In the case of Commission v. Hungary (17.12.2020, C-808/18) the CJEU again addressed a number of issues in connection with the treatment of asylum-seekers in transit zones located in the immediate vicinity of the Serbian-Hungarian border. From a Convention perspective, two specific aspects are worth highlighting.

First, in interpreting the relevant provisions of the Procedure Directive (no. 2013/32) the CJEU stresses the need for the domestic authorities to ensure effective access to procedures for international protection:

Article 6 of Directive 2013/32 requires Member States to ensure that the persons concerned are able to exercise in an effective manner the right to make an application for international protection, including at their borders, as soon as they declare their wish of doing so, so that that application is registered and can be lodged and examined in effective observance of the time limits laid down by that directive. (§ 106)

This concern about ensuring effective access to procedures for international protection appears to be common to the two European Courts. For it lies also at the heart of the recent judgment in the case of N.D. and N.T. v. Spain (13.2.2020, nos. 8675/15 and 8697/15) in which the European Court of Human Rights ruled:

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. … 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. (§§ 209-210)

In this context, both Courts also concur in considering that an application for international protection is deemed to have been made as soon as the person concerned has declared, to one of the competent authorities, his or her wish to receive international protection, without the declaration of that wish being subject to any administrative formality whatsoever (see §§ 96-97 of the CJEU ruling and § 180 of N.D. and N.T.).

Secondly, the CJEU also confirmed its assessment, made in FMS and Others, C-924/19 PPU and C-925/19 PPU (see below, the post on this judgment), according to which the conditions prevailing in the transit zones of Röszke and Tompa amounted to detention, within the meaning of Article 2(h) of the Reception Directive (2013/33). This is in contrast with ECHR 21.11.2019, Ilias and Ahmed v. Hungary (no. 47287/15), § 249, in which the ECHR found that restrictions in such transit zones could only amount to a deprivation of liberty within the meaning of Article 5 of the Convention if they exceeded what was strictly necessary for the purpose of examining the application for international protection of the person concerned. The implications of this difference are explained below, in the post devoted to FMS and Others.

In the case of Openbaar Ministerie (joined cases C-354/20 PPU and C-412/20 PPU, 17.12.2020) the Amsterdam District Court was called upon to decide upon the surrender of a person to the Polish authorities on the basis of a European arrest warrant (EAW) issued for the purpose of conducting a criminal investigation. It referred the case to the CJEU for a preliminary ruling on whether, in view of existing evidence of systemic or generalised deficiencies concerning the independence of the judiciary in Poland, the EAW was nonetheless to be executed.

In response, the CJEU confirmed in the following terms the two-step methodology which it had previously set out in the case of Minister for Justice and Equality (Deficiencies in the system of justice, C-216/18 PPU, 25.7.2018):

Where the executing judicial authority … has material … indicating that there is a real risk of breach 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 the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which the European arrest warrant was issued, and in the light of the information provided by that Member State pursuant to Article 15(2) of that framework decision, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State. (§ 52)

Thus, according to the CJEU, the possibility of refusing to execute a European arrest warrant for such reasons presupposes a two-step examination covering, first, the general situation of the judiciary in the State concerned and, secondly, the impact which this situation is likely to have on the fairness of the trial to which the person concerned will be subjected if surrendered (§ 53). Accordingly, it would appear that such a refusal could not lawfully be decided under Union law on the basis of evidence which concerned only the person to be surrendered and was not backed-up by evidence of existing systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary (see, in the same vein, concerning Art. 4 of the EU-Charter (prohibition of ill-treatment), CJUE 5.4.2016, Aranyosi et Căldăraru, C-404/15 et C-659/15 PPU).

This methodology is in contrast with the one applied by the ECHR in respect of applications challenging the execution of a EAW on account of a violation of Article 6 of the Convention (fair trial), as in Pirozzi v. Belgium (17.4.2018, no. 21055/11; discussed in a post below). While the ECHR would certainly, in such a context, have regard to any systemic or general deficiencies in the issuing Member State, the existence of such deficiencies would not be a pre-requisite to any finding of a breach in an individual case. This is because, in the context of an individual application under Article 34 of the Convention, the ECHR focuses on the particular circumstances of the individual case (see, mutatis mutandis, Taxquet v. Belgium, 16.11.2010, no. 926/05, § 83).

Such methodological differences may well generate different protection levels. It would indeed appear that, in the event of a real risk that a person, if surrendered, will not have a fair trial in the issuing Member State for reasons having to do with her personal circumstances, such as her political opinions or sexual orientation, the execution of the EAW could not lawfully be refused under Union law in the absence of additional evidence about systemic or generalised deficiencies affecting the judiciary in that same Member State. By contrast, the mere fact that the execution of a EAW would, even without such systemic or generalised deficiencies, entail a real risk of the person concerned being the victim of a “flagrant denial of a fair trial” would amount to a breach of Article 6 of the Convention (see ECHR 7.7.1989, Soering v. United Kingdom, no. 14038/88, § 113; 4.5.2010, Stapleton v. Ireland (dec.), no. 56588/07, § 25).

In the case of Addis (C-517/17, 16.7.2020), the CJEU ruled on the failure by a German administrative authority to comply with the obligation, laid down in the Procedures Directive (2013/32/EU), to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision declaring his application inadmissible on account of the fact that he had entered Germany from a safe country, namely Italy.

Relying on Articles 14 and 34 of this Directive and the importance of such an interview in order to avoid expulsions which would entail a breach of Article 4 of the EU-Charter (§ 52), the CJEU decided that such a failure should lead to the said decision being annulled and the case being remitted to the determining authority, unless the applicable domestic law allows the applicant, in an appeal procedure, to set out in person all of his or her arguments against the decision in a hearing which complies with the detailed conditions and fundamental guarantees set out in Article 15 of the Procedures Directive (“requirements for a personal interview”), and those arguments are not capable of altering that decision. The CJEU thereby stressed that compliance with the safeguards laid down in Article 15 was essential in preserving the effectiveness of the right to be heard at that subsequent stage of the procedure (§ 71).

Interestingly, the CJEU contrasted this approach with its ruling in M. G. & N. R. (C-383/13 PPU, 10.9.2013) according to which “in principle, an infringement of the rights of the defence results in annulment of the decision taken at the end of the administrative procedure at issue only if the outcome of the procedure might have been different had it not been for such an irregularity”. It justified the different approach adopted in Addis by referring to the binding nature of the prescriptions laid down in Article 15 and the paramount importance of a personal interview in the procedure for examination of an application of international protection (§ 70). However, considering the fact that M. G. & N. R. was about detention under the Return Directive, a no less serious interference with civil liberties, and that the case for an interview in this case was pleaded by reference to such fundamental rights as the rights of the defence and the right to be heard, one may wonder why the Addis approach was not adopted already in M. G. & N. R. For what can be the sense of hearing a person only when it can be anticipated that he or she might come up with unforeseen arguments? How can the actual enjoyment of a fundamental right be made conditional upon the prediction of the unpredictable? (For a critical view on this judgment, see Johan Callewaert, “To accede or not to accede: European protection of human rights at the crossroads”, European journal of Human Rights, 2014, p. 506-7).

Be that as it may, the emphasis in Addis on preserving the effectiveness of the safeguards provided by the Procedures Directive has much in common with the approach recently followed by the ECHR in such matters. In N.D. & N.T. v. Spain, another migration case (nos. 8675/15 and 8697/15, 13.2.2020, see below on this page), the ECHR stressed that by virtue of Article 4 of Protocol no. 4 (prohibition of collective expulsions), Contracting States to the Convention are under an obligation to provide persons seeking international protection with an effective access to their territory and to procedures allowing for an effective examination of their application. And in Khlaifia and Others v. Italy (no. 16483/12, 15.12.2016), it stated: “Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.” (§ 248)

In the case of FMS and Others (C-924/19 PPU and C-925/19 PPU, 14.5.2020), the CJEU ruled on several aspects of the situation of asylum seekers in the Röszke transit zone, which is located on Hungarian territory, at the border with Serbia. One of the findings by the CJEU is that the accommodation in this transit zone amounts to a de facto detention of asylum seekers (§ 231). Yet, in the case of Ilias and Ahmed v. Hungary (see on this page, the post on this case), the ECHR found the same living conditions experienced by the applicants in the same transit zone not to have amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, with the consequence that this provision was declared inapplicable.

Does it follow from this that EU law better protects asylum seekers from detention in transit zones? Not necessarily. The qualification as detention of the accommodation in a transit zone is indeed a pre-condition for the start of the four weeks deadline set by Article 43(2) of the Procedures Directive as the maximum length of detention of asylum seekers in such a zone. This means, in practical terms, that a detention of up to four weeks is in principle acceptable under EU law, regardless of individual circumstances.

By contrast, even if Article 5 of the Convention does not in principle apply from the very beginning of a stay in a transit zone such as Röszke, at the border of two States, this can change any time in view of individual circumstances, i.e. from the moment when restrictions to the liberty of movement of asylum seekers exceed what is strictly necessary for the processing of their asylum applications (see § 233 of the Ilias and Ahmed judgment). There is no reason why this could not occur before the expiry of a four weeks period, with the consequence that Article 5 would then most likely also be breached and require an immediate lifting of the impugned restrictions (see, mutatis mutandis, CEDH 23.2.2012, Creanga v. Romania, 29226/03, §§ 97 and 100).

Thus, this comparison clearly demonstrates the methodological differences between the two systems. While EU law operates on the basis of an abstract deadline of four weeks to be triggered by the finding of the existence of a detention from the beginning of the stay concerned, Article 5 of the Convention allows for a case-by-case assessment of the living conditions in transit zones and an “activation” of the ban on arbitrary detentions from the moment when those conditions exceed what is strictly necessary in the circumstances.

Consequently, domestic courts of EU Member States should not confine themselves to examining such situations under only one of the legal systems concerned. For depending on the circumstances, either of them can provide the higher protection against unlawful detention of asylum seekers. In such a situation, domestic courts of EU Member States are indeed bound to apply the higher protection (Article 52(3) of the EU-Charter).

The case of Bevándorlási és Menekültügyi Hivatal, adjudicated by the CJEU on 19 March 2020, is very similar to the case of Ahmed and Ilias v. Hungary (see below, on this page) which was decided a few months earlier, on 21 November 2019, by the ECHR. In both cases the main issue was the way Hungarian courts had made use of the possibility, provided for by article 33.2 (c) of the Procedures Directive, to declare a request for international protection inadmissible on the ground that a country which is not a Member State is considered as a safe third country for the applicant.

The CJEU found the domestic legislation not to have adequately transposed the Directive by omitting to incorporate some of its basic requirements, including the principle of non-refoulement. It thereby came, in substance, much to the same conclusion as the ECHR, which for its part had found, inter alia, Hungarian courts to have breached the procedural obligations flowing from Article 3 of the Convention.

Interestingly, however, and in contrast with the ECHR ruling, the CJEU elaborated on the requirement, for a third country to be able to be considered safe, that there be a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country (Art. 38.2 (a) of the Directive). In its opinion, the mere fact of transiting through a specific country could not be considered as amounting to such a connection.

No such requirement flows from the Convention. In this respect, EU law would appear to offer a higher protection standard. This, however, is in line with Article 53 of the Convention, which allows States to exceed the minimum Convention protection standard, including on the basis of EU law (see, on this latter aspect, mutatis mutandis, M.N. v. Belgium (dec.), no. 3599/18, 5.5.2020, § 140).

In the case of AGRO IN 2001, a Bulgarian judge asked the CJEU whether under EU law he could lawfully order the confiscation of the assets of persons on account of criminal offences – embezzling of funds – the same persons had been charged with in criminal proceedings which were still pending. The CJEU ruled that the relevant legal instrument, Framework Decision 2005/212 on the confiscation of crime-related proceeds, instrumentalities and property (“the FD”), was not applicable in the present case, since the scope of the FD was limited to criminal proceedings, whereas under Bulgarian law the confiscation proceedings at stake were civil proceedings. Consequently, EU law did not preclude such confiscations.

What is somewhat striking about this ruling is that at no point the CJEU seems to have asked the question whether those confiscation proceedings, classified as civil under Bulgarian law, were not in fact criminal in nature, with totally different consequences, as is indeed suggested by the recent case-law of the ECHR in the case of G.I.E.M. S.R.L. and Others v. Italy (28.6.2018), which concerned a similar problem, i.e. confiscation measures applied without prior formal conviction for unlawful site developments.

In the latter case, rather than the formal approach based on domestic classifications, followed by the CJEU, a Grand Chamber of the ECHR went for a substantive approach guided by an autonomous interpretation of the relevant notions. Applying Article 7 of the Convention, which precludes the imposition of a penalty without a prior formal declaration of liability, the ECHR had to determine whether the impugned confiscations amounted to such a penalty. It thereby ruled that the domestic characterisation of confiscation measures or proceedings was, as such, not decisive in determining whether they were criminal or not. Rather, other criteria, such as the nature and purpose of such measures as well as their severity had also to be taken into account. The ECHR stated in particular:

The Court concludes that the impugned confiscation measures can be regarded as “penalties” within the meaning of Article 7 of the Convention. This conclusion, which is the result of the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, entails the applicability of that provision, even in the absence of criminal proceedings within the meaning of Article 6. Nevertheless, … it does not rule out the possibility for the domestic authorities to impose “penalties” through procedures other than those classified as criminal under domestic law. (§ 233)

Consequently, such confiscation measures being criminal in nature, despite their different characterisation under domestic law, they could not have been lawfully ordered without a prior formal declaration of liability. This could also have been the answer under Convention law to the question asked by the referring court in the present case before the CJEU.

Had the CJEU adopted a similar, more substantive approach in determining the notion and scope of civil and/or criminal proceedings for the purpose of the FD, it could have extended the scope of the FD so as to cover the “civil” confiscations at stake, thereby allowing the safeguards relating to the protection of fundamental rights (Art. 4 and 5 of the FD) to apply in the present case. Instead, it would appear that in a case like this, only the Convention can help.

In the case of Deutsche Umwelthilfe (19.12.2012) 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).

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).

In the case of A.K. (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.

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).