In the case of Puig Gordi and Others (C-158/21, 31.1.2023), the CJEU ruled on the refusal by Belgian courts to execute a European arrest warrant (EAW) which had been issued by the Spanish Supreme Court in respect of several Catalan separatists. The refusal was based on concerns about the lack of jurisdiction of the court called upon to try them.

In its ruling, the CJEU relied on the two-step examination which it had previously applied, in such cases as Openbaar Ministerie, and which basically comes down to applying a double test, a general one followed by an individual one, for the assessment of any risks of a serious breach of fundamental rights which could be triggered by the execution of a EAW. While this methodology differs from the one applied by the ECtHR when assessing the execution of a EAW, which is more focussed on the individual risks, it is not problematic as such, as confirmed by Bivolaru and Moldovan v. France.

However, in Puig Gordi and Others the CJEU went one step further in developing its “two step” methodology, by denying the possibility to examine individualised risks in the event of a surrender if, prior to that, no systemic or generalised deficiencies have been found to exist. In substance, it ruled inter alia that in the absence of systemic or generalised deficiencies in the issuing State to the effect that persons in that State would be generally deprived of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, a court of the executing State may not refuse to execute a EAW (§ 111).

This comes down to autonomising the general test, to the effect that the application of the individual test is precluded if the result of the prior general test is negative. Thus, in that case the general test is suffient and can replace any further individual analysis. In that logic, the scale which deficiencies must reach to become relevant under the general test would appear to be of a magnitude which may be rarely reached in practice and which, in the few cases where it could still be reached, may be difficult to evaluate by domestic judges and even more difficult to prove by the persons concerned by the EAW. It can therefore be assumed that under this methodology, in most cases the assessment by the executing judicial authority will stop, out of convenience, after the first general step, leaving out the second individual step altogether. This would bring us back, de facto, to the much-criticised single collective test used in N.S. and Others, which would appear to be difficult to reconcile with the individual test being systematically and exclusively applied by the ECtHR, not least because one of the cornerstones of the Convention system is the right of individual petition.

Fortunately, in Puig Gordi and Others the CJEU did not go as far as suggested by its Advocate General, who wanted this new version of the “two step” examination potentially precluding the application of an individual test to be applied to all aspects of the right to a fair trial before a tribunal previously established by law under Art. 47(2) of the EU-Charter (on this Opinion, see the following comment).

By contrast, the CJEU limited the scope of its ruling to issues relating to the sole lack of jurisdiction of the courts in the issuing State, thereby placing some emphasis on the existence of efficient legal remedies which should avoid “the very occurrence” of the infringement at issue or avoid irreparable damage arising from that infringement (§ 113). Yet this latter consideration seems in contrast with other rulings in which the CJEU denied the relevance of existing domestic remedies in the issuing State for the assessment of risks to fundamental rights in that State (CJEU 25.7.2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C-220/18 PPU, § 74, and CJEU 15.10.2019, Dorobantu, C-128/18, § 80).

The fact remains, though, that in this way, a door has again been opened, for the sake of the efficiency of the EAW mechanism (§ 116), to a general rather than an individual assessment of respect for fundamental rights. One may wonder whether it will be further widened in the future. In this context, it might be useful to recall the following finding by the ECtHR in Avotins v. Latvia, § 113-114:

The Court has repeatedly asserted its commitment to international and European cooperation …. Hence, it considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited.

In the case of Delta Stroy 2003 (C-203/21, 10.11.2022), the CJEU declared incompatible with Article 48 of the EU-Charter (presumption of innocence and rights of the defence) national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.

In the case at hand, a company, Delta Stroy, was prosecuted in separate proceedings for the purpose of imposing on it a financial penalty for a criminal offence relating to value added tax alleged against its manager and representative.

What is noteworthy, from a Convention point of view, is first of all the similarity between the facts underlying this case and those which gave rise to the case of G.I.E.M. S.r.l. and Others v. Italy before the ECtHR. The question at the heart of both cases was whether companies could be convicted and sentenced for a criminal offence committed by their managers.

This is why the CJEU amply relied on G.I.E.M., thereby stating that the principle of the legality of criminal offences and penalties enshrined in Article 7 of the Convention, as applied by the ECtHR, corresponds to Article 49 of the EU-Charter and, by virtue of Article 52(3) of the EU-Charter, should therefore be interpreted so as not to disregard the level of protection guaranteed by Article 7 of the Convention, as interpreted by the ECtHR (§§ 43-44). The CJEU also noted that, according to the ECtHR, the violation of Article 7 of the Convention resulting from the imposition of a criminal sanction on an individual without his or her personal liability being established also breached the presumption of innocence protected by Article 6 § 2 of the Convention (§ 45).

In the case at hand, Delta Stroy was itself the subject of separate criminal proceedings triggering the application of the right to a fair trial. This is a significant difference with the 3 applicant companies in G.I.E.M. which could, not being themselves prosecuted, not invoke the right to a fair trial under Article 6 of the Convention and had therefore to rely on its Article 7. Consequently, the CJEU could confine itself to applying only Article 48 (presumption of innocence and rights of the defence), specifying that this provision too had to be interpreted so as not to disregard the corresponding Strasbourg protection level.

In sum, and regardless of these factual differences, there is correspondence between the Strasbourg and the Luxembourg jurisprudence in this area, something which can only be welcomed.

In the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) (C-69/21, 22.11.2022), the CJEU ruled on the lawfulness under the Return Directive (2008/115) of a return procedure initiated in the Netherlands against a Russian national who developed a rare form of blood cancer the treatment of which consists, inter alia, of the administration of medical cannabis for analgesic purposes, which is forbidden in Russia.

The CJEU dealt with that issue inter alia from the perspective of the prohibition of ill-treatment (Article 4 of the EU-Charter) and the right to protection of private life (Article 7 of the EU-Charter). In light of Article 52(3) of the EU-Charter, both provisions were found to have the same meaning and scope as the corresponding provisions of the Convention, Articles 3 and 8 respectively.

As regards the impact of Article 4 of the EU-Charter on the return decision at issue, a striking feature of this judgment is its extensive reliance on Strasbourg case-law, notably Paposhvili v. Belgium and Savran v. Denmark, which are the leading cases on the deportation of seriously ill persons considered under Article 3 of the Convention.

This is another illustration of the “toolbox function” fulfilled by the Convention when Strasbourg case-law is used to fill lacunae in EU legislation or case-law (for another example, see Spetsializirana prokuratura(trial of an absconded suspect)). This kind of reliance on the Convention, which is to be welcomed as an important contribution to the coherence of European fundamental rights protection, is to be distinguished from the “benchmark function” of the Convention, which is less frequently mentioned and refers to the fact that pursuant to Article 52(3) of the EU-Charter, the Convention protection level also applies under EU law (as recently applied in Politsei- ja Piirivalveamet, §§ 47 et seq.).

On 15 September last, the CJEU handed down two important rulings on different aspects of the right of an accused person to be present at his or her trial, thereby applying Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

In the case of HN (C-420/20), the CJEU ruled that while Art. 8 of Directive 2016/343 does not preclude national legislation imposing an obligation on suspects and accused persons to be present at their criminal trial, it does preclude legislation permitting a trial to be held in the absence of the suspect or accused person, where that person is outside the Member State concerned and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member State.

In the case of DD (C-347/21), the CJEU in essence ruled that where, for the sake of preserving the right to be present at the trial, an additional examination of an incriminating witness is necessary because the first examination could not be attended by the accused person and his lawyer for reasons beyond their control, Article 8(1) of Directive 2016/343 and Article 3(1) of Directive 2013/48 (on the right of access to a lawyer) do not require the whole previous examination of that witness to be repeated. Rather, it is sufficient that the accused person and his or her lawyer be able freely to question that witness, provided that, prior to that additional examination, the accused person and his or her lawyer are provided with a copy of the minutes of the previous examination of that witness.

One striking aspect of both rulings is the fact that here, in contrast for instance with the recent ruling in TL, the CJEU explicitly drew on relevant Strasbourg case-law, notably on the leading cases of Hermi v. Italy, Sejdovic v. Italy, Jussila v. Finland and Al-Khawadja and Tahery v. United Kingdom, as a basis, along with the two directives, on which to build its own reasoning. These references each time follow a clear indication by the CJEU to the effect that, since the right to a fair trial as guaranteed by Articles 47 §§2-3 and 48 of the EU-Charter corresponds to that same right as protected by Article 6 of the Convention, “the Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights” (C-420/20, §§ 54-55; C-347/21, § 31).

Thus, in addition to drawing on the said Strasbourg case-law, the CJEU also rightly pointed to the need to preserve under EU law the minimum level of protection emerging from it. In so doing, it not only made use of the “toolbox function”of the Convention, as it indeed quite often does when simply taking on board Convention elements as it deems fit. In addition, in a move which is less frequent in its case-law and is therefore to be commended, it acknowledged – and effectively applied – the “benchmark function” which was conferred on the Convention in relation to EU law by Article 52(3) of the EU-Charter. The Explanations to this provision indeed state: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.” This is clearly in order to protect national judges from being held liable in Strasbourg for breaching the Convention when applying EU law.

All of this is of course without prejudice to the possibility for EU law to provide “a more extensive protection” (Art. 52(3), 2^nd sentence, of the EU-Charter). In this connection, there is also room for a fruitful interaction between Article 6 of the Convention and the directives on procedural rights in criminal proceedings. A striking illustration of such an interaction is provided by the fact that while, on the one hand, the directive on the right to access to a lawyer (2013/48) clearly draws on the Strasbourg case-law relating to that right, the European Court of Human Rights, on the other hand, in Ibrahim and Others v. United Kingdom took on board the specifications contained in that directive concerning the notion of compelling reasons justifying an exception from the right to access to a lawyer (§ 259).

At any rate, since procedural rights in criminal proceedings are an area with a significant overlap between EU law and the Convention, in terms not only of the scope and substance of the rights concerned but also of the high number of cases in which Article 6 of the Convention is invoked, such explicit indications by the CJEU about the Strasbourg sources of its reasoning would appear to be of great importance, for at least three reasons.

First, as part of the CJEU’s legal reasoning which, as with any judicial decision, citizens have in principle a right to know and understand by virtue of the rule of law.

Secondly, for pedagogical reasons, as an illustration of the existing interaction between the Convention and EU law regarding many fundamental rights. For why suggest autonomy from the Convention where there is none and a wholistic approach would be required instead?

Thirdly, because any domestic judgment applying preliminary rulings by the CJEU may ultimately be reviewed in Strasbourg under Article 34 of the Convention (see Bivolaru et Moldovan c. France). Consequently, domestic judges have an interest in being given the legal arguments to satisfy themselves that by applying a preliminary ruling of the CJEU, they will not remain under the Convention level of protection and not run the risk of being found in Strasbourg to have breached the Convention. After all, it is their own responsibility and that of their respective Member States which are engaged in Strasbourg, interpretations of the Convention by the CJEU not being authoritative. Contrary to EU law itself, domestic judges are indeed not autonomous.