At the heart of the case of EPPO (judicial review of procedural acts) (C-292/23, 8.4.2025) was the interpretation by the CJEU of Article 42(1) of Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”), which regulates the judicial review available under that Regulation.

In the case at hand, two directors of a Spanish company were suspected of subsidy fraud with EU funds. Their lawyers appealed against the decision by the European Delegated Prosecutors handling the case to summon another person, Y.C., as a witness. The referring court, before which the appeal was lodged, asked the CJEU about whether it had jurisdiction under EU law to deal with this appeal.

The CJEU first notes that under Article 42(1) of the Regulation, “procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties” are subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. After applying an autonomous and extensive interpretation of the concepts of “procedural acts” and “third parties”, the CJEU states that the question whether such acts produce binding legal effects should be assessed in concreto, i.e. on a case-by-case basis, having regard to the circumstances of each case.

The existence of such binding legal effects will, in the CJEU’s opinion, vary according to the procedural rights to which a suspect or accused person is entitled in a given case. This is because, first, the purpose of the judicial review is precisely to ensure that the EPPO observes the fundamental rights of the persons in respect of whom these procedural acts produce such effects, notably the right to procedural fairness and the rights of the defence, in accordance with Articles 47 and 48 of the EU-Charter; and because, secondly, pursuant to Article 41 of the Regulation, these procedural rights cover not only those laid down by EU law, but also those granted by national law, which vary depending on the Member State concerned (§§ 70-72).

Thus, the scope of the procedural acts by the EPPO producing legal effects on (the rights of) third parties can vary accordingly. This is why the CJEU considers national courts to be best placed to assess the effects of a decision to summon a witness on the rights of a person who is the subject of an investigation, the criterion being whether that decision brings about a distinct change in the legal position of the person concerned, notably by affecting his or her procedural rights (§§ 73, 75).

If that is the case, the question arises as to whether the judicial review to which that person is entitled under Article 42(1) of the Regulation must necessarily be carried out by way of a direct appeal or whether it can also take the form of an incidental question dealt with by the criminal trial court. According to the CJEU, an incidental question is an acceptable option, provided that it is an effective remedy allowing all relevant questions of law and fact, in particular any breaches of rights and freedoms guaranteed by EU law, to be properly addressed (§§ 79-80).

However, pursuant to the principle of equivalence, it would not be acceptable for a direct appeal against acts of the European Delegated Prosecutors to be excluded in a national legal order if the latter provides for the possibility of a direct appeal against analogous acts of a national investigating judge (§ 88).

Observations

First of all, this ruling is a useful confirmation of – and elaboration on – the competence of national courts to carry out a judicial review of acts of the Delegated European Prosecutors. It is also a reminder of the role played by national procedural rights, along with EU procedural rights, in the context of such a judicial review (§ 71).

At the same time, the European Convention on Human Rights is obviously the elephant in the room in this judgment. Unlike EU and national law, it is nowhere being referred to. Yet it seems clear that next to these two last-named sources, the Convention also applies to any judicial review carried out by national courts under Article 42(1) of the Regulation (see No case to answer for the European Public Prosecutor?). There are two reasons for this. First, the Convention is an integral part of the domestic legal system of virtually all Member States of the EU, where it has a major impact on precisely the procedural rights in criminal proceedings. For the sake of clarity, this fact alone should have prompted the CJEU, when identifying the national legal systems as a source of procedural fundamental rights in this context, to at least also flag the role of the Convention in these national legal systems, which the national judges themselves cannot ignore.

Secondly, the Convention applies, in general, to any application of EU law by the domestic courts of the Member States (see, among others, Bosphorus v. Ireland, § 137) and Article 6 of the Convention (right to a fair trial), in particular, is more than likely to apply in its criminal limb to judicial review proceedings conducted before national courts against acts of the EPPO (see, mutatis mutandis, Vera Fernández-Huidobro v. Spain, §§ 108-114), subject to confirmation by the ECtHR when a first case concerning a judicial review under Article 42(1) of the Regulation is brought before it.

Against this background, it seems rather misleading to present, as in paragraphs 79, 80 and 84 of the judgment, the effectiveness of a judicial remedy under Article 42(1) of the Regulation to be sufficiently ensured when the sole procedural rights laid down by EU law are respected. Such a system-focussed – and therefore partial – presentation is at odds with the reality on the ground which is that the national courts entrusted with this kind of judicial review must also apply the procedural rights enshrined in their own national law and/or in the Convention.

This is particularly so in view of the fact that there is, to date, far more Strasbourg case-law on procedural rights in criminal proceedings than there is Luxembourg case-law on that topic, which might sometimes make the former more relevant in practice. Admittedly, the Directives on procedural rights in criminal proceedings seek to reflect a significant part of the Strasbourg case-law on the right to a fair trial in criminal proceedings. However, they contain lacunae (e.g. in Spetsializirana prokuratura) and their interpretation sometimes gives rise to protection drops (e.g. in VB II).

Thus, contrary to the presentation by the CJEU, a wholistic look at the reality on the ground tells us that EU law alone cannot be decisive for the effectiveness of a remedy before domestic criminal courts carrying out judicial review under Article 42(1) of the Regulation. Genuine effectiveness in this field can only be the result of national courts complying also with their own national as well as the Convention procedural rights, along with the relevant EU procedural rights, as indeed suggested by Article 41(3) of the Regulation itself.

In the case of Deldits (C-247/23, 13.3.2025), the CJEU ruled on the right to rectification of incorrect personal data appearing in a public register, as provided for by Article 23 of Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation”, “GDPR”).

In the case at hand, VP, an Iranian national who had obtained refugee status in Hungary, unsuccessfully applied for the rectification in the asylum register of their gender identity from female to male. VP’s application, which relied on Article 16 of the GDPR (right to rectification of inaccurate personal data), was rejected by the Hungarian asylum authority on the ground, inter alia, that VP had not proved that they had undergone gender reassignment surgery.

In light of Article 5(1)(d) of the GDPR (principle of the accuracy of personal data), the CJEU first holds that since the purpose of collecting personal data is to identify the data subject, these data should relate to VP’s gender identity at the time of their registration in the asylum register and not the gender identity assigned to them at birth. National law cannot stand in the way of the right to have incorrect data rectified accordingly, pursuant to Articles 8(2) of the EU-Charter and 16 of the GDPR (§§ 32-37).

The CJEU then examines, in light of Article 23 of the GDPR, which regulates the restrictions which can be applied to the rights and obligations laid down in the GDPR, the Hungarian administrative practice according to which the exercise of the right to rectification of the personal data relating to the gender identity of a natural person is conditional upon the production of evidence of, in particular, gender reassignment surgery.

The CJEU finds this practice not to fulfil the requirements of Article 23 and, consequently, to be incompatible with the right to rectification of personal data, within the meaning of Article 16, because a) the said practice is not provided for by a legislative act, and b) the only evidence accepted in support of the request for rectification of the person’s gender identity is evidence of a gender reassignment surgery.

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What is noteworthy, from a Convention point of view, is the CJEU’s reasoning leading to that conclusion, notably on the question whether the restrictions entailed by the said practice respect the essence of the fundamental rights and freedoms involved and are necessary and proportionate, as required by Article 23. In holding that this is not the case, because the said practice undermines the essence of, in particular, the right to the integrity of the person and the right to respect for private life, as enshrined in Articles 3 and 7 of the EU-Charter, the CJEU also refers to case-law of the ECtHR to the same effect, notably X and Y v. Romania and Garcon and Nicot v. France.

The CJEU thereby relies on Article 52(3) of the EU-Charter, according to which the rights guaranteed by the Charter have the same meaning and the same scope as the corresponding rights guaranteed by the Convention, the latter constituting a minimum threshold of protection (§ 46).

The impact of such references by the CJEU in the application of the GDPR should not be underestimated, as they confirm the relevance of the Convention in this legal area, more particularly in making clear that restrictions under the GDPR not only must comply with the Charter but also should not lower the Convention protection level. Such an indication is even more significant in view of the fact that the GDPR itself makes no reference to the Convention, except in Recital 73 dealing with restrictions. This somehow suggests that the EU lawmaker considered the Convention to be of little importance for the GDPR.

Nowhere else is there any explicit indication by the EU lawmaker that the GDPR does not intend to lower the Convention protection level, as one can find in numerous other pieces of secondary legislation, e.g. in their non-regression clauses. Admittedly, Recital 4 states that the GDPR “respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties”. But can such a general formulation in a recital be equated with a proper non-regression clause?

The value of such non-regression or equivalent clauses becomes clear when considering that pursuant to Articles 78 and 79 of the GDPR, national courts are competent to deal with the judicial remedies which data subjects are entitled to use against supervisory authorities, controllers or processors acting on the basis of the GDPR. As with any other EU law context, when applying the GDPR these national courts must also comply with the Convention (see, among others, Bivolaru and Moldovan v. France). Mutatis mutandis, this, in principle, also holds true for all other national bodies or agents entrusted with the performance of duties under the GDPR, since no part of the legal systems of the EU Member States is outside the scope of the ECtHR’s jurisdiction as determined by Article 1 of the Convention (Bosphorus v. Ireland, § 153).

The CJEU can therefore only be commended for referring in this important area to Article 52(3) of the EU-Charter and the threshold function it confers on the Convention in EU law (on this function, see Optionality of the Convention). First, this is a useful reminder that the application of the GDPR by national authorities is not outside the scope of the Convention. Secondly, the reference to the threshold function of the Convention is also an indication that while it can perhaps be assumed that the GDPR is generally not lowering the Convention protection level, this should nonetheless, by virtue of Article 52(3) of the EU-Charter, be double-checked at national level in case of doubt in a concrete case, if necessary by referring the issue to the CJEU for a preliminary ruling under Article 267 TFEU.

In the case of VB II (Information on the right to a new trial; C-400/23, 16.1.2025), the CJEU interpreted Articles 8 and 9 of Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (“the Directive”). These provisions deal with criminal convictions in absentia.

In the case before the referring court, the Sofia City Court, criminal proceedings had been initiated against VB on drug-related charges. Since the prosecution authorities did not manage to locate VB, he was not formally notified of the charges, nor was he informed of the date and place of the trial or of the consequences of his non-appearance. With its request for a preliminary ruling, the referring court inquired about the rights to which VB would be entitled in the event of a conviction in absentia to a custodial sentence.

One of the particularities of Bulgarian law relevant in this case is that after the expiry of the time limit for lodging an appeal against a decision rendered in absentia, the only available legal remedy is the submission of a request for a new trial to the Supreme Court of cassation, the only court with jurisdiction to deal with such matters. The referring court therefore inquired, inter alia, about whether it was compatible with Article 8(4), 2^nd sentence, of the Directive, read in conjunction with Article 9, to entrust another court than the trial court with ruling on a request to reopen the criminal proceedings.

In answering this question, the CJEU considers that the said provisions of the Directive do not preclude a system whereby exclusive jurisdiction to consider requests for a new trial is entrusted to another court than the one which convicted a person in absentia, provided that the proceedings before the latter court observe the principles of equivalence and effectiveness.

The latter principle entails, inter alia, a guarantee that the proceedings relating to the request to reopen criminal proceedings lead to the recognition of the right to a new trial in all cases where none of the conditions laid down in Article 8(2) of that Directive are satisfied (§§ 53 and 59). According to the latter provision, a criminal trial can take place in the absence of the suspect or accused person if either the suspect or accused person has been informed, in due time, of the trial and of the consequences of non-appearance, or if that person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person or by the State.

Thus, the concern of the CJEU is that the court deciding on a new trial should be left with no discretion on whether to reopen the proceedings in all cases where none of the conditions laid down in Article 8(2) are met. In other words, if none of the conditions laid down in Article 8(2) are met, the right to a new trial is automatic. Conversely, there is no right to a new trial if the absent suspect or accused person was either properly informed about the trial and the consequences of not attending it, or represented by a lawyer at that trial.

While this finding does not come as a surprise, being the result of a faithful interpretation of the relevant Articles of the Directive, it nonetheless raises some questions from a Convention point of view. They relate to the approach followed by these provisions in dealing with absent suspects or accused persons, notably as regards the question whether and, if so, when these persons can be considered to have waived their right to be present at their trial, thus precluding any new trial.

In this context, it is to borne in mind that, along with many other provisions of the Directives on procedural rights in criminal proceedings, Articles 8 and 9 of the Directive initially sought to codify the case-law of the ECtHR (see the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings), here the one on criminal convictions in absentia. It would appear, though, that these provisions limit the right to a new trial to a greater extent than under Article 6 of the Convention, notably by precluding any new trial if the suspect or accused person has been “informed, in due time, of the trial and of the consequences of non-appearance”.

While indeed the ECtHR also relies on the fact that an absent person has been properly informed about the trial in order to conclude that he/she has waived his/her right to be present at his/her trial, this circumstance is not necessarily decisive, as room is nonetheless left for the possibility that his/her absence might be due to circumstances beyond the control of the person concerned, like health issues, or indeed to force majeure and, consequently, for an explanation to that effect by that person. A Grand Chamber of the ECtHR indeed ruled in Sejdovic v. Italy:

Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial …. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance … Furthermore, it must not run counter to any important public interest ….

Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be…

A person charged with a criminal offence must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure … At the same time, it is open to the national authorities to assess whether the accused showed good cause for his absence or whether there was anything in the case file to warrant finding that he had been absent for reasons beyond his control (§§ 86-88, emphasis added).

The ECtHR also considers that:

In view of the prominent place held in a democratic society by the right to a fair trial …, Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself of the proceedings against him where … this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (Somogyi v. Italy, § 72).

Articles 8 and 9 of the Directive do not appear to allow for special circumstances justifying non-appearance of a duly informed accused at his/her trial, nor does the interpretation by the CJEU in the present case, which ignores the more flexible and therefore more protective Strasbourg case-law on these issues. Admittedly, the CJEU insists on the right for the accused to be heard on whether the conditions laid down in Article 8(2) of the Directive were satisfied (§ 66). However, the scope of that hearing seems limited to these objective conditions, nothing being said by the CJEU about any possibility for the accused to “show good cause” in this context.

This is somewhat surprising in view of recitals 47 and 48 of the Directive, referred to by the CJEU (§ 68), which require the Convention and the EU-Charter to be taken into account. It is even more surprising in view of the non-regression clause laid down in Article 13 of the Directive and Article 52(3) of the EU-Charter, both to the same effect, these provisions being simply ignored by the CJEU. This is only one more confirmation that in EU law the Convention is only optional (see EU accession as logical answer to the optionality of the Convention in EU law).

Thus, what we see here amounts to a reduction of the Strasbourg protection afforded to absent suspects or accused persons. It is the result of an objectivation and autonomization of only some of the Strasbourg criteria, which are made to suffice as the sole basis for concluding on the existence of a waiver by the accused of the right to be present at trial, thereby leaving no room for exceptional or personal circumstances capable of excusing his/her non-appearance at the trial. In other words, the assessment becomes a mechanical rather than an individualised operation.

This may also be the reason why at no point in the Directive or the present judgment reference is made to the notion of “waiver”: because waiver is a rather subjective notion, referring to the intentions of an accused person which objective criteria only help identify. Here is the main difference between the Strasbourg and Luxembourg approach: while objective criteria such as the non-appearance at trial, in spite of proper information about it, are used by the ECtHR as a means to find out about the intention of the accused to waive his/her right or to escape justice, these criteria are being autonomized by the Directive, as interpreted by the CJEU, in the sense that they are made to suffice in justifying the holding of a trial without the accused person, regardless of the latter’s intentions and circumstances.

In sum, while the issue under the Convention is the waiver of the right to attend one’s trial, the issue under the Directive is only whether the objective test of its Article 8(2) is met. This also transpires from Spetsializirana prokuratura (trial of an absconded suspect; C-569/20, 19.5.2022).

Yet it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (Taxquet v. Belgium, § 93).

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The present judgment only confirms the risks involved in trying to codify the case-law of the ECtHR on the fairness of criminal proceedings (Article 6 of the Convention), which is what the Directives on fundamental rights in criminal proceedings seek to do. These risks range from freezing the case-law to leaving gaps (as in Spetsializirana prokuratura (trial of an absconded suspect)) or, as in the present case, lowering the Strasbourg protection level.

It is precisely in respect of such deficits that the non-regression clauses featuring in all these Directives, along with Article 52(3) of the EU-Charter, play an essential role in preventing the protection level of the Directives to fall below the Strasbourg level. However, this can only work if these safeguard-provisions are duly applied and seen as allowing or indeed calling for a departure from a purely textual and positivistic interpretation of some provisions of the Directives, so as to make them match at least the Strasbourg protection level.

In this connection, it is indeed striking to see the CJEU in the present case being far more creative and “protective” on the modalities of the proceedings before the Supreme Court of cassation, which are not regulated as such by the Directive, than on the more fundamental issue of the conditions to be met for the reopening of the proceedings, which are governed by that Directive.

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Be that as it may, national judges who apply their domestic law transposing Articles 8 and 9 of the Directive may be confronted with the fact that for the reasons stated above, the Convention standards on the waiver by an accused person of the right to attend trial are more protective than those of the Directive. In view of the obligation on domestic courts to apply EU law in compliance with the Convention (see M.B. v. the Netherlands), and in order to avoid their judgment being successfully challenged before the ECtHR, these judges should therefore preferably apply the Convention standards, of course without prejudice to the application by them of Article 267 TFEU.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The scope of the problem

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

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

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

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

The test to be applied

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

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

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

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

The burden of proof

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

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

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

Conclusion

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

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

In what is still a rather rare occurrence in the Luxembourg jurisprudence, the benchmark function of the Convention (on this notion, as opposed to the toolbox function of the Convention, see Convention control over the application of Union Law by National Judges, p. 337) has been extensively relied on in the two following Grand Chamber rulings of the CJEU.

These rulings are rather remarkable when considered against the background of a recent internal study showing that over the period 2016–2024, as at 1 November 2024 only 55 references were found during these eight years which explicitly acknowledge the benchmark function of the Convention, as established by Article 52(3) of the EU-Charter. More specifically, 34 such references concern Articles 6 (fair trial) and 13 (effective remedy) of the Convention, while the remaining 21 are divided among the other provisions of the Convention. Such explicit references therefore look like a marginal phenomenon in the Luxembourg case law. By comparison, in 2023 alone, the CJEU, excluding the General Court, delivered 723 judgments. The future will tell whether the two judgments presented below mark a new trend or are simply another swallow not making a summer. It remains the case, though, that such references greatly facilitate the job of national judges by protecting them from breaching the Convention when applying EU law.

Mirin

In Mirin (C-4/23, 4.10.2024), the CJEU ruled on the recognition by a Member State of a change of first name and gender identity which had been lawfully acquired in another Member State.

The claimant in the main proceedings was a Romanian citizen who was registered in Romania as female and, during a stay in the United Kingdom, where that person acquired British nationality, changed his first name from female to male and obtained legal recognition of his male gender identity. Back in Romania, he asked for these changes of name and sex to be recorded in his birth certificate so as to reflect his male sex. However, the Romanian administrative authorities rejected his request, considering that he should start new proceedings for a change of gender identity before the Romanian courts. The CJEU considered this regime to go against Articles 20 and 21(1) TFEU, read in the light of Articles 7 and 45 of the EU-Charter.

In so doing, the CJEU amply relied on Strasbourg case-law, notably X and Y v. Romania, considered to set a minimum protection standard applicable also under EU law, by virtue of Article 52(3) of the EU-Charter. The CJEU indeed stated in paragraph 63 of its judgment:

In that regard, as is apparent from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and the same scope as those guaranteed in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, … the latter provision constituting a minimum threshold of protection (see, by analogy, judgment of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 92 and the case-law cited).

Noteworthy in this connection is also the fact that contrary to previous habits (as in W.Ż. or in Orde van Vlaamse Balies and Others), the CJEU here did not refer to the autonomy of EU law as limiting the effect of Article 52(3) of the EU-Charter. This would indeed appear to be the correct approach, since after acknowledging the importance of EU law autonomy, the EU legislature in the Explanations to that provision stated: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR”. To this extent, Article 52(3) of the Charter thus amounts to a self-imposed restriction to the autonomy of EU law.

As a result, the CJEU rightly read the relevant Strasbourg case-law as imposing, under Article 8 of the Convention (right to respect for private and family life), an obligation on States to provide for a clear and foreseeable procedure for legal recognition of gender identity which allows for a change of sex and thus of name and digital code, on official documents, in a quick, transparent and accessible manner (§ 66).

Against this background, the CJEU saw the absence in Romania of a procedure allowing for the legal recognition of a change of name and gender identity which had already been lawfully acquired in another Member State to stand in the way of an effective enjoyment of the right to free movement, as guaranteed by Articles 21 TFEU and 45 of the EU-Charter, read in the light of Article 7 of the EU-Charter (§ 68).

This approach, based on the requirements of the right to free movement, is very similar to the one adopted by the CJEU in cases which concerned the recognition in a Member State of a homosexual partnership lawfully established in another Member State, as in Coman and Others where the CJEU also relied on the Strasbourg case-law (see Different ways to the same goal: Strasbourg and Luxembourg on same-sex couples).

Consequently, the present ruling by the CJEU is subject to the same limitations as those which apply to its case-law on homosexual partnerships: as it is based on the right to free movement, it can only apply to persons who made use of that right and assert in one Member State a status lawfully acquired in another one. This is an essential difference ratione personae with the Strasbourg case-law.

In conclusion, there being an overlap between the Convention and EU law standards on this score, the application by national judges of EU law, as interpreted by the CJEU, entails no risks of a breach of the Convention. However, where the person concerned has not made use of his/her right to free movement, only the Convention will apply.

Real Madrid Club de Fútbol

In Real Madrid Club de Fútbol (C-633/22, 4.10.2024), the CJEU ruled on the use of the public policy clause to refuse the enforcement of a judgment, delivered by a court of another Member State, which gives rise to an infringement of the freedom of the press.

The case in the main proceedings concerned a considerable amount of damages (300 000 and 30 000 euros) imposed by a Spanish court on a French newspaper and one journalist for the harm done to the reputation of Real Madrid and Fútbol Club Barcelona by publishing an article suggesting that the latter had had recourse to doping.

Faced with a request to enforce that judgment based on the Brussels I Regulation (Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), the French Court of cassation had doubts about the proportionality of these damages and turned to the CJEU for an answer on whether the public-policy exception provided for by Article 34(1) of that Regulation could be applied for this reason in the case at hand.

The CJEU first considered that in light of the principle of mutual trust, the refusal to enforce a judgment from another Member State should remain exceptional (§ 34). The public policy clause, laid down in Article 34(1) of the Regulation, could therefore be relied on to refuse such an enforcement “only where the recognition or enforcement of the judgment concerned in the Member State in which enforcement is sought would result in the manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order and therefore in the legal order of that Member State” (§ 39).

The CJEU found this to be particularly the case when the enforcement of a judgment in the Member State concerned would give rise to a manifest breach of a fundamental right as enshrined in the EU-Charter. It therefore turned to Article 11 of the EU-Charter which protects freedom of expression and the freedom of the press, and examined the limitations to which these freedoms could be subjected.

In this context, the CJEU extensively referred, in paragraphs 52 to 65 of its judgment, with a rarely seen amount of details, to the ample and well-established Strasbourg case-law on the freedom of the press, particularly the case-law on the enhanced protection of political speech and speech on matters of public interest, thereby also illustrating the striking parallels with its own case-law. Here too, the CJEU did so after recalling that by virtue of Article 52(3) of the EU-Charter, the case-law of the ECtHR was to be considered the minimum threshold of protection under EU law (§ 52).

Interestingly, prior to relying on Article 52(3) of the EU-Charter, the CJEU also referred to the limitations which Article 52(1) of the EU-Charter allowed to be applied to Article 11. This shows that these two provisions are not mutually exclusive but complementary when Convention rights are involved.

On this basis, the CJUE concluded that the public policy clause should be applied, and the enforcement of the foreign judgment refused where it would give rise to a manifest breach of the freedom of the press. It was for the French domestic courts to assess whether, in the circumstances, this would be the case.

KUBERA (C-144/23, 15.10.2024) would appear to be the first case in which the CJEU imposed an obligation on a national court against whose decisions there is no judicial remedy (Art. 267(3) TFEU) to give reasons when rejecting the request by a party to the proceedings to make a reference for a preliminary ruling by the CJEU.

Admittedly, the procedural situation was a particular one, as it concerned proceedings before the Slovenian Supreme Court on an appeal on a point of law. Under the Slovenian Code of civil procedure, the Supreme Court is not required in this particular context to make a determination on whether it should grant a request by a party that a reference for a preliminary ruling by the CJEU be made. It can thus lawfully ignore that request. It is this approach with which the CJEU takes issue in the present ruling. It remains to be seen whether this case-law will be extended to other types of procedures in the future.

What is interesting about this novel move by the CJEU is its proximity with the well-established Strasbourg jurisprudence, according to which Article 6 of the Convention (right to a fair trial) requires any last instance court, within the meaning of Article 267(3) TFEU, which dismisses a request by a party to the proceedings that a reference for a preliminary ruling be made, to give reasons for its dismissal.

While the ECtHR, for lack of competence, does not itself assess the merits under Union law of the reasons thus given, it nonetheless must be satisfied that these reasons are built upon the relevant criteria as first set out in the Cilfit jurisprudence of the CJEU (for an overview of that Strasbourg case-law, see The obligation to give reasons for a refusal to make a preliminary reference to the Court of Justice of the European Union; see also Georgiou v. Greece)

It is significant to note, in this respect, that in establishing this new rule, the CJEU refers to Article 267 TFEU, read in the light of the second paragraph of Article 47 of the EU-Charter, which is the “counterpart” in EU law of Article 6 of the Convention, protecting the right to a fair trial. This is another indication of the new similarity between the two approaches. What they ultimately have in common is an upgrading of the role of the parties to proceedings in the system of preliminary rulings by the CJEU. This is in contrast with the traditional Luxembourg view according to which no reasons are required in this context, as preliminary rulings are part of the system of cooperation between national courts and the CJEU, with no involvement of the parties to the main proceedings.

Both Courts also concur in requiring that the said reasons be given by reference to the Cilfit jurisprudence.

Some differences are to be noted, though. The first one concerns the justification of the respective approaches. While the Strasbourg approach is primarily dictated by the right to a fair trial, which requires courts to give reasons for their decisions, as an expression of the rule of law and a guarantee against arbitrariness, the Luxembourg approach is more system-oriented, i.e. intended to preserve the effectiveness of the system of preliminary rulings, as explained by the CJEU in the following terms:

“Such legislation or national practices can thus lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised by a party before the Vrhovno sodišče (Supreme Court) or having to be raised by that court in the light of the legal issue highlighted by that party and not being a question that is covered by the exceptions referred to in paragraph 36 above, would not be submitted to the Court of Justice, contrary to the obligation imposed on that national court by the third paragraph of Article 267 TFEU.

Such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court of Justice established in Article 267 TFEU, and the achievement of the objectives which that article is intended to achieve, particularly that of preventing a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States.” (§§ 45-46)

A second difference is perhaps the fact that the ECtHR does not require the same level of reasoning in all circumstances. The ECtHR indeed considers that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints, if the matter raises no fundamentally important legal issue, or for lack of prospects of success, without dealing explicitly with the request (see, among others, Baydar v. the Netherlands, § 42).

What is now the bottom line of this for national judges? First of all, the case-law discussed above only applies to courts against whose decisions there is no domestic remedy, within the meaning of Article 267(3) TFEU. As far as these courts are concerned, they should, when rejecting a request for a preliminary ruling, always give reasons based on the Cilfit jurisprudence, so as to at least meet the Strasbourg standards which, however, are flexible as regards the level of reasoning required. As regards any Luxembourg standards, the future will tell if and how the CJEU case-law will develop in terms of its scope and its concrete requirements.

In the case of Stachev (C-15/24 PPU, 14.5.2024), the CJEU answered several questions raised by the Sofia District Court on the consequences to be drawn, under Directive 2013/48 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, from the waiver by an accused person of his right to legal assistance.

The case in the main proceedings concerned an illiterate person, CH, who was accused of robbery with violence. He signed a written statement to the effect that he did not wish to be defended by a lawyer of his choice or by a court-appointed lawyer. However, the consequences of that waiver had not been explained to him. After his arrest, during an interview by the police, he admitted participating in the commission of a robbery with violence. On this occasion, CH had been informed about his right not to incriminate himself and to refuse to give evidence, but the interview had taken place in the absence of a lawyer.

In the case at hand, the referring court, which also had jurisdiction to rule on the merits of the case (§ 29), was to decide only on the pre-trial detention of CH. The questions it submitted to the CJEU in this connection concerned the validity of the waiver by CH of his right to a lawyer and, in case the waiver would be invalid, the consequences to be drawn from his incriminating statements made without the assistance of a lawyer, i.e. in breach of Directive 2013/48.

Depending on the subject matter, the answers given by the CJEU would appear to both raise and lower the protection level ensured by the Convention in this area.

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Strasbourg standard raised

The CJEU raised the Strasbourg protection level by applying Directive 2013/48 to proceedings for the judicial review of the lawfulness of a detention on remand, which under the Convention is governed by its Article 5. While Directive 2013/48 does not specify whether its scope, described in Article 2(1) as being criminal proceedings on the merits, also covers the judicial review of detentions on remand, the CJEU answers that question in the affirmative, relying notably on the Preamble to the Directive. Accordingly, the full range of requirements flowing from the right to a fair trial and the rights of the defence apply to the judicial review of detentions on remand (§§ 77, 88-91).

As a consequence, the rules concerning the waiver of the right to legal assistance, laid down in Art. 9 of Directive 2013/48, also apply to the proceedings on the lawfulness of the detention on remand in the case at hand, it being understood that regard is thereby to be had to the vulnerability of CH, in accordance with Art. 13 (§ 78).

This acknowledgment of a general right to legal assistance in proceedings for the judicial review of detentions on remand would appear to raise the Strasbourg protection level. It is indeed the case that the procedural guarantees under Article 5 of the Convention (right to liberty and security) are not necessarily the same as those provided for by Article 6 (right to a fair trial). As the ECtHR put it:

The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (A. and Others v. the United Kingdom [GC], 2009, § 203; Idalov v. Russia [GC], 2012, § 161).

The ECtHR does not go any further than the consideration that in proceedings concerning the lawfulness of detention “it may also be essential that the individual concerned … should also have the effective assistance of his lawyer” (Cernák v. Slovakia, § 78).

Strasbourg standard lowered

By contrast, on the question how to handle incriminating statements which were made, after an invalid waiver, without the assistance or presence of a lawyer, the CJEU seems to be lowering the Strasbourg protection level, which is much more problematic.

The CJEU does so by relying on the test of the criminal proceedings considered as a whole when addressing the question of the inferences which a domestic court assessing the lawfulness of a detention on remand must draw from the fact that evidence has been gathered in disregard of the requirements of Directive 2013/48, i.e. in the absence of legal assistance. The CJEU indeed stated:

In accordance with the case-law of the European Court of Human Rights, which, as stated in recitals 50 and 53 of Directive 2013/48, must be taken into account where a procedural defect has been identified, it is for the national courts to assess whether that procedural shortcoming has been remedied in the course of the ensuing proceedings. …   

Thus, in the event that evidence has been collected in disregard of the requirements of that directive, it must be determined whether, despite that lacuna, at the time of the decision to be taken by the court hearing the case, the criminal proceedings as a whole may be regarded as fair, taking into account a number of factors, including whether the statements taken in the absence of a lawyer are an integral or significant part of the probative evidence, as well as the strength of the other evidence in the file (see, by analogy, ECtHR, 13 September 2016, Ibrahim and Others v. the United Kingdom, CE:ECHR:2016:0913JUD005054108, § 273 and 274). (§§ 96-97)

What is noteworthy here is the fact that while the CJEU refers to Strasbourg case-law in support of its approach, it would appear to misrepresent that case-law in a twofold way.

First, there is misrepresentation of the said case-law in the sense that it is being transposed by the CJEU to an area, the deprivation of liberty, where it is not applied by the ECtHR. The test of the proceedings as a whole is being applied by the ECtHR in the field of Article 6 of the Convention, to assess the fairness of proceedings on the merits. It is not applied when it comes to assessing under Article 5 § 4 the lawfulness of deprivations of liberty.

Under the latter provision, proceedings for the judicial review of the lawfulness of detentions, by reason of the intensity of the interference which detentions represent, are considered under a separate provision, i.e. autonomously, not as just another element of the proceedings on the merits to be assessed under Article 6 of the Convention.

Moreover, because exceptions to the general principle, laid down in Article 5, that everyone has the right to liberty must be interpreted strictly (Buzadji v. Moldova, § 84), they do not lend themselves to the application of the test of proceedings as a whole.

Thus, to nonetheless apply this test to the judicial review of a person’s detention amounts to a reduction of the level of protection afforded under Article 5 of the Convention.

But what the CJEU has in mind here when referring to that test is, as quoted above, the possibility for incriminating statements made by an accused in breach of his right to a lawyer to nonetheless be taken into account (“not disregarded”) by the judge deciding on the accused’s detention, because of other corroborating available evidence. Only evidence on which a party is not in a position to comment effectively should be excluded from the criminal proceedings (§ 98). This brings us to the second misrepresentation of the Strasbourg case-law in this ruling.

For even in the event that this evidentiary rule could be applied under Article 5 of the Convention, which is doubtful for the reasons explained above, it is also being stripped of an essential element to which the ECtHR attaches great importance.

According to the ECtHR’s well-established case-law relied on by the CJEU, notably Ibrahim and Others v. United Kingdom, the absence of a lawyer during the interrogations of a suspect or an accused person is acceptable only if there are compelling reasons justifying that absence. Failing such reasons, “the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice” (§ 265). In practical terms, there will be a rebuttable presumption that the proceedings as a whole were unfair.

Against the background of this case-law, to simply drop the assessment of whether there are compelling reasons for the absence of a lawyer (as also provided for by Article 3(6) of Directive 2013/48), and the procedural consequences to be drawn from this assessment, is a misrepresentation lowering the protection level of the Strasbourg case-law on criminal proceedings on the merits which, it is erroneously suggested, can be transposed to proceedings for the judicial review of detentions. This is not just the application of Strasbourg case-law “by analogy”. This is a selective reading of that case-law.

On the contrary, this approach is raising a problem in terms of compliance with Art. 14 of the Directive and its Recitals 50 and 53, in addition to Articles 6 and 52(3) of the EU-Charter, which all require the EU protection level not to fall below the Strasbourg protection level.

For a recent Strasbourg case on an unvalid waiver of the right to legal assistance and its consequences under the Convention, see Bogdan v. Ukraine.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings for the judicial review of detentions on remand, where the Convention and EU law go different ways.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that they should go for Directive 2013/48 whenever it sets a higher standard, but that they should go for the Strasbourg standard when the issue is about incriminating statements made without the assistance of a lawyer. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.