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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The case of Bevándorlási és Menekültügyi Hivatal, adjudicated by the CJEU on 19 March 2020, is very similar to the case of Ahmed and Ilias v. Hungary (see below, on this page) which was decided a few months earlier, on 21 November 2019, by the ECHR. In both cases the main issue was the way Hungarian courts had made use of the possibility, provided for by article 33.2 (c) of the Procedures Directive, to declare a request for international protection inadmissible on the ground that a country which is not a Member State is considered as a safe third country for the applicant.

The CJEU found the domestic legislation not to have adequately transposed the Directive by omitting to incorporate some of its basic requirements, including the principle of non-refoulement. It thereby came, in substance, much to the same conclusion as the ECHR, which for its part had found, inter alia, Hungarian courts to have breached the procedural obligations flowing from Article 3 of the Convention.

Interestingly, however, and in contrast with the ECHR ruling, the CJEU elaborated on the requirement, for a third country to be able to be considered safe, that there be a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country (Art. 38.2 (a) of the Directive). In its opinion, the mere fact of transiting through a specific country could not be considered as amounting to such a connection.

No such requirement flows from the Convention. In this respect, EU law would appear to offer a higher protection standard. This, however, is in line with Article 53 of the Convention, which allows States to exceed the minimum Convention protection standard, including on the basis of EU law (see, on this latter aspect, mutatis mutandis, M.N. v. Belgium (dec.), no. 3599/18, 5.5.2020, § 140).

In the case of AGRO IN 2001, a Bulgarian judge asked the CJEU whether under EU law he could lawfully order the confiscation of the assets of persons on account of criminal offences – embezzling of funds – the same persons had been charged with in criminal proceedings which were still pending. The CJEU ruled that the relevant legal instrument, Framework Decision 2005/212 on the confiscation of crime-related proceeds, instrumentalities and property (“the FD”), was not applicable in the present case, since the scope of the FD was limited to criminal proceedings, whereas under Bulgarian law the confiscation proceedings at stake were civil proceedings. Consequently, EU law did not preclude such confiscations.

What is somewhat striking about this ruling is that at no point the CJEU seems to have asked the question whether those confiscation proceedings, classified as civil under Bulgarian law, were not in fact criminal in nature, with totally different consequences, as is indeed suggested by the recent case-law of the ECHR in the case of G.I.E.M. S.R.L. and Others v. Italy (28.6.2018), which concerned a similar problem, i.e. confiscation measures applied without prior formal conviction for unlawful site developments.

In the latter case, rather than the formal approach based on domestic classifications, followed by the CJEU, a Grand Chamber of the ECHR went for a substantive approach guided by an autonomous interpretation of the relevant notions. Applying Article 7 of the Convention, which precludes the imposition of a penalty without a prior formal declaration of liability, the ECHR had to determine whether the impugned confiscations amounted to such a penalty. It thereby ruled that the domestic characterisation of confiscation measures or proceedings was, as such, not decisive in determining whether they were criminal or not. Rather, other criteria, such as the nature and purpose of such measures as well as their severity had also to be taken into account. The ECHR stated in particular:

The Court concludes that the impugned confiscation measures can be regarded as “penalties” within the meaning of Article 7 of the Convention. This conclusion, which is the result of the autonomous interpretation of the notion of “penalty” within the meaning of Article 7, entails the applicability of that provision, even in the absence of criminal proceedings within the meaning of Article 6. Nevertheless, … it does not rule out the possibility for the domestic authorities to impose “penalties” through procedures other than those classified as criminal under domestic law. (§ 233)

Consequently, such confiscation measures being criminal in nature, despite their different characterisation under domestic law, they could not have been lawfully ordered without a prior formal declaration of liability. This could also have been the answer under Convention law to the question asked by the referring court in the present case before the CJEU.

Had the CJEU adopted a similar, more substantive approach in determining the notion and scope of civil and/or criminal proceedings for the purpose of the FD, it could have extended the scope of the FD so as to cover the “civil” confiscations at stake, thereby allowing the safeguards relating to the protection of fundamental rights (Art. 4 and 5 of the FD) to apply in the present case. Instead, it would appear that in a case like this, only the Convention can help.