Mutual recognition is an area characterised by some significant methodological differences between the Strasbourg and Luxembourg case-law (see Convention control and Trends 2021-24) which go to the heart of the notion of fundamental rights and of how fundamental rights should be assessed: individually and/or collectively?

On 21 March last, I made an online presentation at the Training Workshop, held at the University of Barcelona, devoted to “Mutual trust and judicial independence in the EAW Framework“. The workshop was part of the European Commission’s funded project TRIIAL 2 (TRust, Independence, Impartiality and Accountability of Legal Professionals under the EU-Charter).

My presentation, titled: “Mutual recognition before the European Court of Human Rights“, was based on the following considerations.

1. The mutual recognition mechanisms have been accepted in principle by the ECtHR (Avotiņš v. Latvia);
2. While the ECtHR also approved of the two-step methodology of the CJEU in principle, it reaffirmed its own one-step methodology “which place[s] the national authorities under a duty to ascertain whether there is a real risk, specifically assessed, to the individual concerned, of treatment contrary to [the Convention]” (Bivolaru and Moldovan v. France, § 114);
3. The general situation occurring in a country is not ignored by the ECtHR, but used as evidence in the assessment of individual risks rather than as an autonomous test;
4. According to the latest Luxembourg case-law (C-158/21, C-819/21,C-261/22), national judges should not, in the absence of systemic or generalised deficiencies, apply an individual test as regards risks of breaches of fundamental rights in the issuing Member State;
5. This comes down to: a) replacing the individual test by a general test, thus accepting that fundamental rights can be assessed collectively rather than individually, and b) dividing fundamental rights into two categories, those arising from systemic deficiencies, considered relevant, and the others, which can be ignored in the field of mutual recognition;
6. However, it is doubtful whether national judges can be precluded by EU law from applying the Convention as legally required, which includes an assessment of the individual risks incurred by the person concerned in the issuing Member State.

The enclosed Powerpoint relates to a presentation given on the occasion of the launch at the Council of Europe, on 13 November last, of the HELP Course on the Interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights. It is accessible here.

This course is one of the very few commendable initiatives undertaken so far to comprehensively explain, in an on-line format, the interplay between these two major European sources of fundamental rights. It is a very promising tool designed to help legal practitioners come to terms with that duality which, while globally ensuring quite some convergence between Strasbourg and Luxembourg, e.g. in the field of procedural rights or judicial independence, also generates some differences which should not downplayed, given their impact on the respective protection levels in several important areas.

The key to more convergence is a wholistic approach. It should allow European law-makers and caselaw-makers alike, while remaining within their own competences, to nonetheless look beyond the limits of their respective legal systems and to ensure as much compatibility as possible between the co-existing sources of fundamental rights, which will help domestic judges discharge their complex task of applying those sources simultaneously. The on-going judicial dialogue between the two European Courts is a major contribution towards achieving this.

The enclosed presentation gives an overview of recent case-law relating to this interplay, with an emphasis on judgments by the European Court of Human Rights illustrating the control exercised by the latter over compliance with the European Convention on Human Rights when domestic courts apply Union law. Interestingly, the breaches of the Convention identified in this case-law result not only from faithful applications of EU law, as in Bivolaru and Moldovan v. France or Šneersone and Kampanella v. Italy, but also from shortcomings in the application of EU law, as in Veres v. Spain or Spasov v. Romania.

The main ideas developed in this new publication can be described as follows:

1. In the vast majority of cases, the effects of EU fundamental rights are being felt at domestic level, as the result of the application of Union law by national courts. This application comes within the scope of the European Convention on Human Rights and can therefore give rise to scrutiny by the ECtHR, as illustrated by a well-established line of case-law.
2. As a result, national judges must apply EU law in conformity with the Convention. They bear the brunt of any lack of consistency in the protection of fundamental rights, because it is at domestic level that these two sets of norms come together.
3. Consequently, the consideration of the effects of EU fundamental rights cannot stop at the border of the EU legal system and ignore the impact of the Convention on the application of EU law at domestic level. A wholistic approach is required instead.
4. Such a wholistic approach is designed to identify convergencies and divergencies between the Convention and Union law, and be clear about them, with a view to facilitating the job of national judges, who must ensure that the EU protection level does not fall below the Convention level.
5. It is not accurate to assume general convergence between the Convention and Union law. The picture is much more differentiated, with areas offering a high level of convergence (e.g. procedural rights, judicial independence) and others not (e.g. ne bis in idem, European arrest warrant).
6. Several divergencies are rooted in methodological discrepancies. Some have an impact on the level of protection offered by fundamental rights.
7. That said, the Convention ensures only a common minimum protection level, thus allowing that level to be raised. Consequently, unlike a lower or unclear EU protection level, a higher EU protection level is not problematic from a Convention point of view.

Detailed explanations of these considerations can be found in the enclosed paper.

Criminal proceedings are an area characterised by an ever-increasing interplay between EU law and the Convention, not least as a result of the Directives on procedural rights in criminal proceedings, which cover a sizeable number of topics already regulated by Article 6 of the Convention on the right to a fair trial. This expanding overlap between EU law and the Convention resulting in two sets of regulations to be applied to the same domestic proceedings is a challenge for all concerned: lawyers, accused persons, victims, prosecutors, domestic judges, European judges.

In this context, the way in which the CJEU, in charge of authoritatively interpreting these Directives, goes about dealing with this challenge and the amount of coherence it thereby achieves with the Strasbourg case-law are highly relevant, not only for the lawyers, prosecutors and judges who have to handle these multiple legal sources, but also in terms of the efficiency of these procedural fundamental rights altogether, which should not be allowed to contradict each other, as this would weaken them.

These considerations and interrogations are at the heart of the short paper enclosed below.

The enclosed paper is a reaction to the recent Opinion by Advocate General de la Tour in the case of Puig Gordi and Others (C-158/21). This Opinion would indeed appear to touch on fundamental methodological issues with serious implications for the consistency of the protection of fundamental rights in the field of European arrest warrants.

The problem arises in connection with the so-called two-step examination prescribed by the CJEU in the context of the execution of European arrest warrants, when risks of violations of fundamental rights in the issuing Member State are being claimed to exist. This two-step examination basically consists of a general test followed by an individual test. Yet the Advocate General’s Opinion now suggests that in the absence of evidence under the general test of any “systemic or generalised” deficiencies in the protection of the right to a fair trial in the issuing Member State, an individual test should no longer be carried out. This, it is argued, would come down to autonomising the general test and letting it replace the individual test altogether, a development which would indeed raise some Convention-based concerns. These concerns and their implications are explained in greater detail in the enclosed paper.