Abstract

In Khuzdar (C-95/24) and Höldermann (C-447/24), the CJEU held that the ground for refusing recognition and enforcement of custodial sentences imposed following trials in absentia under Article 9(1)(i) of Framework Decision 2008/909 is optional. Consequently, even where none of the situations expressly listed in that provision applies, executing authorities may nevertheless recognise and enforce the judgment after taking into account all the circumstances of the case, including the conduct of the convicted person and his or her request to serve the sentence in the executing State.

This post argues that this approach is difficult to reconcile with the case law of the ECtHR, according to which a conviction rendered in absentia constitutes a flagrant denial of justice unless the accused has validly waived the right to appear or has subsequently been afforded the opportunity to obtain a fresh determination of the merits of the case. By allowing recognition and enforcement to proceed on grounds extending beyond a free, informed and unequivocal waiver, Khuzdar and Höldermann lower the Convention standard within the EU legal order, contrary to the objectives of Framework Decision 2009/299 and Article 52(3) of the Charter. The post concludes that, in the absence of a valid waiver of the right to a retrial or appeal, recognition and enforcement of convictions rendered in absentia should be refused.

Analysis

In Khuzdar (C-95/24) and Höldermann (C-447/24), both delivered on 21 May 2026, the CJEU deals with the mutual recognition of judgments involving custodial sentences handed down following trials in absentia. Both cases interpret Article 9(1)(i) of Framework Decision 2008/909, on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, as amended by Framework Decision 2009/299.

The facts and the rulings

In both cases, individuals were convicted of crimes in one EU Member State (the “issuing State”), allegedly without being present at their trials. They later sought to have those sentences enforced in their Member State of nationality or residence (the “executing State”) to facilitate their social rehabilitation.

Khuzdar is about a person residing in Italy who was sentenced in Slovakia and requested to serve his sentence in Italy to avoid surrender under a European Arrest Warrant. Höldermann is about a German national who was convicted in Poland and requested to serve his sentence in Germany.

Central to both rulings is the principle that under Framework Decision 2008/909, the ground for refusing recognition of a judgment rendered in absentia is optional. The following developments will focus on this aspect.

Observations

The distinctive feature of these two judgments, from a Convention perspective, lies in the impact of the mutual recognition of judgments imposing custodial sentences following trials conducted in absentia. According to the CJEU, the absence of the accused from his or her trial indeed does not necessarily preclude the recognition and enforcement of such judgments for the purpose of allowing the convicted person to serve the sentence in the executing State.

This approach raises a number of questions when viewed in light of the case law of the ECtHR. They are all the more pertinent because Recital 8 of the Preamble to Framework Decision 2009/299 requires the application of Framework Decision 2008/909 to comply with Convention standards, while Article 52(3) of the EU-Charter provides that the protection afforded under Article 48(2) of the Charter, which enshrines the right to a fair trial, must not fall below the level of protection guaranteed by Article 6 of the Convention.

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According to the ECtHR, the right of a criminal defendant to be present at trial – whether during the original proceedings or at a retrial – ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision. According to well-established case law:

“It is of capital importance that a criminal defendant should appear, both because of his or her right to a hearing and because of the need to verify the accuracy of his or her statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses … . For these reasons the Court has consistently held that when domestic law permits a trial to be held notwithstanding the absence of a person “charged with a criminal offence” that person should, once he or she becomes aware of the proceedings, be able to obtain from a court which has heard him or her a fresh determination of the merits of the charge … . The only situation where it is open to question whether this requirement applies is when the accused has waived his or her right to appear and to defend himself or herself, but at all events such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance … .” (Stoichkov v. Bulgaria, §§ 55-56).

The ECtHR added that a denial of justice occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been unequivocally established that this person has waived his or her right to appear and to defend him- or herself (§ 56).

Moreover, if a “conviction” is the result of proceedings which were a “flagrant denial of justice”, i.e. were “manifestly contrary to the provisions of Article 6 or the principles embodied therein”, the resulting deprivation of liberty would not be justified under Article 5 § 1 (a) of the Convention (§ 51). Criminal proceedings which have been held in absentia and whose reopening has been subsequently refused, without any indication that the accused has waived his or her right to be present during the trial, may fairly be described as “manifestly contrary to the provisions of Article 6 or the principles embodied therein”. (§ 56)

Before an accused can be regarded as having implicitly waived, through his or her conduct, an important right under Article 6, it must be shown that he or she could reasonably have foreseen the consequences of that conduct (Hermi v. Italy, § 74; Sejdovic v. Italy, § 87). This, in turn, presupposes that the defendant was properly made aware of the date, place, and purpose of the trial.

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Article 9(1)(i) of Framework Decision 2008/909 seeks to codify the various situations that may arise where recognition and enforcement are sought in respect of a criminal judgment rendered in absentia, with a view to allowing the sentence to be served in the executing State. It permits recognition to be refused where the defendant was not present at trial, unless it is established that the defendant was duly informed of the proceedings (point (i)); was represented by a legal counsel duly mandated for that purpose (point (ii)); or, after being informed of the right to a retrial or an appeal, either expressly indicated that he or she did not contest the judgment or failed to request a retrial or appeal within the prescribed time limit (point (iii)).

As the CJEU convincingly observed in Khuzdar, “in each of the situations referred to in those points, the recognition and enforcement of a sentencing judgment do not infringe the rights of the defence of the person concerned or the right to an effective judicial remedy and to a fair trial, as enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union … , since the person concerned is, in those situations, deemed to have waived, voluntarily and unambiguously, his or her right to be present at his or her trial” (§ 57).

The exceptions set out in Article 9(1)(i) of Framework Decision 2008/909 thus all relate to situations in which the defendant may be regarded as having waived the right to attend the criminal trial. Significantly, the national provisions transposing Framework Decision 2008/909 into German and Italian law treat this list of exceptions as exhaustive. Consequently, where none of the scenarios envisaged in Article 9(1)(i) applies, recognition and enforcement of a judgment rendered in absentia must be refused (Khuzdar, § 93; Höldermann, § 91). Given that an explicit or implied waiver constitutes the only exception recognised by the ECtHR to the right of the accused to attend his or her trial, this strict approach appears fully consistent with the Convention.

By contrast, relying on the wording of Article 9(1) (“the competent authority of the executing State may refuse”) and on Recital 15 of the Preamble to Framework Decision 2009/299 (“the grounds for non-recognition are optional”), the CJEU held that such legislation is incompatible with Article 9(1)(i). In its view, it deprives the competent authority of the executing Member State of the discretion to assess, in light of all the circumstances of the case, whether the rights of the defence of the person concerned may nevertheless be regarded as having been respected and, accordingly, whether the sentencing judgment should be recognised and enforced despite having been rendered in absentia (Khuzdar, §§ 93–94; Höldermann, §§ 91–92).

The CJEU therefore considers that, even where none of the three codified scenarios listed in Article 9(1)(i) applies, the competent authority of the executing Member State must nevertheless “take into account other circumstances that enable it to satisfy itself that the recognition and enforcement of the sentencing judgment concerned do not entail a breach of the rights of the defence of the person concerned, in particular the conduct of that person” (Höldermann, § 102; Khuzdar, § 90).

The CJEU continued:

“In those circumstances, the competent authority of the executing Member State may take into account an application, such as that made in the case in the main proceedings, to have the sentence enforced in the Member State in which the person concerned is a national and in which that person has his or her centre of interests, in order to decide that that enforcement does not involve a breach of his or her rights of defence, so that it is not necessary to apply the ground for non-recognition and non-enforcement provided for in Article 9(1)(i) of Framework Decision 2008/909, notwithstanding the fact that the conditions for applying the situations referred to in points (i) to (iii) of that provision are not satisfied.” (Höldermann, § 103; similar in Khuzdar, § 92).

In other words, the fact that the person concerned has applied to serve his or her sentence in the executing State could, according to the CJEU, remedy the violation of the rights of the defence resulting from the person’s absence at trial, such that enforcement of the resulting conviction would “not involve a breach of his or her rights of defence”.

This raises the question of which rights of the defence the CJEU has in mind. Is the ECtHR referring to the rights applicable during the trial that led to the conviction, or to rights arising at the enforcement stage? In particular, what rights of the defence remain to be protected at the stage of enforcing a criminal conviction that could be sufficiently significant to offset the violation of one of the most fundamental rights of the defence at the trial stage: the right of the accused to be present at his or her criminal trial? The CJEU’s silence on this point strongly suggests that there are none.  

This is also why enforcement proceedings generally fall outside the scope of the right to a fair trial under the criminal head of Article 6 of the Convention (Enea v. Italy, § 97). Accordingly, the only rights of the defence that appear relevant in the present context are those applicable to the criminal proceedings conducted in absentia.

Accordingly, the CJEU seems to suggest that the violation of the defendant’s right to be present at trial may be cured by allowing the custodial sentence to be executed in the executing State, having regard to the circumstances of the case, the conduct of the convicted person and, in particular the latter’s request to be allowed to serve his or her sentence in the executing State.

The referring court in Khuzdar rightly pointed out, however, that enforcement presupposes recognition of the judgment (§ 23). Consequently, the CJEU’s approach could only be persuasive if a request to serve the sentence in the executing State were automatically understood as entailing a waiver of the right to seek a retrial or appeal. For in the absence of such a waiver, a conviction in absentia would entail a flagrant denial of justice (see above) which would in turn preclude recognition of the judgment. Yet whether such a request actually entails such a waiver will depend on the circumstances of each case, not least on whether the convicted person has been properly informed about its consequences.

The quality and reliability of a waiver in such circumstances is another question arising here. One can indeed readily envisage situations in which pressure may be exerted on convicted persons to waive their right to a retrial in exchange for authorisation to serve their sentence in the executing State. The prospect of serving a sentence closer to one’s family and social environment could become the price for relinquishing a fundamental procedural guarantee.

In any event, the CJEU itself appears to reject any automatic equation between such a request and a waiver of the right to seek a retrial or appeal. In Khuzdar, it stated:

“… it is possible for the competent authority of the executing Member State to take into account such a request and, as the case may be, the desire not to rely on a possible right to a new judgment in order to decide that that enforcement does not entail a breach of his or her rights of defence, so that it is not necessary to apply the ground for non-recognition and non-enforcement provided for in Article 9(1)(i) of Framework Decision 2008/909, notwithstanding the fact that conditions for applying the situations referred to in points (i) to (iii) of Article 9(1)(i) are not satisfied”. (§ 92, emphasis added)

Interestingly, the German referring court in Höldermann had limited its question to whether, in the circumstances of the case, and in light of the defendant’s contradictory conduct – having first requested the enforcement of his sentence in Germany and subsequently challenged his conviction – the defendant’s request should be regarded as entailing a waiver of his right to a retrial (§§ 37–40). The CJEU, however, did not answer that specific question. Instead, it developed a broader theory concerning the discretionary power of the competent authority of the executing State to rely on circumstances other than those listed in Article 9(1)(i) of Framework Decision 2008/909 in concluding that the defence rights of the person concerned would not be infringed.

The fact remains, though, that a request to serve a sentence in the executing State and a waiver of the right to a retrial are distinct concepts. They cannot simply be conflated. Nor can such a request automatically be construed as an implied waiver, unless the person concerned has been adequately informed of the legal consequences attaching to it. Hence, without an informed and unambiguous waiver, such a request cannot remedy the flagrant denial of justice inherent in a criminal conviction rendered in absentia, provided of course that the conviction at stake has in fact occurred in absentia, which is a matter for the domestic courts to determine (Khuzdar, § 86; Höldermann, § 95).

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In light of the Strasbourg case law, which recognises only a free, informed and unequivocal waiver as a valid exception to the right to attend the trial in person, Khuzdar and Höldermann, to the extent that they extend the scope of exceptions to the conduct of the person concerned or the mere request for a service of the sentence in the executing State, lower the Convention protection level within the EU legal order, something the EU legislature obviously did not intend.

Article 1 of Framework Decision 2009/299 indeed defines the objectives of Framework Decision 2008/909 as follows:

“1. The objectives of this Framework Decision are to enhance the procedural rights of persons subject to criminal proceedings, to facilitate judicial cooperation in criminal matters and, in particular, to improve mutual recognition of judicial decisions between Member States.

2. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty, including the right of defence of persons subject to criminal proceedings, and any obligations incumbent upon judicial authorities in this respect shall remain unaffected.”

Likewise, Recital 1 of the Preamble to Framework Decision 2009/299 provides:

“The right of an accused person to appear in person at the trial is included in the right to a fair trial provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights. The Court has also declared that the right of the accused person to appear in person at the trial is not absolute and that under certain conditions the accused person may, of his or her own free will, expressly or tacitly but unequivocally, waive that right.”

In light of these provisions, it seems clear that, while the EU legislature sought, through Framework Decision 2008/909, to strengthen the mutual recognition of judicial decisions between Member States, it did not intend this objective to be pursued at the expense of the rights of the defence as guaranteed by Article 6 of the Convention and interpreted by the ECtHR. Article 52(3) of the EU-Charter would likewise appear to preclude such a result.

The ECtHR, for its part, stated in Avotiņš v. Latvia:

“The Court is mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require. … 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.” (§§ 113–114, emphasis added)

And the ECtHR added:

“… if a serious and substantiated complaint is raised before [the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union] 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 simple terms, Article 6 of the Convention, by which both the issuing and the executing State remain bound when applying EU law, limits the optional character of Article 9(1) of Framework Decision 2008/909.

Consequently, the only possibility for the competent authority of the executing State to avoid violating Article 5 § 1 (a) of the Convention by enforcing a custodial sentence which amounts to a flagrant denial of justice is to enquire about the existence of an unequivocal waiver by the convicted person of his or her right to a retrial or an appeal. In the absence of such a waiver, recognition and enforcement of the judgment should be refused and a retrial or appeal in the issuing State allowed to take place.

After G.K. and Others and EPPO (judicial review of procedural acts), Mincu Pătrașcu Brâncuși v EPPO (C-328/24 P, 16.4.2026) is another case in which the CJEU clarified the particular structure of the European Public Prosecutor’s Office (EPPO), as provided by Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the Regulation”).

The importance of this case lies in the fact that it confirms, through detailed reasoning, the key role played by national courts in ensuring an effective judicial review of procedural acts by the EPPO which produce legal effects vis-à-vis third parties.

In the present case, the appellant challenged Article 42(1) of the Regulation, the first sentence of which provides that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law.

The appellant had brought an action before the General Court against a decision by the EPPO referring his case to trial. The General Court dismissed the action on the ground that, having regard to Article 42(1) of the Regulation, it lacked jurisdiction to hear and determine it. Before the CJEU, the appellant challenged that dismissal. He contested Article 42(1), arguing that denying the General Court jurisdiction over such EPPO acts violated his right to an effective remedy and to a fair trial, as guaranteed by Article 47 of the EU-Charter.

The CJEU dismissed the appeal. After emphasizing that Article 86(3) TFEU expressly allows the EU legislature to determine the rules applicable to the judicial review of procedural measures taken by the EPPO, it noted the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). Because the legal effects of EPPO acts were largely determined by national law, national courts were “best suited” to carry out judicial review of these procedural acts (§ 82). Article 42 thus established a specialized system in which national courts review procedural acts, while EU courts retain exclusive jurisdiction over administrative decisions, data protection issues, and decisions to dismiss a case (where challenged on EU law grounds).

Accordingly, Article 42(1) was held to be fully consistent with the complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, as established by the TFEU (§ 100). In particular, this provision was found to respect the right to effective judicial protection guaranteed by Article 47 of the EU-Charter, since it ensured the procedural fairness and the rights of the defence of persons affected by the procedural acts of the EPPO (§ 98).

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Having regard to the hybrid structure of the EPPO system, the repeated reference by the CJEU to the “complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts” (§§ 66 and 100) would appear to take on a special significance. In the highly specific context of hybrid EU institutions which rely extensively on national institutions applying national law, one may legitimately question whether the system of judicial protection concerning EPPO acts, as described by the CJEU, is in fact as complete as the CJEU suggests.

This question arises because the CJEU’s description entirely omits the impact of the European Convention on Human Rights on domestic judges applying their own national law by virtue of Article 42 of the Regulation, thereby implicitly suggesting that the completeness of judicial protection in this field results solely from the interaction between national law and EU law.

The reality, however, is different. As the CJEU itself emphasizes, the reason why national courts have jurisdiction over the procedural acts covered by Article 42(1) of the Regulation lies in the substantial level of integration of the EPPO within the Member States’ systems of criminal procedure (§ 70). In practice, national courts are likely to be involved far more frequently than EU courts in litigation concerning EPPO acts, since Article 42(1) of the Regulation grants them exclusive jurisdiction over all procedural acts of the EPPO affecting persons directly targeted by those acts. As expressly provided by Article 42(1), their review is to be conducted in accordance with the requirements and procedures laid down by national law.

Procedural fairness and the rights of the defence can be expected to play a central role in this type of litigation (§ 98). Yet, at national level, these matters are to a very large extent governed by the Convention, in particular Article 6 thereof, which constitutes a mandatory minimum level of protection that Member States remain free to enhance, including in response to EU law requirements.

First, national judges remain bound by the Convention when applying EU law and are therefore required to interpret and apply EU law consistently with the Convention (see, among others, Bivolaru and Moldovan v. France, § 103). Pending confirmation by the ECtHR, there is no reason why this would be any different when they apply their own national law pursuant to Article 42(1) of the Regulation.

Secondly, the Strasbourg case-law concerning the criminal limb of Article 6 of the Convention, developed over more than seventy years, is clearly far more extensive and detailed than the case-law so far developed by the CJEU on the basis of EU law, including Article 47 of the EU Charter and the Directives on procedural rights in criminal proceedings. For an overview of that case-law, see the Guide on Article 6 (criminal limb) by the Registry of the ECtHR.

It is therefore unsurprising that the CJEU relies extensively on Strasbourg case-law when interpreting these Directives and seeking to fill their numerous lacunae. Examples include VB II, Stachev, K.B. and F.S., Politseyski organ pri 02 RU SDVR, HYA and Others, HN and DD, Spetsializirana prokuratura, IS and the Opinion of Advocate General Ćapeta in European Commission v. Hungary and European Commission v. Czech Republic).

Thirdly, such reliance on the Convention is mandated by Article 52(3) of the EU-Charter, which imposes the Convention minimum standard across EU law, and by the non-regression clauses contained in those Directives..

Accordingly, the detailed minimum standards resulting from Strasbourg case-law in the field of criminal proceedings constitute an essential component of the “complete” protection of fundamental rights ensured at national level in respect of procedural acts of the EPPO which, however, the CJEU attributes solely to Articles 47 and 48 of the EU-Charter.

To disregard the contribution of the Convention in the context of hybrid institutions — where that contribution is not only indirectly required under EU law but is also necessary because of the lacunae of EU law in this field — is therefore even more problematic than elsewhere. More than in any other context, hybrid institutions demonstrate that the effects of EU law cannot adequately be understood in isolation from those of the Convention.

In other words, if the Convention is omitted from the description of the system of judicial protection, that system can be regarded as “complete” only in a very formal sense and from the perspective of EU law alone. From a substantive and holistic domestic perspective, however, it remains incomplete, thereby creating a risk of misunderstanding.

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That said, as long as the EU will not have acceded to the Convention (on this accession, see The European Commission requests an Opinion by the CJEU), the protection afforded by the Convention will itself remain incomplete with regard to hybrid institutions involving EU officials operating within a domestic legal context. As noted in a previous post concerning W.S. and Others v. Frontex:

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention.

This marks the end of the complete Convention protection as described by the ECtHR in the following terms:

“Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention.” (among many others: Matthews v. the United Kingdom, § 29).

These new gaps in the Convention protection make the case for accession by the EU to the Convention even more compelling (see Accession of the EU to the ECHR: a logical response to the optionality of the ECHR in EU Law, p. 11 et seq.).

Rzecznik Praw Obywatelskich (Recusal of a judge of ordinary jurisdiction) (C-521/21, 24/03/2026) represents another instalment in the sequence of judgments addressing the rule of law crisis in Poland. This time, however, the focus is not on the procedure for the appointment of judges, but on the recusal of a judge appointed by a procedure which both the CJEU and the ECtHR have found to be incompatible with the right to an independent and impartial tribunal established by law.

The particular background to this ruling is the challenge resulting from the fact that currently around 30 % of the Polish judiciary – some 3,000 judges – have been appointed according to that same irregular procedure (§ 58). The present ruling is an attempt by the CJEU to come to terms with the consequences of this situation for the Polish judicial system in general and for the proper functioning of the preliminary ruling mechanism in particular. The CJEU thereby invokes the case-law of the ECtHR but in a way which perhaps raises more questions than it answers.

The CJEU’s ruling

In the course of the main proceedings, which concerned a claim under a contract for services, the defendant applied for the recusal of Judge S.C. He argued that the judge was not validly appointed because the resolution for her appointment had been adopted by the National Council of the Judiciary (KRS) in its new composition, the latter being at the root of the lack of independence of the judges appointed according to this procedure. The referring court expressed doubts about this appointment and about its own jurisdiction under EU law to deal with this recusal request.

In substance, the CJEU ruled that EU law and the principle of primacy preclude national legislation and constitutional case-law which grant exclusive jurisdiction to a body to adjudicate on recusal applications while depriving that body of the power to actually examine the lawfulness of the appointment. The national court hearing the recusal application must disapply these restrictions and carry out the examination itself to determine if the judge meets the requirement of a tribunal previously established by law.

The CJEU also held that the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

Observations

From a Convention point of view, this ruling calls for two series of observations, on the methodology applied by the CJEU and on its approach in respect of the systemic nature of the irregular judicial appointments in Poland.

On the methodology: context-based approach or essence-based approach?

To date, judicial independence has been an area in which a high degree of harmony could be observed between the two European Courts. This convergence is particularly visible in their approach to the ongoing rule-of-law crisis in Poland, including their understanding of the core requirements of such principles as the rule of law, the separation of powers, effective judicial protection, and the independence and impartiality of judges (see W.Ż). These foundational principles are restated in paragraphs 41 to 50 of Rzecznik.

The CJEU and the ECtHR also agree on the need not to be overly formalistic in assessing compliance with these principles, emphasizing that not every procedural or legal error should automatically entail consequences (§ 76; Guðmundur Andri Ástráðsson v. Iceland, § 246, quoted below).

However, some differences appear as regards the methodology flowing from this premise. The CJEU indeed goes for an overall assessment of the impugned appointment procedure which takes into account the broader context in which the alleged breaches occur, thereby having regard to their nature and gravity. It comes down to finding out whether taken together, the factors making up the context of an appointment as judge create in the minds of individuals a reasonable doubt as to the imperviousness of that judge to external factors (§§ 77-78).

Thus, according to the CJEU, the appointment of a judge recommended by a non-independent body, i.e. the KRS, and the lack of an effective judicial remedy for other candidates does not, in itself, preclude the judge from being considered an independent and impartial tribunal. For such an appointment to fail the requirements of EU law, there must be other relevant contextual factors attending the procedure that are of such gravity that, when taken together, they call into question the judge’s independence or impartiality.

The CJEU itself applied this methodology to the case of the judge being recused before the referring court, thereby also considering such factual circumstances as the absence of judicial challenges to the impugned appointment and the professional record of the judge since his/her appointment (§§ 89-92).

With this context-based approach, the CJEU seems to be shifting from its previous position which more closely relied on the Strasbourg approach, as in W.Ż. The ECtHR indeed goes for an essence-based approach, which comes down to finding out, through a three-step methodology, whether the very essence of the right to a tribunal established by law has been irretrievably undermined by a judicial appointment. Factual circumstances are not among the criteria used by the ECtHR in this context. In Guðmundur Andri Ástráðsson v. Iceland the ECtHR stated:

“Breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement.” (§ 246; to the same effect, see also Dolińska-Ficek and Ozimek v. Poland).

Thus, while Strasbourg and Luxembourg have the same concerns, they differ in their methodology. Do these differences really matter? At any rate, even if they do not seem radical, they have at least the potential to create some confusion in the minds of national judges – who are indeed bound to apply EU law in conformity with the Convention (see, to that effect, inter alia Bivolaru and Moldovan v. France, § 103) – as to the criteria which are decisive in assessing whether an irregular judicial appointment undermines or not the independence and impartiality of a judge.

For example, one striking difference in this context is the role played by appearances. Whereas, in assessing the independence and impartiality of judges, the CJEU does rely on the role of appearances and on the importance of reasonable doubts created by these appearances (§§ 70, 71, 74, 76, 78), the ECtHR here follows a different line of reasoning. While it very much relies on appearances in assessing the impartiality of judges (see most recently Tsatani v. Greece, § 65), it adopts a different approach when assessing the independence of courts. In Guðmundur Andri Ástráðsson v. Iceland, § 247, the ECtHR indeed stated:

“The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right … In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time.”

One may wonder whether the European Courts, by adopting such conflicting positions, ultimately undermine rather than reinforce fundamental rights, as their joint application becomes increasingly difficult for national judges.

On the systemic nature of the irregular appointments: the power of the facts vs. the power of the law?

However, the bigger novelty of Rzecznik would appear to be the approach proposed by the CJEU for addressing the systemic nature of the problem arising from the around 3,000 Polish judges who have been irregularly appointed, such as Judge S.C. in the present case, making up some 30 % of the current judiciary in that country.

At the heart of this issue is a fundamental tension. On the one hand, there is the need to uphold the principle of separation of powers and to ensure compliance with the requirements of judicial independence. On the other hand, however, there is a pressing concern to preserve the continuity and effectiveness of the administration of justice in a situation characterised by the fact that 30 % of the current judges have been irregularly appointed. This latter consideration is particularly salient with regard to the preliminary ruling mechanism, the proper functioning of which risks being seriously affected, if nothing changes, by the jurisprudence declaring inadmissible requests originating from improperly composed courts, such as the CERPA (§§ 61, 63, 85).

As a way out of this dilemma, the CJEU now interprets the second subparagraph of Article 19(1) TEU as imposing on the Polish “legal order” an obligation to establish a legislative framework enabling an assessment, having regard to the nature and gravity of the procedural defects, of whether individuals irregularly appointed to judicial office may continue to exercise their functions. While this obligation goes with a broad margin of discretion for national authorities, it is not without limits: the assessment must be guided by objective criteria and must ensure sufficient guarantees of independence and impartiality (§§ 63-65).

The direction of travel seems clear: the independence requirements should be softened to avoid the permanent exclusion of significant parts of the Polish judiciary from access to the preliminary ruling mechanism, with consequences for the interpretation of EU law in Poland.

Though perfectly understandable, this approach raises quite a few questions, not least on the substantive content of such criteria, the determination of which is left in the hands of the national “legal order”, even though this is about an EU law issue. Yet, it may be assumed that the contextual factors referred to by the CJEU in relation to Judge S.C. (§§ 91-92) are intended to inform this national determination.

In any event, the CJEU’s reasoning appears to open the door to a shift in paradigm: from institutional and procedural guarantees of independence towards an assessment of factual circumstances, such as the personal professional conduct of the judge concerned, as a potential substitute or corrective mechanism. The power of the facts vs. the power of the law?

Interestingly, in support of this approach, the CJEU relies on the pilot-judgment procedure applied by the ECtHR in Wałęsa v. Poland under Article 46 of the Convention (§ 62). However, a closer look reveals that the two European Courts do not entirely converge on this point.

In Wałęsa, the ECtHR endorsed the indications given to Poland by the Committee of Ministers of the Council of Europe following previous judgments against Poland. In this context, the Polish authorities are ordered to adopt measures addressing “the status of all judges appointed in the deficient procedure involving the [KRS] as constituted under the 2017 Amending Act and of decisions adopted with their participation” (§ 329). Thus, the ECtHR and the Committee of Ministers are less explicit than the CJEU on whether the envisaged legislative framework should specifically aim at allowing irregularly appointed judges to continue to perform their duties. Not least because the ECtHR has no preliminary ruling mechanism to preserve as the CJEU has.

The ECtHR also emphasised: “It goes without saying that the Polish State must ensure that the issues pertaining to the independence of judges are determined by a court or courts which are themselves an ‘independent and impartial tribunal established by law’ in the light of the Convention standards.” (§ 330)

Most importantly, under the Strasbourg pilot-judgment mechanism, compliance by the State with its obligations under Article 46 of the Convention is monitored by an external European body, the Committee of Ministers. One may wonder about the existence of any external supervision of compliance by Poland with its obligations flowing from the Rzecznik jurisprudence. Will this be a task for the European Commission or for the CJEU itself?

Finally, it should also be noted that the implementation of the ECtHR’s judgment in Wałęsa has been postponed: the initial deadline for the adoption of the required measures has been extended by the ECtHR, at the request of the Polish Government, until 23 November 2026 (see Comparing AW ‘T’ with Walesa v. Poland). Consequently, the coming into being of any legislative framework requested by the European Courts is likely to take more time.

In the interim, in the absence of a comprehensive legislative solution, the question arises whether the ordinary Polish judges dealing with recusal requests will find a way to combine the Luxembourg context-based approach with the Strasbourg essence-based approach. The importance of their challenging task can hardly be overestimated. What is at stake is nothing less than the future of judicial independence in Europe.

The ruling by the CJEU in WS and Others v. Frontex (C-679/23 P, 18.12.2025), given on an appeal against a judgment by the General Court (T-600/21), represents a clarification of the fundamental rights obligations of the European Border and Coast Guard Agency (Frontex), with significant implications for the Convention protection system.

The facts underlying this ruling involve a Syrian Kurdish family consisting of two parents and four children who arrived on the Greek island of Milos in October 2016. Shortly after their arrival, they were transferred to a reception and identification centre, where they expressed their desire to apply for international protection. The family was nonetheless deported to Turkey, via a joint return operation coordinated by Frontex.

The family alleged that this removal occurred without any written or enforceable return decisions being issued by the Greek authorities, which they argued violated the principle of non-refoulement and their fundamental rights.

The family sued Greece before the ECtHR, resulting in a friendly settlement where Greece agreed to pay the family a total of 75,000 euros for damages.

In September 2021, the family brought an action for damages against Frontex in the General Court, seeking approximately 136,000 euros for material and non-material harm.

The current ruling by the CJEU arose from the family’s appeal after the General Court had dismissed their claim, primarily on the grounds that there was no direct causal link between Frontex’s actions and the family’s damages. The CJEU disagreed with these findings and referred the case back to the General Court.

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One of the main findings of this ruling on which this post will concentrate is that, contrary to what the General Court had considered, Frontex (European Border and Coast Guard Agency), as an Agency of the EU created in order to improve the integrated management of the external border of the EU (Hamoudi v. Frontex, § 66), cannot escape all extra-contractual liability when it cooperates with Member States to ensure the return of asylum seekers.

In the case at hand, the liability invoked by the appellants mainly concerned a) their inclusion in a return operation from Greece to Turkey without them having been the subject of written return decisions, and b) infringements of their fundamental rights committed during their return flight to Turkey, notably the principle of non-refoulement.

The General Court had denied the existence of a direct causal link between the alleged damage and Frontex’s actions, considering that the latter were of the sole responsibility of Greece. In its opinion, Frontex only had to provide technical and operational support to the Member States (§ 92). It had no obligations in respect of joint return operations organized by the Member States (§ 124).

However, the CJEU is of a different opinion. Referring to Article 51(1) of the EU-Charter and the relevant provisions of Regulation 2016/1624 on the European Border and Coast Guard – now replaced by Regulation 2019/1896 – it comes to the conclusion that “in the light of the specific obligations which Regulation 2016/1624 imposes on Frontex in the context of the coordination of joint return operations, that agency is required to verify that such decisions exist for all persons whom a Member State intends to include in such operations, in order to ensure that they comply with the requirements arising from that regulation and with the fundamental rights of the persons concerned, and in particular the principle of non-refoulement.” (§ 102)

As regards the damage allegedly incurred by the appellants as a result of their forced return to Turkey, the CJEU ruled that while, under Article 42(1) of Regulation 2016/1624, the host Member State is in principle to be held liable for any damage caused by members of the European Border and Coast Guard, Frontex is nonetheless under a set of obligations intended to ensure respect for fundamental rights in the context of joint return operations. It can therefore not be excluded a priori that a breach of those obligations by its departments or staff in the context of a particular operation may have contributed to infringements of fundamental rights taking place during a return flight (§ 132).

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From a Convention point of view, this ruling is particularly interesting in that it confirms that the hybrid structure of the European Border and Coast Guard (EBCG), resulting from its institutional and operational association of national and EU components, also produces a hybrid form of non-contractual liability for breach of fundamental rights, with Frontex bearing part of that liability, along with the Member States. As Recital 6 of Regulation 2016/1624 puts it, the European integrated border management is a matter of shared responsibility of Frontex and the national authorities responsible for border management.

In this respect, the EBCG bears some resemblance with the European Public Prosecutor’s Office (EPPO), which is another hybrid EU entity operating on the basis national and EU authorities cooperating on the ground (see An Elephant in the Room: the European Convention on Human Rights and the EPPO).

EBCG and EPPO represent a challenge for the Convention system in that they both rely in part on EU entities and officers which, because the EU is not itself a Contracting Party to the Convention, are not subject to the latter (on this, see Bosphorus v. Ireland, § 152), whereas the national components of EBCG and EPPO are. This results in a legal duality as regards the fundamental rights applicable to the actions which these two bodies undertake. Consequently, potential victims of these actions must base their claims on different sets of fundamental rights. Not only does this represent a heavier burden for these persons, it is also a challenge to legal certainty and legal coherence. The impact of the EPPO hybrid structure on the application of the Convention has been described in detail in No case to answer for the EPPO?.

WS and Others is a perfect illustration of this duality and of the resulting increased complexity. Indeed, before going before the General Court with their claim against Frontex based only on EU law, the appellants had filed an application against Greece with the ECtHR, which gave rise to a friendly settlement, based on the sole Convention (§ 35). In this connection, the CJEU also makes it clear that the non-contractual liability to be assumed by Frontex is under EU law only (§ 127).

From a Convention perspective, these hybrid constructions operating within the territory and jurisdiction of the Member States represent a new situation. It is no longer a Bosphorus-type scenario in which national authorities are the sole bodies responsible for applying EU law and thereby ensuring the full application of the Convention to all actions undertaken by them, even when those actions are based on EU law. Instead, full coverage by the Convention is being replaced by a “patchwork coverage”, with gaps in the Convention’s applicability emerging where actions within the jurisdiction of the Member States are carried out by EU entities or officers acting on behalf of the EU itself and therefore not subject to the Convention. (Bosphorus v. Ireland, §§ 137 and 152).

In the specific context of Europol, which is another hybrid entity, the CJEU even acknowledged a form of joint and several liability between Europol and a Member State, allowing a claim for compensation for a breach of the confidentiality of personal data to be brought in its entirety either before the EU courts or before the national courts, at the claimant’s choice (Kočner v. Europol).

In response to these concerns, one may of course refer to the EU-Charter and its Article 52(3) which is designed to ensure coherence between the EU and Convention protection levels. However, in spite of this Article 52(3), which is meant to guarantee compliance with the Convention as minimum protection level under EU law, this compliance in practice turns out to be purely optional in the case-law of the CJEU, resulting in some significant protection deficits (see A logical response to the optionality of the Convention).

Moreover, this “patchwork coverage” clashes with the principle according to which “Article 1 [of the Convention] … does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention” (Bosphorus v. Ireland, § 153). With hybrid EU entities ensuring part of the law-enforcement in the Member States, part of what is taking place within the “jurisdiction” of the Member States now falls outside the scope of the Convention and is therefore no longer subject to the external scrutiny by the ECtHR.

Yet, this external scrutiny by the ECtHR has always been seen as an essential component of an effective protection of fundamental rights in Europe. This is also why the European legislature in Art. 6(2) TEU enjoined the EU to accede to the Convention. The rise of EU hybrid entities is one more good reason for the EU to go ahead with this accession, as it would put an end to the patchwork coverage by the Convention in this area, by making the EU and its entities subject to the Convention, on an equal footing with the Member States (on the current state of the accession process, see The European Commission requests an opinion by the CJEU). In the meantime, however, the patchwork coverage will continue. It can therefore only be hoped that the optionality of the Convention in EU law will not.

In the case of Nuratau (5.6.2025, C-349/24), the CJEU ruled on the interpretation of Article 3 of the Qualification Directive (2011/95), which allows EU Member States to adopt more favourable standards for granting international protection, provided they are compatible with the Directive. ​ The case involved A.B., a third-country national in the Czech Republic, whose application for international protection was rejected three times by the Ministry of the Interior. ​ A.B. argued that his removal to his country of origin would violate his right to private life due to the severing of his ties with the Czech Republic. ​

The CJEU clarified that subsidiary protection under the Qualification Directive is intended to address risks of serious harm in the applicant’s country of origin, such as the death penalty, torture, or threats due to violence. ​ It does not cover risks related to the applicant’s private life in the Member State examining the application. ​ Therefore, national legislation granting subsidiary protection based on the severing of ties with the host Member State is not within the scope of the Directive and cannot be considered a “more favourable standard” under Article 3. ​ Thus, this provision does not allow national legislation to grant subsidiary protection based solely on the risk of breaching the applicant’s right to private life.

However, the CJEU noted that Member States are free to grant residence permits or protection on humanitarian grounds under their national laws for reasons unrelated to the applicant’s country of origin, as long as such protection is distinct from the refugee or subsidiary protection status under the Qualification Directive. ​ Additionally, the Court emphasized that any return decision or removal order made under the Return Directive (2008/115) must respect the fundamental rights of the individual, including the right to private life, as guaranteed by the EU Charter of Fundamental Rights. Consequently, ​a return decision or a removal order cannot be adopted if it infringes the right to respect for the private life of the third-country national concerned.

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This judgment not only highlights the limits of EU law in safeguarding the right to private life within the framework of international protection, it also is a striking example of how the CJEU closes itself off to a holistic approach, even in cases where it would be most needed.

While the CJEU reaffirmed that Member States may adopt more favourable standards under Article 3 of the Qualification Directive, it ruled that such discretion cannot extend to granting subsidiary protection solely on the basis of a risk to private life arising from the severance of personal ties with the host Member State. At the same time, it left open the possibility for Member States to grant residence on humanitarian grounds under national law.

In this domestic context, the CJEU referred to the EU Charter. Mindful of Article 51(1) of that Charter, which limits the latter’s scope to that of EU law, the CJEU established the connection between the applicant’s circumstances and EU law through a possible application of the Return Directive, giving rise to a decision to return or remove the third-country national.  

At this juncture, two important aspects appear to have been overlooked by the CJEU. First, when national authorities, as suggested by the CJEU, rely on domestic law to determine whether a third-country national should be permitted to reside in the country, they are unlikely to base their assessment on the Return Directive, whose very purpose is to facilitate removal rather than residence. Secondly, Article 8 of the Convention remains applicable in any event, even where the Return Directive ultimately governs the case.

This is because under the Convention, domestic courts confronted with a claim that deportation would result in a serious interference with private or family life are required – regardless of whether EU law applies – to assess the claim in light of Article 8. The ECtHR has developed a rich and nuanced body of case law setting out the criteria for such assessments (see the Guide on Article 8 of the Convention, at §§ 328-330)).

Thus, seen from a broader human rights perspective, Nuratau indirectly highlights the importance of the Convention as a complementary, or indeed as the primary safeguard in a context like the present one. While the Convention does not confer any right to asylum or international protection (N.D. and N.T. v. Spain, § 188), its Article 8 does operate to preclude deportation where such deportation would entail a disproportionate interference with the individual’s private or family life.

This principle also finds resonance within EU law through Article 52(3) of the EU-Charter, which provides that rights in the EU-Charter corresponding to those in the Convention must be interpreted consistently with the latter. Thus, even in the context of the Return Directive, the substantive protection offered by Article 8 of the Convention ought to inform the interpretation and application of EU law.

That said, the Convention framework and the EU legal order do not coincide entirely. Article 8 of the Convention, while capable of preventing removal, does not generate the broader entitlements attached to EU subsidiary protection – such as a residence permit, access to employment, education, or social welfare. Where the Qualification Directive does not apply, these matters remain governed by national law.

The outcome is a fragmented landscape in which the level and nature of protection depend on whether the case falls within the scope of EU secondary legislation or instead under the residual guarantees of the Convention. One can only regret the complete silence of the CJEU on the relevance and impact of Article 8 of the Convention in this context.

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Nuratau therefore illustrates, with particular clarity, the complex interaction between EU law, national humanitarian discretion, and the Convention system. It also exposes the CJEU’s reluctance to engage with the broader legal landscape: despite the Convention’s clear relevance in cases such as the present one, the CJEU refrains from acknowledging it as part of the interpretative framework. In doing so, it misses one more opportunity to promote a more integrated approach to fundamental rights protection in Europe – one that would provide clearer guidance to national courts faced with such hybrid cases.

This reluctance is all the more worrying given that there are examples to the contrary. One of them is Dereci and Others, which concerned an issue not too remote from the issue at stake in Nuratau: the right of residence of third country nationals who sought to join their European Union citizen family members. In this case, a Grand Chamber of the CJEU explicitly addressed the interplay between EU law and the Convention in the following way:

“In the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR. All the Member States are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.” (§§ 72-73)

In light of this statement, by disregarding the possibility of a more holistic approach and presenting only a limited, fragmented view of the fundamental rights landscape as it exists in practice, Nuratau represents a regrettable step back in the CJEU’s role in assisting domestic courts and citizens in navigating Europe’s complex and fragmented framework of fundamental rights.

Be that as it may, the key takeaway for domestic judges and prosecutors is that Article 8 of the Convention invariably applies to claims by third-country nationals who allege a risk of violation of their right to private or family life in the event of deportation, regardless of whether EU law is applicable.

In the case of Alace and Canpelli (joined cases C-758/24 and C-759/24, 1.8.2025), the CJEU ruled on the application of the concept of “safe country of origin” and its consequences.

In the CJEU’s press release, the facts of this case are summarized as follows.

The case concerns two Bangladeshi nationals who were rescued at sea by the Italian authorities and taken to a detention centre in Albania under the Italy-Albania Protocol, which establishes a detention and repatriation centre on Albanian territory, but subject to Italian jurisdiction. Their application for international protection was examined under the accelerated border procedure by the Italian authorities, which rejected it as unfounded, on the ground that their country of origin is considered ‘safe’.

Under the Procedures Directive (2013/32), Member States may accelerate the examination of applications for international protection and conduct it at the border where those applications are made by nationals of countries considered to offer adequate protection. In Italy, that designation of third countries as safe countries of origin has been effected, since October 2024, by a legislative act. Under that act, Bangladesh is considered in Italy to be such a ‘safe country of origin’.

The applicants challenged the rejection decision before the Rome District Court, which made a reference to the CJEU in order to clarify the application of the safe country of origin concept and the Member States’ obligations in terms of effective judicial review.

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The findings of the CJEU in this case can be summarized as follows:

• EU law allows Member States to designate third countries as safe countries of origin by legislation, but such designations must be open to effective judicial review, ensuring compliance with the material conditions in Annex I of the Directive.
• The sources underlying such designations must be sufficiently accessible to applicants and courts to guarantee effective protection of rights; national courts may also rely on their own reliable information, provided both parties can comment on it.
• Until Regulation 2024/1348 takes effect (expected 12 June 2026, unless advanced), Member States may not designate as safe any country that fails to meet the material conditions for certain categories of persons.

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The main issue before the CJEU was about whether it makes any difference when the designation of a country as safe is the result of a legislative act. In essence, the CJEU’s response, based on an interpretation of Article 46 of the Procedures Directive, is that the legislative origin of this designation does not matter much: While there is no principled objection against such a designation being made through a legislative act, the effectiveness of the remedy nonetheless requires that the designation as safe country of origin, which has to comply with the criteria set out in Annex I to the Procedures Directive, must be open to judicial review in an individual case.

This in turn requires that the information on which the designation is based be made accessible both to the applicant and the competent judicial authority for adversarial comments. Since the designation as safe country is only a rebuttable presumption of adequate protection in the country of origin (§ 48), the reviewing court must carry out a full and ex nunc examination of both facts and points of law (§ 76). A question however arises as to the impact of the rebuttal of this presumption by a court in an individual case: is each reviewing court to have the power to rebut or not that presumption in an individual case? Might this give rise to a patchwork of approaches?

In any event, in light of the above requirements, an individual assessment which is open to judicial review is still required in cases which are decided on the basis of the safe country status. This would appear to significantly reduce the benefit to be expected from summary or accelerated procedures at the border or in transit zones.

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The above approach is in line with the one followed by the ECtHR, as exemplified by the case of S.H. v. Malta (37241/21, 20.12.2022), which is a striking illustration of why an individual review may be called for in cases decided in light of the safe country status.

The case concerned a Bangladeshi journalist who fled his country after reporting on electoral irregularities in his country and claimed that he was therefore exposed to threats and attacks. ​ In Malta, he filed three successive applications for asylum which, according to the ECtHR, faced multiple significant procedural shortcomings, including:

• A lack of legal assistance
• A superficial credibility assessment
• The failure to consider relevant evidence
• A superficial and automatic judicial review, giving rise to stereotyped decisions given within 24 hours
• Delayed and ineffective notifications
• A lack of individualized risk assessment
• The ineffectiveness of the Constitutional redress proceedings, due the absence of an automatic suspensive effect pending these proceedings

As a result, the ECtHR ruled that returning S.H. to Bangladesh without a fresh assessment of the risks he might face back in his country of origin would violate Articles 3 (prohibition of ill-treatment) and 13 of the Convention (right to an effective remedy).

What makes S.H. v. Malta particularly relevant in the present context is the fact that S.H.’s application was processed in Malta, an EU Member State, under an accelerated procedure, with the authorities relying all along on the designation of Bangladesh as a safe country of origin.

The case also very well illustrates the interplay between EU law and the Convention in these matters. It is characterized by the ECtHR coming last in ruling on the merits of the case and assessing the use made by national authorities of the safe country of origin concept. In S.H. v. Malta, the ECtHR ordered a fresh assessment of the risks involved in returning the applicant, pending which the national authorities were requested, by way of an interim measure (Rule 39 of the Rules of Court), to stay the execution of the impugned deportation.

As the ECtHR put it: “while the Court need not enter into the ministerial decision designating Bangladesh as a safe country, … a full individual assessment is nonetheless called for in certain circumstances, despite such designation.” (§ 91) In D.L. v. Austria (34999/16, 7.12.2017), the ECtHR was even more explicit when stating: “the Court must agree with the applicant that as concerns his individual case, it was irrelevant whether Kosovo was declared a ‘safe country of origin’ by law. Such a declaration does not relieve the extraditing State from conducting an individual risk assessment.” (§ 59)

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Fortunately, as regards the assessment to be carried out by national courts relying on the safe country of origin concept, the requirements set out by the CJEU largely coincide with those of the ECtHR. Both European Courts indeed insist on the effectiveness which should characterize the review to which the application of the safe country of origin concept must be subject (S.H. v. Malta, § 78; Alace and Canpelli, §§ 65, 78, 80, 86), the concept of safe country of origin being only a rebuttable presumption of adequate protection in the country of origin (Alace and Canpelli, § 48). This notably requires the review to have an automatic suspensive effect (S.H. v. Malta, § 79; Art. 46(5) of the Procedures Directive).

However, while Article 46 of the Procedures Directive only states the right of applicants for international protection to an effective remedy, the CJEU, by reading this provision in the light of Article 47 of the EU-Charter, requires this remedy to be judicial in nature (§ 77). By contrast, under the Convention, such a remedy does not need to be judicial, but it should allow an independent, rigorous and prompt scrutiny (§ 79). For both European Courts, the reviewing authority should carry out a full and ex nunc examination of both facts and points of law (Art. 46(3) of the Procedures Directive).

Both European Courts also seem on the same line in considering that adequate information of the applicants and the reviewing authorities is key in ensuring the effectiveness of any review. While the ECtHR in S.H. v. Malta criticises the lack of a proper reasoning of the decisions rejecting S.H.’s applications for asylum (§§ 86-87), the CJEU explains the link between proper information and effectiveness of the review as follows:

“In the light of the case-law cited in paragraph 78 above, it must, therefore, be held that, in order for the judicial protection to be effective, both the applicant concerned and the court or tribunal seised must be able to have not only knowledge of the grounds for such a rejection, but also access to the sources of information on the basis of which the third country in question was designated as a safe country of origin.” (§ 80)

In this context, the CJEU holds that the reviewing court must raise, on the basis of the information in the file and the information brought to its attention during the proceedings before it, a possible failure to have regard to the material conditions for the designation of a third country as a safe country of origin, set out in Annex I to that directive. That court may also do so by taking into account other information which it may itself have gathered, whether from public sources or from sources which it has requested one of the parties to the proceedings before it to produce (§§ 85-86).

The use of “may” suggests that gathering relevant information of its own motion is only an option for the reviewing court. However, this may not be enough under the Convention. In S.H. v. Malta the ECtHR indeed reiterated that in relation to asylum claims based on an individual risk, it must be for the person seeking asylum to rely on and to substantiate such a risk. However, if a Contracting State is made aware of facts relating to a specific individual that could expose him to a risk of ill-treatment in breach of the said provisions upon returning to the country in question, the obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk of their own motion (§ 88, with reference to F.G. v. Sweden).

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What is now the bottom line of this comparison of the Luxembourg and Strasbourg jurisprudences?

As always, the courts of EU Member States should apply EU law without breaching the Convention, since compliance with the latter when applying EU law can be challenged by way of an application before the ECtHR. The required modus operandi can therefore be summarized as follows:

• The application of the safe country of origin concept does not relieve the extraditing State from conducting an individual risk assessment (common requirement);
• A third country which fails to meet the material conditions in Annex I of the Directive for certain categories of persons cannot be considered safe (Luxembourg requirement);
• This risk assessment must be open to rigorous scrutiny (Strasbourg requirement) within the framework of an effective judicial remedy (Luxembourg requirement), which requires a full and ex nunc examination of both facts and points of law (common requirement);
• This judicial remedy must have an automatic suspensive effect (common requirement);
• The reviewing courts and the applicants must be provided with adequate information of the grounds for a rejection of an application for international protection based on the safe country of origin concept (common requirement), and with access to the sources of information on the basis of which a third country in question was designated as a safe country of origin (Luxembourg requirement);
• The obligations incumbent on the States Parties under Articles 2 and 3 of the Convention entail that the authorities carry out an assessment of that risk of their own motion (Strasbourg requirement).

This post is titled: “How safe is the safe country or origin concept?” In light of cases such as S.H. v. Malta, it seems that the answer must be: less safe than one might expect.