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

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

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

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

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

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

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

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

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

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

In the case of Deutsche Umwelthilfe (19.12.2019) a Grand Chamber of the CJEU ruled on the question whether the right to an effective remedy (Art. 47(1) of the EU-Charter) required domestic courts to impose coercive detention on senior political representatives or senior officials of Bavaria on account of the persistent refusal of the Bavarian government to comply with an injunction granted by the Munich Administrative Court pursuant to Directive 2008/50 on ambient air quality and cleaner air for Europe.

In answering that question the CJEU recalled, interpreting Article 47 of the EU-Charter in the light of the case-law of the ECHR on Article 6 § 1 of the Convention, that the right to an effective remedy would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain ineffective to the detriment of one party (§ 36-37). As, however, the right to an effective remedy is not absolute, it had to be weighed against the right to liberty (Art. 6 of the EU-Charter) which required, in accordance with the case-law of the ECHR on Article 5 of the Convention, the legal basis for a limitation on the right to liberty to be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risks of arbitrariness (§§ 45-46).

In the case of Centraal Justitieel Incassobureau (5.12.2019) the CJEU interpreted Framework Decision 2005/214 on the application of the principle of mutual recognition to financial penalties. Two issues of interest from a Convention perspective are worth mentioning in this connection.

First, while the CJEU stresses that according to the principle of mutual recognition Member States are, as a rule, obliged to recognise a decision requiring payment of a financial penalty which has been transmitted in compliance with the Framework Decision and that, therefore, the grounds for refusal to recognise or enforce such a decision, as listed in Article 7(1) and (2) of the Framework Decision, must be interpreted restrictively (§ 30), it states at the same time:

It must be noted that, in accordance with Article 3 of the Framework Decision, that decision may not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, which is why Article 20(3) of the Framework Decision also provides that the competent authority of the Member State of execution may refuse to recognise and execute a decision requiring payment of a financial penalty in the event of infringement of fundamental rights or fundamental legal principles defined by Article 6 of the Treaty. (§ 37)

This reasoning bears obvious similarities to Aranyosi and Căldăraru (C 404/15 and C 659/15 PPU, 5.4.2016) which concerned the Framework Decision on the European arrest warrant (2002/584) and in which the CJEU also stated that over and beyond the exhaustive list of grounds for non-execution of a European arrest warrant, “as is stated in Article 1(3) thereof, the Framework Decision is not to have the effect of modifying the obligation to respect fundamental rights as enshrined in, inter alia, the Charter” (§ 83).

This requirement makes sense in light of the fact that mutual recognition itself can be made the subject of an application before the ECHR against the Member State which, for instance, enforced a financial penalty or executed a European arrest warrant (see e.g. Pirozzi v. Belgium, 21055/11, 17.4.2018, mentioned on the “Recent case-law” page).

Secondly, in light of this requirement to comply with fundamental rights the CJEU examined whether the presumption of liability underpinning the Netherlands Highway Code on the basis of which the financial penalty had been imposed in the present case was compatible with the presumption of innocence laid down in Article 48 of the EU-Charter. Referring to Article 52(3) of the EU-Charter, it thereby relied on the case-law of the ECHR relating to the presumption of innocence under Article 6 § 2 of the Convention (§§ 53-55).

In the case of A.K. and Others (19.11.2019) the CJEU dealt with the issue of the independence of the Disciplinary Chamber of the Polish Supreme Court. In setting out the requirements to be fulfilled under EU law for a court to be independent and impartial, it relied on the second paragraph of Article 47 of the Charter (right to a fair trial), thereby pointing out that, by virtue of Art. 52(3) of the Charter, “the Court must … ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights” (§ 118).

The CJEU then went on to give an overview of its own case-law on the independence and impartiality of courts (including C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of justice) and C-619/18, Commission v. Poland (Independence of the Supreme Court)) and pointed out that its interpretation of article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention (§ 126) which the CJEU then proceeded to describe in some detail.

One may just wonder why the CJEU did not mention that same Strasbourg case-law in its previous judgment in C-619/18 mentioned above, which deals with very similar issues.

In Rayonna prokuratura Lom (19.9.2019) the CJEU ruled on the scope of three of the directives on procedural rights in criminal proceedings, being Directive 2012/13 on the right to information, Directive 2013/48 on the right of access to a lawyer and Directive 2016/343 on the presumption of innocence and the right to be present at the trial.

As regards the directives on the right to information and on access to a lawyer, the CJEU stated that these Directives also apply to proceedings for the committal to a psychiatric hospital of a person who committed a criminal offence, provided that such a measure was justified not only on therapeutic grounds but also on safety grounds. The CJEU came to this conclusion by relying inter alia on the case-law of the ECHR on Article 5 of the Convention (right to liberty and security), which also covers deprivations of liberty resulting from psychiatric or medical care measures. After recalling that Art. 6 of the EU-Charter corresponded to Art. 5 of the Convention and therefore, by virtue of Art. 52(3) of the Charter, had to be interpreted having regard to that case-law of the ECHR, the CJEU concluded: “Accordingly, in the light of the right to liberty and security guaranteed by Article 6 of the Charter, Directives 2012/13 and 2013/48 cannot be interpreted as excluding from their scope judicial proceedings in which an order may be made for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence.” (§ 46)

Thus, through this new case-law the concept of “criminal proceedings” – and the fair-trial guarantees which go with it – are being extended, for the purpose of the said directives, to “proceedings for committal to a psychiatric hospital which, although they do not lead to a ‘sentence’ in the strict sense, nevertheless result in a measure involving a deprivation of liberty, provided that such a measure is justified not only on therapeutic grounds but also on safety grounds” (§ 41). Moreover, the court dealing with a request for such a committal must have the power to verify that the procedural rights covered by those directives were respected in proceedings prior to those before that court (§ 63).

In simple terms, the procedure for the committal to a psychiatric hospital with a “penal purpose” (§ 71) is being assimilated with standard criminal proceedings on the ground that both can lead to a deprivation of liberty coming under the scope of Articles 5 of the Convention and 6 of the Charter.

By contrast, the CJEU ruled in the same judgment that the Directive on the presumption of innocence – and indeed EU law as such – did not apply to a procedure for the committal to a psychiatric hospital which had a purely therapeutic purpose and was implemented independently of any criminal proceedings (§ 66).

As a result of this case-law, domestic authorities dealing with procedures for the committal to a psychiatric hospital which are governed by any of the above-mentioned directives will now have to combine the safeguards laid down in those directives with the requirements under Art. 5 of the Convention relating to the deprivation of liberty of persons of unsound mind, as they have been recapitulated by the ECHR in the cases of Stanev v. Bulgaria (17.1.2012) and Rooman v. Belgium (31.1.2019). While those requirements to some extent draw on the fair-trial guarantees laid down in Art. 6 of the Convention, they cover many more aspects of the committal than just the rights of the defence.

Finally, as regards the substance of the rights at stake in the present case, it is perhaps worth noting that in relation to the right to information in criminal proceedings as enshrined in Directive 2012/13, the CJEU ruled that the relevant information was to be provided “as soon as possible” and “at the latest, before [the persons concerned] are first officially questioned by the police” (§ 53). This would appear to be in slight contrast with the requirement flowing from Simeonovi v. Bulgaria (ECHR 12.5.2017) according to which this information is to be provided immediately (§ 119).

In AH and Others (5.9.2019) the CJEU applied Directive 2016/343 on the presumption of innocence and the right to be present at the trial in criminal proceedings to an agreement with the prosecution in which only one of the co-accused persons had recognized his guilt in exchange for a reduction in sentencing. In doing so, the CJEU considered:

“… it should be noted that the presumption of innocence is enshrined in Article 48 of the Charter, which corresponds to Article 6(2) and (3) of the ECHR, as is apparent from the explanations to the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) of the ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection…” (§ 41)

In light of the above, the CJEU then relied on the judgments of the ECHR in the cases of Karaman v. Germany (27.2.2014) and Navanyy and Ofitrov v. Russia (23.2.2016).

In the case of Dumitru-Tudor Dorobantu (15.10.2019), a Grand Chamber of the CJEU confirmed and specified its case-law on the execution of a European arrest warrant in the face of a real risk of inhuman or degrading treatment, in this case a risk arising out of the conditions of detention in the issuing Member State. Relying on Article 52(3) of the EU-Charter, the CJEU confirmed the absolute nature of the prohibition of ill-treatment as it resulted from Article 4 of the EU-Charter, which corresponded to Article 3 of the Convention. Still on the basis of Article 52(3) of the EU-Charter, the CJEU referred to the Mursic-jurisprudence of the ECHR (20.10.2016) for the assessment of the level of severity of conditions of detention. Interestingly, in § 57 of its judgment the CJEU also relied on the Romeo Castaño-jurisprudence of the ECHR (see below), holding that under the Convention, the refusal by a Member State to execute a European arrest warrant by reason of a risk of ill-treatment in the issuing State had to be based on an up-to-date and detailed examination of the situation as it existed at the time of the decision not to execute the warrant. The CJEU thereby apparently ignored the fact that the Romeo Castaño-jurisprudence has so far only been applied by the ECHR in respect of criminal proceedings falling under the scope of Article 2 of the Convention, i.e. in the event of a homicide, which is not the case in Dorobantu.

In Gambino and Hyka (29.7.2019) the CJEU, relying on Articles 47 and 48 of the Charter and, by virtue of Article 52(3) of the Charter, on the case-law of the ECHR on the right to a fair trial (Article 6 of the Convention), ruled that Articles 16 and 18 of Directive 2012/29/EU on the rights of victims of crime do not prevent the victim of a criminal offence from having to be heard a second time following a change in the composition of the bench, if one of the parties to the proceedings so wishes.

In Funke Medien NRW GmbH v. Bundesrepublik Deutschland (29.7.2019) a Grand Chamber of the CJEU applied Directive 2001/29/EC (on the harmonisation of certain aspects of copyright and related rights in the information society) to a set of facts concerning the publication by a newspaper of certain documents “classified for restricted access” drawn up by the German Government and relating to the operation of the German army in Afghanistan. In examining the scope of the exceptions for the benefit of the press and the information of the public, provided for in Article 5 of the directive, the CJEU stated the need for a fair balance to be struck between the protection of intellectual property (Article 17(2) of the Charter) and the freedom of expression and information (Article 11 of the Charter). In this connection, the CJEU referred, by virtue of Article 52(3) of the Charter, to the case-law of the European Court of Human Rights according to which, in balancing copyright against freedom of expression, due consideration was to be given to the nature of the expression or information at stake and in particular to the question whether it concerned matters of public interest. Given that the CJEU leaves it to the national courts to strike this balance which, at the end of the day, can be challenged by way of an application to the Strasbourg Court against the final domestic judgment, reliance by the CJEU on the Strasbourg case-law would appear to also serve the interests of domestic judges.