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

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

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

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

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

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

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

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

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

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

In the case of MV – 98 (C-97/21, 4.5.2023), the CJEU made another application of the ne bis in idem principle to dual proceedings. This time, these resulted from the Bulgarian tax authorities imposing a financial penalty on MV – 98, in addition to the sealing of its business premises. All of this because MV – 98 had failed to record the sale of a packet of cigarettes worth approximately 2.60 euros!

The CJEU first had to determine whether both sanctions were criminal in nature, as only then did ne bis in idem come into play. In view of the severity of both sanctions, this was answered in the affirmative, after an assessment based on the same criteria as those which are used by the ECtHR and are known as the “Engel criteria”: the legal classification of the offence under national law, the intrinsic nature of the offence, and the degree of severity of the penalty (§ 38).

In line with its settled case-law according to which such dual proceedings are to be seen as a limitation to ne bis in idem (see, among others, Menci and bpost), the CJEU then examined whether in the present case this limitation met the requirements of Article 52(1) of the EU-Charter. In the CJEU’s opinion, this was not the case, mainly because this double sanction contravened the principle of proportionality in two different respects: first, in that national law provided for the automatic and mandatory cumulation of those two severe sanctions (§ 59), and, secondly, in that their cumulative effect seemed to exceed the seriousness of the offence committed (§ 62).

What should be pointed out about this ruling, from a Convention point of view, is yet again a regrettable lack of consistency as regards the requirements to be met under Article 52(1) of the EU-Charter when applied to ne bis in idem. It resulted from the introduction of yet another criterion to be applied under that provision, the “coordination of the procedures” (§§ 57, 58, 61 and 63).

Whereas the Grand Chamber ruling in bpost had appeared to increase the convergence with the Strasbourg criteria introduced in A and B v. Norway by referring to the latter and taking on board the idea that dual proceedings can only be seen as not breaching ne bis in idem if they are ”combined in an integrated manner so as to form a coherent whole”, notably through a sufficiently close connection in substance and in time (A and B, § 130), MV – 98 now seems to suggest that it is sufficient for such proceedings to be “coordinated” so as to enable “the additional disadvantage associated with the cumulation of measures imposed to be reduced to what is strictly necessary and to ensure that the severity of all of those measures is commensurate with the seriousness of the offence concerned” (§ 58). Thus, simple “coordination” instead of a “close connection in substance and in time”, leading to a relaxing of the Strasbourg requirements, at variance with bpost? One is left guessing about the exact meaning and purpose of such differences (see also BV).

At any rate, it is difficult to predict at this stage whether these repeated terminological and methodological differences between the Strasbourg and Luxembourg case-law, and even within the latter, are to result in different levels of protection. What seems clear, however, is that with MV – 98 another level of inconsistency and confusion in the field of ne bis in idem has been reached, to the detriment of legal certainty.

In the case of E.D.L. (C-699/21, 18.4.2023) the CJEU was again called upon to rule on how to handle the situation arising out of a legal obligation to deport a person who is seriously ill to a State where the required medical treatment might not be available. Whereas in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) this issue presented itself in the context of a return procedure, in the case at hand it did so in the context of the execution of a European arrest warrant (EAW).

In its ruling the CJEU distinguished three different scenarios:

a) Where there are substantial grounds to believe that the surrender of the requested person manifestly risks endangering his or her health, the executing judicial authority may, exceptionally, postpone that surrender temporarily, on the basis of Article 23(4) of Framework Decision 2002/584.

b) Where the executing judicial authority concludes that there are substantial and established grounds for believing that the surrender of the requested person would expose that person to a risk as the one which was at stake in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) referred to above, i.e. a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, that authority is required, in accordance with Article 4 of the Charter, to exercise the power provided for in Article 23(4) of Framework Decision 2002/584 by deciding to postpone the surrender. It is also required to ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising.

c) If, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the European arrest warrant, by virtue of Article 1(3) of Framework-Decision 2002/584, which provides that that Framework-Decision “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]”. On the other hand, if the said risk can be ruled out within such a period of time, a new surrender date must be agreed with the issuing judicial authority.

What is noteworthy about this case is that the CJEU here did not apply its two-step methodology for the assessment of the existence of a risk in the issuing Member State such as to justify an exception, based on the duty to respect fundamental rights, from the obligation to execute a EAW. On this methodology, see e.g. Openbaar Ministerie (Tribunal established by law in the issuing Member State). The CJEU indeed immediately dealt with the nature of the risk incurred by the requested person in the issuing Member State (Croatia), without also assessing the existence of any systemic or generalised deficiencies in that Member State, as it did for instance in Aranyosi and Căldăraru, which also concerned a risk of a breach of Article 4 of the EU-Charter in the issuing Member State. The future will tell whether this case is to be seen as an exception or a new trend.

In the case of Generalstaatsanwaltschaft Bamberg (Exception to the ne bis in idem principle) (C-365/21, 23.3.2023), the CJEU was called on to rule on possible exceptions to the ne bis in idem principle. The main issue was about the compatibility with Article 50 of the EU-Charter of the declaration which Germany made pursuant to Article 55(1)(b) of the Convention implementing the Schengen Agreement (CISA). According to this declaration, Germany would not be bound by the ne bis in idem principle laid down in Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against its national security or its other equally significant interests.

The accused in the main proceedings in Germany, MR, had been convicted in Austria for serious commercial fraud and money laundering. While he served his sentence in Austria, a German court issued a European arrest warrant (EAW) requesting his transfer on charges of formation of a criminal organisation and investment fraud. In this context, the CJEU was asked for a preliminary ruling on, inter alia, the question whether the German courts could lawfully rely on the said declaration and consider that ne bis in idem would not preclude the execution of the EAW in the case at hand.

In its ruling, the CJEU took the view that the possibility, provided for in Article 55(1)(b) of the CISA, for a Member State to derogate from the ne bis in idem principle when the acts to which the foreign judgment relates constitute an offence against its security or other equally essential interests is to be seen as a limitation to ne bis in idem as guaranteed by Article 50 of the EU-Charter. Consequently, its lawfulness had to be assessed in light of Article 52(1) of the EU-Charter (§§ 47-48). The CJEU then embarked on a detailed analysis of whether the requirements of the latter provision were met. It thereby came to the conclusion that Article 55(1)(b) was compatible with Article 50 of the EU-Charter.

What is noteworthy about this ruling from a Convention point of view is some confusion between limitations and exceptions to ne bis in idem. A limitation to a fundamental right, which is called “interference” in the Convention terminology, usually refers to a measure affecting the enjoyment of a fundamental right by an individual without precluding it entirely, thus only restricting it. By contrast, there will be an exception from a fundamental right when its enjoyment is actually precluded altogether, here by reason of the category of offences involved. This is also why the CISA refers to Article 55 (1) (b), which provides for a scenario where States are not at all bound by ne bis in idem, as entailing an exception from its Article 54 (§ 5).

Thus, in light of this distinction, the present case is in fact about an exception to ne bis in idem rather than a mere limitation or restriction, since it is about denying the benefit of that principle altogether to MR. The notion of exception is therefore correctly used in paragraphs 5, 53 and 63 of the ruling. Yet, the CJEU nonetheless analyses this exception as a pure limitation and applies to it the test laid down in Article 52(1) of the EU-Charter. As if the benefit of ne bis in idem in the present case was only to be limited, as it was for instance in Menci and bpost, whereas in fact the suggestion was to reduce it to nothing at all.

This ambivalence becomes particularly apparent when, applying Article 52(1), the CJEU addresses the question whether the essence of ne bis in idem would be preserved in case the German declaration could be applied. It answers that question in the affirmative, but it does so by adopting a general perspective rather than that of the individual concerned. The CJEU indeed sees this requirement as fulfilled because “it permits that Member State to punish offences which affect the Member State itself and, in so doing, to pursue objectives that necessarily differ from those for which the person prosecuted has already been tried in another Member State.” (§ 57)

Thus, according to this reasoning, the essence of ne bis in idem is to be preserved for the benefit not of the accused person but of the State concerned, which will remain able to conduct its own prosecutions. It is therefore all the more surprising to read later in the judgment that this derogation from ne bis in idem “is accompanied by rules that will guarantee that the resulting disadvantages, for the persons concerned, are limited to what is strictly necessary” (§ 65, emphasis added). In fact, there is nothing left of that right for the individuals in the situation of MR, because ne bis in idem here is not subject to a mere limitation but to a full exception.

This approach would appear to be in serious contrast with the case-law of the European Court of Human Rights, for at least two reasons.

First, Article 4 of Protocol no. 7 to the Convention, which is the provision laying down the ne bis in idem principle in the Convention system, provides for no limitations at all to that principle. Exceptions from it are allowed only in two different situations: if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case (Art. 4 § 2). Ne bis in idem cannot even be derogated from under Article 15 of the Convention, in times of emergency (Art. 4 § 3).

Secondly, when the Strasbourg Court examines whether the essence of a fundamental right has been preserved by an interference with that right, it does so from the perspective of the applicant, thereby asking the question whether the latter enjoyed at least part of his or her fundamental right in the circumstances. In other words, it adopts an individual approach, not a general one. This is because, if a fundamental right is to be enjoyed by an individual, the preservation of its essence by definition must be in the interest of that same individual, not in that of the State interfering with his or her right (see, e.g. Regner v. Czech Republic, § 148).

All in all, the approach followed by the CJEU in the present case would appear to remain below the protection level ensured by Article 4 of Protocol No. 7 to the Convention. This is in spite of the explanations to Article 50 of the EU-Charter, according to which “As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR”. This level of protection can hardly be allowed to vary according to whether ne bis in idem should apply between several States or within one and the same.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On 15 September last, the CJEU handed down two important rulings on different aspects of the right of an accused person to be present at his or her trial, thereby applying 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.

In the case of HN (C-420/20), the CJEU ruled that while Art. 8 of Directive 2016/343 does not preclude national legislation imposing an obligation on suspects and accused persons to be present at their criminal trial, it does preclude legislation permitting a trial to be held in the absence of the suspect or accused person, where that person is outside the Member State concerned and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member State.

In the case of DD (C-347/21), the CJEU in essence ruled that where, for the sake of preserving the right to be present at the trial, an additional examination of an incriminating witness is necessary because the first examination could not be attended by the accused person and his lawyer for reasons beyond their control, Article 8(1) of Directive 2016/343 and Article 3(1) of Directive 2013/48 (on the right of access to a lawyer) do not require the whole previous examination of that witness to be repeated. Rather, it is sufficient that the accused person and his or her lawyer be able freely to question that witness, provided that, prior to that additional examination, the accused person and his or her lawyer are provided with a copy of the minutes of the previous examination of that witness.

One striking aspect of both rulings is the fact that here, in contrast for instance with the recent ruling in TL, the CJEU explicitly drew on relevant Strasbourg case-law, notably on the leading cases of Hermi v. Italy, Sejdovic v. Italy, Jussila v. Finland and Al-Khawadja and Tahery v. United Kingdom, as a basis, along with the two directives, on which to build its own reasoning. These references each time follow a clear indication by the CJEU to the effect that, since the right to a fair trial as guaranteed by Articles 47 §§2-3 and 48 of the EU-Charter corresponds to that same right as protected by Article 6 of the Convention, “the Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights” (C-420/20, §§ 54-55; C-347/21, § 31).

Thus, in addition to drawing on the said Strasbourg case-law, the CJEU also rightly pointed to the need to preserve under EU law the minimum level of protection emerging from it. In so doing, it not only made use of the “toolbox function”of the Convention, as it indeed quite often does when simply taking on board Convention elements as it deems fit. In addition, in a move which is less frequent in its case-law and is therefore to be commended, it acknowledged – and effectively applied – the “benchmark function” which was conferred on the Convention in relation to EU law by Article 52(3) of the EU-Charter. The Explanations to this provision indeed state: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.” This is clearly in order to protect national judges from being held liable in Strasbourg for breaching the Convention when applying EU law.

All of this is of course without prejudice to the possibility for EU law to provide “a more extensive protection” (Art. 52(3), 2^nd sentence, of the EU-Charter). In this connection, there is also room for a fruitful interaction between Article 6 of the Convention and the directives on procedural rights in criminal proceedings. A striking illustration of such an interaction is provided by the fact that while, on the one hand, the directive on the right to access to a lawyer (2013/48) clearly draws on the Strasbourg case-law relating to that right, the European Court of Human Rights, on the other hand, in Ibrahim and Others v. United Kingdom took on board the specifications contained in that directive concerning the notion of compelling reasons justifying an exception from the right to access to a lawyer (§ 259).

At any rate, since procedural rights in criminal proceedings are an area with a significant overlap between EU law and the Convention, in terms not only of the scope and substance of the rights concerned but also of the high number of cases in which Article 6 of the Convention is invoked, such explicit indications by the CJEU about the Strasbourg sources of its reasoning would appear to be of great importance, for at least three reasons.

First, as part of the CJEU’s legal reasoning which, as with any judicial decision, citizens have in principle a right to know and understand by virtue of the rule of law.

Secondly, for pedagogical reasons, as an illustration of the existing interaction between the Convention and EU law regarding many fundamental rights. For why suggest autonomy from the Convention where there is none and a wholistic approach would be required instead?

Thirdly, because any domestic judgment applying preliminary rulings by the CJEU may ultimately be reviewed in Strasbourg under Article 34 of the Convention (see Bivolaru et Moldovan c. France). Consequently, domestic judges have an interest in being given the legal arguments to satisfy themselves that by applying a preliminary ruling of the CJEU, they will not remain under the Convention level of protection and not run the risk of being found in Strasbourg to have breached the Convention. After all, it is their own responsibility and that of their respective Member States which are engaged in Strasbourg, interpretations of the Convention by the CJEU not being authoritative. Contrary to EU law itself, domestic judges are indeed not autonomous.