Author Archives: johan-callewaert

AG 505 zum EGMR: Sitzung vom 30. Januar 2025

Liebe Studierende,

auf der Tagesordnung unserer letzten Sitzung in diesem Semester stehen folgende Themen:

  1. Die nachträgliche Sicherungsverwahrung als Beispiel eines erfolgreichen Dialogs des EGMR mit den nationalen Behörden (Rs. Ilnseher / Deutschland)
  2. Die Minderjährigen im “Dschungel von Calais” als Beispiel eines schwierigen Dialogs des EGMR mit den nationalen Behörden (Rs. Khan / Frankreich)

Beide Urteile liegen bei.

Ich freue mich auf einen anregenden Austausch mit Ihnen.

Prof. Dr. Johan Callewaert

AG 505 zum EGMR: Sitzung vom 23. Januar 2025

Liebe Studierende,

man hätte wohl hoffen können, dass die schwersten Menschenrechtsverletzungen, gegen welche die EMRK über ihre Artikel 2 bis 4 Vorsorge trifft, nach dem 2. Weltkrieg nur noch in der Theorie relevant sein würden. Leider ist das Gegenteil der Fall, wie uns die folgenden zwei Themen zeigen, die auf der Tagesordnung unserer kommenden Sitzung stehen:

  1. “Moderne” Sklaverei, am Beispiel der Rs. Chowdury u. a. / Griechenland
  2. Verschleppung, am Beispiel der Rs. K.J. u.a. / Russland

Ich wünsche uns dennoch eine interessante Sitzung.

Prof. Dr. Johan Callewaert

Accession of the European Union to the European Convention on Human Rights: a logical response to the optionality of the European Convention on Human Rights in EU Law

The paper below is the English translation of an article with the title: “L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme : une réponse logique à l’optionalité de la Convention européenne des droits de l’homme en droit de l’Union européenne”, published in the Revue trimestrielle des droits de l’homme, 2025, p. 9, and available at www.rtdh.eu.

The main findings of this paper can be summed up as follows:

The benchmark function formally conferred on the European Convention on Human Rights by the Union legislature is rendered optional in the practice of Union law. As a result, the minimum level of protection which the Convention ensures in the Member States and which the EU legislature sought to extend to Union law is more often than not ignored, in favour of a more frequent use of the Convention as a mere “toolbox”, i.e. as a source of inspiration or non-binding interpretation. This optionality of the Convention leads to significant reductions in protection, introduces double standards into procedures involving hybrid structures and causes conflicts of loyalty for national judges who are both Union and Convention judges. The resulting dysfunctions are a source of fragmentation and weaken European fundamental rights. They make it imperative for the EU to accede to the Convention.

AG 505 zum EGMR: Sitzung vom 16. Januar 2025

Liebe Studierende,

in der kommenden Sitzung geht es um folgende zwei Fragen, die den Kern des von der EMRK vertretenen Menschenbildes betreffen:

  1. Lässt sich aus Artikel 8 EMRK ein Anspruch auf Suizidhilfe für unheilbar kranke Personen ableiten? (Rs. Daniel Karsai / Ungarn)
  2. Folterandrohung als Mittel zur Rettung eines Menschenlebens? (Rs. Gäfgen / Deutschland)

Spannende Diskussionen erwarten uns!

Prof. Dr. Johan Callewaert

General presumption of compliance vs. systemic flaws – Judgment of the ECtHR in the case of H.T. v. Germany and Greece

In the case of H.T. v. Germany and Greece, the ECtHR ruled on the transfer of an asylum seeker from Germany to Greece under the Dublin III Regulation (604/2013).

The case concerns a Syrian national who was removed from Germany to Greece, on the day of his arrival in Germany, under an administrative arrangement concluded in 2018 between the two countries to facilitate Dublin returns to Greece: the “Administrative Arrangement between the Ministry of Migration Policy of the Hellenic Republic and the Federal Ministry of the Interior, Building and Community of the Federal Republic of Germany on cooperation when refusing entry to persons seeking protection in the context of temporary checks at the internal German-Austrian border”.

This arrangement regulated the “cooperation when refusing entry to persons seeking protection in the context of temporary checks at the border between the Federal Republic of Germany and the Republic of Austria”. It provided inter alia that Greece would readmit persons who at the German border would be denied entry because they already requested international protection in Greece. Returns to Greece had to be carried out by air only, at the Athens airport.

Pursuant to this agreement, the applicant was returned from Germany to Greece on 4 September 2018. The order refusing him entry in Germany was based on section 18(2) point 2 of the German Asylum Act and stated that there were indications that Greece had a responsibility to take back the applicant, under the Dublin III Regulation (No 604/2013).

*              *              *

The application before the ECtHR, which has strong similarities with the case of M.S.S. v. Belgium and Greece, was directed against Germany and Greece.

In respect of Greece, the ECtHR found violations of Article 3 of the Convention (ill-treatment) because of the applicant’s conditions of detention following his return from Germany and of Article 5 § 4 of the Convention, on account of the lack of a remedy for the examination of the legality of his detention.

More interesting from a comparative Convention / EU law perspective, however, is the violation found by the ECtHR against Germany under the procedural limb of Article 3, on four different but complementary counts, which the ECtHR summed up as follows:

The above-mentioned considerations are sufficient for the Court to conclude that the applicant’s removal from Germany to Greece was in violation of Article 3 of the Convention – notably the fact that at the relevant time (i) there was an insufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and would not risk being exposed to treatment contrary to Article 3 there; (ii) neither the administrative arrangement on the basis of which the applicant was removed nor an individual assurance provided for any guarantees that asylum-seekers removed under that arrangement would, following their removal, have access to an effective asylum procedure in Greece in which the merits of their asylum claim would be assessed, and that asylum-seekers removed under that arrangement would not be exposed to treatment contrary to Article 3 in Greece on account of, for example, conditions of detention or living conditions for asylum-seekers; (iii) the German authorities had not demonstrated that they had assessed such risks before removing the applicant to Greece; and (iv) the applicant was hastily removed without having access to a lawyer prior to his removal.” (§ 150, emphasis added)

In its reasoning, the ECtHR stressed the following principles:

“In all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum requests on the merits, regardless of whether the receiving third country is an EU member State or not or whether it is a State Party to the Convention or not, it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement … This examination must precede the removal to the third country … If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seekers should not be removed to the third country concerned.” (§ 138, emphasis added)

The ECtHR further found that on the basis of the information available, the German authorities knew or ought to have known about existing general shortcomings in the Greek asylum system. Thus, at that time, there was no sufficient basis for a general presumption that the applicant would, following his removal from Germany to Greece, have access to an adequate asylum procedure in Greece, protecting him against refoulement, and that he would not risk being exposed to treatment contrary to Article 3 there. (§§ 144-145)

That being so, the German authorities should have satisfied themselves, through respective guarantees in the administrative arrangement, or an individualised assessment, that the applicant did not run a real risk of being denied access to an adequate asylum procedure in Greece and would not be detained in conditions contrary to Article 3 there (§ 149).

*              *              *

This judgment very well illustrates and confirms the methodology which the ECtHR applies to the returns of asylum seekers under the Dublin Regulation. This methodology, which was inaugurated in M.S.S. v. Belgium and Greece, appears slightly different from the methodology applied by the CJEU in such cases, as it was inaugurated in N.S. and Others and finds itself now enshrined in the text of the Dublin Regulation.

It is indeed well known that under Article 3(2), second subparagraph, the Dublin III Regulation, a transfer to the Member State primarily designated as responsible for the processing of an application for asylum is only precluded in case of substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter (on this, see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)).

By contrast, the ECtHR takes it from the opposite angle by stating that it is only when there is a sufficient basis for a general presumption that an applicant would, following his/her return, have access to an adequate asylum procedure protecting against refoulement and that he/she would not risk being exposed to treatment contrary to Article 3 of the Convention that a transfer can be envisaged by the authorities of the transferring Member State (§§ 145,150). Where there is no such basis, a transfer can only take place if the transferring State has ensured, through an individualised assessment or individualised assurances (as in Tarakhel v. Switzerland and as recommended by the European Commission (see § 62)), that the treatment of the asylum seeker concerned in the receiving State will be Convention-compliant (§§ 64, 147, 149, 150).

Thus, rather than, as the CJEU, allowing transfers as long as the flaws in the receiving Member State are not “systemic”, the ECtHR precludes transfers as long as there is no basis for a general presumption, or no assurances, that the Convention rights of the individual concerned will be respected in that State.

The Strasbourg approach being obviously more protective of the individuals concerned, the question arises as to how national courts should handle these different levels of protection between Luxembourg and Strasbourg?

Since the Convention is the mandatory minimum protection level governing also the application of EU law by the courts of the Member States, and in light of Article 52(3) of the EU-Charter, it would appear that in the face of such differences, like in the present case, national judges should, wherever EU law falls below the Convention level, apply the latter, without prejudice to their possibility to consult the CJEU under Art. 267 TFEU. There is indeed no primacy of EU law over the Convention. Thus, failure to apply a higher Convention standard entails the risk of seeing the final domestic judgment in the case successfully challenged before the ECtHR, as in M.S.S. v. Belgium and Greece and, mutatis mutandis, Bivolaru and Moldovan v. France or M.B. v. the Netherlands.

AG 505 zum EGMR: Sitzung vom 9. Januar 2025

Liebe Studierende,

auf der Tagesordnung unserer kommenden Sitzung stehen folgende zwei Themen:

  1. Kriegerische Auseinandersetzungen und ihre Folgen aus konventionsrechtlicher Sicht, am Beispiel der Rs. Georgien / Russland (Nr. 2)
  2. Racial profiling durch die Polizei: Nachweis und Folgen, am Beispiel der Rs. Basu / Deutschland

Die betreffenden Urteile liegen bei.

Ich denke, es steht uns wieder ein diskussionsreicher Abend bevor!

Prof. Dr. Johan Callewaert

AG 505 zum EGMR: Sitzung vom 6. Januar 2025

Liebe Studierende,

auf unserer ersten Sitzung im neuen Jahr werden wir uns mit folgenden Themen beschäftigen:

  1. Wie weit reicht die Recherchefreiheit der Presse nach Art. 10 EMRK, am Beispiel der Rs. Saure / Deutschland (Nr. 2) ?
  2. Die Türkei und die EMRK, am Beispiel der Rs. Ilker Deniz Yücel / die Türkei

Die Urteile liegen bei.

Ich freue mich auf spannende und bereichernde Diskussionen mit Ihnen.

Prof. Dr. Johan Callewaert

“The fields covered by Union law”: not outside the fields covered by the Convention – Judgment of the CJEU in the case of PT

In the case of PT (agreement between the Prosecutor and the perpetrator of an offence) (C-432/22, 28.11.2024), the CJEU ruled on the compatibility with EU law of provisions of Bulgarian criminal procedure relating to plea-bargaining, i.e. a mechanism providing for the possibility to impose a more lenient penalty on an accused who pleads guilty.

In the main proceedings, 41 persons were accused of drug related offenses in one set of proceedings. Two of them entered into a plea-bargaining agreement with the Public Prosecutor.

The first question submitted to the CJEU by the referring court, a Specialised Criminal Court, related to a provision according to which it is for an ad hoc court, and not the court responsible for the case, to rule on an agreement for settlement of the case entered into by a defendant and the public prosecutor, where other defendants are also prosecuted in the same proceedings. The second question concerned a provision which, in criminal proceedings brought against several defendants on the basis that they had participated in the same organised criminal group, makes the judicial approval of an agreement for settlement of the case, entered into by one of the defendants and the public prosecutor, subject to the consent of all the other defendants.

The CJEU detected no incompatibilities between these provisions and EU law. In its opinion, the first of these provisions was justified by the need to preserve the impartiality of the trial court which will have to assess the guilt of the other defendants, whereas the second provision sought to preserve their rights of the defence.

What is particularly noteworthy about this case, from a Convention point of view, is the CJEU’s reasoning as regards its own jurisdiction.

In a first step, the CJEU indeed considered that the provisions of the Bulgarian Code of Criminal Procedure at stake in the present case did not come within the scope of the EU-Charter, because they did not constitute “implementation of Union law”, for the purposes of Article 51(1) of the EU-Charter, in respect of the relevant provisions of Framework Decisions 2004/757 (laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking) and 2008/841 (on the fight against organised crime).

In other words, in the absence of an EU law obligation to legislate on the settlement of criminal cases, at issue in the present case, there was no sufficient “degree of connection” between the relevant national and EU law provisions. Consequently, the CJEU did not have jurisdiction to answer the questions submitted by the referring court in so far as they concerned Article 5 of Framework Decision 2004/757, Article 4 of Framework Decision 2008/841, the first and second paragraphs of Article 47 and Article 52 of the Charter (§ 43).

Interestingly, however, the CJEU then decided to consider the case under the 2nd subparagraph of Article 19(1) TEU, the provision which “gives concrete expression to the value of the rule of law affirmed in Article 2 TEU” and which to date has been mainly applied as enshrining the requirement of judicial independence, as e.g. in Inspecţia Judiciară. According to this provision, which has direct effect (§ 54), the Member States shall provide remedies sufficient to ensure effective legal protection “in the fields covered by Union law”.

In this connection, the CJEU recalled that the 2nd subparagraph of Article 19(1) TEU is intended, inter alia, to apply to any court or tribunal which can rule on questions concerning the interpretation or application of EU law and which therefore falls within the fields covered by that law, irrespective of any implementation of Union law (§§ 45-46). As this was the case with the referring court, the CJEU had jurisdiction, under that provision, to deal with the two first questions submitted by that court.

The CJEU then inferred from the 2nd subparagraph of Article 19(1) TEU some new and specific requirements concerning the impartiality of the courts and the rights of the defence in the context of plea-bargaining proceedings, which were considered as fulfilled by the Bulgarian provisions at stake.

Even more interesting, from a Convention perspective, is the link established by the CJEU between the 2nd subparagraph of Article 19(1) TEU and Articles 47, second paragraph, of the EU-Charter and 6 § 1 of the Convention. Considering that the principle of effective judicial protection was a general principle of EU law which was enshrined in the second paragraph of Article 47 of the EU-Charter, and considering that according to the Explanations relating to the EU-Charter, the second paragraph of Article 47 corresponds to Article 6 § 1 of the Convention, the CJEU indeed concluded that, pursuant to Article 52(3) of the EU-Charter, it had to ensure that its interpretation “in the present case” ensured a level of protection which did not disregard that guaranteed by Article 6 § 1 of the Convention, as interpreted by the ECtHR (§§ 51-52).

This would appear to be the first time the CJEU considers the Convention as a benchmark when applying Article 19(1) TEU (on the benchmark function of the Convention in EU law, see The Recent Luxembourg Case-Law on Procedural Rights in Criminal Proceedings and Benchmark function of the Convention stressed by the CJEU in Mirin and Real Madrid Club de Fútbol).

Not only does this approach serve to ensure consistency of the CJEU case-law with that of the ECtHR. It also allows the national judges applying this rather novel Luxembourg case-law to be satisfied that by doing so, they also comply with the Strasbourg case-law, in respect of which they can be held liable in an application before the ECtHR.

The “fields covered by Union law” are indeed not outside the “fields covered by the Convention”. As the ECtHR put it, inter alia in Bosphorus v. Ireland, § 153: “A Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s “jurisdiction” from scrutiny under the Convention”.

Breakdown of reception conditions for asylum seekers: Dublin not the whole story – judgment of the CJEU in Tudmur

In the case of Tudmur (19.12.2024, joined cases C‑185/24 and C‑189/24) the CJEU ruled on the unilateral suspension by the Italian authorities of the transfer to Italy of asylum seekers under the Dublin III Regulation (“the Regulation”).

The referring court, a Higher German Administrative Court dealing with two applications for asylum for which Italy was responsible under the Regulation, was confronted with the decision by the Italian authorities to temporarily suspend all transfers of asylum seekers to Italy under that Regulation, because of the unavailability of reception facilities as a result of the high number of arrivals and the lack of available reception places. In that context, the referring court requested the CJEU to clarify the interpretation of the Regulation, notably as regards the existence of systemic flaws in Italy.

According to the CJEU, the fact that a Member State had unilaterally suspended the taking charge of asylum seekers was not capable, in itself, of justifying the finding of systemic flaws in the asylum procedure and in the reception conditions for applicants for international protection, to the effect that the latter could not be transferred to the Member State responsible for the processing of the application for asylum.

However, it nonetheless remained for the referring court to assess whether the conditions for an exception to the transfer to Italy of the two asylum seekers concerned, as laid down in the 2nd sub-paragraph of the Article 3(2) of the Regulation, were met. This will only be the case if, first, in the asylum procedure and the reception conditions of the Member State designated as responsible there are systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the EU-Charter and, secondly, if these systemic flaws result in a risk, for the person concerned, of being exposed to such a treatment (§§ 35-38).

Thus, systemic flaws precluding the transfer of an asylum seeker cannot be the result of a unilateral legal act by that Member State but are a factual circumstance the existence of which must be assessed “following a specific analysis based on information that is objective, reliable, specific and properly updated” (§ 40).

To this extent, the present case bears a striking resemblance with M.S.S. v. Belgium and Greece which concerned the transfer under the Dublin Regulation (No. 343/2003/EC) of an Afghan asylum seeker by Belgium to Greece, where the asylum system had broken down, which resulted in the applicant living in the streets of Athens in a state of extreme material poverty and being exposed to a risk of refoulement. In that case, the ECtHR found several violations of the Convention, notably of Article 3 of the Convention (prohibition of ill-treatment), taken alone and in conjunction with Article 13 (right to an effective remedy), on account of the dire living conditions of the applicant in Athens and the serious flaws in the Greek asylum procedure.

With Italy refusing any more transfers because of a lack of reception places as a consequence of a massive influx of migrants, the asylum seekers in the present case, RL and QS, can hardly expect any better conditions than M.S.S. could expect in Greece. Yet the ECtHR’s approach in M.S.S. differs from Tudmur in at least three different respects: the scope of the problem, the test to be applied and the burden of proof.

The scope of the problem

As regards, first, the scope of the problem, it is to be noted that in M.S.S. the relevant risks to the fundamental rights of the applicant were not limited to the risk of finding himself in a state of extreme material poverty incompatible with human dignity, as seems to be the case in Tudmur (§ 37).

By contrast, the ECtHR found in M.S.S. a violation of Article 13 of the Convention, in conjunction with Article 3, “because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy” (§ 321).

A similar risk can hardly be ruled out in respect of RL and QS. It should therefore also be dealt with, at least under the Convention, by the referring court, provided of course that it has been raised by RL and QS. Strangely enough, though, the CJEU does not address that aspect of the situation, despite the wording of the 2nd sub-paragraph of Article 3(2) of the Regulation and Article 47(1) of the EU-Charter which also protects the right to an effective remedy. Is this another illustration of the categorisation of fundamental rights under the Regulation (see Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer)) ?

One can indeed easily imagine a situation whereby the reception conditions in the responsible Member State might not be such as to reach the point of extreme material poverty, while the flaws in the asylum procedure of that same State nonetheless represent a risk which is relevant under Article 13 in conjunction with Article 3 of the Convention.

The test to be applied

Secondly, under the Convention the existence of “systemic flaws” is not a necessary pre-condition the absence of which precludes any finding as regards the individual risks incurred by a person subject to a transfer, as is the case under the Regulation (§§ 38-39). In other words, under the Convention any general assessment cannot represent an obstacle to the application of an individual test. Rather, widespread shortcomings – not necessarily “systemic flaws” – are only used by the ECtHR as evidence serving as a basis for an individualised finding concerning the risks incurred by the applicant, as illustrated by paragraph 255 of M.S.S.:

The Court notes in the observations of the Council of Europe Commissioner for Human Rights and the UNHCR, as well as in the reports of non-governmental organisations (see paragraph 160 above) that the situation described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers with the same profile as that of the applicant. For this reason, the Court sees no reason to question the truth of the applicant’s allegations.

Consequently, the absence of widespread shortcomings in the country of destination of a transfer does not dispense the ECtHR from inquiring about individual risks incurred by the person concerned, as recently confirmed in Khasanov and Rakhmanov v. Russia (§§ 95-101). Even where the application of a general test is mandatory under EU law, the ECtHR’s only determination is individualised, focussed on the personal situation of the applicant (see Bivolaru and Moldovan v. France). This is because by virtue of the right to individual petition (Article 34 of the Convention), any individual application requires an individual determination based on an individual assessment, regardless of the general circumstances.

Thus, under the Convention domestic judges are not dispensed from applying an individual test when applying the Dublin Regulation, there being no primacy of EU law over the Convention.

The burden of proof

Finally, on the burden of proof, paragraph 39 of the Tudmur ruling seems to suggest that it is for the asylum seeker to provide the initial evidence establishing the risks which he or she would incur in the event of a transfer to responsible Member State, whereupon the domestic courts “must take into consideration, on their own initiative, relevant information of which they are aware”. In this connection, it might be worth recalling the following well-established principles of the Strasbourg case-law, as reiterated in paragraphs 125-126 of F.G. v. Sweden:

It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life‑threatening situation covered by Article 2 or to treatment in breach of Article 3.However, in relation to asylum claims based on a well-known general risk, when information regarding such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expulsion cases entail that the authorities carry out an assessment of that risk of their own motion.” (emphasis added)

In F.G. v. Sweden, the failure by the authorities to inquire of their own motion about such well-known general risks concerning the applicant amounted to a breach of their procedural obligations under Articles 2 and 3 of the Convention.

Conclusion

On all three aspects addressed above, the Convention would appear to guarantee a higher level of protection for Dublin asylum seekers than the Regulation. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), these courts should therefore preferably take the above aspects into account when applying Article 3(2), 2nd sub-paragraph, of the Regulation, of course without prejudice to the application by them of Article 267 TFEU.

In this connection, it is clear that, as repeatedly indicated by the CJEU, the Convention not being part of EU law, the CJEU does not have jurisdiction to assess the compatibility of EU legislation with the Convention (see, among others, Åkerberg Fransson, § 44). One may however wonder whether Article 52(3), 1st sentence, of the EU-Charter might not have the potential, if explicitly relied on in a referral request, to allow the CJEU to at least indirectly verify to what extent EU law complies with the minimum Convention protection level. Domestic courts might want to test this.

AG 505 zum EGMR: Sitzung vom 19. Dezember 2024

Liebe Studierende,

in der kommenden Sitzung wird es um folgende Themen gehen:

  1. Todesstrafe, Auslieferung und EMRK (Rs. Soering / Vereinigtes Königreich)
  2. Faires Strafverfahren trotz abwesender Zeugen? (Rs. Schatschaschwili / Deutschland)

Die betreffenden Urteile liegen bei.

Auch dieses Mal erwarten uns rege Diskussionen!

Prof. Dr. Johan Callewaert