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.

In Baltic Master Ltd. v. Lithuania (16.4.2019) the ECHR found a violation of Article 6 § 1 of the Convention on the ground that the Supreme Administrative Court of Lithuania had not made sufficiently clear in its judgment on what specific legal grounds it had considered the application of EU law to be so obvious that no referral to the CJEU was required under Article 267 TFEU, despite the applicant company’s request to that effect. What is also noteworthy about this judgment is that it was given by a Committee of three judges acting under Article 28 § 1 b) of the Convention, the outcome of this case being considered to flow from well-established case-law within the meaning of that provision.

In Mihalache v. Romania (8.7.2019) a Grand Chamber of the ECHR had to determine whether a public prosecutor’s order discontinuing criminal proceedings while imposing a fine on the applicant was a “final acquittal or conviction” triggering the application of the non bis in idem principle as laid down in Article 4 of Protocol No 7 to the Convention. In answering that question in the affirmative, the ECHR relied on a series of criteria (determination as to the merits, availability of ordinary remedies, expiry of the time-limit within which those remedies are to be used) which in substance coincide with those relied on by the CJEU in similar cases such as Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg (C-486/14). Only when a penalty has been imposed does EU law depart from Article 4 of Protocol No 7 in that Article 54 of the Convention implementing the Schengen Agreement requires, as a condition for the application of the non bis in idem principle, that the penalty has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the sentencing Member State (see Spasic, C-129/14).

In Melvin West v. Hungary (decision, 25.6.2019) the ECHR confirms that Article 6 of the Convention does not apply to the procedure for the execution of a European Arrest warrant but that, by virtue of Article 5 § 1 f) of the Convention, any detention with a view to transferring the person concerned to the issuing Member State has to be in compliance with the relevant domestic and European Union law, which it is primarily for the national authorities to interpret. Moreover, Article 5 prohibits any transfer of a person to a country where he or she would be exposed to a real risk of a flagrant breach of this provision. Finally, the ECHR reiterates that there is no basis under Article 8 of the Convention for a convicted person to avoid having to serve a prison sentence in a foreign country.

In Romeo Castaño v. Belgium (9.7.2019) the ECHR confirms the applicability of Article 3 of the Convention to the execution by EU Member States of a European Arrest Warrant but extends its scrutiny to Article 2 of the Convention in cases where a European Arrest Warrant has been issued with a view to enabling criminal proceedings for homicide in the issuing State to go ahead. In such cases, Article 2 imposes on the executing State an obligation to cooperate with the issuing State in facilitating those criminal proceedings, notably by transferring the person who is the subject of the European Arrest Warrant, without however ignoring the limits to such a transfer flowing from Article 3 of the Convention. Any refusal of a transfer on this ground should therefore be duly reasoned by reference to updated and individualised information.

In Nodet v. France (6.6.2019) the ECHR applies the non bis in idem principle according to its recent A. & B. v. Norway jurisprudence (24130/11 and 29758/11, 15.11.2016), which is in some contrast with the Menci jurisprudence of the CJEU (C-524/15, 20.3.2018), also mentioned in the Nodet judgment (at § 31).

In Repcevirag Szövetkezet v. Hungary (30.4.2019) the ECHR examines whether the Kúria breached Article 6 of the Convention by refusing to request a preliminary ruling by the CJEU in proceedings relating to an action in tort against Hungary for infringement of European Union law (Köbler case-law).

In Harisch v. Germany (11.4.2019) the ECHR assesses compliance with Article 6 of the Convention of the failure by the Federal Court of Justice (BGH), in the context of its examination of a refusal of leave to appeal, to give reasons for its refusal to request a preliminary ruling from the CJEU (Art. 267 TFEU).