In the case of G.K. and Others (European Public Prosecutor’s Office) (C-281/22, 21.12.2023), the CJEU interpreted Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO) and ruled on the scope of the judicial review to be carried out by the courts of the Member States in the event of cross-border investigation measures.

In the case before the referring court, several persons were being prosecuted for fraud concerning the import of biodiesel into the Union. The EPPO conducted an investigation in Germany through a “handling European Delegated Prosecutor” (EDP) and, for the purposes of the investigation, the search and seizure of goods in Austria was ordered. The German handling EDP thus delegated the enforcement of those measures to an Austrian “assisting EDP”. The accused persons challenged those investigation measures before the Vienna court of appeal, which referred to the CJEU several questions about the extent of the judicial review which it should carry out for the purpose of authorising the investigation measures which had been assigned by the German handling EDP to the Austrian assisting EDP.

The CJEU ruled that Articles 31 and 32 of Regulation 2017/1939 limit the review by the courts of the Member State of the assisting EDP to matters concerning the enforcement of those measures, to the exclusion of matters concerning their justification and adoption, which are to be assessed by the courts of the Member State of the handling EDP. The CJEU added that the latter matters must be subject to prior judicial review in the Member State of the handling European Delegated Prosecutor in the event of serious interference with the rights of the persons concerned guaranteed by the EU-Charter.

While this ruling answers a number of important questions arising in the context of criminal proceedings by the EPPO, one equally important issue is being completely ignored by it: the status under the Convention of the national authorities involved in EPPO-proceedings, i.e. the enforcement authorities, such as police forces and investigators, and the courts entrusted with reviewing procedural acts by the EPPO and adjudicating the cases brought before them by the EPPO. Are these national authorities subject to the Convention or not, in addition to them being subject to Union law? The answer to this question will determine which fundamental rights exactly will apply to EPPO-proceedings.

While it seems clear that EDPs, acting on behalf of the EPPO, an EU institution, are not subject to the Convention, the situation is less clear as regards these national authorities. This can only be decided by the ECtHR itself. Pending this clarification by the ECtHR and focussing on the national courts involved in proceedings initiated by the EPPO, it should be recalled that the creation of the EU and its predecessor organisations did not remove the responsibility of the Member States under the Convention for their application of Union law (see, among others, Bivolaru and Moldovan v. France). Neither does Regulation 2017/1939 provide that the national courts would act as EU courts when involved in EPPO-proceedings.

It can therefore be assumed that the national courts, when involved in such proceedings, remain national courts and, in this capacity, remain bound to apply Union law in conformity with the Convention. In any event, any other solution would deprive citizens who are the subject of EPPO-proceedings of the possibility of filing an application for external review of these proceedings by the ECtHR. Their fundamental rights would in that case be less well protected than those of the persons who are subject to proceedings initiated by national prosecutors under national law, which would be unacceptable.

Thus, as things currently stand, two partially different sets of European fundamental rights apply to a single set of EPPO-proceedings, depending on the acting institution: the sole EU rights in respect of legal acts by the EDPs, and a combination of EU and Convention rights in respect of legal acts by the national courts and perhaps also by the national enforcement authorities. This distinction becomes relevant in all cases where the level of protection between EU and Convention fundamental rights differs.

Fortunately, in criminal proceedings more than in any other area, the CJEU seems to be taking greater care in avoiding discrepancies with the Strasbourg case-law, which is beneficial to the coherence of the European standards in criminal procedure and facilitates the challenging task of national judges (see Greater convergence). However, some differences remain, e.g. with the application of the ne bis in idem principle (see Convention control, at p. 342) or with some aspects of the right to legal assistance such as the free choice of a lawyer.

What is helpful in this context, though, is that Article 41(2) of Regulation 2017/1939 provides that suspected or accused persons shall, “at a minimum”, have the procedural rights provided for in Union law enumerated in that provision (§ 76). This seems to indicate that the level of protection guaranteed by the latter can be raised if need be.

At the same time, this duality of European sources of fundamental rights can prove useful, as it will allow national judges to also rely on the Strasbourg case-law on the right to a fair trial in criminal matters which, being developed since more than 70 years, is indeed richer and more comprehensive than the Luxembourg case-law on these issues and, in any event, by virtue of Article 52(3) of the EU-Charter, represents a mandatory minimum protection standard which is also applicable under EU law.

Even so, the fact nonetheless remains that under the scheme put in place by Regulation 2017/1939, such “double standards” distort the uniformity which should in principle characterize, throughout criminal proceedings, the fundamental rights applied to the latter. For how coherent is it for an accused to be entitled to claim a level of protection which did not apply to the prosecutor in the very same case? Both should rather play by the same rules. If not, and in the event, as a result, of a failure by national courts to comply with the Convention, the Member State concerned would, in addition, incur liability in Strasbourg for action by an independent EU institution over which it has no control. The only way to minimize the impact of such distortions would be for the EU to become a Contracting Party to the Convention, along with its own Member States (for a more detailed analysis of the impact of the Convention on criminal proceedings of the EPPO, turn to No case to answer).

One can only regret that the authors of Regulation 2017/1939 did not adopt a wholistic approach which would have allowed them to address these important issues and help avoid yet another layer of complexity in this area.

The case of Commune d’Ans (C-148/22, 28.11.2023) concerned an employee of a Belgian municipality who performs her duties as head of office primarily without being in contact with users of the public service and who was prohibited from wearing an Islamic headscarf in her workplace. In the wake of that decision, the municipality amended its terms of employment, now requiring its employees to observe strict neutrality. As a consequence, any form of proselytising is prohibited and the wearing of overt signs of ideological or religious affiliation is prohibited for any worker, including those who are not in contact with the administered. The employee concerned complained before a Belgian Labour Court about breaches of her right to freedom of religion and of the prohibition of discrimination.

Before the Labour Court and the CJEU, the case was dealt with as a case about indirect discrimination on grounds of religion or belief. Consequently, Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation applied. Given that Article 51(2) of the EU-Charter does not allow the latter to extend the field of application of Union law and therefore obviously precluded direct reliance on Article 10 of the EU-Charter (freedom of thought, conscience and religion), Directive 2000/78 allowed the case to nonetheless be brought within the scope of Union law. On that basis, the CJEU interpreted Article 2(2)(a) of that Directive as meaning that:

“An internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake”.

One of the striking features of this ruling is that the weighing-up of the rights and interests at stake in this case is done at a collective level, not at the level of the individual complaining about discrimination. While the CJEU leaves to the Member States a “margin of discretion” and therefore accepts in principle the policy of “exclusive neutrality” which the municipality concerned wants to pursue (§§ 33-34), the assessment of whether any indirect difference in treatment generated by this policy is objectively justified and proportionate must be done, according to the CJEU, with regard to the right to freedom of thought, conscience and religion not of the complainant considered individually but of the entire municipal staff which, because they are all subject to the same exclusive neutrality policy at stake, is being considered as a single, undifferentiated entity.

In other words, the required assessment is to be based not on the individual but on the collective circumstances of the case. Logically, the fundamental rights being referred to under this approach are those of the entire collectivity of the staff concerned, not those of the complainant considered individually (see §§ 28 and 40).

The Strasbourg approach is different, based as it is on the individual rights flowing from Article 9 of the Convention, considered alone or in conjunction with Article 14 (prohibition of discrimination), as the case may be. The assessment of the justification of any interference with these rights must have regard to the particular circumstances of the case, which include the particular circumstances of the applicant. Thus, an examination in concreto rather than in abstracto, as in Commune d’Ans.

This was the case e.g. in Ebrahimian v. France. In finding no violation of Article 9 in this case, the ECtHR had regard to such general circumstances as the French secular model or the policy of strict neutrality imposed on the staff of the hospital concerned, but also to individual circumstances such as the difficulties she had encountered in her unit, the refusal by the applicant to apply for another function which was open to her within the same institution, the impact of her attire on the exercise of her duties, as well as the procedural safeguards and judicial remedies from which she had benefitted in her dealings with her employer (see also, following a similar approach, Eweida and Others v. United Kingdom).

It would therefore appear that such rulings as Commune d’Ans are not necessarily the end of the story for the persons concerned. This is because, being focussed on discrimination, Directive 2000/78 does not exhaust the issue of freedom of religion in the workplace. At best, it only exhausts the issue under Union law. Thus, in the event of significant and relevant individual circumstances not addressed under Directive 2000/78, these circumstances could in principle still be invoked, under Article 9 of the Convention, alone or in conjunction with Article 14, as the case may be, before the domestic courts and, after exhaustion of domestic remedies, before the ECtHR.

In other words, the Union law elements of a case like Commune d’Ans do not displace its Convention elements. Rather, on condition that Article 9, alone or in conjunction with Article14, have been lawfully invoked before the domestic courts, they remain to be assessed by these courts and, ultimately, by the ECtHR, along with the compatibility of the Commune d’Ans jurisprudence with these provisions, since the application of Union law must be Convention compliant (see, mutatis mutandis, Bivolaru and Moldovan v. France, § 103).

From this perspective, Commune d’Ans is also an example of an issue capable of being addressed both under Union law and under the Convention, with slightly different outcomes depending on the legal basis invoked. This illustrates the importance of the choice by the parties to judicial proceedings and the adjudicating judges of the legal basis for the claims being made.

In the case of Staatsanwaltschaft Aachen (C-819/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia.

The referring court asked the CJEU whether, under Framework Decision 2008/909 (on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty), it could refuse to declare the custodial sentence imposed on M.D. in Poland to be enforceable in Germany, because of systemic or generalised deficiencies in the Polish judicial system, in violation of the second paragraph of Article 47 of the Charter and of Article 2 TEU. The referring court relied inter alia on the reasoned proposal of the European Commission of 20 December 2017 submitted on the basis of Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final), and to the recent case-law of the CJEU on that matter (§ 14).

Drawing a parallel between Framework Decision 2008/909, at stake in the present case, and Framework Decision 2002/584 on the European arrest warrant, the CJEU first recalled its case-law about the limitations of the principles of mutual recognition and mutual trust which can be made in exceptional circumstances and which derive from the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, notably the prohibition of ill-treatment enshrined in Article 4 of the EU-Charter ( as in Aranyosi und Căldăraru) and the right to a fair trial laid down in the second paragraph of Article 47 of the EU-Charter (as in Minister for Justice and Equality (Deficiencies in the system of justice), and Openbaar Ministerie (Tribunal established by law in the issuing Member State)).

Addressing the methodology to be applied in such cases, the CJEU recalled the well-known obligation on the competent authority of the executing Member State to carry out a two-step examination.

As a first step, that authority must “determine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. (§ 29, emphasis added)

The CJEU then went on to say: “If that is the case, the competent authority of the executing Member State must, as a second step, determine, specifically and precisely, to what extent the deficiencies identified in the first step may have had an impact on the functioning of the courts of the issuing Member State which have jurisdiction over the proceedings brought against the person concerned and whether, having regard to that person’s personal situation, the nature of the offence for which he or she was tried, and the factual context of the sentence in respect of which recognition and enforcement are requested, and, where appropriate, to additional information provided by that Member State pursuant to that framework decision, there are substantial grounds for believing that such a risk has actually materialised in the present case”. (§ 30, emphasis added)

The opening words “if that is the case” in the above quotation read as a condition and suggest that it is only if the existence of systemic or generalised deficiencies is confirmed in the context of the first step of the examination that, as a second step, it can be assessed whether these deficiencies may have had a concrete impact on the individual concerned in terms of the fairness of the criminal proceedings which led to his conviction.

Assuming this interpretation is correct, it would mean that conversely, in the absence of such systemic or generalised deficiencies, no such individual assessment would be permissible. This would be in line with the CJEU’s approach in Puig Gordi and Others where a similar question was asked to the CJEU in relation to the execution of a European arrest warrant for the purpose of conducting criminal proceedings against the person concerned. In that case too, the CJEU denied the possibility for the executing authority to apply an individual test in the absence of systemic or generalised deficiencies (§ 111), the only difference being that in Staatsanwaltschaft Aachen the referring court had itself found such systemic or generalised deficiencies to exist.

Applied in this way, the two steps of this methodology appear of unequal weight and not on the same footing. Rather, the individual test seems subordinated to the general test, performing an ancillary function compared to that of the general test. Unlike the general test, the individual test is indeed not autonomous in the sense that it could on its own justify a conclusion as regards the existence of a risk of breach of a fundamental right – here the right to a fair trial – in the issuing State, as it can do under the European Convention on Human Rights.

Under this approach the individual test can only operate to validate or not the findings under the general test that systemic or generalised deficiencies do exist. But if the general test is negative about the existence of such deficiencies, this is the end of the story: no assessment of the individual situation of the person concerned can be allowed to rebut the conclusions regarding the general situation.

This, in fact, amounts to allowing the general test to replace the individual test and strongly reminds of the position taken by the CJEU in N.S. and Others to the effect that only systemic flaws could justify an exception based on Article 4 of the EU-Charter to the Dublin Regulation (§§ 82-86). Here too, efficiency considerations were allowed to prevail over fundamental rights.

In essence, however, fundamental rights are individual rights and call for an autonomous individual assessment. It can be complemented but not replaced by a general assessment. This is also reflected in the central position in the Convention system of the right of individual petition which, by definition, calls for an individual assessment. The way to handle this in a mutual recognition context has been set out by the ECtHR in Avotiņš v. Latvia, in the following terms:

[The Court] must verify that the principle of mutual recognition is not applied automatically and mechanically … to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context …. Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116, emphasis added)

The CJEU argues that “allowing the competent authority of the executing Member State to suspend, on its own initiative, the mechanism laid down in Framework Decision 2008/909 by refusing, in principle, to give effect to all the requests seeking recognition of judgments and enforcement of criminal sentences from the Member State concerned by those deficiencies would call into question the principles of mutual trust and mutual recognition which underpin that framework decision” (§ 34).

However, this is no answer to the question why an individual test should not be allowed to be applied in the absence of systemic or generalised deficiencies. By definition, the result of such a test would be limited to the individual case concerned and could therefore not call into question the entire system of mutual recognition. Under the Avotins approach referred to above, it would at the same time remain exceptional, in line with the CJEU’s doctrine on mutual recognition.

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d’atteintes graves) (C-125/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection under Article 15 of Directive 2011/95/EU (“Qualification Directive”).

Under that provision, the “serious harm” justifying the granting of subsidiary protection can consist of either the death penalty or execution (a), or torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (b), or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (c).

The main issue raised in this case was about the criteria to be used for the assessment of whether any of these three situations materialised in a given case: only the general situation in the country concerned or also the individual position and personal circumstances of the applicant for subsidiary protection?

In essence, the CJEU ruled that the application of Article 15 (a) and (b) required a “clear degree of individualisation” (§§ 37, 72), whereas under Article 15 (c), one had to distinguish between exceptional and less exceptional situations.

According to this approach, the exceptional situations are those which occur when the applicant for subsidiary protection comes from an area of a given country hit by “the most extreme cases of general violence”, within the meaning of the judgment of the ECtHR in NA. v. United Kingdom. In such cases, substantial grounds would exist for believing that a civilian, returned to the relevant country or region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to a serious and individual threat to his or her life or person (§§ 58, 63). Therefore, the existence in such cases of a risk of a “serious and individual threat”, within the meaning of Article 15(c), is not conditional on the applicant proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances (§ 41).

By contrast, in the “less exceptional situations”, factors relating to the individual position and personal circumstances of the applicant are relevant, to the effect that the more the applicant is able to show that he or she is specifically affected by reason of factors particular to his or her individual position or personal circumstances, the lower the level of indiscriminate violence required for him or her to be eligible for subsidiary protection (§ 42). Consequently, in such cases more relevant personal elements are needed to justify subsidiary protection than just the fact of coming from an area where “the most extreme cases of general violence” occur (§ 65).

What is very helpful in this ruling is that the CJEU takes care of indicating that by virtue of Articles 6(3) TEU and 52(3) of the EU-Charter, the case-law of the ECtHR on Article 3 of the Convention (prohibition of ill-treatment) must be taken into account “as the minimum threshold of protection”, when interpreting Directive 2011/95 and Article 4 of the EU-Charter (§§ 59-60).

What is perhaps even more remarkable as a result, and regrettably still very rare in the Luxembourg jurisprudence (one isolated example being Menci, § 62), is a clear statement by the CJEU about its interpretation of EU law being “fully compatible” with the corresponding Strasbourg case-law, here on Article 3 of the Convention (§ 66). Such a useful clarification – which indeed corresponds to reality – can only facilitate the task of domestic judges who, when they apply EU law, must also comply with the Convention (see Bivolaru and Moldovan v. France, § 103).

Somewhat surprisingly, though, the CJEU adds that its interpretation of Article 15(c) would provide applicants for international protection a more extensive protection than that offered by Article 3 of the Convention (§ 66). As such, this would not be a problem, as the Convention is open to its own standards being raised at domestic level (Art. 53 of the Convention) and Article 52(3) of the EU-Charter allows EU law to do the same.

However, this statement would appear to be a misrepresentation of the situation. It seems based on the following false assumption by the CJEU:

The Court has already held that it is Article 15(b) of Directive 2011/95 which corresponds, in essence, to Article 3 ECHR. By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 ECHR, and the interpretation of which must, therefore, be carried out independently, in order, inter alia, to ensure that that provision has its own field of application, although with due regard for the fundamental rights guaranteed under the Charter and the ECHR (§ 62)

This analysis seems to be missing the fact that while the wording of Article 3 of the Convention is reflected only in Article 15 (b), the ECtHR has interpreted Article 3 so as to extend its scope to most of the situations described in Article 15 (c), thereby applying both individual and general criteria for the assessment of whether an individual can be considered to be at a risk relevant under Article 3 if returned to his or her country of origin. For instance, in Khasanov and Rakhmanov v. Russia, the ECtHR stated:

The risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances …. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. (§ 95, emphasis added)

These are exactly the kind of situations described in paragraphs 63 and 64 of the ruling which, according to the CJEU, come with the scope of Article 15 (c) of Directive 2011/95. In other words, under the current case-law Article 3 of the Convention covers the situations coming within the scope of Article 15 (b) or (c), the level of personal circumstances being required for Article 3 to kick in hinging on the nature of the risk at stake. This means, as a consequence, that the CJEU is not dispensed from complying with the Convention minimum standard under Article 3 when interpreting Article 15 (c) of the Directive.

Last but not least, another useful clarification made by the CJEU is about the burden of proof, the CJEU stating that although, under Article 4(1) of Directive 2011/95, Member States may require the applicant, during the first of those stages, to submit as soon as possible all elements needed to substantiate the application for protection, the authorities of the Member States must, if necessary, actively cooperate with him or her in order to determine and supplement the relevant elements of the application, those authorities being often better placed than the applicant to gain access to certain types of documents (§ 47). This is very much in line with the Strasbourg approach as described in J.K. and Others v. Sweden.

In the case of K.B. and F.S. (C-660/21, 22.6.2023), two suspects had been arrested in flagranti by the French police and interrogated without having been previously informed about their rights, notably the privilege against self-incrimination, the right to remain silent and the right to legal assistance by a lawyer. While this was a clear breach of Article 6 of the Convention (see Ibrahim and Others v. United Kingdom, § 273) and Article 3(1) and 4(1) of Directive 2012/13 on the right to information in criminal proceedings, French trial judges are prevented by Article 385 of the Code of Criminal Procedure, as interpreted by the Court of cassation, from raising that failure of their own motion in cases where it is open to the suspect or their lawyer to raise it themselves before the trial court with a view to the annulment of the procedure. The trial court in the case at hand interrogated the CJEU about the compatibility of this prohibition with EU law.

Relying on Salduz v. Turkey, the CJEU replied in substance that Union law did not preclude such a prohibition, provided that the suspect or the accused person concerned had had a practical and effective opportunity to have access to a lawyer (Art. 3 of Directive 2013/48/EU), had obtained legal aid if necessary (Directive 2016/1919) and had had access to their file and the right to invoke that breach within a reasonable period of time (Art. 8(2) of Directive 2012/13, read in the light of Articles 47 and 48(2) of the EU-Charter).

This solution is very much in line with the Strasbourg case-law on Article 6 of the Convention (right to a fair trial). In the landmark case of Ibrahim and Others v. United Kingdom, explicitly relied on by the CJEU, the ECtHR indeed stated:

In the light of the nature of the privilege against self-incrimination and the right to silence, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. … Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer and his right to silence and privilege against self-incrimination takes on a particular importance. (§ 273; in the same sense: Beuze v. Belgium, § 121)

This convergence with the Strasbourg case-law does not come as a surprise, since the CJEU had previously indicated that by virtue of Article 52(3) of the EU-Charter, when interpreting the rights guaranteed by the first and second paragraphs of Article 47 (right to an effective remedy and to a fair trial) and Article 48(2) of the EU-Charter (presumption of innocence and rights of the defence), it must take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (§ 41).

Perhaps more surprising is what the CJEU added on how to handle a failure to properly inform a suspect on their right to remain silent:

Under the case-law of the European Court of Human Rights, where a procedural defect has been identified, it falls to the domestic courts to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 ECHR (ECtHR, 28 January 2020, Mehmet Zeki Çelebi v. Turkey, …, § 51). Thus, where a suspect has not been informed in due time of the privilege against self-incrimination and the right to remain silent, it is necessary to assess whether, notwithstanding this failure, the criminal proceedings as a whole can be considered fair, taking into account a series of factors, including whether the statements taken without such information having been given formed an integral or significant part of the probative evidence, and the strength of the other evidence in the case (see, to that effect, ECtHR, 13 September 2016, Ibrahim and Others v. The United Kingdom, …, §§ 273 and 274). (§ 48)

The CJEU here goes for the lower Strasbourg protection standard, i.e. the test of the “proceedings as a whole”, even though under EU law there is no obligation to do so and there would be room for a higher protection standard, such as the finding that any failure to comply with any of the safeguards laid down in the invoked directives on procedural rights would entail a breach of EU law, with all consequences in terms of procedural acts to be annulled as a result.

It is indeed the case that while the directives on procedural rights to a large extent draw on the Strasbourg case-law relating to Article 6 of the Convention (right to a fair trial), they do not explicitly deal with the consequences of a breach of their provisions. The CJEU now seems to have identified that lacuna and, as already in HYA and Others, to be willing to fill it by adopting the “proceedings as a whole” approach, which is not explicitly laid down in the Convention either but rather is the result of the interpretation by the ECtHR of the notion of fair trial.

However that may be, the approach now adopted by the CJEU makes it easier for national judges to deal with breaches of procedural fundamental rights, as there is convergence between Strasbourg and Luxembourg on the need to consider the fairness of domestic proceedings as a whole when assessing the legal consequences of such breaches.

Theoretically, though, a “breach-by-breach” approach, which in the past was not without any support in the Strasbourg case-law (see the discussion in Beuze v. Belgium, §§ 140-141), would have been possible too, as it would represent a higher protection standard for the suspect and both Article 52(3) of the EU-Charter and Article 53 of the Convention, as well as the non-regression clauses featuring in the directives on procedural rights, all allow the application of higher protection standards. That said, under the Convention there is of course no obligation on any State to raise the minimum Convention standard.

In the case of TT (unlawful removal of a child) (C-87/22, 13.7.2023), the CJEU ruled on the requirements of Article 15 of Regulation No 2201/2003  concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis). This provision allows a case concerning the wrongful removal of a child to be transferred from the court of the Member State of the habitual residence of the child to a court of another Member State which is considered to be better placed to hear the case, if such a transfer is in the best interests of the child and the latter has a particular connection with that other Member State.

In the case at hand, two children had been wrongfully removed from Austria to Slovakia by their mother, without the agreement of their father. The mother made an application for the Austrian courts, which under Article 10 of the Regulation had jurisdiction in relation to parental responsibility over the children, to request a court in Slovakia to assume jurisdiction, pursuant to Article 15 of the Regulation. One of those courts interrogated the CJEU about the requirements of that provision, and more particularly about whether the court to which a case would be transferred on this basis could also be a court of the Member State to which the child concerned had been wrongfully removed.

After recalling the rationale of the scheme put in place by the Regulation in this field, which is based on the Hague Convention on the Civil Aspects of International Child Abduction and aims at preserving the best interests of the child while at the same time deterring parents from wrongfully removing their children, the CJEU concluded that Article 15 of the Regulation did not oppose a transfer of the case to a court located in the Member State to which the child has been removed (§ 44). The CJEU notably stated:

The court with jurisdiction as to the substance, under Article 10 of Regulation No 2201/2003, must be satisfied, having regard to the specific circumstances of the case, that the transfer proposed is not likely to have a negative impact on the emotional, family and social relationships of the child concerned or on the child’s material circumstances … and must make a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment ….

Hence, it is not contrary to the objectives pursued by Regulation No 2201/2003 for a court with jurisdiction in matters of parental responsibility on the basis of Article 10 of that regulation to be able, exceptionally and after having taken due account, in a balanced and reasonable manner, of the best interests of the child, to request the transfer of the case of which it is seised to a court in the Member State to which the child concerned has been wrongfully removed by one of his or her parents. (§§ 50-51)

Interestingly, these are exactly the kind of considerations which the ECtHR relies on when assessing whether a decision made on the return of a child is compatible with Article 8 of the Convention (right to family life). In such situations, the ECtHR indeed examines whether the judge concerned, whether from the Member State of the habitual residence of the child or from their new residence, duly considered all the circumstances of the case and whether their decision on the return of the child could be said to be in the best interests of the child, as it did e.g. in Royer v. Hungary.

Thus, while under the Regulation the consideration of whether it is in the best interests of a wrongfully removed child to be returned to their habitual residence is, pursuant to Article 10 of the Regulation, the exclusive competence of the court of the habitual residence of the child, unless its competence was transferred by virtue of Article 15, there is no such exclusive competence under Article 8 of the Convention.

While adhering in principle to the approach underlying the Hague Convention and the Regulation according to which a wrongfully removed child should be quickly returned to his habitual residence (see Michnea v. Romania, Voica v. Romania, Veres v. Spain), the ECtHR’s competence is limited to examining whether any judicial decision made on the return of the child, whether in the former or the new residence of the child, was in conformity with Article 8 of the Convention. As the ECtHR put it:

The Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (X. v. Latvia, § 102; Voica v. Romania, § 53).

This can result in the ECtHR considering that the refusal by a court of the new residence of the child to order the return of the latter was not in breach of Article 8 of the Convention, as in M.K. v. Greece, Royer v. Hungary and O.C.I. and Others v. Romania, or that the return order by a court of the habitual residence of the child was in breach of Aricle 8 because that court had not thoroughly examined the case, as in Šneersone and Kampanella v. Italy. As the ECtHR repeatedly stated in such cases, it must verify that the principle of mutual recognition is not applied automatically and mechanically (Royer v. Hungary, § 50).

In other words, the absence of a transfer of jurisdiction over the child under Article 15 of the Regulation does not prevent the ECtHR from scrutinising the decision over the return of the child made by a court from another State than the one of the habitual residence of the child. This is because issues about exclusive jurisdiction – which in principle do not fall within the scope of Article 8 anyway – should not prevent a grave risk to the best interests of the child from being taken care of by the judge before whom this risk happens to be pleaded. In one sentence: in the face of grave risks, the best interests of the child should not be allowed to hinge on issues about jurisdiction.

This, in turn, means that by virtue of Article 8, a judge of the new residence of the removed child is not bound, in the event of a grave risk for the child, to wait for a formal transfer of jurisdiction to him/her by the court having jurisdiction under Article 10 of the Regulation – a scenario which indeed rather rarely occurs – before considering whether the child should be returned or not. A failure to act accordingly might even entail the Convention liability of the judge concerned. This is in line with what the ECtHR stated in Avotiņš v. Latvia :

Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116)

In two recent judgments, the CJEU applied Directive 2012/13 on the right to information in criminal proceedings. In contrast with some previous case-law, it thereby more explicitly ensured the compatibility of its rulings with the Strasbourg jurisprudence. It did so by not only drawing on the latter, but also explaining its relevance in a EU law context and considering it, in accordance with Article 52(3) of the EU-Charter, as mandatory minimum protection level (see Convention control, at p. 336).

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In Politseyski organ pri 02 RU SDVR (C-608/21, 25.5.2023), the CJEU clarified the obligations of the national authorities regarding the form and the content of the communication of the grounds for detention to an arrested person. As regards the form, it ruled that Article 6(2) of Directive 2012/13 did not require the grounds for detention to be all mentioned in the detention order, provided that the information communicated to the arrested person allowed them to effectively prepare their defence and ensured the fairness of the proceedings. On the content of the information, it held that the level of details as regards the grounds for detention could be adapted to the stage of the criminal proceedings, provided that the arrested person was provided with all the information necessary to effectively challenge the lawfulness of their detention.

On both issues, the CJEU should be commended for referring to the relevant jurisprudence of the ECtHR supporting its findings (Shamayev and Others v. Georgia and Russia, Khlaifia and Others v. Italy, S. V. and A. v. Denmark) and using that jurisprudence not only as a toolbox but also as a benchmark. Such a wholistic approach represents a significant contribution to legal harmony and certainty in the field of fundamental rights (see Convention control, at p. 335).

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In K.B. and F.S. (C-660/21, 22.6.2023), a Grand Chamber of the CJEU had to rule on the compatibility with Union law of Article 385 of the French Code of Criminal Procedure which, as interpreted by the Court of Cassation, prohibits trial courts from raising of their own motion, with a view to the annulment of the procedure, a breach of the obligation laid down in Articles 3 and 4 of Directive 2012/13, read in the light of Articles 47 and 48 of the EU-Charter, to inform suspects and accused persons promptly of their right to remain silent. In the case at hand, the two suspects had not been properly informed of their right to remain silent and made self-incriminating statements during their interrogation by the police.

The CJEU noted that under Article 8(2) of Directive 2012/13, suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with that directive, which included situations in which information about the right to remain silent had been given late, as in the present case. However, that directive did not provide for the possibility for a trial court to raise a breach of that obligation of its own motion (§ 39).

The CJEU filled this lacuna by relying on the right to an effective remedy, the right to a fair hearing and the rights of defence, as laid down in Articles 47 and 48(2) of the EU-Charter, which the application of the said provisions of Directive 2012/13 had to comply with. In referring to those provisions of the EU-Charter, the CJEU also indicated that pursuant to Article 52(3) of the EU-Charter, their application had to take account of the corresponding rights guaranteed by Articles 6 and 13 of the Convention, as interpreted by the ECtHR, as the minimum threshold of protection (§ 41).

This meant that the suspects, the accused persons or their lawyers had to be afforded a practical and effective opportunity to invoke the breach concerned and a reasonable period of time within which to do so, in addition to access to the file.  This, in turn, required a practical and effective access to a lawyer, as provided for by Article 3 of Directive 2013/48 (§§ 43-45). The CJEU usefully relied in this connection on Salduz v. Turkey. One could also have added Simeonovi v. Bulgaria and Beuze v. Belgium.

Interestingly, in the CJEU’s opinion, a successful challenge of the failure to properly inform an accused of their right to remain silent does not automatically give rise, as suggested by the reliance of the French courts on Article 385 of the French Code of Criminal Procedure, to the annulment of the proceedings. Instead, referring to Ibrahim and Others v. United Kingdom,the CJEU adopted the Strasbourg approach, according to which the fairness of proceedings is to be assessed by considering these proceedings as a whole, regard thus being had to the possibility that a procedural shortcoming may have been remedied in the course of the ensuing proceedings (§ 48). In this respect, this ruling is a confirmation of HYA and Others, which appears to have applied for the first time the Strasbourg test of the proceedings as a whole.

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Overall, these two judgments seem to confirm a commendable trend towards greater convergence in matters of criminal procedure between Luxembourg and Strasbourg (see Luxembourg case-law on procedural rights), with the CJEU relying more explicitly on the relevant Strasbourg jurisprudence not only as a toolbox but also as a benchmark, i.e. as mandatory minimum protection level, thereby protecting domestic judges from falling below that level when applying EU law.

It remains to be seen, though, whether in follow-up cases concerning the same issues, the CJEU will remain as explicit on its Strasbourg sources as in those two cases. The CJEU indeed seems to have made a habit of referring to relevant Strasbourg case-law only once, i.e. the first time it is relied on, all subsequent references being made only to its own case-law incorporating that piece of Strasbourg case-law. As a result, readers of the Luxembourg follow-up judgments who do not know about the very first reference to that Strasbourg case-law are left in the dark as to its real impact in the follow-up cases and the resulting substantive convergence between Strasbourg and Luxembourg on this score. This approach blurs the picture and creates a false appearance of autonomy (see, for examples, Convention control at p. 341).