In the case of K.B. and F.S. (C-660/21, 22.6.2023), two suspects had been arrested in flagranti by the French police and interrogated without having been previously informed about their rights, notably the privilege against self-incrimination, the right to remain silent and the right to legal assistance by a lawyer. While this was a clear breach of Article 6 of the Convention (see Ibrahim and Others v. United Kingdom, § 273) and Article 3(1) and 4(1) of Directive 2012/13 on the right to information in criminal proceedings, French trial judges are prevented by Article 385 of the Code of Criminal Procedure, as interpreted by the Court of cassation, from raising that failure of their own motion in cases where it is open to the suspect or their lawyer to raise it themselves before the trial court with a view to the annulment of the procedure. The trial court in the case at hand interrogated the CJEU about the compatibility of this prohibition with EU law.

Relying on Salduz v. Turkey, the CJEU replied in substance that Union law did not preclude such a prohibition, provided that the suspect or the accused person concerned had had a practical and effective opportunity to have access to a lawyer (Art. 3 of Directive 2013/48/EU), had obtained legal aid if necessary (Directive 2016/1919) and had had access to their file and the right to invoke that breach within a reasonable period of time (Art. 8(2) of Directive 2012/13, read in the light of Articles 47 and 48(2) of the EU-Charter).

This solution is very much in line with the Strasbourg case-law on Article 6 of the Convention (right to a fair trial). In the landmark case of Ibrahim and Others v. United Kingdom, explicitly relied on by the CJEU, the ECtHR indeed stated:

In the light of the nature of the privilege against self-incrimination and the right to silence, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. … Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer and his right to silence and privilege against self-incrimination takes on a particular importance. (§ 273; in the same sense: Beuze v. Belgium, § 121)

This convergence with the Strasbourg case-law does not come as a surprise, since the CJEU had previously indicated that by virtue of Article 52(3) of the EU-Charter, when interpreting the rights guaranteed by the first and second paragraphs of Article 47 (right to an effective remedy and to a fair trial) and Article 48(2) of the EU-Charter (presumption of innocence and rights of the defence), it must take account of the corresponding rights guaranteed by Articles 6 and 13 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (§ 41).

Perhaps more surprising is what the CJEU added on how to handle a failure to properly inform a suspect on their right to remain silent:

Under the case-law of the European Court of Human Rights, where a procedural defect has been identified, it falls to the domestic courts to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 ECHR (ECtHR, 28 January 2020, Mehmet Zeki Çelebi v. Turkey, …, § 51). Thus, where a suspect has not been informed in due time of the privilege against self-incrimination and the right to remain silent, it is necessary to assess whether, notwithstanding this failure, the criminal proceedings as a whole can be considered fair, taking into account a series of factors, including whether the statements taken without such information having been given formed an integral or significant part of the probative evidence, and the strength of the other evidence in the case (see, to that effect, ECtHR, 13 September 2016, Ibrahim and Others v. The United Kingdom, …, §§ 273 and 274). (§ 48)

The CJEU here goes for the lower Strasbourg protection standard, i.e. the test of the “proceedings as a whole”, even though under EU law there is no obligation to do so and there would be room for a higher protection standard, such as the finding that any failure to comply with any of the safeguards laid down in the invoked directives on procedural rights would entail a breach of EU law, with all consequences in terms of procedural acts to be annulled as a result.

It is indeed the case that while the directives on procedural rights to a large extent draw on the Strasbourg case-law relating to Article 6 of the Convention (right to a fair trial), they do not explicitly deal with the consequences of a breach of their provisions. The CJEU now seems to have identified that lacuna and, as already in HYA and Others, to be willing to fill it by adopting the “proceedings as a whole” approach, which is not explicitly laid down in the Convention either but rather is the result of the interpretation by the ECtHR of the notion of fair trial.

However that may be, the approach now adopted by the CJEU makes it easier for national judges to deal with breaches of procedural fundamental rights, as there is convergence between Strasbourg and Luxembourg on the need to consider the fairness of domestic proceedings as a whole when assessing the legal consequences of such breaches.

Theoretically, though, a “breach-by-breach” approach, which in the past was not without any support in the Strasbourg case-law (see the discussion in Beuze v. Belgium, §§ 140-141), would have been possible too, as it would represent a higher protection standard for the suspect and both Article 52(3) of the EU-Charter and Article 53 of the Convention, as well as the non-regression clauses featuring in the directives on procedural rights, all allow the application of higher protection standards. That said, under the Convention there is of course no obligation on any State to raise the minimum Convention standard.

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)

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).

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.