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Author Archives: johan-callewaert
Judgment of the ECHR in the case of O.C.I. and Others v. Romania
The case of O.C.I. and Others v. Romania concerned decisions by the Romanian courts acting under the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation (No. 2201/2003) and ordering the return to Italy of two children who had been abducted to Romania by their mother because their Italian father had allegedly used violence against them. In its judgment of 21.5.2019, the ECHR found a violation of Article 8 of the Convention (right to respect for family life) on account of the fact that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. After reiterating that a child’s return cannot be ordered automatically or mechanically (§§ 35 and 46), the ECHR held in particular:
In the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention. (§ 40) …
As member States of the European Union, both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court’s view, the existence of mutual trust between child-protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion. (§ 45)
This approach would appear to be in some contrast with the one followed by the CJEU, notably in the Povse case (C-211/10).
Judgment of the ECHR in the case of Sanofi Pasteur v. France
In the case of Sanofi Pasteur v. France (13.2.2020) the ECHR recapitulated its case-law on the need for domestic courts which, under Article 267 TFEU, are in principle obliged to make a reference to the CJEU for a preliminary ruling, to give reasons when they reject an application to that effect by one of the parties to the proceedings. In the present case, it found that the French Court of cassation had breached Article 6 of the Convention by limiting its reasoning to finding that there was no need to call the CJEU.
Judgment of the ECHR in the case of N.D. & N.T. v. Spain
In the case of N.D. & N.T. v. Spain (13.2.2020) a Grand Chamber of the ECHR ruled inter alia that the two applicants, migrants from Mali and Côte d’Ivoire who had attempted to cross the fences of the Melilla enclave and had been immediately returned to Morocco by the Spanish border guards, had not been the victim of a collective expulsion prohibited by Article 4 of Protocol no. 4 to the Convention. A key element of the Court’s reasoning is the obligation on the States to make available genuine and effective access to means of legal entry to their territory. In stating that principle, the ECHR referred to the Schengen Borders Code and the EU Procedures Directive, in the following terms:
With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution.
However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive …). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons …, to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force. (§§ 209-210)
Judgment of the CJEU in the case of Deutsche Umwelthilfe
In the case of Deutsche Umwelthilfe (19.12.2019) a Grand Chamber of the CJEU ruled on the question whether the right to an effective remedy (Art. 47(1) of the EU-Charter) required domestic courts to impose coercive detention on senior political representatives or senior officials of Bavaria on account of the persistent refusal of the Bavarian government to comply with an injunction granted by the Munich Administrative Court pursuant to Directive 2008/50 on ambient air quality and cleaner air for Europe.
In answering that question the CJEU recalled, interpreting Article 47 of the EU-Charter in the light of the case-law of the ECHR on Article 6 § 1 of the Convention, that the right to an effective remedy would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain ineffective to the detriment of one party (§ 36-37). As, however, the right to an effective remedy is not absolute, it had to be weighed against the right to liberty (Art. 6 of the EU-Charter) which required, in accordance with the case-law of the ECHR on Article 5 of the Convention, the legal basis for a limitation on the right to liberty to be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risks of arbitrariness (§§ 45-46).
Judgment of the CJEU in the case of Centraal Justitieel Incassobureau
In the case of Centraal Justitieel Incassobureau (5.12.2019) the CJEU interpreted Framework Decision 2005/214 on the application of the principle of mutual recognition to financial penalties. Two issues of interest from a Convention perspective are worth mentioning in this connection.
First, while the CJEU stresses that according to the principle of mutual recognition Member States are, as a rule, obliged to recognise a decision requiring payment of a financial penalty which has been transmitted in compliance with the Framework Decision and that, therefore, the grounds for refusal to recognise or enforce such a decision, as listed in Article 7(1) and (2) of the Framework Decision, must be interpreted restrictively (§ 30), it states at the same time:
It must be noted that, in accordance with Article 3 of the Framework Decision, that decision may not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, which is why Article 20(3) of the Framework Decision also provides that the competent authority of the Member State of execution may refuse to recognise and execute a decision requiring payment of a financial penalty in the event of infringement of fundamental rights or fundamental legal principles defined by Article 6 of the Treaty. (§ 37)
This reasoning bears obvious similarities to Aranyosi and Căldăraru (C 404/15 and C 659/15 PPU, 5.4.2016) which concerned the Framework Decision on the European arrest warrant (2002/584) and in which the CJEU also stated that over and beyond the exhaustive list of grounds for non-execution of a European arrest warrant, “as is stated in Article 1(3) thereof, the Framework Decision is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter” (§ 83).
This requirement makes sense in light of the fact that mutual recognition itself can be made the subject of an application before the ECHR against the Member State which, for instance, enforced a financial penalty or executed a European arrest warrant (see e.g. Pirozzi v. Belgium, 21055/11, 17.4.2018, mentioned on the “Recent case-law” page).
Secondly, in light of this requirement to comply with fundamental rights the CJEU examined whether the presumption of liability underpinning the Netherlands Highway Code on the basis of which the financial penalty had been imposed in the present case was compatible with the presumption of innocence laid down in Article 48 of the EU-Charter. Referring to Article 52(3) of the EU-Charter, it thereby relied on the case-law of the ECHR relating to the presumption of innocence under Article 6 § 2 of the Convention (§§ 53-55).
Judgment of the CJEU in the case of A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
In the case of A.K. and Others (19.11.2019) the CJEU dealt with the issue of the independence of the Disciplinary Chamber of the Polish Supreme Court. In setting out the requirements to be fulfilled under EU law for a court to be independent and impartial, it relied on the second paragraph of Article 47 of the Charter (right to a fair trial), thereby pointing out that, by virtue of Art. 52(3) of the Charter, “the Court must … ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights” (§ 118).
The CJEU then went on to give an overview of its own case-law on the independence and impartiality of courts (including C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of justice) and C-619/18, Commission v. Poland (Independence of the Supreme Court)) and pointed out that its interpretation of article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention (§ 126) which the CJEU then proceeded to describe in some detail.
One may just wonder why the CJEU did not mention that same Strasbourg case-law in its previous judgment in C-619/18 mentioned above, which deals with very similar issues.
Judgment of the CJEU in the case of Rayonna prokuratura Lom
In Rayonna prokuratura Lom (19.9.2019) the CJEU ruled on the scope of three of the directives on procedural rights in criminal proceedings, being Directive 2012/13 on the right to information, Directive 2013/48 on the right of access to a lawyer and Directive 2016/343 on the presumption of innocence and the right to be present at the trial.
As regards the directives on the right to information and on access to a lawyer, the CJEU stated that these Directives also apply to proceedings for the committal to a psychiatric hospital of a person who committed a criminal offence, provided that such a measure was justified not only on therapeutic grounds but also on safety grounds. The CJEU came to this conclusion by relying inter alia on the case-law of the ECHR on Article 5 of the Convention (right to liberty and security), which also covers deprivations of liberty resulting from psychiatric or medical care measures. After recalling that Art. 6 of the EU-Charter corresponded to Art. 5 of the Convention and therefore, by virtue of Art. 52(3) of the Charter, had to be interpreted having regard to that case-law of the ECHR, the CJEU concluded: “Accordingly, in the light of the right to liberty and security guaranteed by Article 6 of the Charter, Directives 2012/13 and 2013/48 cannot be interpreted as excluding from their scope judicial proceedings in which an order may be made for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence.” (§ 46)
Thus, through this new case-law the concept of “criminal proceedings” – and the fair-trial guarantees which go with it – are being extended, for the purpose of the said directives, to “proceedings for committal to a psychiatric hospital which, although they do not lead to a ‘sentence’ in the strict sense, nevertheless result in a measure involving a deprivation of liberty, provided that such a measure is justified not only on therapeutic grounds but also on safety grounds” (§ 41). Moreover, the court dealing with a request for such a committal must have the power to verify that the procedural rights covered by those directives were respected in proceedings prior to those before that court (§ 63).
In simple terms, the procedure for the committal to a psychiatric hospital with a “penal purpose” (§ 71) is being assimilated with standard criminal proceedings on the ground that both can lead to a deprivation of liberty coming under the scope of Articles 5 of the Convention and 6 of the Charter.
By contrast, the CJEU ruled in the same judgment that the Directive on the presumption of innocence – and indeed EU law as such – did not apply to a procedure for the committal to a psychiatric hospital which had a purely therapeutic purpose and was implemented independently of any criminal proceedings (§ 66).
As a result of this case-law, domestic authorities dealing with procedures for the committal to a psychiatric hospital which are governed by any of the above-mentioned directives will now have to combine the safeguards laid down in those directives with the requirements under Art. 5 of the Convention relating to the deprivation of liberty of persons of unsound mind, as they have been recapitulated by the ECHR in the cases of Stanev v. Bulgaria (17.1.2012) and Rooman v. Belgium (31.1.2019). While those requirements to some extent draw on the fair-trial guarantees laid down in Art. 6 of the Convention, they cover many more aspects of the committal than just the rights of the defence.
Finally, as regards the substance of the rights at stake in the present case, it is perhaps worth noting that in relation to the right to information in criminal proceedings as enshrined in Directive 2012/13, the CJEU ruled that the relevant information was to be provided “as soon as possible” and “at the latest, before [the persons concerned] are first officially questioned by the police” (§ 53). This would appear to be in slight contrast with the requirement flowing from Simeonovi v. Bulgaria (ECHR 12.5.2017) according to which this information is to be provided immediately (§ 119).
Judgment of the CJEU in the case of AH and Others
In AH and Others (5.9.2019) the CJEU applied Directive 2016/343 on the presumption of innocence and the right to be present at the trial in criminal proceedings to an agreement with the prosecution in which only one of the co-accused persons had recognized his guilt in exchange for a reduction in sentencing. In doing so, the CJEU considered:
“… it should be noted that the presumption of innocence is enshrined in Article 48 of the Charter, which corresponds to Article 6(2) and (3) of the ECHR, as is apparent from the explanations to the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) of the ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection…” (§ 41)
In light of the above, the CJEU then relied on the judgments of the ECHR in the cases of Karaman v. Germany (27.2.2014) and Navanyy and Ofitrov v. Russia (23.2.2016).
Landmark judgments of the German Constitutional Court (“Right to be forgotten” I and II)
In two landmark judgments dated 6.11.2019 the German Constitutional Court (Bundesverfassungsgericht – hereinafter “GCC”) dealt with the “right to be forgotten” and thereby clarified the relationship between the fundamental rights of the national Constitution (Grundgesetz), the EU Charter of Fundamental Rights and the European Convention on Human Rights.
In the first judgment (“Right to be forgotten I” – 1 BvR 16/13) the GCC stated that in areas not fully regulated by EU law it was to be assumed that the EU legislature allowed for some variety also in the field of fundamental rights. In such areas, the GCC would therefore only apply the fundamental rights of the Constitution, even when the EU Charter also applied by virtue of its Article 51(1). It would do so on the basis of a presumption that the level of protection of the EU Charter is already included in the protection afforded by the fundamental rights of the Constitution (§ 55). This presumption, which could be rebutted on a case-by-case basis (§ 63), was rooted not least in the European Convention on Human Rights which is both binding on the EU member States and being relied upon by the TEU (Art. 6(3)) as well as by the Charter itself (Preamble and Art. 52(3) and 53) (§ 56-57). In this connection, the GCC highlighted the role of the European Convention on Human Rights, which was to ensure an overarching minimum pan-european protection as a basis underlying both the national and the EU protection of fundamental rights (§ 62).
The applicant in this case claimed a right to have newspaper articles on his criminal conviction dating back 30 years removed from online archives. The GCC considered that the facts of the case were not entirely regulated by the applicable EU law (Directive 94/46 on the protection of individuals with regard to the protection of personal data; now replaced by the GDPR, 2016/679) in that the latter left some discretion to the member States in applying the so-called media privilege laid down in Articles 9 of the Directive and 85 of the GDPR (§ 12). It thus solely applied the fundamental rights of the Constitution, thereby leaving open the question whether the EU Charter also applied to the facts of the case by virtue of its Article 51(1). At the same time, the GCC took the view that there was no reason to assume that the protection level of the EU Charter would not be respected by its judgment, since the latter relied on the case-law of the European Court of Human Rights which, by virtue of Article 52(3) of the Charter, was decisive in interpreting the Charter (§ 154).
By contrast, in the second judgment (“Right to be forgotten II” – 1 BvR 276/17) the GCC stated that in areas fully regulated by EU law only the EU fundamental rights were to be applied, provided they were sufficiently effective. Departing from its previous case-law, the GCC ruled in this context that it would henceforth assess itself compliance of domestic judgments with EU fundamental rights, including the EU Charter, and that it would do so in cooperation with the CJEU, pursuant to Article 267 TFEU (§ 68). The applicant in this case claimed a right to have a hyperlink to an unfavourable media report removed from the list of results provided by a search engine operator (Google). As, unlike in the first judgment (above), the facts of the case did not give rise to the application of the so-called media privilege, the GCC considered that the issue at stake was fully regulated by EU law (Directive 94/46 and the GDPR, as above) and that therefore only the EU fundamental rights, including the EU Charter, applied. It then went on to apply in particular Articles 7, 8 and 16 of the EU Charter, thereby referring to the case-law of the CJEU and, by virtue of Article 52(3) of the Charter, to that of the ECHR. Having regard to those two sets of case-law, the GCC concluded that in the absence of any unsettled issues concerning the interpretation of EU law, there was no need to make a preliminary reference to the CJEU under Article 267 TFEU (§ 137).
One of the striking features of those two judgments is their detailed analysis of how the national Constitution, the EU Charter and the Convention interact in practice and of the consequences at domestic level of the substantive link established by Article 52(3) of the EU Charter between the latter and the Convention. It plays a role notably for the assessment of whether domestic protection levels match EU protection levels (Right to be forgotten I) and of whether a preliminary reference to the CJEU is called for (Right to be forgotten II).