Category Archives: Recent Case Law

Which judge should assess the best interests of a wrongfully removed child? Judgment of the CJEU in TT

In the case of TT (unlawful removal of a child) (C-87/22, 13.7.2023), the CJEU ruled on the requirements of Article 15 of Regulation No 2201/2003  concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis). This provision allows a case concerning the wrongful removal of a child to be transferred from the court of the Member State of the habitual residence of the child to a court of another Member State which is considered to be better placed to hear the case, if such a transfer is in the best interests of the child and the latter has a particular connection with that other Member State.

In the case at hand, two children had been wrongfully removed from Austria to Slovakia by their mother, without the agreement of their father. The mother made an application for the Austrian courts, which under Article 10 of the Regulation had jurisdiction in relation to parental responsibility over the children, to request a court in Slovakia to assume jurisdiction, pursuant to Article 15 of the Regulation. One of those courts interrogated the CJEU about the requirements of that provision, and more particularly about whether the court to which a case would be transferred on this basis could also be a court of the Member State to which the child concerned had been wrongfully removed.

After recalling the rationale of the scheme put in place by the Regulation in this field, which is based on the Hague Convention on the Civil Aspects of International Child Abduction and aims at preserving the best interests of the child while at the same time deterring parents from wrongfully removing their children, the CJEU concluded that Article 15 of the Regulation did not oppose a transfer of the case to a court located in the Member State to which the child has been removed (§ 44). The CJEU notably stated:

The court with jurisdiction as to the substance, under Article 10 of Regulation No 2201/2003, must be satisfied, having regard to the specific circumstances of the case, that the transfer proposed is not likely to have a negative impact on the emotional, family and social relationships of the child concerned or on the child’s material circumstances … and must make a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment ….

Hence, it is not contrary to the objectives pursued by Regulation No 2201/2003 for a court with jurisdiction in matters of parental responsibility on the basis of Article 10 of that regulation to be able, exceptionally and after having taken due account, in a balanced and reasonable manner, of the best interests of the child, to request the transfer of the case of which it is seised to a court in the Member State to which the child concerned has been wrongfully removed by one of his or her parents. (§§ 50-51)

Interestingly, these are exactly the kind of considerations which the ECtHR relies on when assessing whether a decision made on the return of a child is compatible with Article 8 of the Convention (right to family life). In such situations, the ECtHR indeed examines whether the judge concerned, whether from the Member State of the habitual residence of the child or from their new residence, duly considered all the circumstances of the case and whether their decision on the return of the child could be said to be in the best interests of the child, as it did e.g. in Royer v. Hungary.

Thus, while under the Regulation the consideration of whether it is in the best interests of a wrongfully removed child to be returned to their habitual residence is, pursuant to Article 10 of the Regulation, the exclusive competence of the court of the habitual residence of the child, unless its competence was transferred by virtue of Article 15, there is no such exclusive competence under Article 8 of the Convention.

While adhering in principle to the approach underlying the Hague Convention and the Regulation according to which a wrongfully removed child should be quickly returned to his habitual residence (see Michnea v. Romania, Voica v. Romania, Veres v. Spain), the ECtHR’s competence is limited to examining whether any judicial decision made on the return of the child, whether in the former or the new residence of the child, was in conformity with Article 8 of the Convention. As the ECtHR put it:

The Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (X. v. Latvia, § 102; Voica v. Romania, § 53).

This can result in the ECtHR considering that the refusal by a court of the new residence of the child to order the return of the latter was not in breach of Article 8 of the Convention, as in M.K. v. Greece, Royer v. Hungary and O.C.I. and Others v. Romania, or that the return order by a court of the habitual residence of the child was in breach of Aricle 8 because that court had not thoroughly examined the case, as in Šneersone and Kampanella v. Italy. As the ECtHR repeatedly stated in such cases, it must verify that the principle of mutual recognition is not applied automatically and mechanically (Royer v. Hungary, § 50).

In other words, the absence of a transfer of jurisdiction over the child under Article 15 of the Regulation does not prevent the ECtHR from scrutinising the decision over the return of the child made by a court from another State than the one of the habitual residence of the child. This is because issues about exclusive jurisdiction – which in principle do not fall within the scope of Article 8 anyway – should not prevent a grave risk to the best interests of the child from being taken care of by the judge before whom this risk happens to be pleaded. In one sentence: in the face of grave risks, the best interests of the child should not be allowed to hinge on issues about jurisdiction.

This, in turn, means that by virtue of Article 8, a judge of the new residence of the removed child is not bound, in the event of a grave risk for the child, to wait for a formal transfer of jurisdiction to him/her by the court having jurisdiction under Article 10 of the Regulation – a scenario which indeed rather rarely occurs – before considering whether the child should be returned or not. A failure to act accordingly might even entail the Convention liability of the judge concerned. This is in line with what the ECtHR stated in Avotiņš v. Latvia :

Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them 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. (§ 116)

Two more Convention-compliant applications by the CJEU of Directive 2012/13 on the right to information in criminal proceedings

In two recent judgments, the CJEU applied Directive 2012/13 on the right to information in criminal proceedings. In contrast with some previous case-law, it thereby more explicitly ensured the compatibility of its rulings with the Strasbourg jurisprudence. It did so by not only drawing on the latter, but also explaining its relevance in a EU law context and considering it, in accordance with Article 52(3) of the EU-Charter, as mandatory minimum protection level (see Convention control, at p. 336).

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In Politseyski organ pri 02 RU SDVR (C-608/21, 25.5.2023), the CJEU clarified the obligations of the national authorities regarding the form and the content of the communication of the grounds for detention to an arrested person. As regards the form, it ruled that Article 6(2) of Directive 2012/13 did not require the grounds for detention to be all mentioned in the detention order, provided that the information communicated to the arrested person allowed them to effectively prepare their defence and ensured the fairness of the proceedings. On the content of the information, it held that the level of details as regards the grounds for detention could be adapted to the stage of the criminal proceedings, provided that the arrested person was provided with all the information necessary to effectively challenge the lawfulness of their detention.

On both issues, the CJEU should be commended for referring to the relevant jurisprudence of the ECtHR supporting its findings (Shamayev and Others v. Georgia and Russia, Khlaifia and Others v. Italy, S. V. and A. v. Denmark) and using that jurisprudence not only as a toolbox but also as a benchmark. Such a wholistic approach represents a significant contribution to legal harmony and certainty in the field of fundamental rights (see Convention control, at p. 335).

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In K.B. and F.S. (C-660/21, 22.6.2023), a Grand Chamber of the CJEU had to rule on the compatibility with Union law of Article 385 of the French Code of Criminal Procedure which, as interpreted by the Court of Cassation, prohibits trial courts from raising of their own motion, with a view to the annulment of the procedure, a breach of the obligation laid down in Articles 3 and 4 of Directive 2012/13, read in the light of Articles 47 and 48 of the EU-Charter, to inform suspects and accused persons promptly of their right to remain silent. In the case at hand, the two suspects had not been properly informed of their right to remain silent and made self-incriminating statements during their interrogation by the police.

The CJEU noted that under Article 8(2) of Directive 2012/13, suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with that directive, which included situations in which information about the right to remain silent had been given late, as in the present case. However, that directive did not provide for the possibility for a trial court to raise a breach of that obligation of its own motion (§ 39).

The CJEU filled this lacuna by relying on the right to an effective remedy, the right to a fair hearing and the rights of defence, as laid down in Articles 47 and 48(2) of the EU-Charter, which the application of the said provisions of Directive 2012/13 had to comply with. In referring to those provisions of the EU-Charter, the CJEU also indicated that pursuant to Article 52(3) of the EU-Charter, their application had to take account of the corresponding rights guaranteed by Articles 6 and 13 of the Convention, as interpreted by the ECtHR, as the minimum threshold of protection (§ 41).

This meant that the suspects, the accused persons or their lawyers had to be afforded a practical and effective opportunity to invoke the breach concerned and a reasonable period of time within which to do so, in addition to access to the file.  This, in turn, required a practical and effective access to a lawyer, as provided for by Article 3 of Directive 2013/48 (§§ 43-45). The CJEU usefully relied in this connection on Salduz v. Turkey. One could also have added Simeonovi v. Bulgaria and Beuze v. Belgium.

Interestingly, in the CJEU’s opinion, a successful challenge of the failure to properly inform an accused of their right to remain silent does not automatically give rise, as suggested by the reliance of the French courts on Article 385 of the French Code of Criminal Procedure, to the annulment of the proceedings. Instead, referring to Ibrahim and Others v. United Kingdom,the CJEU adopted the Strasbourg approach, according to which the fairness of proceedings is to be assessed by considering these proceedings as a whole, regard thus being had to the possibility that a procedural shortcoming may have been remedied in the course of the ensuing proceedings (§ 48). In this respect, this ruling is a confirmation of HYA and Others, which appears to have applied for the first time the Strasbourg test of the proceedings as a whole.

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Overall, these two judgments seem to confirm a commendable trend towards greater convergence in matters of criminal procedure between Luxembourg and Strasbourg (see Luxembourg case-law on procedural rights), with the CJEU relying more explicitly on the relevant Strasbourg jurisprudence not only as a toolbox but also as a benchmark, i.e. as mandatory minimum protection level, thereby protecting domestic judges from falling below that level when applying EU law.

It remains to be seen, though, whether in follow-up cases concerning the same issues, the CJEU will remain as explicit on its Strasbourg sources as in those two cases. The CJEU indeed seems to have made a habit of referring to relevant Strasbourg case-law only once, i.e. the first time it is relied on, all subsequent references being made only to its own case-law incorporating that piece of Strasbourg case-law. As a result, readers of the Luxembourg follow-up judgments who do not know about the very first reference to that Strasbourg case-law are left in the dark as to its real impact in the follow-up cases and the resulting substantive convergence between Strasbourg and Luxembourg on this score. This approach blurs the picture and creates a false appearance of autonomy (see, for examples, Convention control at p. 341).

Different ways to the same goal: Strasbourg and Luxembourg on same-sex couples

In the case of Koilova and Babulkova v. Bulgaria (40209/20, 5.9.2023), the European Court of Human rights found a violation of Article 8 of the Convention (right to respect for private and family life) on account of the failure by the Bulgarian authorities to set up a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship.

The applicants, two women who married in the United Kingdom and live in Sofia, were denied the right to have their marriage entered in the Bulgarian civil status register, on the ground that under the Bulgarian legal system a marriage could only be between a man and a woman.

This case provides a good opportunity to compare with each other the Strasbourg and Luxembourg approaches to same-sex couples. While the former is based on the right to respect for private and family life, the latter relies on the right of EU citizens to move and reside freely within the territory of the Member Sates.

In essence, what Article 8 of the Convention requires is, as confirmed by Koilova and Babulkova, that Member States provide a “legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship”, there being some margin of appreciation in determining the exact nature of the legal regime to be put in place. It does not necessarily have to take the form of a marriage (Fedotova and Others v. Russia, §§ 178 and 188).

The CJEU, for its part, developed its own case-law on the legal recognition of same-sex couples under Union law, notably in Coman and Othersand Stolichna obshtina, rayon “Pancharevo”.

Coman and Others was about a same-sex couple which married in Belgium, where they lived for a couple of years, and wanted to settle back in Romania, the country of origin of Mr Coman. His husband, however, was denied a resident permit on the ground that the Romanian legal order did not allow same-sex marriages. The CJEU ruled in essence that this refusal was in breach of Article 21(1) TFEU which enshrines the right for every citizen of the Union to move and reside freely within the territory of the Member states. It stated, inter alia:

Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that State has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months.

Stolichna obshtina, rayon ‘Pancharevo’, for its part, was about a minor child who is a Union citizen and whose birth certificate, issued by the Spanish authorities, designated as that child’s parents two persons of the same sex. The Bulgarian authorities refused to issue identity papers to the child on the basis of the Spanish birth certificate, arguing that this would contravene the Bulgarian public order which only allowed a man and a woman to be registered as the parents of a child. The CJEU ruled inter alia that the Member State of which that child is a national, i.e. Bulgaria, was obliged to recognise the document from the host Member State, i.e. Spain, which permits that child to exercise, with each of those two persons, his or her right to move and reside freely within the territory of the Member States.

When comparing those two approaches, the following observations would appear relevant:

  • First of all, Koilova and Babulkova is another example of the ECtHR correcting the effects of mistakes made at domestic level in assessing Union law requirements. In this case, the Bulgarian administrative courts had indeed stated that their position was in line with Union law, as well as the Convention (§ 6). One may wonder why the Bulgarian courts did not make a reference for a preliminary ruling by the CJEU.
  • The CJEU case-law is based on the right of EU citizens to move and reside freely within the territory of the Member States (Art. 21(1) TFEU and 45(1) of the EU-Charter). Thus, it would appear not to apply to situations where the legal status the recognition of which is sought in a EU Member State has been granted outside the EU.
  • Furthermore, the recognition in a Member State of the status granted in another Member State is imposed for the effective enjoyment of the right to move and reside freely within the EU. By its very nature, it presupposes that the EU citizen concerned made effective use of that right, notably by living in another Member State than the one which granted the status the recognition of which is being sought. As such, a person’s status is a matter which indeed falls within the exclusive competence of the Member States (Coman and Others, § 37).
  • These are notable differences with the Strasbourg case-law based on Article 8 of the Convention. The latter indeed applies to the entire jurisdiction of the Contracting States and to all persons subject to their jurisdiction, regardless of their biography or nationality.
  • However, as stated above, Article 8 does not require the benefit of a specific status for same-sex couples, but only an adequate recognition and protection of their relationship, i.e. an effective protection of their right to private and family life (Koilova and Babulkova, § 46). By contrast, EU law requires the recognition of the specific status which was granted by the host Member State. This may entail an obligation to recognise a same-sex marriage, at least for the purpose of the exercise of the right to move and reside freely, as in Coman and Others.
  • Finally, one should note the references made by each European Court to the case-law of the other, which testifies of the cross-fertilisation taking place between the two in this area.

More confusion about « ne bis in idem »: judgment of the CJEU in the case of MV – 98

In the case of MV – 98 (C-97/21, 4.5.2023), the CJEU made another application of the ne bis in idem principle to dual proceedings. This time, these resulted from the Bulgarian tax authorities imposing a financial penalty on MV – 98, in addition to the sealing of its business premises. All of this because MV – 98 had failed to record the sale of a packet of cigarettes worth approximately 2.60 euros!

The CJEU first had to determine whether both sanctions were criminal in nature, as only then did ne bis in idem come into play. In view of the severity of both sanctions, this was answered in the affirmative, after an assessment based on the same criteria as those which are used by the ECtHR and are known as the Engel criteria: the legal classification of the offence under national law, the intrinsic nature of the offence, and the degree of severity of the penalty (§ 38).

In line with its settled case-law according to which such dual proceedings are to be seen as a limitation to ne bis in idem (see, among others, Menci and bpost), the CJEU then examined whether in the present case this limitation met the requirements of Article 52(1) of the EU-Charter. In the CJEU’s opinion, this was not the case, mainly because this double sanction contravened the principle of proportionality in two different respects: first, in that national law provided for the automatic and mandatory cumulation of those two severe sanctions (§ 59), and, secondly, in that their cumulative effect seemed to exceed the seriousness of the offence committed (§ 62).

What should be pointed out about this ruling, from a Convention point of view, is yet again a regrettable lack of consistency as regards the requirements to be met under Article 52(1) of the EU-Charter when applied to ne bis in idem. It resulted from the introduction of yet another criterion to be applied under that provision, the “coordination of the procedures” (§§ 57, 58, 61 and 63).

Whereas the Grand Chamber ruling in bpost had appeared to increase the convergence with the Strasbourg criteria introduced in A and B v. Norway by referring to the latter and taking on board the idea that dual proceedings can only be seen as not breaching ne bis in idem if they are ”combined in an integrated manner so as to form a coherent whole”, notably through a sufficiently close connection in substance and in time (A and B, § 130), MV – 98 now seems to suggest that it is sufficient for such proceedings to be “coordinated” so as to enable “the additional disadvantage associated with the cumulation of measures imposed to be reduced to what is strictly necessary and to ensure that the severity of all of those measures is commensurate with the seriousness of the offence concerned” (§ 58). Thus, simple “coordination” instead of a “close connection in substance and in time”, leading to a relaxing of the Strasbourg requirements, at variance with bpost? One is left guessing about the exact meaning and purpose of such differences (see also BV).

At any rate, it is difficult to predict at this stage whether these repeated terminological and methodological differences between the Strasbourg and Luxembourg case-law, and even within the latter, are to result in different levels of protection. What seems clear, however, is that with MV – 98 another level of inconsistency and confusion in the field of ne bis in idem has been reached, to the detriment of legal certainty.

The requirement of consent by the data subject declared compatible with the Convention: Judgment of the ECtHR in Jehovah’s Witnesses v. Finland

In the case of Jehovah’s Witnesses v. Finland (31172/19, 9.5.2023), a Finnish religious community, Jehovah’s Witnesses, complained inter alia under Article 9 of the Convention (religious freedom) about an order prohibiting any notes being taken by individual Jehovah’s Witnesses for their personal use in the context of their door-to-door preaching activities without the consent of the data subject.

The requirement of consent by the data subject is laid down in Article 7 of the Data Protection Directive (95/46) which was transposed into the Finnish legal system through inter alia the Personal Data Act. The latter was relied on by the Finnish administrative courts when confirming the impugned order. In this context, the Supreme Administrative Court asked for a preliminary ruling in which the CJEU confirmed that the Data Protection Directive could be applied to the facts of the case.

In its judgment, the ECtHR extensively relied on that ruling by the CJEU. It also noted in this connection:

The Court observes that the Personal Data Act transposed the Data Protection Directive into Finnish law (see paragraph 14 above). Before the Supreme Administrative Court reached its final conclusion on the matter, it sought guidance from the CJEU on the interpretation of the Data Protection Directive. The Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU member States and the CJEU in the form of references from the former for preliminary rulings by the latter (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 164, ECHR 2005‑VI; Avotiņš v. Latvia [GC], no. 17502/07, §§ 105 and 109, ECHR 2016; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 150). (§ 85)

On the central issue in the case, i.e. the requirement of consent by the data subject, as prescribed by Article 7 of the Data Protection Directive, the ECtHR held:

The requirement of consent by the data subject is to be considered an appropriate and necessary safeguard with a view to preventing any communication or disclosure of personal and sensitive data inconsistent with the guarantees in Article 8 of the Convention in the context of door‑to‑door preaching by individual Jehovah’s Witnesses. In the absence of any convincing arguments by the applicant community, the Court cannot discern how simply asking for, and receiving, the data subject’s consent would hinder the essence of the applicant community’s freedom of religion. (§ 95)

One step is enough? Judgment of the CJEU in E.D.L.

In the case of E.D.L. (C-699/21, 18.4.2023) the CJEU was again called upon to rule on how to handle the situation arising out of a legal obligation to deport a person who is seriously ill to a State where the required medical treatment might not be available. Whereas in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) this issue presented itself in the context of a return procedure, in the case at hand it did so in the context of the execution of a European arrest warrant (EAW).

In its ruling the CJEU distinguished three different scenarios:

a) Where there are substantial grounds to believe that the surrender of the requested person manifestly risks endangering his or her health, the executing judicial authority may, exceptionally, postpone that surrender temporarily, on the basis of Article 23(4) of Framework Decision 2002/584.

b) Where the executing judicial authority concludes that there are substantial and established grounds for believing that the surrender of the requested person would expose that person to a risk as the one which was at stake in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) referred to above, i.e. a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, that authority is required, in accordance with Article 4 of the Charter, to exercise the power provided for in Article 23(4) of Framework Decision 2002/584 by deciding to postpone the surrender. It is also required to ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising.

c) If, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the European arrest warrant, by virtue of Article 1(3) of Framework-Decision 2002/584, which provides that that Framework-Decision “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]”. On the other hand, if the said risk can be ruled out within such a period of time, a new surrender date must be agreed with the issuing judicial authority.

What is noteworthy about this case is that the CJEU here did not apply its two-step methodology for the assessment of the existence of a risk in the issuing Member State such as to justify an exception, based on the duty to respect fundamental rights, from the obligation to execute a EAW. On this methodology, see e.g. Openbaar Ministerie (Tribunal established by law in the issuing Member State). The CJEU indeed immediately dealt with the nature of the risk incurred by the requested person in the issuing Member State (Croatia), without also assessing the existence of any systemic or generalised deficiencies in that Member State, as it did for instance in Aranyosi and Căldăraru, which also concerned a risk of a breach of Article 4 of the EU-Charter in the issuing Member State. The future will tell whether this case is to be seen as an exception or a new trend.

A different “ne bis in idem” in Luxembourg? Judgment of the CJEU in Generalstaatsanwaltschaft Bamberg

In the case of Generalstaatsanwaltschaft Bamberg (Exception to the ne bis in idem principle) (C-365/21, 23.3.2023), the CJEU was called on to rule on possible exceptions to the ne bis in idem principle. The main issue was about the compatibility with Article 50 of the EU-Charter of the declaration which Germany made pursuant to Article 55(1)(b) of the Convention implementing the Schengen Agreement (CISA). According to this declaration, Germany would not be bound by the ne bis in idem principle laid down in Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against its national security or its other equally significant interests.

The accused in the main proceedings in Germany, MR, had been convicted in Austria for serious commercial fraud and money laundering. While he served his sentence in Austria, a German court issued a European arrest warrant (EAW) requesting his transfer on charges of formation of a criminal organisation and investment fraud. In this context, the CJEU was asked for a preliminary ruling on, inter alia, the question whether the German courts could lawfully rely on the said declaration and consider that ne bis in idem would not preclude the execution of the EAW in the case at hand.

In its ruling, the CJEU took the view that the possibility, provided for in Article 55(1)(b) of the CISA, for a Member State to derogate from the ne bis in idem principle when the acts to which the foreign judgment relates constitute an offence against its security or other equally essential interests is to be seen as a limitation to ne bis in idem as guaranteed by Article 50 of the EU-Charter. Consequently, its lawfulness had to be assessed in light of Article 52(1) of the EU-Charter (§§ 47-48). The CJEU then embarked on a detailed analysis of whether the requirements of the latter provision were met. It thereby came to the conclusion that Article 55(1)(b) was compatible with Article 50 of the EU-Charter.

What is noteworthy about this ruling from a Convention point of view is some confusion between limitations and exceptions to ne bis in idem. A limitation to a fundamental right, which is called “interference” in the Convention terminology, usually refers to a measure affecting the enjoyment of a fundamental right by an individual without precluding it entirely, thus only restricting it. By contrast, there will be an exception from a fundamental right when its enjoyment is actually precluded altogether, here by reason of the category of offences involved. This is also why the CISA refers to Article 55 (1) (b), which provides for a scenario where States are not at all bound by ne bis in idem, as entailing an exception from its Article 54 (§ 5).

Thus, in light of this distinction, the present case is in fact about an exception to ne bis in idem rather than a mere limitation or restriction, since it is about denying the benefit of that principle altogether to MR. The notion of exception is therefore correctly used in paragraphs 5, 53 and 63 of the ruling. Yet, the CJEU nonetheless analyses this exception as a pure limitation and applies to it the test laid down in Article 52(1) of the EU-Charter. As if the benefit of ne bis in idem in the present case was only to be limited, as it was for instance in Menci and bpost, whereas in fact the suggestion was to reduce it to nothing at all.

This ambivalence becomes particularly apparent when, applying Article 52(1), the CJEU addresses the question whether the essence of ne bis in idem would be preserved in case the German declaration could be applied. It answers that question in the affirmative, but it does so by adopting a general perspective rather than that of the individual concerned. The CJEU indeed sees this requirement as fulfilled because “it permits that Member State to punish offences which affect the Member State itself and, in so doing, to pursue objectives that necessarily differ from those for which the person prosecuted has already been tried in another Member State.” (§ 57)

Thus, according to this reasoning, the essence of ne bis in idem is to be preserved for the benefit not of the accused person but of the State concerned, which will remain able to conduct its own prosecutions. It is therefore all the more surprising to read later in the judgment that this derogation from ne bis in idem “is accompanied by rules that will guarantee that the resulting disadvantages, for the persons concerned, are limited to what is strictly necessary” (§ 65, emphasis added). In fact, there is nothing left of that right for the individuals in the situation of MR, because ne bis in idem here is not subject to a mere limitation but to a full exception.

This approach would appear to be in serious contrast with the case-law of the European Court of Human Rights, for at least two reasons.

First, Article 4 of Protocol no. 7 to the Convention, which is the provision laying down the ne bis in idem principle in the Convention system, provides for no limitations at all to that principle. Exceptions from it are allowed only in two different situations: if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case (Art. 4 § 2). Ne bis in idem cannot even be derogated from under Article 15 of the Convention, in times of emergency (Art. 4 § 3).

Secondly, when the Strasbourg Court examines whether the essence of a fundamental right has been preserved by an interference with that right, it does so from the perspective of the applicant, thereby asking the question whether the latter enjoyed at least part of his or her fundamental right in the circumstances. In other words, it adopts an individual approach, not a general one. This is because, if a fundamental right is to be enjoyed by an individual, the preservation of its essence by definition must be in the interest of that same individual, not in that of the State interfering with his or her right (see, e.g. Regner v. Czech Republic, § 148).

All in all, the approach followed by the CJEU in the present case would appear to remain below the protection level ensured by Article 4 of Protocol No. 7 to the Convention. This is in spite of the explanations to Article 50 of the EU-Charter, according to which “As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR”. This level of protection can hardly be allowed to vary according to whether ne bis in idem should apply between several States or within one and the same.

Reopening of domestic proceedings suggested following a failure to act upon a request for a preliminary ruling by the CJEU: judgment of the ECtHR in Georgiou v. Greece

The judgment in Georgiou v. Greece (57378/18, 14.3.2023) is another application by the ECtHR of its doctrine on the obligation under Article 6 § 1 of the Convention (right to a fair trial) for last instance domestic courts to give reasons, based on the relevant Luxembourg case-law, as to why they would not make a request for a preliminary ruling by the CJEU (Art. 267 TFEU) despite a request to that effect by a party to the proceedings (see, previously, among others, Sanofi Pasteur v. FranceQuintanel and Others v. France, Rutar and Rutar Marketing D.O.O. v. Slovenia, and Bio Farmland Betriebs S.R.L. v. Romania).

In the present case, the ECtHR found a violation of Article 6 § 1 on the ground that in its judgment, the Greek Court of Cassation neither referred to the request made by the applicant that the CJEU be consulted under Article 267 TFEU, nor gave any reasons why it considered that the question raised by him did not merit reference to the CJEU (§ 25).

The novelty of this case, however, lies in the fact that the ECtHR, relying on Article 46 of the Convention (binding force and execution of judgments), suggested the reopening of the domestic proceedings, if requested, in the following terms:

In principle, it is not the Court’s task to prescribe exactly how a State should put an end to a breach of the Convention and make reparation for its consequences. Nevertheless, it is clear that restoration of “the closest possible situation to that which would have existed if the breach in question had not occurred” (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 38, Series A no. 330-B; Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 33, ECHR 2014; and Chiragov and Others v. Armenia (just satisfaction) [GC], no. 13216/05, § 59, 12 December 2017) would consist, in the present case, in taking measures to ensure that the domestic proceedings are reopened, if requested, so that the request for a preliminary reference is examined by the Court of Cassation. (§ 33)

Consequently, point 3 of the operative part of the judgment reads:

[The Court] holds that the taking of measures by the respondent State to ensure that the proceedings before the Court of Cassation are reopened, if requested, would constitute appropriate redress for the violation of the applicant’s rights.

First assessment of the “hotspot approach”: a prefiguration of the co-respondent mechanism? Judgment of the ECtHR in the case of J.A. and Others v. Italy

In the case of J.A. and Others v. Italy (21329/18, 30.3.2023), the ECtHR for the first time assessed the compatibility with the Convention of the “hotspot approach”. The four applicants in this case were migrants who had to stay ten days at the Lampedusa hotspot, following which they were forcibly removed from Italy to Tunisia. The ECtHR found violations of the Convention on the ground that the conditions at the hotspot were inhuman and degrading (Article 3), that the presence of the applicants there amounted to an unlawful detention (Article 5 §§ 1, 2 and 4) and that they had been the victims of a collective expulsion (Article 4 of Protocol No 4).

According to Regulation (EU) 2019/1896, “hotspot area means an area created at the request of the host Member State in which the host Member State, the Commission, relevant Union agencies and participating Member States cooperate, with the aim of managing an existing or potential disproportionate migratory challenge characterised by a significant increase in the number of migrants arriving at the external borders” (Art. 2 § 23). Examples are Sicily and Lampedusa in Italy or Lesbos and Kos in Greece. The “hotspot approach” was part of the so-called European Agenda on Migration initiated by the European Commission in 2015 with a view to helping frontline Member States cope with massive migrant arrivals.

What is noteworthy about this judgment, in terms of the interplay between EU law and the Convention, is that it criticises the lack of appropriate safeguards protecting migrants against violations of their fundamental rights in Lampedusa but, at the same time, leaves open whether Italy or the EU is responsible for it. While the Italian Government did not refer to any piece of EU law being relevant in this context (§§ 70-72), the judgment nonetheless reproduces extensive EU law sources in the field of migration (§§ 27-37), thus suggesting that EU law may be relevant in this area, if only because of the cooperation taking place in hotspots between domestic and EU entities.

This is in particular the case with the unlawful detention of the applicants. On this issue, the ECtHR indeed noted that the Government had not shown that the “Italian regulatory framework, including EU rules that may be applicable,” provided clear instructions concerning the detention of migrants in these facilities (§ 90). A similar reference to the nature and function of hotspots being determined by “domestic law and the EU regulatory framework” is to be found in paragraph 95 of the judgment.

De lege lata, the EU not being a Contracting Party to the Convention, Italy is the sole respondent liable for the violations found by the ECtHR in this case, notably those which stem from the impugned lack of a clear legal basis for – and of safeguards relating to – the detention of applicants, regardless of whether that lack has its origin in domestic or EU law and whether the regulatory intervention needed was for Italy or the EU to perform. In the latter case, Italy might face a problem in executing the judgment.

De lege ferenda, however, should the EU become a Contracting Party under the revised Draft Agreement for the Accession of the EU to the Convention, this kind of scenario, characterised by issues as to the competent law-maker in the area concerned, might lend itself to the application of the co-respondent mechanism laid down in Article 3 of the Agreement. Under this mechanism, the EU could indeed become a co-respondent in the proceedings before the ECtHR, next to the respondent Member State, on condition that, first, the alleged violation(s) are due to the lack of adequate regulations rather than to a failure to correctly apply existing regulations and, secondly, that the EU takes the view that at least part of the missing regulations are within its own competence.

In such proceedings, the ECtHR would, just as in the present case, leave open whether and to what extent the Member State concerned, the EU or both are responsible for the violation(s) found. The difference would be, however, that rather than having only the possibility to declare the Member State responsible for the violations found and for the execution of the judgment, regardless of whether it is competent or not, the ECtHR would hold both the EU and the Member State jointly responsible, thus ensuring that the competent law-maker is on board in case the execution of the judgment requires a regulatory intervention. Securing the mandatory participation of the EU, according to its competence, in the execution of Strasbourg judgments is indeed the main benefit of the co-respondent mechanism.

The right to cross-examine witnesses, a tale of two methodologies: judgment of the CJEU in the case of HYA and Others

In the case of HYA and Others (C-348/21, 8.12.2022), the CJEU ruled on whether national legislation which allowed a person to be convicted on the basis of statements by witnesses who had not been cross-examined by the defence at the trial was compatible with the Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (2016/343), read in combination with Articles 47(2) and 48, paragraph 2, of the EU-Charter.

The issue at the heart of the present case was about whether there was a right for the accused not only to attend their trial, as stipulated by Article 8(1) of the Directive, but also to cross-examine witnesses at the trial. Whereas under the Convention the answer to that question is obvious, spelled out as it is in its Article 6 § 3 d), the CJEU had to make long developments, thereby relying on the Strasbourg case-law, to come to the same conclusion. This is because the said Directive is silent about that issue.

Thus, next to such other recent rulings as in Spetsializirana prokuratura, HN and DD applying the same Directive, this case is another telling illustration of the limits of what the Directives on procedural rights in criminal proceedings, as the one at stake in this case, can achieve. While these directives are meant to codify and reinforce current case-law with a view to enhancing mutual trust amongst member States (see Recital 10 of the Directive at stake in this case), their weakness lies in the fact that they can cover only part of the huge amount of case-law existing in this field, while at the same time they freeze the part of the case-law which they actually cover, with the risk of being overtaken by events in case of further developments of that case-law. The result are important lacunae in these directives which the CJEU undertakes to gradually fill, not least by drawing to a significant extent on the Strasbourg case-law.

In the present case, the CJEU first found, after some lengthy developments, that a right for an accused to just attend their trial without at the same time having the possibility to exercise at this trial the rights of the defence, including the right to cross-examine the witnesses for the prosecution, would strip the right to a fair trial of its essential content (§ 45).

The CJEU then turned to the possible limitations to the right to cross-examine witnesses, more specifically to the question whether the accused could be convicted on the basis of witness statements made during the investigation of the criminal case, in the absence of the accused and their lawyer. Here, another difficulty arose in that the Strasbourg and Luxembourg methodologies on this score differ. The CJEU, for its part, opted for squeezing the methodology applied by the ECtHR into its own methodology, which is based on Article 52(1) of the EU-Charter, thus complicating matters much more than would be necessary under the sole Convention.

In concrete terms, whereas the Strasbourg approach concerning limitations is based on an assessment of the proceedings as a whole, looking at whether any limitations or procedural flaws may have been offset by counter-balancing factors (see among several others Ibrahim and Others, Beuze), the CJEU relied on Article 52(1) of the EU-Charter and in that context applied three different criteria: the existence of a legal basis, the preservation of the essential content of the right at stake and the proportionality of the limitations to it (§ 50).

It is under the second criterion, the essential content of the right, that the domestic courts are instructed by the CJEU to apply the Strasbourg case-law here, in particular the test of the proceedings considered as a whole (§§ 52 and 55), as in Al-Khawaja and Tahery and Schatschaschwili. What follows is a faithful description of that Strasbourg jurisprudence and its criteria, ordered to be applied as part of the said Directive and in the context of Article 52(1) of the EU-Charter. The final assessment is thereby left to the referring court, the CJEU recalling that under Art. 267 TFEU it has competence only to interpret EU law, not to apply it (§ 49).

All in all, this ruling is a welcome contribution by the CJEU to maintaining jurisprudential harmony with Strasbourg, by taking on bord large parts of the Strasbourg case-law, thus protecting domestic courts from having to face Convention liability. That said, the lacunae of Directive 2016/343 and the combination of two partly different methodologies generate a regrettable level of complexity for domestic courts, when compared with the Strasbourg approach.