In the case of Openbaar Ministerie (Tribunal established by law in the issuing Member State) (joined cases C-562/21 PPU and C-563/21 PPU, 22.2.2022) the CJEU gave another ruling on the execution of a European arrest warrant (EAW) in the face of a (risk of a) breach of the right to a fair trial (Article 47(2) of the EU-Charter) in Poland. This time, the question asked by the executing judicial authority, the Amsterdam District Court, was about the consequences to be drawn from generalised deficiencies relating to the independence of the judiciary in that country.

In terms of the interaction between EU law and the European Convention on Human Rights, the picture resulting from the CJEU’s ruling is a contrasted one. On the one hand, as regards the requirements flowing from the right to an independent tribunal, the CJEU underscored the common ground existing between its own case-law and that of the European Court of Human Rights (§§ 56-57).

As a consequence, and probably for the first time, the CJEU considered that the case-law of the ECtHR finding a breach of the Convention requirements in respect of a tribunal established by law, by reason of the procedure for the appointment of judges, could be taken into account by the executing judicial authority for the purpose of establishing the existence of systemic or generalised deficiencies in the issuing Member State (§ 79). In the same vein, the CJEU considered of equal relevance in this context the case-law of the Polish Constitutional Tribunal challenging the primacy of EU law and the binding nature of the Convention, as well as the binding force of judgments of the CJEU and of the ECtHR (§ 80). In other words, and indeed very interestingly, in the CJEU’s opinion violations of the Convention seem to be part of the picture to be considered when assessing the existence of systemic or generalised deficiencies within the meaning of EU-law.

On the other hand, however, differences remain in terms of the methodology applied to the fundamental rights concerned in a case like this, with the CJEU confirming and further elaborating on the two-step examination required for the assessment of whether (the risk of) a breach of fundamental rights can justify an exception to the obligation to execute a EAW (on this issue, see also Openbaar Ministerie (Independence of the issuing judicial authority and The EAW under the Convention).

In this connection, the CJEU elaborated at great length on the need for systemic or generalised deficiencies to be individualised, i.e. for their impact on the personal situation of the person concerned to be duly demonstrated by that same person. This should be done on the basis of a several criteria which are enumerated by the CJEU but which at the same time would appear, in their combination, to be of a rather complex handling (§§ 84 et seq.). At this point, one may therefore ask whether taken together, the overall amount and the nature of the evidence required does not represent a standard of proof which in the end is higher than the one applied by the ECtHR. If so, this would result in lesser protection for the person concerned. In support of this rather strict approach, the CJEU referred to the preservation of the effectiveness of the EAW system (§§ 47 and 63), the fundamental rights of the victims of the offences concerned (§ 60) as well as the fight against impunity (§ 62).

By contrast, the ECtHR does not consider systemic or generalised deficiencies in the country of destination to be a precondition for a real and individual risk of a breach of the Convention in that country to be established (see, concerning Article 3 of the Convention, Bivolaru and Moldovan). This would seem to be in line with the well-established principle according to which the Court’s role is not to decide in abstracto whether the law is compatible with the Convention, but rather to verify whether the manner in which the law was applied in the particular circumstances of a case complied with the Convention (see, among many others, Denis and Irvine v. Belgium, § 195).

Yet, it is also true that under Article 6 of the Convention, only a flagrant breach of the right to a fair trial in the country of destination can stand in the way of a deportation (see Soering v. United Kingdom, Stapleton v. Ireland). However,  it would not appear too difficult to consider an established lack of independence of a court to amount to such a flagrant breach.

In the end, as the case of Bivolaru and Moldovan shows, should a decision to execute a EAW be challenged before the ECtHR, the latter will focus on the individual circumstances of the person concerned. Under this approach, the absence of (proof of) systemic or generalised deficiencies cannot dispense the national authorities from nonetheless examining the personal risk incurred in the event of a deportation of that person. In other words, such deficiencies are no obligatory starting point or requirement under the Convention.

Seen from this perspective, the position of the CJEU comes down to considering that only such risks can be relevant for the protection of fundamental rights in an extradition context which originate in systemic or generalised deficiencies. Yet, while such deficiencies are often likely to have an impact on individual situations, this would not appear to justify the conclusion that they represent the only possible source of relevant individual risks. As the Strasbourg case-law shows, such risks can indeed also have their roots, for example, in specific circumstances or, as the CJEU itself suggests, in statements made in the context of a specific case (§ 97).

In the case of IS (C-564/19, 23.11.2021), a Grand Chamber of the CJEU dealt with the preliminary ruling procedure under Article 267 TFEU and the rights and obligations flowing from that provision for the courts of the Member States. It also gave a detailed explanation of the requirements of Directive 2010/64 on the right to interpretation and translation in criminal proceedings and Directive 2012/13 on the right to information in criminal proceedings, which it interpreted in light of the Strasbourg case-law relating to these matters.

The case in the main proceedings concerned criminal proceedings in absentia brought in Hungary against a Swedish national born in Turkey, who was prosecuted for an infringement of the Hungarian legislation on firearms and ammunition; this followed an investigation during which he had been questioned by the police in the presence of a Swedish-language interpreter, but without the assistance of a lawyer, even though this was the interview at which he was informed that he was suspected of having committed offences under that national legislation.

On the issue of the rights of the accused, the CJEU first recalled that according to Article 52(3) of the EU-Charter, in so far as that Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights, the meaning and scope of those rights must be the same as those laid down by that Convention. Consequently, the CJEU must ensure that its interpretation of Article 48 of the Charter (presumption of innocence and rights of the defence) ensures a level of protection which does not disregard that guaranteed by Article 6 of the Convention (fair trial), as interpreted by the European Court of Human Rights (§ 101). Interestingly and in contrast with most of its previous rulings on this subject, the CJEU did not mention here the autonomy of EU law as a limitation on the effects of Article 52(3). Whether that is intended or not remains to be seen.

On the issue of the interpretation and translation facilities offered to the accused, the CJEU ruled, with reference to the landmark judgment by the ECtHR in the case of Hermi v. Italy, that Article 5 of Directive 2010/64 requires Member States to take concrete measures in order to ensure that the quality of the interpretation and translations provided is sufficient to enable the suspect or accused person to understand the accusation against him or her and in order that that interpretation can be reviewed by the national courts.

With reference to Strasbourg case-law on the importance of proper information of an accused person for the fairness of his or her trial (Simeonovi v. Bulgaria, Pélissier and Sassi v. France and Sejdovic v. Italy), the CJEU furthermore interpreted Article 2(5) of Directive 2010/64 and Articles 4(5) and 6(1) of Directive 2012/13, read in the light of Article 48(2) of the Charter (rights of the defence), as requiring that if the interpretation provided was not of a sufficient quality to enable the accused person to understand the reasons for his arrest and the accusations against him, this would preclude the criminal proceedings from being continued in absentia.

In the case of W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C-487/19, 6.10.2021) the CJEU ruled on the transfer without consent of a judge of an ordinary Polish court. It held that the order by which the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, ruling at last instance and sitting as a single judge, dismissed the action of that judge must be declared null and void if the appointment of the single judge concerned took place in clear breach of fundamental rules concerning the establishment and functioning of the judicial system at stake.

In the case at hand, the President of the Republic had appointed the single judge concerned despite a decision by the Supreme Administrative Court ordering that the effects of the resolution of the National Council of the Judiciary recommending the appointment of this judge be suspended pending a preliminary ruling of the CJEU.

Among other things, the CJEU referred to the case-law of the European Court of Human Rights concerning in particular the right of members of the judiciary to protection from arbitrary transfer (§ 116), the concept of a “tribunal established by law”, the process of appointing judges (§§ 124-125), the requirement that the organisation of the judicial system does not depend on the discretion of the executive (§ 129) and the need to preserve the integrity of the appointment of judges as a way to avoid reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned (§ 130). In Dolińska-Ficek and Ozimek, the European Court of Human Rights “fully subscribed” to the CJEU’s reasoning (§ 328).

The CJEU also recalled that by virtue of Article 52(3) of the EU-Charter, it must ensure that the interpretation which it gives to the second paragraph of Article 47 of the EU-Charter (right to effective judicial protection) safeguards a level of protection which does not fall below the level of protection established in Article 6 § 1 of the Convention (right to a fair trial), as interpreted by the European Court of Human Rights (§ 123). However, there is no explicit inquiry or demonstration by the CJEU on whether the Convention level of protection has been respected in the present case.

In the case of Prokuratura Rejonowa Łódź-Bałuty (C-338/20, 6.10.2021), which concerned Framework Decision 2005/214 on the application of the principle of mutual recognition to financial penalties, the CJEU drew on the case-law of the European Court of Human Rights on the scope of Article 6 of the Convention (fair trial) in order to conclude, by reference to Article 52(3) of the EU-Charter, that addressees of financial penalties falling within the scope of Framework Decision 2005/214 are entitled to rely on the fundamental rights enshrined in the second paragraph of Article 47 and Article 48(2) of the EU-Charter, notably the right to be informed in a language which they understand of the essential elements of a decision imposing such a financial penalty (§§ 29-30). The CJEU furthermore relied on the case-law of the Strasbourg Court in identifying these essential elements (§§ 35-38).

That being so, the CJEU ruled that the competent authority of the executing Member State may, on the basis of Article 20(3) of Framework Decision 2005/214, oppose the recognition and execution of a decision imposing a financial penalty on the addressee thereof where that decision is notified to him or her without a translation of these essential elements into a language which he or she understands and without giving him or her, where appropriate, the possibility of obtaining such a translation (§ 40).

In this connection, the CJEU recalled that according to Article 3 of Framework Decision 2005/214, that Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU. For this reason, Article 20(3) of that framework decision indeed provides that the competent authority of the Member State of execution may refuse to recognise and execute a decision requiring payment of a financial penalty in the event of infringement of fundamental rights or fundamental legal principles (§ 26).

One may however wonder why the EU legislature has made the refusal to recognise and execute such a decision only optional (“may refuse”) and not mandatory (“shall refuse”). It may be due to the fact that Article 20(3) refers to situations giving rise “to an issue that fundamental rights or fundamental legal principles as enshrined in Article 6 of the Treaty may have been infringed”, thus suggesting some uncertainty as to whether those rights and principles have indeed be breached in the concrete circumstances of the case. By contrast, the CJEU in § 26 refers to situations apparently not giving rise to such uncertainty (“in the event of infringement of fundamental rights or fundamental legal principles”). Maintaining the optional character of a refusal to recognise and execute a decision imposing a financial penalty in such circumstances would not appear entirely consistent with the mandatory principle stated in Article 3 of the Framework Decision (“shall not”), referred to above.

In the cases of Wabe and MH Müller Handel (joined cases C-804/18 and C-341/19, 15.7.2021) the CJEU ruled on prohibitions on the wearing of visible forms of expression of political, philosophical or religious beliefs in the workplace, thereby applying Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The two complainants before the referring courts, respectively a special needs carer and a sales assistant, had both been prevented from wearing an Islamic headscarf on the basis of internal rules, applicable in their respective companies, which prohibited the wearing of any visible signs of political, philosophical or religious beliefs in the workplace.

Pursuant to Directive 2000/78, and in keeping with its previous case law (G4S Secure Solutions and Bougnaoui and ADDH), the CJEU carefully distinguished between direct and indirect discrimination on grounds of religion or belief. It thereby recalled that by virtue of Article 52(3) of the EU-Charter of fundamental rights, the right to freedom of conscience and religion, enshrined in Article 10(1) of the EU-Charter, corresponds to the right guaranteed in Article 9 of the Convention and has therefore the same meaning and scope as the latter provision (§§ 48 and 81). However, the CJEU did not draw any conclusions from this correspondence in terms of the limitations to which that right can be subjected.

Rather, it assessed the issue through the prism of the requirement of equal treatment, as prescribed by Directive 2000/78, which is presented as a specific expression of the general principle of non-discrimination enshrined in Article 21 of the EU-Charter (§ 62). At the same time, the CJEU stressed that the interpretation of Directive 2000/78 had to be done having regard not only to Articles 10 and 21 of that Charter but also to the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions (Article 14(3) of the EU-Charter) and the freedom to conduct a business (Article 16 of the EU-Charter) at stake in the present cases (§ 84).

Interestingly, the CJEU also considered that a national provision such as Article 4(1) of the German Basic Law (Grundgesetz), which requires limitations to the freedom of religion and conscience to be justified by the demonstration of specific rather than general risks, could be applied at domestic level as a provision which is more favourable to the protection of the principle of equal treatment within the meaning of Article 8(1) of Directive 2000/78. Consequently, such a national provision offering a higher protection of the freedom of religion and belief than did Directive 2000/78 could be taken into account in examining the appropriateness of a difference of treatment indirectly based on religion or belief (§ 89).

One might wonder whether this opening towards more protective domestic provisions requiring limitations to the freedom of religion and belief to be justified by evidence of specific rather than general risks might perhaps also ease the tension seemingly existing between the Luxembourg case-law described above and the Strasbourg case-law on the same issue based on Article 9 of the Convention, notably the Eweida jurisprudence (Eweida and Others v. the United Kingdom, 15.1.2013, 48420/10, 59842/10, 51671/10 and 36516/10) which is indeed also based on a case-by-case approach and, thus, necessarily focuses on specific risks.

In the case of European Commission v. Poland (Régime disciplinaire des juges) (C-791/19, 15.7.2021), the CJEU decided on several complaints which had been raised by the European Commission, in the context of an action for failure to fulfill obligations (Art. 258 TFEU), and which concerned the new disciplinary regime applicable to Polish judges. In line with previous rulings (notably A.K. and Others, C-585/18, C-624/18, C-625/18; see below), the CJEU thereby expansively dealt with the requirements to be fulfilled under EU law for a domestic court to be independent and impartial. From a Convention perspective, the following aspects of the CJEU’s reasoning would appear to be noteworthy.

First, on the general relationship between EU law and the European Convention on Human Rights, the CJEU confirmed that pursuant to Article 52(3) of the EU-Charter, its interpretation of Articles 47(2) and 48 of the Charter must ensure a level of protection which does not disregard the one guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights (§ 165).

The approach adopted by the CJEU in this case would nonetheless appear to be somewhat different from the one usually adopted by the ECHR in similar cases. This could be explained by the fact that by their very nature, the complaints raised by the European Commission against the new disciplinary regime applicable to judges in Poland required the CJEU to look at the situation from an institutional perspective, covering simultaneously the independence and the impartiality of the judges concerned, considered in the abstract. Thus, the test and its application read as follows:

Taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals. Such a development constitutes a reduction in the protection of the value of the rule of law for the purposes of the case-law of the Court referred to in paragraph 51 of the present judgment. (§ 112; see also §§ 59, 86, 98, 139).

By contrast, the ECHR primarily looks at the issues from the point of view of the individual applicant, thereby distinguishing between the independence of a judge and his/her impartiality and, as far as the latter is concerned, requiring any doubts of an applicant to be objectively justified (see, e. g., Morice v. France, 23.4.2015, 29369/10, § 76).

However, both Courts converge in emphasizing the importance of appearances in this field as an essential means of preserving the trust which justice in a democratic society governed by the rule of law must inspire in the citizens (see, e. g., Micallef v. Malta, 15.10.2009, 17056/06, § 98, recalling that “justice must not only be done, it must also be seen to be done“).

Finally, against this background, it comes as no surprise that on the issue of whether a court can be considered as “established by law”, the CJEU, in contrast with its approach on the other issues addressed, explicitly relied on Strasbourg case-law (§§ 168, 171). The reason would appear to be that under Article 6 of the Convention too, the answer to this issue can only be given from an institutional perspective, which is much closer to the perspective adopted by the CJEU in the present case. In this connection, see also the recent judgment in the case of Reczkowicz v. Poland (22.7.2021, 43447/19) in which, after abundantly referring to the case-law of the CJEU concerning the recent reform of the judiciary in Poland, the ECHR found that the Disciplinary Chamber of the Polish Supreme Court could not be considered a “tribunal established by law” (§ 277) (see also the post on this judgment, on this page).

In the Consob case (2.2.2021, C-481/19), which concerned proceedings relating to the lawfulness of penalties imposed for offences of insider dealing and failure to cooperate in the context of an investigation conducted by the Italian National Companies and Stock Exchange Commission (Consob), the CJEU ruled on the interpretation of Articles 47 and 48 of the EU-Charter and on the validity and interpretation of provisions contained in two legal instruments dealing with market abuse (Directive 2003/6 and Regulation 596/2014). When inquiring about the protection of the right to silence provided by Articles 47 and 48 of the EU-Charter, the CJEU drew to a large extent, by virtue of Article 52(3) of the EU-Charter, on the case-law of the ECHR relating to that right (para. 36-43).

In the case of Centraal Israëlitisch Consistorie van België and Others (17.12.2020, C-336/19) the CJEU ruled that in order to promote animal welfare in the context of ritual slaughter, Member States may, without infringing the fundamental rights enshrined in the EU-Charter, require a reversible stunning procedure which cannot result in the animal’s death. The CJEU reached this conclusion after striking a balance between freedom of religion, guaranteed by Article 10 of the EU-Charter, and animal welfare, as set out in Article 13 TFEU and given specific expression to in Regulation No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing.

From a Convention perspective, several aspects of the ruling of the CJEU are worth mentioning. They represent interesting steps as regards the methodology to be applied in respect of fundamental rights which the Convention and the Charter have in common.

First, in interpreting Article 10 of the Charter the CJEU draws to a significant extent on the case-law of the European Court of Human Rights relating to Article 9 of the Convention. It did so relying on Article 52(3) of the Charter, in the following terms:

In that regard, it should be borne in mind that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Account must, therefore, be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection …. Since it is apparent from the explanations relating to Article 10 of the Charter that the freedom guaranteed in paragraph 1 thereof corresponds to the freedom guaranteed in Article 9 of the ECHR, that freedom must be taken into account for the purpose of interpreting Article 10(1) of the Charter. (§ 56)

The fact that the reference to the corresponding rights of the Convention as the minimum threshold of protection comes after a reminder about the need not to affect adversely the autonomy of EU law and of the CJEU might suggest, apparently for the first time in the Luxembourg case-law, that it is now being accepted that this autonomy cannot lead to the protection of fundamental rights under EU law to fall below the level of protection under the Convention. This would be in keeping with the Explanations relating to Article 52(3) of the Charter, according to which “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.”

Secondly, when it comes to examining the limitations applied in the present case to the exercise of the rights under Article 10 of the Charter, the CJEU stresses in § 58 of the ruling the similarities existing in this regard between the Convention (Art. 9 § 2) and the Charter (Art. 52(1)). Interestingly, and here again, apparently for the first time in the Luxembourg case-law, the CJEU then goes on to indicate that the justification of these limitations should be assessed having regard at the same time to both Article 52(1) and (3) of the Charter:

It is in the light of those considerations that it must be examined whether national legislation, which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, fulfils the conditions laid down in Article 52(1) and (3) of the Charter, read in conjunction with Article 13 TFEU. (§ 59)

Last but not least, the ruling contains another first-time reference which is another step towards the Convention protecting system, i.e. the endorsement of the well-known Strasbourg living instrument doctrine:

Like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. (§ 77)

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

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

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

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

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4(1) of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. … However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points. (§§ 209-210)

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

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

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

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

Where the executing judicial authority … has material … indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which the European arrest warrant was issued, and in the light of the information provided by that Member State pursuant to Article 15(2) of that framework decision, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State. (§ 52)

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

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

The question therefore arises whether such methodological differences could perhaps generate different protection levels, not least in terms of the burden of proof. It would indeed appear that no proof of any systemic or generalised deficiencies in the issuing State is required for a real and individual risk of a “flagrant denial of a fair trial” to amount to a potential breach of Article 6 of the Convention (see ECHR 7.7.1989, Soering v. United Kingdom, no. 14038/88, § 113; 4.5.2010, Stapleton v. Ireland (dec.), no. 56588/07, § 25).