in § 57 of its judgment the CJEU also relied on the Romeo Castaño-jurisprudence of the ECHR (see below), holding that under the Convention, the refusal by a Member State to execute a European arrest warrant by reason of a risk of ill-treatment in the issuing State had to be based on an up-to-date and detailed examination of the situation as it existed at the time of the decision not to execute the warrant. The CJEU thereby apparently ignored the fact that the Romeo Castaño-jurisprudence has so far only been applied by the ECHR in respect of criminal proceedings falling under the scope of Article 2 of the Convention, i.e. in the event of a homicide, which is not the case in Dorobantu.

Judgment of the CJEU in the case of Gambino and Hyka

In Gambino and Hyka (29.7.2019) the CJEU, relying on Articles 47 and 48 of the Charter and, by virtue of Article 52(3) of the Charter, on the case-law of the ECHR on the right to a fair trial (Article 6 of the Convention), ruled that Articles 16 and 18 of Directive 2012/29/EU on the rights of victims of crime do not prevent the victim of a criminal offence from having to be heard a second time following a change in the composition of the bench, if one of the parties to the proceedings so wishes.

Judgment of the CJEU in the case of Funke Medien

In Funke Medien NRW GmbH v. Bundesrepublik Deutschland (29.7.2019) a Grand Chamber of the CJEU applied Directive 2001/29/EC (on the harmonisation of certain aspects of copyright and related rights in the information society) to a set of facts concerning the publication by a newspaper of certain documents “classified for restricted access” drawn up by the German Government and relating to the operation of the German army in Afghanistan. In examining the scope of the exceptions for the benefit of the press and the information of the public, provided for in Article 5 of the directive, the CJEU stated the need for a fair balance to be struck between the protection of intellectual property (Article 17(2) of the Charter) and the freedom of expression and information (Article 11 of the Charter). In this connection, the CJEU referred, by virtue of Article 52(3) of the Charter, to the case-law of the European Court of Human Rights according to which, in balancing copyright against freedom of expression, due consideration was to be given to the nature of the expression or information at stake and in particular to the question whether it concerned matters of public interest. Given that the CJEU leaves it to the national courts to strike this balance which, at the end of the day, can be challenged by way of an application to the Strasbourg Court against the final domestic judgment, reliance by the CJEU on the Strasbourg case-law would appear to also serve the interests of domestic judges.

Judgment of the ECHR in Baltic Master Ltd. v. Lithuania

In Baltic Master Ltd. v. Lithuania (16.4.2019) the ECHR found a violation of Article 6 § 1 of the Convention on the ground that the Supreme Administrative Court of Lithuania had not made sufficiently clear in its judgment on what specific legal grounds it had considered the application of EU law to be so obvious that no referral to the CJEU was required under Article 267 TFEU, despite the applicant company’s request to that effect. What is also noteworthy about this judgment is that it was given by a Committee of three judges acting under Article 28 § 1 b) of the Convention, the outcome of this case being considered to flow from well-established case-law within the meaning of that provision.

Judgment of the ECHR in Mihalache v. Romania

In Mihalache v. Romania (8.7.2019) a Grand Chamber of the ECHR had to determine whether a public prosecutor’s order discontinuing criminal proceedings while imposing a fine on the applicant was a “final acquittal or conviction” triggering the application of the non bis in idem principle as laid down in Article 4 of Protocol No 7 to the Convention. In answering that question the ECHR relied on a series of criteria (determination as to the merits, availability of ordinary remedies, expiry of the time-limit within which those remedies are to be used) which in substance coincide with those relied on by the CJEU in similar cases such as Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg (C-486/14). Only when a penalty has been imposed does EU law depart from Article 4 of Protocol No 7 in that Article 54 of the Convention implementing the Schengen Agreement requires, as a condition for the application of the non bis in idem principle, that the penalty has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the sentencing Member State (see Spasic, C-129/14).

Decision of the ECHR in Melvin West v. Hungary

In Melvin West v. Hungary (decision, 25.6.2019) the ECHR confirms that Article 6 of the Convention does not apply to the procedure for the execution of a European Arrest warrant but that, by virtue of Article 5 § 1 f) of the Convention, any detention with a view to transferring the person concerned to the issuing Member State has to be in compliance with the relevant domestic and European Union law, which it is primarily for the national authorities to interpret. Moreover, Article 5 prohibits any transfer of a person to a country where he or she would be exposed to a real risk of a flagrant breach of this provision. Finally, the ECHR reiterates that there is no basis under Article 8 of the Convention for a convicted person to avoid having to serve a prison sentence in a foreign country.

Judgment of the ECHR in Romeo Castaño v. Belgium

In Romeo Castaño v. Belgium (9.7.2019) the ECHR confirms the applicability of Article 3 of the Convention to the execution by EU Member States of a European Arrest Warrant but extends its scrutiny to Article 2 of the Convention in cases where a European Arrest Warrant has been issued with a view to enabling criminal proceedings for homicide in the issuing State to go ahead. In such cases, Article 2 imposes on the executing State an obligation to cooperate with the issuing State in facilitating those criminal proceedings, notably by transferring the person who is the subject of the European Arrest Warrant, without however ignoring the limits to such a transfer flowing from Article 3 of the Convention. Any refusal of a transfer on this ground should therefore be duly reasoned by reference to updated and individualised information.