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:

In the case of R.R. and Others v. Hungary (2.3.2021, 36037/17, not final), the European Court of Human Rights found several breaches of the Convention on account of the de facto deprivation of liberty (Art. 5) and the living conditions of asylum-seekers (Art. 3) in the Röszke transit zone, on the Hungarian-Serbian border.

The ECHR distinguished the circumstances prevailing in this case from those which had recently lead it, in the case of lias and Ahmed v. Hungary (21.11.2019, 47287/15), to find no violation of these provisions of the Convention (see below, the post on this judgment). Significant differences indeed lay in the fact that the applicants, an Iranian-Afghan family of five with three young children, were particularly vulnerable and that their stay in the transit zone had by far exceeded the time needed for the examination of an asylum request, due to inaction on the part of the Hungarian authorities.

Interestingly, the ECHR in its reasoning also relied on several prescriptions of the EU Reception Directive (2013/33) which in its opinion had not been complied with by the authorities (§§ 54 and 58).

With regard to the question whether there has been a deprivation of liberty, the judgment confirms the case-by-case approach followed by the ECHR in such matters, which is in contrast with the more abstract approach resulting from the application of Union law, as illustrated by the rulings of the CJEU in the cases of FMS and Others (C-924/19 PPU and C-925/19 PPU) and Commission v. Hungary (C-808/18; see below, the posts on these judgments). There is nonetheless some valuable interaction between the two approaches. Not only did the ECHR rely on Union law in its reasoning, making its requirements relevant in assessing compliance with the Convention, but by doing so it indirectly also provided some ex post assessment as to whether Union law was respected in the present case, along with its findings on whether the Convention was violated or not.

In the case of Michnea v. Romania (no. 10395/19, 7.7.2020) the Court ruled under Article 8 of the Convention (right to respect for family life) on the refusal by the domestic courts to order the return of a child to Italy, from where she had been taken to Romania by her mother without the father’s consent.

In so doing, the Court stressed the duty of the domestic courts to interpret and apply the relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction and of the Brussels II bis Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) so as to secure the applicant’s rights guaranteed by Article 8 of the Convention (§ 45), which itself had to be interpreted in the light of those international instruments (§ 43).

In casu, the Court found that in interpreting and applying the Hague Convention and the Brussels II bis Regulation, the domestic courts had failed to secure the guarantees of Article 8. It considered in particular that they had not correctly applied the notion of “habitual residence of the child”, as interpreted by the CJEU in the case of Barbara Mercredi (C-497/10 PPU, 22.12.2010).

An interesting aspect of this judgment is certainly the fact that the scrutiny performed by the Court thus involves an indirect assessment of whether the domestic courts complied with relevant EU law provisions, thereby reinforcing the impact of EU law in domestic law.

See also, in the same vein, the judgment of the same date in the case of Voica v. Romania (no. 9256/19) in which the Court found no violation of Article 8 on account of the fact that the domestic courts had ordered the children’s return from Romania to France.

The case of O.C.I. and Others v. Romania concerned decisions by the Romanian courts acting under the Hague Convention on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation (No. 2201/2003) and ordering the return to Italy of two children who had been abducted to Romania by their mother because their Italian father had allegedly used violence against them. In its judgment of 21.5.2019, the ECHR found a violation of Article 8 of the Convention (right to respect for family life) on account of the fact that the domestic courts should have given more consideration to the potential risk of ill-treatment for the children if they were returned to Italy. After reiterating that a child’s return cannot be ordered automatically or mechanically (§§ 35 and 46), the ECHR held in particular:

In the context of an application for return, which is distinct from custody proceedings, it is primarily for the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties, to establish the best interests of the child and evaluate the case in the light of the exceptions provided for by the Hague Convention. (§ 40) …

As member States of the European Union, both States are parties to the Brussels II bis Regulation, which is thus applicable in the case (see K.J. v. Poland, cited above, § 58). That Regulation, which builds on the Hague Convention, is based on the principle of mutual trust between EU member States (see Royer v. Hungary, no. 9114/16, § 50, 6 March 2018). However, in the Court’s view, the existence of mutual trust between child-protection authorities does not mean that the State to which children have been wrongfully removed is obliged to send them back to an environment where they will incur a grave risk of domestic violence solely because the authorities in the State in which the child had its habitual residence are capable of dealing with cases of domestic child abuse. Nothing in the Hague Convention or in the Brussels II bis Regulation allows the Court to reach a different conclusion. (§ 45)

This approach would appear to be in some contrast with the one followed by the CJEU, notably in the Povse case (C-211/10).

In the case of Sanofi Pasteur v. France (13.2.2020) the ECHR recapitulated its case-law on the need for domestic courts which, under Article 267 TFEU, are in principle obliged to make a reference to the CJEU for a preliminary ruling, to give reasons when they reject an application to that effect by one of the parties to the proceedings. In the present case, it found that the French Court of cassation had breached Article 6 of the Convention by limiting its reasoning to finding that there was no need to call the CJEU.

In the case of N.D. & N.T. v. Spain (13.2.2020) a Grand Chamber of the ECHR ruled inter alia that the two applicants, migrants from Mali and Côte d’Ivoire who had attempted to cross the fences of the Melilla enclave and had been immediately returned to Morocco by the Spanish border guards, had not been the victim of a collective expulsion prohibited by Article 4 of Protocol no. 4 to the Convention. A key element of the Court’s reasoning is the obligation on the States to make available genuine and effective access to means of legal entry to their territory. In stating that principle, the ECHR referred to the Schengen Borders Code and the EU Procedures Directive, in the following terms:

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. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution.

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 (see also Article 6 of the EU Procedures Directive …). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons …, to comply with these arrangements by seeking to cross the border at a different location, especially, as happened in this case, by taking advantage of their large numbers and using force. (§§ 209-210)

In the case of Ilias and Ahmed v. Hungary (21.11.2019), a Grand Chamber of the ECHR inter alia found that Hungary had failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants, two asylum seekers from Bangladesh, from Hungary to Serbia. As the case had given rise to the application of EU law at national level, the Court made the following clarifications regarding the interplay between the Convention and EU law in this field.

Firstly, in response to the Hungarian Government who argued that the national authorities had acted in accordance with EU law, the Court recalled that even when applying EU law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, when two conditions are met – the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law – those obligations must be assessed in the light of the presumption of Convention conformity as established in the Court’s case-law. The State remained fully responsible under the Convention for all acts falling outside its strict international legal obligations. In the present case the relevant EU law consisted of directives which did not impose on Hungary an obligation to act as they did. The Hungarian authorities therefore exercised a discretion granted under EU law, and the impugned measures taken by them did not fall within Hungary’s strict international legal obligations. Accordingly, the presumption of equivalent protection by the legal system of the EU did not apply in this case and Hungary was fully responsible under the Convention for the impugned acts (§§ 96-97).

Secondly, on the concept of “safe third country” as relied on by the respondent Government, the Court noted that Articles 33, 38 and 43 of the EU Asylum procedures directive provided for a possibility to enact national legislation that allows, under certain conditions, to forego an examination of requests for international protection on the merits and to undertake instead an examination of admissibility, in the sense of the above-mentioned EU directive (in particular, on whether it canreasonably be assumed that another country would conduct the examination on the merits or provide protection). In that case, however, the expelling State had to make sure that the intermediary country’s asylum procedure afforded sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faced from the standpoint of Article 3 of the Convention (§§ 132-133). Any presumption that a particular country is “safe”, if it has been relied upon in decisions concerning an individual asylum seeker, must be sufficiently supported at the outset by an analysis of the relevant conditions in that country and, in particular, of its asylum system (§ 152). This had not been done in the present case.