In the case of Stachev (C-15/24 PPU, 14.5.2024), the CJEU answered several questions raised by the Sofia District Court on the consequences to be drawn, under Directive 2013/48 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, from the waiver by an accused person of his right to legal assistance.

The case in the main proceedings concerned an illiterate person, CH, who was accused of robbery with violence. He signed a written statement to the effect that he did not wish to be defended by a lawyer of his choice or by a court-appointed lawyer. However, the consequences of that waiver had not been explained to him. After his arrest, during an interview by the police, he admitted participating in the commission of a robbery with violence. On this occasion, CH had been informed about his right not to incriminate himself and to refuse to give evidence, but the interview had taken place in the absence of a lawyer.

In the case at hand, the referring court, which also had jurisdiction to rule on the merits of the case (§ 29), was to decide only on the pre-trial detention of CH. The questions it submitted to the CJEU in this connection concerned the validity of the waiver by CH of his right to a lawyer and, in case the waiver would be invalid, the consequences to be drawn from his incriminating statements made without the assistance of a lawyer, i.e. in breach of Directive 2013/48.

Depending on the subject matter, the answers given by the CJEU would appear to both raise and lower the protection level ensured by the Convention in this area.

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Strasbourg standard raised

The CJEU raised the Strasbourg protection level by applying Directive 2013/48 to proceedings for the judicial review of the lawfulness of a detention on remand, which under the Convention is governed by its Article 5. While Directive 2013/48 does not specify whether its scope, described in Article 2(1) as being criminal proceedings on the merits, also covers the judicial review of detentions on remand, the CJEU answers that question in the affirmative, relying notably on the Preamble to the Directive. Accordingly, the full range of requirements flowing from the right to a fair trial and the rights of the defence apply to the judicial review of detentions on remand (§§ 77, 88-91).

As a consequence, the rules concerning the waiver of the right to legal assistance, laid down in Art. 9 of Directive 2013/48, also apply to the proceedings on the lawfulness of the detention on remand in the case at hand, it being understood that regard is thereby to be had to the vulnerability of CH, in accordance with Art. 13 (§ 78).

This acknowledgment of a general right to legal assistance in proceedings for the judicial review of detentions on remand would appear to raise the Strasbourg protection level. It is indeed the case that the procedural guarantees under Article 5 of the Convention (right to liberty and security) are not necessarily the same as those provided for by Article 6 (right to a fair trial). As the ECtHR put it:

The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (A. and Others v. the United Kingdom [GC], 2009, § 203; Idalov v. Russia [GC], 2012, § 161).

The ECtHR does not go any further than the consideration that in proceedings concerning the lawfulness of detention “it may also be essential that the individual concerned … should also have the effective assistance of his lawyer” (Cernák v. Slovakia, § 78).

Strasbourg standard lowered

By contrast, on the question how to handle incriminating statements which were made, after an invalid waiver, without the assistance or presence of a lawyer, the CJEU seems to be lowering the Strasbourg protection level, which is much more problematic.

The CJEU does so by relying on the test of the criminal proceedings considered as a whole when addressing the question of the inferences which a domestic court assessing the lawfulness of a detention on remand must draw from the fact that evidence has been gathered in disregard of the requirements of Directive 2013/48, i.e. in the absence of legal assistance. The CJEU indeed stated:

In accordance with the case-law of the European Court of Human Rights, which, as stated in recitals 50 and 53 of Directive 2013/48, must be taken into account where a procedural defect has been identified, it is for the national courts to assess whether that procedural shortcoming has been remedied in the course of the ensuing proceedings. …   

Thus, in the event that evidence has been collected in disregard of the requirements of that directive, it must be determined whether, despite that lacuna, at the time of the decision to be taken by the court hearing the case, the criminal proceedings as a whole may be regarded as fair, taking into account a number of factors, including whether the statements taken in the absence of a lawyer are an integral or significant part of the probative evidence, as well as the strength of the other evidence in the file (see, by analogy, ECtHR, 13 September 2016, Ibrahim and Others v. the United Kingdom, CE:ECHR:2016:0913JUD005054108, § 273 and 274). (§§ 96-97)

What is noteworthy here is the fact that while the CJEU refers to Strasbourg case-law in support of its approach, it would appear to misrepresent that case-law in a twofold way.

First, there is misrepresentation of the said case-law in the sense that it is being transposed by the CJEU to an area, the deprivation of liberty, where it is not applied by the ECtHR. The test of the proceedings as a whole is being applied by the ECtHR in the field of Article 6 of the Convention, to assess the fairness of proceedings on the merits. It is not applied when it comes to assessing under Article 5 § 4 the lawfulness of deprivations of liberty.

Under the latter provision, proceedings for the judicial review of the lawfulness of detentions, by reason of the intensity of the interference which detentions represent, are considered under a separate provision, i.e. autonomously, not as just another element of the proceedings on the merits to be assessed under Article 6 of the Convention.

Moreover, because exceptions to the general principle, laid down in Article 5, that everyone has the right to liberty must be interpreted strictly (Buzadji v. Moldova, § 84), they do not lend themselves to the application of the test of proceedings as a whole.

Thus, to nonetheless apply this test to the judicial review of a person’s detention amounts to a reduction of the level of protection afforded under Article 5 of the Convention.

But what the CJEU has in mind here when referring to that test is, as quoted above, the possibility for incriminating statements made by an accused in breach of his right to a lawyer to nonetheless be taken into account (“not disregarded”) by the judge deciding on the accused’s detention, because of other corroborating available evidence. Only evidence on which a party is not in a position to comment effectively should be excluded from the criminal proceedings (§ 98). This brings us to the second misrepresentation of the Strasbourg case-law in this ruling.

For even in the event that this evidentiary rule could be applied under Article 5 of the Convention, which is doubtful for the reasons explained above, it is also being stripped of an essential element to which the ECtHR attaches great importance.

According to the ECtHR’s well-established case-law relied on by the CJEU, notably Ibrahim and Others v. United Kingdom, the absence of a lawyer during the interrogations of a suspect or an accused person is acceptable only if there are compelling reasons justifying that absence. Failing such reasons, “the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice” (§ 265). In practical terms, there will be a rebuttable presumption that the proceedings as a whole were unfair.

Against the background of this case-law, to simply drop the assessment of whether there are compelling reasons for the absence of a lawyer (as also provided for by Article 3(6) of Directive 2013/48), and the procedural consequences to be drawn from this assessment, is a misrepresentation lowering the protection level of the Strasbourg case-law on criminal proceedings on the merits which, it is erroneously suggested, can be transposed to proceedings for the judicial review of detentions. This is not just the application of Strasbourg case-law “by analogy”. This is a selective reading of that case-law.

On the contrary, this approach is raising a problem in terms of compliance with Art. 14 of the Directive and its Recitals 50 and 53, in addition to Articles 6 and 52(3) of the EU-Charter, which all require the EU protection level not to fall below the Strasbourg protection level.

For a recent Strasbourg case on an unvalid waiver of the right to legal assistance and its consequences under the Convention, see Bogdan v. Ukraine.

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In light of the above, the question arises what lawyers should plead and what national judges should decide in proceedings for the judicial review of detentions on remand, where the Convention and EU law go different ways.

Given the obligation to apply EU law in compliance with the Convention (Bivolaru and Moldovan v. France, § 103; M.B. v. the Netherlands) and the legal possibility for the Strasbourg protection standard to be raised by EU law (Art. 52(3) of the EU-Charter and Art. 53 of the Convention), lawyers and judges should go for the higher of the two standards, thereby differentiating between the issues.

This means, in concrete terms, that they should go for Directive 2013/48 whenever it sets a higher standard, but that they should go for the Strasbourg standard when the issue is about incriminating statements made without the assistance of a lawyer. This is of course without prejudice to any obligations on domestic courts under Article 267 TFEU.

In the case of Staatssecretaris van Justitie en Veiligheid (Mutual trust in case of transfer) (C-392/22, 29.2.2024), the CJEU ruled on whether a practice of pushbacks and detention at the border of a Member State which, under the Dublin III Regulation (No 604/2013), is responsible for the examination of an application for international protection, precludes the transfer of the applicant to that Member State.

In the case at hand pending before the Dutch courts, a Syrian national who had made an application for international protection in Poland, followed by another one in the Netherlands, challenged the request by the Dutch authorities for the Polish authorities to take back the applicant, pursuant to Article 18(1)(b) of the Dublin III Regulation.

The referring court interrogated the CJEU on whether such a take back could at all be requested, despite “objective, reliable, specific and properly updated information [showing] that the Republic of Poland has, for a number of years, systematically infringed a number of fundamental rights of third-country nationals by subjecting them to pushbacks [to Belarus], regularly accompanied by the use of violence, and by systematically detaining, in what are described as ‘appalling’ conditions, third-country nationals who enter its territory illegally.” (§ 20)

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In substance, the CJEU answered that the transfer of a third-country national to the Member State responsible for examining his or her application for international protection is precluded only if there are substantial grounds for believing that he or she would, during his or her transfer or thereafter, face a real risk of being subjected to pushbacks and detentions, and that those practices are capable of placing that third-country national in so grave a situation of extreme material poverty that it may be equated with the inhuman or degrading treatment prohibited by Article 4 of the EU-Charter.

In its reasoning, the CJEU first recalled the requirements of mutual trust between the Member States and explained why pushbacks as well as detention for the sole reason that a person is seeking international protection are contrary to EU law, notably Directives 2013/32 and 2013/33.

It then stated that while such practices constitute “serious flaws” in the asylum procedure and in the reception conditions for applicants, only “systemic flaws resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter make [the transfer of the person concerned] impossible”, those two conditions being cumulative (§§ 57-58). Article 3(2), second sub-paragraph, of the Dublin III Regulation, indeed reads:

“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the [Charter], the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.“

Thus, the CJEU seems to interpret this provision not as an illustration of the kind of scenarios which could render such a transfer “impossible” but as limiting them to those which would entail a risk that Article 4 of the EU-Charter be breached because of “systemic flaws” in the Member State primarily designated as responsible for the examination of an application .

As to what constitutes inhuman or degrading treatment in this context, the CJEU referred to practices of pushback and detention which would be such as to expose the person concerned “to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment”. (§ 63) This definition seems to draw on M.S.S. v. Belgium and Greece, §§ 253-264, which concerned the take back of a homeless applicant for international protection who, however, was never made the subject of any detention.

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This approach would appear to significantly restrict the effect of fundamental rights of migrants at the border with third countries, when compared with the Convention case-law. For at least two reasons.

1. First, because Article 3(2), second sub-paragraph, of the Dublin III Regulation, as interpreted by the CJEU, seems to limit the categories of risks precluding the take back of an applicant for international protection to risks of a breach of Article 4 of the EU-Charter. Risks of a breach of any other of an applicant’s fundamental rights seem to be irrelevant in this context.

Even detention by the local authorities at the border, which is one of the risks alleged by the applicant in the case at hand, would appear to have no chance of being considered relevant if it is not giving rise to ill-treatment within the meaning of Article 4 of the EU-Charter. This might also be the reason why the CJEU does not address the issue of arbitrary detentions as such but only as part of pushbacks exposing applicants to a situation of extreme material poverty (§ 63). The individual guarantees, which the CJEU suggests could be asked, seem limited to ill-treatment too (§ 80).

This approach seems to be ignoring the fact that several other fundamental rights issues can arise in the context of such pushbacks, as illustrated, inter alia, by Ilias and Ahmed v. Hungary and N.D. and N.T. v. Spain. Only recently was the case of C.O.C.G. and Others v. Lithuania, concerning pushbacks at the Lithuanian border with Belarus, brought before the Grand Chamber of the ECtHR for a determination of whether Articles 2 (right to life), 3 (prohibition of ill-treatment), 5 (right to liberty and security), 13 (right to an effective remedy) and 34 (right to individual petition) of the Convention, as well as Article 4 of Protocol No 4 (prohibition of collective expulsions) have been breached.

Given that, in addition to Article 3, Articles 2, 5 and 13 of the Convention, and 4 of Protocol No 4, have also found their way into the EU-Charter, i.e. in Articles 2, 6, 47(1) and 19(1) respectively, and in light of Article 52(3) of that same EU-Charter, one may wonder whether the Dublin III Regulation can legally restrict the impact of that Charter on the practices described above, to the extent that they come within the scope of EU law (Art. 51(1) of the EU-Charter). Thus, here too, EU law seems to be creating two different categories of fundamental rights, depending on their capacity to be invoked under the Dublin III Regulation, even though Recital 39 of the Preamble of that same Regulation states in its first sentence: “This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union.”

2. Secondly, to the extent that a complaint can be considered relevant under the Dublin III Regulation because it genuinely relates to Article 4 of the EU-Charter, it will be confronted with another restriction to the effect that the only abuses at the State border which that complaint will be capable of preventing are systemic flaws which “concern, generally, the asylum procedure and the reception conditions applicable to applicants for international protection or, at the very least, … certain groups of applicant for international protection as a whole, such as the group of persons seeking international protection after crossing or having attempted to cross the border between Poland and Belarus.” (§ 59)

Thus, the CJEU drew here on the two-step methodology which it developed in the field of the European arrest warrant. It requires the existence of systemic or generalised deficiencies in the issuing Member State as a pre-condition to any individual assessment of the risks incurred by the person concerned (e.g. in GN). One may wonder whether, by requiring such systemic or generalised flaws, this approach does not come down to replacing risk by certainty as a condition for the protection of a person’s fundamental rights in the context of a transfer. In any event, it considerably increases the burden of proof to be discharged by the person concerned.

This seems in contrast with the approach adopted in M.S.S. v. Belgium and Greece, in which the ECtHR, while taking note of the fact that the very poor situation in which the applicant found himself in Greece existed “on a large scale” (§ 255), did not require it to be in any way “systemic” or “generalised”, and even less made the individual assessment of whether the applicant’s fundamental rights had been complied with hinging on such a preliminary finding. In other words, this finding served merely as evidence in support of an individual assessment, not as a pre-condition to the latter.

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How should national courts handle these different levels of protection between Luxembourg and Strasbourg? Since the Convention is the mandatory minimum protection level governing also the application of EU law by the courts of the Member States, and in light of Article 52(3) of the EU-Charter, it would appear that in the face of such differences, like in the present case, national judges should, wherever EU law falls below the Convention level, apply the latter, without prejudice to their possibility to consult the CJEU under Art. 267 TFEU. Failure to apply a higher Convention standard indeed entails the risk of seeing the final domestic judgment in the case successfully challenged before the ECtHR, as in M.S.S. v. Belgium and Greece and, mutatis mutandis, Bivolaru and Moldovan v. France or M.B. v. the Netherlands. In other words, a wholistic approach is called for here.

In the case of Krajowa Rada Sądownictwa (C-718/21, 21.12.2023), a Grand Chamber of the CJEU ruled that a request for a preliminary ruling from the Polish Supreme Court (Chamber of Extraordinary Control and Public Affairs, “the CECPA”) was inadmissible, on account of the fact that the panel of judges of the CECPA which submitted that request was not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the EU-Charter. This was because of the procedure which had led to the appointment of the three judges composing that panel. Consequently, it did not constitute a “court or tribunal” within the meaning of Article 267 TFEU.

The CJEU insisted that it is alone responsible for interpreting EU law and must consider the issue in the light of its own case-law (§§ 40, 46 and 58). At the same time, it amply relied in its reasoning on the judgment of the ECtHR in the case of Dolińska-Ficek and Ozimek v. Poland, which concerned the dismissal by the CECPA of the appeals against resolutions of the National Council of the Judiciary (“the NCJ”, referred to as the “KRS” by the CJEU) on the non-recommendation of judges to posts at higher courts. It also referred to the judgment of the Polish Supreme Administrative Court of 21 September 2021, which had annulled Resolution No 331/2018 proposing the appointment of some of the judges of the CECPA.

What is noteworthy about this ruling is, first, the convergence between Strasbourg and Luxembourg in considering that the CECPA is not a “tribunal established by law”. According to both European Courts, this is because members of the CECPA were appointed following a procedure characterised by undue influence of the legislative and executive powers on the appointment of judges: the recommendation of candidates for judicial appointment to the CECPA was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. In addition, and in breach of the rule of law and the separation of powers, the members of the CECPA had been appointed by the President of the Republic in spite of a stay of execution which had been decided by the Supreme Administrative Court pending its examination of the lawfulness of the Resolution which had recommended the appointment of the judges concerned. The ECtHR called this an act of “utter disregard for the authority, independence and role of the judiciary” (§ 330).

The importance of that convergence between the two European Courts on principles as fundamental for democratic societies as the rule of law and judicial independence can hardly be overestimated.

Some differences between the reasoning of the ECtHR and the CJEU on these issues should however be noted. The first one relates to the concepts being relied on by the two Courts. In Dolińska-Ficek and Ozimek the ECtHR considered the two main shortcomings mentioned above, i.e. the nomination by a non-independent body and the appointment by the President of the Republic in disregard of a court order, to be sufficiently serious, as such, to impair the very essence of the applicant’s right to a “tribunal established by law” (§ 350).

By contrast, the CJEU saw the problem more as one concerning appearances of independence and impartiality and “reasonable doubts in the minds of individuals as to the imperviousness of the persons concerned and the panel in which they sit with regard to external factors, in particular the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them” (§ 61, 62, 68 and 77).

The explanation for this reliance by the CJEU on appearances and doubts, rather than on the “very essence” of the right to a tribunal, may be found in the fact that here independence and impartiality are considered together by the CJEU, impartiality being the concept for the assessment of which the ECtHR itself relies on appearances and reasonable doubts (e.g. in Morice v. France, §§ 76-78). While there is of course a link between these two notions (see Dolińska-Ficek and Ozimek, §§ 315-316), they nonetheless cover different requirements.

However that may be, one may wonder whether the massive interference of the legislative and executive powers in the appointment of judges, as described in the case at hand, is only a problem of appearances and doubts, or whether it affects the substance of the rights concerned, leaving no room for any possible doubts or mere appearances. In other words, the problem should perhaps not be reduced to one of mere appearances and doubts. Rather, as indicated by the ECtHR, it goes to the heart of the rule of law, the separation of powers and judicial independence. These principles do not only appear to have been ignored in the case at hand. Rather, they were actually disregarded and therefore the very essence of judicial independence was genuinely affected.

Secondly, while the ECtHR saw the two main shortcomings mentioned above, in addition to the absence of adequate legal remedies, as sufficient to support its conclusion of a violation of the right to a tribunal established by law, the CJEU relied on several additional circumstances, such as the extent of the jurisdiction of the CECPA, the adoption by the Polish legislature of a new law limiting the possibility to challenge decisions by the NCJ,  or the annulment by the Supreme Administrative Court of Resolution No 331/2018 (§§ 65-76).

This could be interpreted as suggesting that under EU law the two main shortcomings identified by the ECtHR are not sufficient and require the combination of all mentioned additional circumstances to lead to a conclusion of incompatibility with Article 19(2), second sub-paragraph, TEU, read in the light of Article 47 of the EU-Charter. This, in turn, could be seen as offering a lesser protection of the right to a tribunal established by law.

Should this be the case, and in view of the fact that the Convention represents in this field the minimum protection standard also applicable under EU law (Art. 52(3) of the EU-Charter), the circumstances listed in Dolińska-Ficek and Ozimek should be considered sufficient to deny a national court the status of a “tribunal established by law”.

GN (C-261/22, 21.12.2023) is yet another case concerning the execution of a European arrest warrant (EAW). This time round, the person subject to that EAW is the mother of a young child who, at the time of the events, was also pregnant with a second child. The Belgian judicial authorities had issued a EAW in respect of her for the purpose of enforcing a custodial sentence of five years which was handed down in absentia.

After a first refusal by the Bologna Court of Appeal to surrender GN to the Belgian authorities, on the ground that the latter had never responded to its request for information concerning inter alia the arrangements for the enforcement of sentences imposed on mothers living with minor children and the measures taken in relation to GN’s minor child, the case ended up before the Italian Supreme Court of Cassation, which referred the case for a preliminary ruling by the CJEU.

Interestingly, the Supreme Court of Cassation stated in its referral request that if the Belgian legal order did not provide for measures protecting the rights of children which were comparable to those provided for by Italian law, the surrender of GN would lead to a breach of the latter’s fundamental rights protected by the Italian Constitution and the European Convention on Human Rights (§ 22). In its second question to the CJEU, the Supreme Court of Cassation explicitly raised the question of the possible incompatibility of the surrender of GN with Articles 7 and 24(3) of the EU-Charter, “also considering the case-law of the European Court of Human Rights in relation to Article 8 [ECHR] and the constitutional traditions common to the Member States”.

In its response, the CJEU follows its traditional two-step approach, consisting of a general test, on the existence of systemic or generalised deficiencies in the issuing Member State, followed by an individual test, on whether in light of such deficiencies, there are substantial grounds for believing that the persons concerned will run a real risk of breach of their fundamental rights. In the case at hand, this risk concerned the rights to respect for one’s family life and to consideration given to the child’s best interests, as laid down in Articles 7 and 24(2) of the EU-Charter respectively (§§ 45-48).

Despite the sensitive nature of the issues involved, affecting minor children, the CJEU appears determined in this case to further narrow the scope left to the executing judicial authorities for the consideration of individual circumstances which might be relevant in the assessment of the risks incurred in the issuing Member State by the persons subject to the EAW at stake.

For not only does the CJEU confirm in GN its recent case-law precluding the executing judicial authorities from applying the individual test in the absence of systemic or generalised deficiencies or from applying the two tests simultaneously (§ 46), this time round it also explicitly prohibits these authorities, in the absence of systemic or generalised deficiencies, from inquiring under Article 15(2) of Framework Decision 2002/584 about the conditions under which it is intended, in the issuing Member State, to detain persons as Ms GN and/or to take care of their children (§ 50). This only reinforces the conclusion already reached in Staatsanwaltschaft Aachen about the mere ancillary function of the individual test.

However, what is worrying about this strict ban on the application of an autonomous individual test, and the inquiries which may go with it, is that it may interfere with the obligations placed by the Convention on the executing judicial authorities. Given that the Convention applies to the execution of a EAW (see, among others, Bivolaru and Moldovan v. France) and that it only provides for an individual test, the question indeed arises whether the two-step approach, with the individual test made contingent on the outcome of the general test, leaves enough room for the judges of the executing Member State to conform with their duties under the Convention. This may also be the sense of the concerns expressed by the Supreme Court of Cassation concerning compliance with the Convention.

Of course, national judges are not prevented by the Convention from having regard, if appropriate, to the general context of the individual situations which they must assess. The ECtHR itself does it but uses that assessment only as evidence, not as an autonomous test. The ultimate test to be applied under the Convention is always an individual test, which is autonomous and focussed on the individual situation of the person concerned. It does not require to be preceded by any prior general assessment. Even less is its validity contingent on any specific outcome of that general assessment.

It follows that under the Convention the scope of the risks capable of justifying a ban on the the extradition or deportation of a person is not limited to those risks which flow from systemic or generalised deficiencies. Risks of a violation of fundamental rights in the country of destination which are unrelated to any systemic or generalised deficiencies, such as risks stemming exclusively from the biography of the person concerned (e.g. Julian Assange-type risks), are equally relevant. For why should a risk of breach of a fundamental right be ruled out only because it does not exist on a large scale?

Thus, as confirmed in Bivolaru and Moldovan v. France, compliance with the Convention when executing a EAW logically also requires an assessment about the personal and individual risks incurred by the person concerned in the issuing Member State. The scrutiny cannot stop after a general assessment, regardless of its result, as this would be tantamount to replacing the individual test required by the Convention by a general test which only considers the overall situation in the issuing Member State, thereby also raising the question as from when deficiencies are to be considered systemic or generalised. In simple terms, the right of individual petition, one of the cornerstones of the Convention system (Art. 34 § 1), necessarily entails a right to an individual decision.

Yet, it would appear that under EU law the simple finding by the executing judicial authority that no systemic or generalised deficiencies can be identified in the issuing Member State is sufficient to preclude any such individual assessment. This situation raises at least two questions. First, is the CJEU, by creating this hierarchy between structural and individual risks in the issuing State, not limiting the scope of those fundamental rights in the executing State which relate to any such individual risks, thereby creating two different categories of fundamental rights? Second, can, in the absence of any primacy of EU law over the Convention, national judges be prevented by EU law from correctly applying the Convention in this area, as they are instructed to do by the Avotiņš v. Latvia and Bivolaru and Moldovan v. France jurisprudence?