In the case of HYA and Others (C-348/21, 8.12.2022), the CJEU ruled on whether national legislation which allowed a person to be convicted on the basis of statements by witnesses who had not been cross-examined by the defence at the trial was compatible with the Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (2016/343), read in combination with Articles 47(2) and 48, paragraph 2, of the EU-Charter.

The issue at the heart of the present case was about whether there was a right for the accused not only to attend their trial, as stipulated by Article 8(1) of the Directive, but also to cross-examine witnesses at the trial. Whereas under the Convention the answer to that question is obvious, spelled out as it is in its Article 6 § 3 d), the CJEU had to make long developments, thereby relying on the Strasbourg case-law, to come to the same conclusion. This is because the said Directive is silent about that issue.

Thus, next to such other recent rulings as in Spetsializirana prokuratura, HN and DD applying the same Directive, this case is another telling illustration of the limits of what the Directives on procedural rights in criminal proceedings, as the one at stake in this case, can achieve. While these directives are meant to codify and reinforce current case-law with a view to enhancing mutual trust amongst member States (see Recital 10 of the Directive at stake in this case), their weakness lies in the fact that they can cover only part of the huge amount of case-law existing in this field, while at the same time they freeze the part of the case-law which they actually cover, with the risk of being overtaken by events in case of further developments of that case-law. The result are important lacunae in these directives which the CJEU undertakes to gradually fill, not least by drawing to a significant extent on the Strasbourg case-law.

In the present case, the CJEU first found, after some lengthy developments, that a right for an accused to just attend their trial without at the same time having the possibility to exercise at this trial the rights of the defence, including the right to cross-examine the witnesses for the prosecution, would strip the right to a fair trial of its essential content (§ 45).

The CJEU then turned to the possible limitations to the right to cross-examine witnesses, more specifically whether the accused could be convicted on the basis of witness statements made during the investigation of the criminal case, in the absence of the accused and their lawyer. Here, another difficulty arose in that the Strasbourg and Luxembourg methodologies on this score differ. The CJEU, for its part, opted for squeezing the methodology applied by the ECtHR into its own methodology, which is based on Article 52(1) of the EU-Charter, thus complicating matters much more than would be necessary under the sole Convention.

In concrete terms, whereas the Strasbourg approach concerning limitations is based on an assessment of the proceedings as a whole, looking at whether any limitations or procedural flaws may have been offset by counter-balancing factors (see Ibrahim and Others, Beuze), the CJEU relied on Article 52(1) of the EU-Charter and in that context applied three different criteria: the existence of a legal basis, the preservation of the essential content of the right at stake and the proportionality of the limitations to it (§ 50).

It is under the second criterion, the essential content of the right, that the domestic courts are instructed by the CJEU to apply the Strasbourg case-law here, in particular the test of the proceedings considered as a whole (§§ 52 and 55), as in Al-Khawaja and Tahery and Schatschaschwili. What follows is a faithful description of that Strasbourg jurisprudence and its criteria, ordered to be applied as part of the said Directive and in the context of Article 52(1) of the EU-Charter. The final assessment is thereby left to the referring court, the CJEU recalling that under Art. 267 TFEU it has competence only to interpret EU law, not to apply it (§ 49).

All in all, this ruling is a welcome contribution by the CJEU to maintaining jurisprudential harmony with Strasbourg, by taking on bord large parts of the Strasbourg case-law, thus protecting domestic courts from having to face Convention liability. That said, the lacunae of Directive 2016/343 and the combination of two partly different methodologies generate a regrettable level of complexity for domestic courts, when compared with the Strasbourg approach.

In the case of Puig Gordi and Others (C-158/21, 31.1.2023), the CJEU ruled on the refusal by Belgian courts to execute a European arrest warrant (EAW) which had been issued by the Spanish Supreme Court in respect of several Catalan separatists. The refusal was based on concerns about the lack of jurisdiction of the court called upon to try them.

In its ruling, the CJEU relied on the two-step examination which it had previously applied, in such cases as Openbaar Ministerie, and which basically comes down to applying a double test, a general one followed by an individual one, for the assessment of any risks of a serious breach of fundamental rights which could be triggered by the execution of a EAW. While this methodology differs from the one applied by the ECtHR when assessing the execution of a EAW, which is more focussed on the individual risks, it is not problematic as such, as confirmed by Bivolaru and Moldovan v. France.

However, in Puig Gordi and Others the CJEU went one step further in developing its “two step” methodology, by denying the possibility to examine individualised risks in the event of a surrender if, prior to that, no systemic or generalised deficiencies have been found to exist. In substance, it ruled inter alia that in the absence of systemic or generalised deficiencies in the issuing State to the effect that persons in that State would be generally deprived of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, a court of the executing State may not refuse to execute a EAW (§ 111).

This comes down to autonomising the general test, to the effect that the application of the individual test is precluded if the result of the prior general test is negative. Thus, in that case the general test is suffient and can replace any further individual analysis. In that logic, the scale which deficiencies must reach to become relevant under the general test would appear to be of a magnitude which may be rarely reached in practice and which, in the few cases where it could still be reached, may be difficult to evaluate by domestic judges and even more difficult to prove by the persons concerned by the EAW. It can therefore be assumed that under this methodology, in most cases the assessment by the executing judicial authority will stop, out of convenience, after the first general step, leaving out the second individual step altogether. This would bring us back, de facto, to the much-criticised single collective test used in N.S. and Others, which would appear to be difficult to reconcile with the individual test being systematically and exclusively applied by the ECtHR, not least because one of the cornerstones of the Convention system is the right of individual petition.

Fortunately, in Puig Gordi and Others the CJEU did not go as far as suggested by its Advocate General, who wanted this new version of the “two step” examination potentially precluding the application of an individual test to be applied to all aspects of the right to a fair trial before a tribunal previously established by law under Art. 47(2) of the EU-Charter (on this Opinion, see the following comment).

By contrast, the CJEU limited the scope of its ruling to issues relating to the sole lack of jurisdiction of the courts in the issuing State, thereby placing some emphasis on the existence of efficient legal remedies which should avoid “the very occurrence” of the infringement at issue or avoid irreparable damage arising from that infringement (§ 113). Yet this latter consideration seems in contrast with other rulings in which the CJEU denied the relevance of existing domestic remedies in the issuing State for the assessment of risks to fundamental rights in that State (CJEU 25.7.2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C-220/18 PPU, § 74, and CJEU 15.10.2019, Dorobantu, C-128/18, § 80).

The fact remains, though, that in this way, a door has again been opened, for the sake of the efficiency of the EAW mechanism (§ 116), to a general rather than an individual assessment of respect for fundamental rights. One may wonder whether it will be further widened in the future. In this context, it might be useful to recall the following finding by the ECtHR in Avotins v. Latvia, § 113-114:

The Court has repeatedly asserted its commitment to international and European cooperation …. Hence, it considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited.

In the case of Delta Stroy 2003 (C-203/21, 10.11.2022), the CJEU declared incompatible with Article 48 of the EU-Charter (presumption of innocence and rights of the defence) national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.

In the case at hand, a company, Delta Stroy, was prosecuted in separate proceedings for the purpose of imposing on it a financial penalty for a criminal offence relating to value added tax alleged against its manager and representative.

What is noteworthy, from a Convention point of view, is first of all the similarity between the facts underlying this case and those which gave rise to the case of G.I.E.M. S.r.l. and Others v. Italy before the ECtHR. The question at the heart of both cases was whether companies could be convicted and sentenced for a criminal offence committed by their managers.

This is why the CJEU amply relied on G.I.E.M., thereby stating that the principle of the legality of criminal offences and penalties enshrined in Article 7 of the Convention, as applied by the ECtHR, corresponds to Article 49 of the EU-Charter and, by virtue of Article 52(3) of the EU-Charter, should therefore be interpreted so as not to disregard the level of protection guaranteed by Article 7 of the Convention, as interpreted by the ECtHR (§§ 43-44). The CJEU also noted that, according to the ECtHR, the violation of Article 7 of the Convention resulting from the imposition of a criminal sanction on an individual without his or her personal liability being established also breached the presumption of innocence protected by Article 6 § 2 of the Convention (§ 45).

In the case at hand, Delta Stroy was itself the subject of separate criminal proceedings triggering the application of the right to a fair trial. This is a significant difference with the 3 applicant companies in G.I.E.M. which could, not being themselves prosecuted, not invoke the right to a fair trial under Article 6 of the Convention and had therefore to rely on its Article 7. Consequently, the CJEU could confine itself to applying only Article 48 (presumption of innocence and rights of the defence), specifying that this provision too had to be interpreted so as not to disregard the corresponding Strasbourg protection level.

In sum, and regardless of these factual differences, there is correspondence between the Strasbourg and the Luxembourg jurisprudence in this area, something which can only be welcomed.

In the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) (C-69/21, 22.11.2022), the CJEU ruled on the lawfulness under the Return Directive (2008/115) of a return procedure initiated in the Netherlands against a Russian national who developed a rare form of blood cancer the treatment of which consists, inter alia, of the administration of medical cannabis for analgesic purposes, which is forbidden in Russia.

The CJEU dealt with that issue inter alia from the perspective of the prohibition of ill-treatment (Article 4 of the EU-Charter) and the right to protection of private life (Article 7 of the EU-Charter). In light of Article 52(3) of the EU-Charter, both provisions were found to have the same meaning and scope as the corresponding provisions of the Convention, Articles 3 and 8 respectively.

As regards the impact of Article 4 of the EU-Charter on the return decision at issue, a striking feature of this judgment is its extensive reliance on Strasbourg case-law, notably Paposhvili v. Belgium and Savran v. Denmark, which are the leading cases on the deportation of seriously ill persons considered under Article 3 of the Convention.

This is another illustration of the “toolbox function” fulfilled by the Convention when Strasbourg case-law is used to fill lacunae in EU legislation or case-law (for another example, see Spetsializirana prokuratura(trial of an absconded suspect)). This kind of reliance on the Convention, which is to be welcomed as an important contribution to the coherence of European fundamental rights protection, is to be distinguished from the “benchmark function” of the Convention, which is less frequently mentioned and refers to the fact that pursuant to Article 52(3) of the EU-Charter, the Convention protection level also applies under EU law (as recently applied in Politsei- ja Piirivalveamet, §§ 47 et seq.).