The applicant in the case of S.H. v. Malta (37241/21, 20.12.2022) is a journalist from Bangladesh who applied for asylum in Malta on the ground that since he had reported on the 2018 election irregularities in his country, he would be at risk of ill-treatment contrary to Article 3 of the Convention if returned. The ECtHR found a violation of his right to an effective remedy (Article 13) because of serious procedural shortcomings in the processing of his application by the Maltese authorities. It also considered that returning him to Bangladesh without a fresh assessment of his claim would breach Article 3 of the Convention.

In finding a violation of the applicant’s right to an effective remedy, the ECtHR had regard to all the circumstances surrounding the proceedings at domestic level. These included in particular the lack of legal assistance and the applicant’s detention at crucial stages of the proceedings which, in the ECtHR’s view, explained much of the difficulties the applicant had encountered in correctly presenting his case and led to his application being dismissed at every stage of the proceedings.

Thus, the ECHR made an assessment of the proceedings and their outcome considered as a whole, from the point of view of the effectiveness of the procedural remedies used. In this context, and without formally acknowledging the existence of a general right of asylum seekers to legal assistance or representation, it nonetheless considered the absence of such assistance in the circumstances of this case as having had a significant impact on the (in)ability of the applicant to make his case before the competent authorities (§§ 82, 84 and 85). The ECtHR also had regard to substantive aspects of the proceedings, such as the reasons given by the domestic authorities for their decisions, which it found insufficient (§ 86), superficial (§ 90) or incongruent (§ 94).

Interestingly, it would appear that much of the procedural shortcomings noted by the ECtHR would not have taken place, had the Procedures Directive (2013/32/UE), notably its Articles 19 et seq., been properly complied with at domestic level. This case is therefore another illustration of the complementarity between the Convention and EU law, in that breaches of EU law provisions which correspond to Convention safeguards can be indirectly disclosed and remedied in Strasbourg, in an ex post assessment at the very end of the domestic proceedings.

But this case also illustrates the fact that it might not always be enough to simply apply EU law in order for domestic judges to automatically meet the Convention requirements. Under the Procedures Directive the right to an effective remedy and to free legal assistance and representation indeed only kicks in in appeals procedures (Art. 20 and 46). Prior to those, there is only a right to free legal and procedural information (Art. 19). Moreover, the said Directive would not appear to spell out any requirements in terms of the substantive quality and coherence of the reasoning of domestic decisions, which the ECtHR had regard to in the present case.

In the case of Moraru v. Romania (64480/19, 8.11.2022) the ECHR found a violation of Article 14 of the Convention (prohibition of discrimination) taken together with Article 2 of Protocol No. 1 to the Convention (right to education) on account of the failure by the domestic authorities to put forward any reasonable and objective justification for the disadvantage faced by the applicant, whose height and weight were below the statutary threshholds, in the admission process to study military medecine.

What is noteworthy in this judgment in terms of the interplay between the Convention and EU law is the reliance placed by the ECHR in its reasoning, among other considerations, on the fact that in adjudicating the applicant’s case, the domestic courts failed to “meaningfully engage” with the relevant case-law of the CJEU which the applicant had invoked before them and which the ECHR also extensively quoted , notably the ruling in Kalliri (C-409/16) (§§ 24 and 54). While the ECHR specified that it had no competence to itself interpret EU law, it held that the domestic courts ought to have properly examined its relevance.

This seems like a rather novel way of reinforcing both compliance with the Luxembourg case-law and the overall coherence of fundamental rights in Europe.

The judgment in the case of Rutar and Rutar Marketing D.O.O. v. Slovenia (21164/20, 15.12.2022) is another application by the ECHR of its doctrine on the obligation under Article 6 of the Convention (right to a fair trial) for last instance domestic courts to give reasons, based on the relevant Luxembourg case-law, as to why they would not make a request for a preliminary ruling by the CJEU (Art. 267 TFEU) despite a request to that effect by a party to the proceedings (see, previously, among others, Quintanel and Others v. France).

The case concerned minor offence proceedings in Slovenia for breach of the Consumer Protection Act. Its particularity lies in the fact that the constitutional complaint filed by the applicants was declared inadmissible for formal reasons which however the ECHR was not prepared to accept as entailing the consequence that the applicants would not have exhausted domestic remedies as prescribed by Article 35 § 1 of the Convention (§ 49).

The Local Court, which was the first-instance court and the only one to decide the case on the merits (§ 61), was therefore considered by the ECHR to be bound in principle by Article 267 TFEU to refer any relevant issues to the CJEU. This finding was confirmed by the fact that the respondent Government had not argued that a complaint before the Constitutional Court, which had jurisdiction to decide cases as the present one only on an exceptional basis, should be regarded in the circumstances of the present case as the only judicial remedy triggering an obligation under Art. 267 TFEU. The ECHR added however: “Be that as it may, the Court notes that neither the Nova Gorica Local Court nor the Constitutional Court at all addressed the applicants’ request to seek a preliminary ruling, nor any other of their legal arguments.” (§ 63)

As the applicants had explicitly requested the Local Court to make such a request concerning the interpretation of the “Unfair Commercial Practices Directive” (2005/29/EC) and the Local Court ignored that request, Article 6 § 1 of the Convention was found by the ECHR to have been breached.

In the case of Veres v. Spain (57906/18, 8.11.2022), the ECHR found a violation of the applicant’s right to respect for his family life (Article 8 of the Convention) on account of the fact that Spanish courts had failed to recognise and enforce without delay a judgment by a Hungarian court acting under Article 21 et seq. of the Brussels IIa Regulation (No. 2201/2003) and ordering the return to Hungary of the applicant’s daughter.

The ECHR noted in particular that it had taken the Spanish courts more than two years to enforce the decision by the Budapest Metropolitan Court ordering the return of the child. Having regard to what was at stake for the applicant, i.e. his family ties and contact with his daughter, this was not justified in the circumstances of the case. Not only did the excessive length of the proceedings in Spain affect the relationship between the applicant and his daughter by interrupting it for two years, it also affected the decision of the Hungarian courts to eventually grant custody over the child to her mother, since they found that the passage of time had strengthened the bonds between the child and her mother and weakened the child’s connection with the applicant (§ 88).

This judgment is another illustration, along with cases such as Ullens de Schooten and Rezabek v. Belgium, Romeo Castaño v. Belgium and Spasov v. Romania, of how the Convention system can lend support to the obligation on EU Member States to comply with EU law, i.e. through the finding of a violation of those Convention rights which are affected by the failure to fulfil that obligation.

In the case of Spasov v. Romania (27122/14, 6.12.2022), the ECHR found that the applicant, the owner and captain of a vessel registered in Bulgaria who was fishing in Romania’s exclusive economic zone, had been the victim, inter alia, of a denial of justice (Art. 6 of the Convention) because he had been convicted on the basis of Romanian criminal law which previously had been found to be in breach of EU law, notably the rules of the Common Fisheries Policy, by the European Commission. By not applying these rules, which had direct effect in the Romanian legal order and prevailed over national law, the Romanian courts had made a manifest error of law.

In evaluating the impact of the relevant EU law in the present case, the ECHR did not engage in its own interpretation of EU law, for which it has indeed no competence, as recalled in § 83 of the judgment. Rather, it relied, in the absence of a ruling by the CJEU, on the clear position which had been expressed in this case by the European Commission in its exchange with the Romanian authorities, indicating to them that by prosecuting the applicant, they had committed serious breaches of EU law, notably of Regulations nos. 2371/2002 and 1256/2010.

This case is an illustration of the fact that it is not only compliance with EU law by the domestic authorities which can give rise to an issue under the Convention (see, among others, Bosphorus v. Ireland; Bivolaru and Moldovan v. France). It is also, in certain specific circumstances, the failure to comply with EU law (in a similar sense, see Romeo Castaño v. Belgium).

The case of Willems v. the Netherlands (57294/16, 9.11.2021) concerned the refusal by the applicant to provide fingerprints that would be digitised and saved in his passport and in a database. Applying Regulation 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation 444/2009, the Administrative Jurisdiction Division of the Dutch Council of State dismissed as ill-founded the objections which the applicant had raised in this connection. The applicant then complained before the ECHR inter alia about a violation of Article 8 of the Convention (right to respect for private life).

In respect of the applicable EU legislation, the Administrative Jurisdiction Division considered, after referring questions to the CJEU for a preliminary ruling, that it left no room for the Member States to use alternatives to the prescribed way of storing the biometric data, nor did it provide for any applicable exceptions to the obligation to provide fingerprints.

In light of this finding, the ECHR recalled the requirements for the presumption of equivalent protection (“Bosphorus presumption”) to apply and concluded that they were fulfilled in the present case. As a consequence, there would only be a violation of the Convention in case of a “manifest deficiency” in the protection afforded by it (on this notion, see also Bivolaru and Moldovan v. France). As such a manifest deficiency had not been shown to exist by the applicant, the ECHR declared manifestly ill-founded the applicant’s complaint about a violation of Article 8.

In the case of Dolinska-Ficek and Ozimek v. Poland (49868/19 and 57511/19, 8.11.2021) the European Court on Human Rights ruled on the requirements of the right to an independent and impartial tribunal established by law, protected by Article 6 § 1 of the Convention. It did so in the context of applications brought by two Polish judges who had applied for vacant judicial posts in other courts but had not been recommended for those posts by the National Council of the Judiciary (NCJ). They complained that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (Chamber of Extraordinary Review), which had examined their appeals against the resolutions of the NCJ, had not been a “tribunal established by law” and had lacked impartiality and independence.

In this connection, the Court recalled: Although the right to a “tribunal established by law” is a stand‑alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. (§ 315)

The Court found that the procedure for appointing the judges concerned had been unduly influenced by the legislative and executive powers. This had amounted to a fundamental irregularity which had adversely affected the whole process and compromised the legitimacy of the Chamber of Extraordinary Review which had examined the applicants’ cases. The Chamber of Extraordinary Review was therefore not an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1.

In reaching that conclusion, the Court, as previously in Reczkowicz v. Poland, amply referred to CJEU case-law, while applying its own methodology, notably the three-step test formulated in the case of Guðmundur Andri Ástráðsson v. Iceland for the assessment of whether a court can be considered a “tribunal established by law” (§ 272).

The Court identified two manifest breaches of domestic law which pertained to fundamental rules of the procedure for the appointment of judges. A first such breach resulted from a radical change of the election model following which the fifteen judicial members of the NCJ were no longer to be elected by their peers but by Parliament. This change had been initiated by a new jurisprudence of the Constitutional Court which the Court considered arbitrary, on account of the absence of a comprehensive, balanced, and objective analysis of the relevant circumstances in Convention terms (§ 317). The Court thereby relied on a similar conclusion by the Supreme Court which had itself conducted an extensive analysis of the domestic legislation in the light of the Convention case-law relating to Article 6 and the CJEU’s ruling in the case of A.K. and Others, to which the Court also extensively referred (§§ 305-306).

The second manifest breach of domestic law resulted from the President of Poland’s appointment of judges to the Chamber of Extraordinary Review despite an interim measure by the Supreme Administrative Court ordering the stay of the implementation of a Resolution by the NCJ recommending candidates for twenty posts of judges in the Chamber of Extraordinary Review, pending its examination of the appeals brought against that Resolution. The Court found that in so doing, the President of the Republic had demonstrated an attitude which could only be described as one of utter disregard for the authority, independence, and role of the judiciary (§ 330) and as blatant defiance of the rule of law (§ 338). It thereby relied on similar conclusions by the CJEU in the cases of A.B. and Others and W.Ż. (§§ 324, 327-328)

By a decision in the case of Josette Quintanel v. France and 14 other applications (no. 12528/17 et seq., 17.6.2021) the ECHR declared inadmissible 15 applications against France which, inter alia, complained about the alleged failure by several administrative courts to properly motivate their refusal to grant the applicants’ requests that some EU law issues be referred to the CJEU for a preliminary ruling.

The ECHR first recalled that only the national courts which, under Art. 267 TFEU, are bound to turn to the CJEU for a preliminary ruling, i. e. those courts against whose decisions there is no judicial remedy under national law, are also under an obligation, flowing from Art. 6 of the Convention, to give reasons when dismissing a request by a party to the domestic proceedings for an EU law issue to be submitted to the CJEU (§ 89).

Consequently, in the present case only the Conseil d’Etat (Supreme Administrative Court) was bound to give reasons for its refusal to refer the case to the CJEU, which it had actually not done. However, the ECHR noted that a lower administrative court acting in the same case had previously well explained that in view of relevant CJEU case-law on the issue at hand such a referral was not required under Art. 267 TFEU. This being so, the ECHR considered that having regard to the proceedings as a whole, an answer compliant with Art. 6 of the Convention had been given to the applicant who had therefore been enabled to understand the reasons underlying the contested dismissal (§ 90). Consequently, Art. 6 had not been breached.

In the case of Reczkowicz v. Poland (22.7.2021, 43447/19), the ECHR found that the Disciplinary Chamber of the Polish Supreme Court had not been a “tribunal established by law” and had lacked impartiality and independence. After abundently referring to several international legal instruments, including the case-law of the CJEU on the recent reform of the judiciary in Poland (notably joined Cases C‑585/18, C-624/18, C-625/18), the ECHR stated inter alia:

The right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. … It is also to be reiterated that although the right to a “tribunal established by law” is a stand alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. (§ 260)

In the landmark case of Bivolaru and Moldovan v. France (25.3.2021, 40324/16 and 12623/17), the ECHR ruled on the execution of two European arrest warrants (EAWs) for the purpose of the service of prison sentences in Romania. It found a violation of Article 3 of the Convention (prohibition of ill-treatment) in respect of one of the applicants and no violation in respect of the other. The details of the case are summarized in the press release below.

The judgment is noteworthy as it confirms and clarifies the principles to be applied by the domestic courts of the EU member States in the field of mutual recognition.

First of all, the judgment once more confirms that the Convention requires EU law to be applied in conformity with it. It equally confirms and illustrates the competence of the ECHR to assess that conformity.

The judgment furthermore recapitulates the Court’s doctrine on mutual recognition, as set out in Avotins v. Latvia (23.5.2016, 17502/07), which is the leading case on this topic. It stresses in particular that:

• The presumption of equivalent protection, as established in Bosphorus v. Ireland (30.6.2005, 45036/98), in principle applies when by virtue of a mutual recognition mechanism domestic courts are left with no discretionary power and are legally bound to presume that another member State sufficiently respects fundamental rights. When this presumption applies, the Convention will be breached only if there has been a manifest deficiency in complying with the Convention, which is a lower standard than the ordinary violation.
• In cases concerning the compatibility of the execution of an EAW with Article 3 of the Convention, any discretionary power of the judicial authority of the executing State in this field is limited to the assessment of the facts and has to be exercised within the framework strictly delineated by the case-law of the CJEU. The presumption of equivalent protection therefore applies.
• The principle of mutual recognition must nonetheless not be applied in an automatic and mechanical way, to the detriment of fundamental rights.
• Consequently, if a serious and substantiated complaint is raised before domestic courts to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. In that case they must apply EU law in conformity with the Convention.
• These principles apply to all mechanisms of mutual recognition.

The judgment also provides some interesting information on how these principles play out in the field of European arrest warrants.

In this respect, it first notes the convergence between the case-law of the two European Courts as regards the assessment of the individual risks of ill-treatment to which persons can be exposed as a consequence of the execution of a EAW. At the same time, it stresses the different methodology applied by each Court: whereas the CJEU applies a two-step examination requiring evidence of systemic or generalised deficiencies in the issuing State before any individual risk resulting from these deficiencies can be identified (see e.g., below on this page, CJEU 17.12.2020, Openbaar Ministerie, joined cases C-354/20 PPU and C-412/20 PPU, para. 53-56), the ECHR focuses immediately on the individual risks incurred by the person concerned.

Thus, the convergence noted by the ECHR relates to the final individual test, not to the respective methodologies applied by the European Courts, which remain different and are therefore not interchangeable. This is illustrated by the fact that in the case of Moldovan, the ECHR found a violation of Article 3 on the ground that the French courts had transferred the applicant in spite of the fact that they had before them sufficient factual elements indicating that he would be exposed to a serious risk of ill-treatment by reason of the detention conditions in the prison in which he would be detained after his transfer. These factual elements only concerned the personal situation of Mr Moldovan, not any systemic or generalized deficiencies. At no point in this judgment did the ECHR inquire about such deficiencies in the Romanian prison system, contrary to the French courts which were bound by EU law to apply the two-step examination. The ECHR nonetheless found a violation of Article 3 on account of the fact that the individual risk incurred by Mr Moldovan had not been correctly assessed by those French courts.

This was the first time the Court rebutted the presumption of equivalent protection, because of a manifest deficiency in applying a mutual recognition mechanism. Thus, regardless of the methodology applied by the domestic courts, what matters from a Convention point of view is the correct application of the Convention standards in any individual case governed by EU law.

Finally, the judgment also illustrates the fact that in the field of mutual recognition the test to be applied in respect of complaints not covered by the presumption of equivalent protection (because of the discretionary power left to the judicial authority of the executing State and/or the absence of relevant CJEU case-law on the fundamental right at issue) is the higher standard of whether there has been an ordinary violation of the Convention, not whether there has been a manifest deficiency (§§ 131-132).

More information on the implications of this judgment is provided in the following article: