Category Archives: Recent Case Law

Right to silence under the EU-Charter – judgment of the CJEU in the Consob case

In the Consob case (2.2.2021, C-481/19), which concerned proceedings relating to the lawfulness of penalties imposed for offences of insider dealing and failure to cooperate in the context of an investigation conducted by the Italian National Companies and Stock Exchange Commission (Consob), the CJEU ruled on the interpretation of Articles 47 and 48 of the EU-Charter and on the validity and interpretation of provisions contained in two legal instruments dealing with market abuse (Directive 2003/6 and Regulation 596/2014). When inquiring about the protection of the right to silence provided by Articles 47 and 48 of the EU-Charter, the CJEU drew to a large extent, by virtue of Article 52(3) of the EU-Charter, on the case-law of the ECHR relating to that right (para. 36-43).

Manifest deficiency in the execution of a European arrest warrant – judgment of the European Court of Human Rights in the case of Bivolaru and Moldovan v. France

In the landmark case of Bivolaru and Moldovan v. France (25.3.2021, 40324/16 and 12623/17, not final), 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 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.
  • 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 or the latter’s failure to make a referral for a preliminary ruling by the CJEU) is the higher benchmark of whether the Convention has been breached, not whether there has been a manifest deficiency (§§ 131-132).

Degrading treatment and deprivation of liberty in the Röszke transit zone – judgment of the European Court of Human Rights in the case of R.R. and Others v. Hungary

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.

Applying the right to freedom of religion under the Charter, having regard to the Convention – judgment of the CJEU in the case of Centraal Israëlitisch Consistorie van België and Others

In the case of Centraal Israëlitisch Consistorie van België and Others (17.12.2020, C-336/19) the CJEU ruled that in order to promote animal welfare in the context of ritual slaughter, Member States may, without infringing the fundamental rights enshrined in the EU-Charter, require a reversible stunning procedure which cannot result in the animal’s death. The CJEU reached this conclusion after striking a balance between freedom of religion, guaranteed by Article 10 of the EU-Charter, and animal welfare, as set out in Article 13 TFEU and given specific expression to in Regulation No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing.

From a Convention perspective, several aspects of the ruling of the CJEU are worth mentioning. They represent interesting steps as regards the methodology to be applied in respect of fundamental rights which the Convention and the Charter have in common.

First, in interpreting Article 10 of the Charter the CJEU draws to a significant extent on the case-law of the European Court of Human Rights relating to Article 9 of the Convention. It did so relying on Article 52(3) of the Charter, in the following terms:

In that regard, it should be borne in mind that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed in the ECHR, without adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Account must, therefore, be taken of the corresponding rights of the ECHR for the purpose of interpreting the Charter, as the minimum threshold of protection …. Since it is apparent from the explanations relating to Article 10 of the Charter that the freedom guaranteed in paragraph 1 thereof corresponds to the freedom guaranteed in Article 9 of the ECHR, that freedom must be taken into account for the purpose of interpreting Article 10(1) of the Charter. (§ 56)

The fact that the reference to the corresponding rights of the Convention as the minimum threshold of protection comes after a reminder about the need not to affect adversely the autonomy of EU law and of the CJEU might suggest, apparently for the first time in the Luxembourg case-law, that it is now being accepted that this autonomy cannot lead to the protection of fundamental rights under EU law to fall below the level of protection under the Convention. This would be in keeping with the Explanations relating to Article 52(3) of the Charter, according to which “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.”

Secondly, when it comes to examining the limitations applied in the present case to the exercise of the rights under Article 10 of the Charter, the CJEU stresses in § 58 of the ruling the similarities existing in this regard between the Convention (Art. 9 § 2) and the Charter (Art. 52(1)). Interestingly, and here again, apparently for the first time in the Luxembourg case-law, the CJEU then goes on to indicate that the justification of these limitations should be assessed having regard at the same time to both Article 52(1) and (3) of the Charter:

It is in the light of those considerations that it must be examined whether national legislation, which lays down the obligation to stun the animal beforehand during ritual slaughter, while stipulating that that stunning should be reversible and not cause the animal’s death, fulfils the conditions laid down in Article 52(1) and (3) of the Charter, read in conjunction with Article 13 TFEU. (§ 59)

Last but not least, the ruling contains another first-time reference which is another step towards the Convention protecting system, i.e. the endorsement of the well-known Strasbourg living instrument doctrine:

Like the ECHR, the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see, by analogy, ECtHR, 7 July 2011, Bayatyan v. Armenia [GC], CE:ECHR:2011:0707JUD002345903, § 102 and the case-law cited), with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. (§ 77)

German Federal Constitutional Court allows complaints against the execution of European arrest warrants

In a judgment dated 1 December 2020 (2 BvR 1845/18 and 2 BvR 2100/18) the German Federal Constitutional Court allowed, for breach of Article 4 of the EU-Charter (prohibition of ill-treatment), constitutional complaints against judgments by ordinary courts allowing the execution of two European arrest warrants (EAW). It thereby specified the methodology to be applied by German courts when dealing with such matters.

One of the striking elements of this methodology is the global perspective underlying it, i.e. its endeavour to apply Union law while at the same time have due regard to the requirements of the European Convention on Human Rights (the Convention) and national constitutional law. The result is an integrated approach combining and harmonizing the application to the facts of the case of those three co-existing sources of fundamental rights, thereby respecting the specificities of each of them. Key considerations of the judgment regarding the methodological issues raised by the case include:

  • The field of the EAW has been entirely regulated by Union law. Consequently, compliance with the fundamental rights of the persons concerned is to be assessed in light of the EU Charter only, to the exclusion of the national Constitution.
  • The Constitutional Court is competent to assess that compliance on the basis of the EU Charter, unless a referral for a preliminary ruling by the CJEU is required (Art. 267 TFEU). This assessment is to be done having regard to the case-law of the European Court of Human Rights (Art. 52(3) of the EU-Charter) and of the Constitutional and Supreme Courts of the other EU Member States (Art. 52(4) of the EU-Charter)
  • In the case at hand the requirements of Art. 4 of the EU-Charter, as set out by the CJEU, are in line with:
    • Art. 3 of the Convention, as interpreted by the European Court of Human Rights (Art. 52(3) of the EU-Charter)
    • The constitutional requirement of respect for human dignity (Art. 1 (1) of the German Constitution)
  • Consequently, Art. 4 of the EU-Charter can be applied as such to the present case.

By having due regard to the requirements of the Convention when applying EU law and EU fundamental rights, the German Constitutional Court in fact, though not explicitly, takes into account the well-established Strasbourg case-law according to which the application of Union law has to be compliant with the Convention and can be made the subject of an application before the European Court of Human Rights (see, as regards a EAW, the judgments by the European Court of Human Rights in the cases of Pirozzi v. Belgium, 17.4.2018, no. 21055/11and Romeo Castaño v. Belgium, 9.7.2019, no. 8351/17). This is also one of the main reasons why Article 52(3) of the EU-Charter requires that in respect of the rights which the EU-Charter and the Convention have in common, the level of protection guaranteed by the Charter should not fall below the Convention level. Otherwise, domestic courts applying EU law might indeed see their judgments being found in breach of the Convention because the latter’s standards are higher than those of the EU.

Effective access to international protection – detention of asylum seekers: judgment of the CJEU in the case of Commission v. Hungary

In the case of Commission v. Hungary (17.12.2020, C-808/18) the CJEU again addressed a number of issues in connection with the treatment of asylum-seekers in transit zones located in the immediate vicinity of the Serbian-Hungarian border. From a Convention perspective, two specific aspects are worth highlighting.

First, in interpreting the relevant provisions of the Procedure Directive (no. 2013/32) the CJEU stresses the need for the domestic authorities to ensure effective access to procedures for international protection:

Article 6 of Directive 2013/32 requires Member States to ensure that the persons concerned are able to exercise in an effective manner the right to make an application for international protection, including at their borders, as soon as they declare their wish of doing so, so that that application is registered and can be lodged and examined in effective observance of the time limits laid down by that directive. (§ 106)

This concern about ensuring effective access to procedures for international protection appears to be common to the two European Courts. For it lies also at the heart of the recent judgment in the case of N.D. and N.T. v. Spain (13.2.2020, nos. 8675/15 and 8697/15) in which the European Court of Human Rights ruled:

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. … 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. (§§ 209-210)

In this context, both Courts also concur in considering that an application for international protection is deemed to have been made as soon as the person concerned has declared, to one of the competent authorities, his or her wish to receive international protection, without the declaration of that wish being subject to any administrative formality whatsoever (see §§ 96-97 of the CJEU ruling and § 180 of N.D. and N.T.).

Secondly, the CJEU also confirmed its assessment, made in FMS and Others, C-924/19 PPU and C-925/19 PPU (see below, the post on this judgment), according to which the conditions prevailing in the transit zones of Röszke and Tompa amounted to detention, within the meaning of Article 2(h) of the Reception Directive (2013/33). This is in contrast with ECHR 21.11.2019, Ilias and Ahmed v. Hungary (no. 47287/15), § 249, in which the ECHR found that restrictions in such transit zones could only amount to a deprivation of liberty within the meaning of Article 5 of the Convention if they exceeded what was strictly necessary for the purpose of examining the application for international protection of the person concerned. The implications of this difference are explained below, in the post devoted to FMS and Others.

European arrest warrant – independence of the judiciary: judgment of the CJEU in the case of Openbaar Ministerie

In the case of Openbaar Ministerie (joined cases C-354/20 PPU and C-412/20 PPU, 17.12.2020) the Amsterdam District Court was called upon to decide upon the surrender of a person to the Polish authorities on the basis of a European arrest warrant (EAW) issued for the purpose of conducting a criminal investigation. It referred the case to the CJEU for a preliminary ruling on whether, in view of existing evidence of systemic or generalised deficiencies concerning the independence of the judiciary in Poland, the EAW was nonetheless to be executed.

In response, the CJEU confirmed in the following terms the two-step methodology which it had previously set out in the case of Minister for Justice and Equality (Deficiencies in the system of justice, C-216/18 PPU, 25.7.2018):

Where the executing judicial authority … has material … indicating that there is a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary, that authority must determine, specifically and precisely, whether, having regard to his or her personal situation, to the nature of the offence for which he or she is being prosecuted and the factual context in which the European arrest warrant was issued, and in the light of the information provided by that Member State pursuant to Article 15(2) of that framework decision, there are substantial grounds for believing that that person will run such a risk if he or she is surrendered to that Member State. (§ 52)

Thus, according to the CJEU, the possibility of refusing to execute a European arrest warrant for such reasons presupposes a two-step examination covering, first, the general situation of the judiciary in the State concerned and, secondly, the impact which this situation is likely to have on the fairness of the trial to which the person concerned will be subjected if surrendered (§ 53). Accordingly, it would appear that such a refusal could not lawfully be decided under Union law on the basis of evidence which concerned only the person to be surrendered and was not backed-up by evidence of existing systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary (see, in the same vein, concerning Art. 4 of the EU-Charter (prohibition of ill-treatment), CJUE 5.4.2016, Aranyosi et Căldăraru, C-404/15 et C-659/15 PPU).

This methodology might usefully be compared with the one applied by the ECHR in respect of applications challenging the execution of a EAW on account of a violation of Article 6 of the Convention (fair trial), as in Pirozzi v. Belgium (17.4.2018, no. 21055/11; discussed in a post below). While the ECHR can be expected, in such a context, to have regard to any systemic or general deficiencies in the issuing Member State, the existence of such deficiencies would not appear to be a pre-requisite to any finding of a breach in an individual case. This is because, in the context of an individual application under Article 34 of the Convention, the ECHR focuses on the particular circumstances of the individual case (see, mutatis mutandis, Taxquet v. Belgium, 16.11.2010, no. 926/05, § 83).

The question therefore arises whether such methodological differences could perhaps generate different protection levels, not least in terms of the burden of proof. It would indeed appear that no proof of any systemic or generalised deficiencies in the issuing State is required for a real and individual risk of a “flagrant denial of a fair trial” to amount to a potential breach of Article 6 of the Convention (see ECHR 7.7.1989, Soering v. United Kingdom, no. 14038/88, § 113; 4.5.2010, Stapleton v. Ireland (dec.), no. 56588/07, § 25).

Right of asylum seekers to be heard: judgment of the CJEU in the Addis case.

In the case of Addis (C-517/17, 16.7.2020), the CJEU ruled on the failure by a German administrative authority to comply with the obligation, laid down in the Procedures Directive (2013/32/EU), to give an applicant for international protection the opportunity of a personal interview before the adoption of a decision declaring his application inadmissible on account of the fact that he had entered Germany from a safe country, namely Italy.

Relying on Articles 14 and 34 of this Directive and the importance of such an interview in order to avoid expulsions which would entail a breach of Article 4 of the EU-Charter (§ 52), the CJEU decided that such a failure should lead to the said decision being annulled and the case being remitted to the determining authority, unless the applicable domestic law allows the applicant, in an appeal procedure, to set out in person all of his or her arguments against the decision in a hearing which complies with the detailed conditions and fundamental guarantees set out in Article 15 of the Procedures Directive (“requirements for a personal interview”), and those arguments are not capable of altering that decision. The CJEU thereby stressed that compliance with the safeguards laid down in Article 15 was essential in preserving the effectiveness of the right to be heard at that subsequent stage of the procedure (§ 71).

Interestingly, the CJEU contrasted this approach with its ruling in M. G. & N. R. (C-383/13 PPU, 10.9.2013) according to which “in principle, an infringement of the rights of the defence results in annulment of the decision taken at the end of the administrative procedure at issue only if the outcome of the procedure might have been different had it not been for such an irregularity”. It justified the different approach adopted in Addis by referring to the binding nature of the prescriptions laid down in Article 15 and the paramount importance of a personal interview in the procedure for examination of an application of international protection (§ 70). However, considering the fact that M. G. & N. R. was about detention under the Return Directive, a no less serious interference with civil liberties, and that the case for an interview in this case was pleaded by reference to such fundamental rights as the rights of the defence and the right to be heard, one may wonder why the Addis approach was not adopted already in M. G. & N. R. For what can be the sense of hearing a person only when it can be anticipated that he or she might come up with unforeseen arguments? How can the actual enjoyment of a fundamental right be made conditional upon the prediction of the unpredictable? (For a critical view on this judgment, see Johan Callewaert, “To accede or not to accede: European protection of human rights at the crossroads”, European journal of Human Rights, 2014, p. 506-7).

Be that as it may, the emphasis in Addis on preserving the effectiveness of the safeguards provided by the Procedures Directive has much in common with the approach recently followed by the ECHR in such matters. In N.D. & N.T. v. Spain, another migration case (nos. 8675/15 and 8697/15, 13.2.2020, see below on this page), the ECHR stressed that by virtue of Article 4 of Protocol no. 4 (prohibition of collective expulsions), Contracting States to the Convention are under an obligation to provide persons seeking international protection with an effective access to their territory and to procedures allowing for an effective examination of their application. And in Khlaifia and Others v. Italy (no. 16483/12, 15.12.2016), it stated: “Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.” (§ 248)

International child abduction: judgment of the ECHR in the case of Michnea v. Romania

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.

Detention of asylum seekers in the Röszke transit zone: judgment by the CJEU in the case of FMS and Others

In the case of FMS and Others (C-924/19 PPU and C-925/19 PPU, 14.5.2020), the CJEU ruled on several aspects of the situation of asylum seekers in the Röszke transit zone, which is located on Hungarian territory, at the border with Serbia. One of the findings by the CJEU is that the accommodation in this transit zone amounts to a de facto detention of asylum seekers (§ 231). Yet, in the case of Ilias and Ahmed v. Hungary (see on this page, the post on this case), the ECHR found the same living conditions experienced by the applicants in the same transit zone not to have amounted to a deprivation of liberty within the meaning of Article 5 of the Convention, with the consequence that this provision was declared inapplicable.

Does it follow from this that EU law better protects asylum seekers from detention in transit zones? Not necessarily. The qualification as detention of the accommodation in a transit zone is indeed a pre-condition for the start of the four weeks deadline set by Article 43(2) of the Procedures Directive as the maximum length of detention of asylum seekers in such a zone. This means, in practical terms, that a detention of up to four weeks is in principle acceptable under EU law, regardless of individual circumstances.

By contrast, even if Article 5 of the Convention does not in principle apply from the very beginning of a stay in a transit zone such as Röszke, at the border of two States, this can change any time in view of individual circumstances, i.e. from the moment when restrictions to the liberty of movement of asylum seekers exceed what is strictly necessary for the processing of their asylum applications (see § 233 of the Ilias and Ahmed judgment). There is no reason why this could not occur before the expiry of a four weeks period, with the consequence that Article 5 would then most likely also be breached and require an immediate lifting of the impugned restrictions (see, mutatis mutandis, CEDH 23.2.2012, Creanga v. Romania, 29226/03, §§ 97 and 100).

Thus, this comparison clearly demonstrates the methodological differences between the two systems. While EU law operates on the basis of an abstract deadline of four weeks to be triggered by the finding of the existence of a detention from the beginning of the stay concerned, Article 5 of the Convention allows for a case-by-case assessment of the living conditions in transit zones and an “activation” of the ban on arbitrary detentions from the moment when those conditions exceed what is strictly necessary in the circumstances.

Consequently, domestic courts of EU Member States should not confine themselves to examining such situations under only one of the legal systems concerned. For depending on the circumstances, either of them can provide the higher protection against unlawful detention of asylum seekers. In such a situation, domestic courts of EU Member States are indeed bound to apply the higher protection (Article 52(3) of the EU-Charter).