In the case of Executief van de Moslims van België and Others v. Belgium (16760/22 and 10 Others, 13.02.2024), the European Court of Human Rights found that the Belgian law, i.e. the Flemish and Walloon regional decrees, which only allows vertebrates to be put to death in the context of ritual slaughter by using reversible non-lethal stunning, does not breach the freedom of religion enshrined in Article 9 of the Convention. This finding is very similar to the one made by the CJEU on the very same legislation in the case of Centraal Israëlitisch Consistorie van België and Others.

This similarity very well illustrates two important aspects of fundamental rights in Europe today.

First, it shows the importance of a sufficient level of consistency between the jurisprudences at national, Union and Convention level, in view of the fact that the compatibility with fundamental rights of a same piece of legislation can, as in the present case, be checked at three different successive levels, the last one being Strasbourg. As pointed out by the ECtHR, in the case at hand the scrutiny of the same Belgian legislation indeed went all the way from the Belgian Constitutional Court to the CJEU and to the ECtHR. Contradictions or incompatibilities between these levels would have damaged legal certainty as much as the authority of the invoked fundamental rights themselves, quite apart from the difficulties they would have created for the national judges dealing with that kind of issues and subject to all three levels of scrutiny.

Secondly, this case also shows how beneficial it is for the cross-system consistency of the case-law on fundamental rights when the case-law of the ECtHR is taken on board from the beginning of the journey of a case through the judicial instances. Indeed, the last stop of such a case is in Strasbourg and its ultimate benchmark is the Convention, it being understood that this benchmark only represents a minimum protection level which can be raised (Art. 53 of the Convention). From this perspective, it makes little sense not to take into account from the start what is going to be the ultimate benchmark at the end anyway.

So there can be no doubt that seeing the CJEU extensively rely in Centraal Israëlitisch Consistorie van België on the Strasbourg case-law and acknowledge its benchmark function by qualifying it as “the minimum threshold of protection” (§ 56; see also this post) greatly facilitated reliance by the ECtHR on the fact that, having regard to the principle of subsidiarity, it should duly take into account the outcome of the “double control” which had already taken place in Brussels and Luxembourg prior to its own scrutiny (§ 112).

Under these circumstances, it came as no surprise that, in a welcome unisono with the CJEU, the ECtHR held that the obligations imposed by the Belgian legislation at stake were not disproportionate and therefore were not in breach of Article 9 of the Convention.

The case of Arsene v. Italy (39817/23) provides a good opportunity to draw attention to the preventive control exercised by the ECtHR, under Rule 39 of its Rules of Court, over the execution of European arrest warrants (EAW) which are challenged by applicants under Article 3 of the Convention (prohibition of ill-treatment).

In this case, the ECtHR decided on 10 November 2023 not to indicate to the Italian Government the interim measure which the applicant was seeking under Rule 39 of the Rules of Court and which would have temporarily stopped his surrender to Romania on the basis of the EAW issued against him. The interim measures indicated under this provision are indeed legally binding (Mamatkulov and Askarov v. Turkey).

Arsene v. Italy is only the most recent in a series of cases in which applicants requested the ECtHR to stop the execution of a EAW by reason of a serious risk of violation of Article 3 of the Convention in the issuing Member State. Other such cases include Caragea v. Italy and Romania (11773/20), Coarda v. Sweden (18732/20), Ursu v. Italy (54281/20) and Cretu v. United Kingdom (9749/22).

In all the above cases the applicants had been convicted to custodial sentences by Romanian courts and were the subject of EAWs issued for the purpose of the service of these sentences in Romania. The applicants challenged the execution of these EAWs before the ECtHR, thereby referring to the pilot judgment in Rezmiveș and Others v. Romania, in which the ECtHR found that the persisting structural problems of overcrowding and poor conditions of detention in Romania amounted to a practice incompatible with Article 3 of the Convention and requested the Romanian authorities to urgently remedy that situation.

Yet, all requests in the above cases for the indication of interim measures were rejected by the ECtHR on their merits, i.e. after a thorough examination of the circumstances of each case by the duty judge. In line with established practice concerning Rule 39, no reasons were given by the ECtHR for these dismissals. However, a striking feature which all these cases have in common are formal and individualised assurances given by the Romanian authorities regarding the places of detention of the persons concerned and respect for their rights under Article 3, which the authorities of the executing States considered trustworthy, in the absence of any evidence showing that the Romanian authorities had ever breached assurances of this type in the past.

In Dorobantu, the CJEU ruled that in the presence of deficiencies which affected certain places of detention, the executing judicial authority is bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of a person to the issuing Member State under a EAW, he/she will run a real risk of being subject in that Member State to inhuman or degrading treatment, because of the conditions for his detention envisaged in the issuing Member State (§§ 52, 55). However, the CJEU was somewhat ambivalent on whether the executing judicial authority should just ask the issuing authority for information on the conditions in which it is intended that the individual concerned will be detained in that Member State, or for proper assurances concerning respect for the individual’s fundamental rights, or for both (§§ 67-69).

Be that as it may, what is clear in the light of the ECtHR’s practice in exercising a preventive control under Rule 39 over intended surrenders under a EAW is that formal and reliable assurances by the authorities of the issuing Member State concerning respect for the fundamental rights of the persons concerned would appear to make a difference, not only in the executing Member States but also in Strasbourg (on the requirements to be fulfilled by such assurances, see Othman (Abu Qatada) v. the United Kingdom).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the case of Freire Lopes v. Portugal (31.1.2023, 58598/21), the ECtHR examined the application of the Portuguese legislation which organised the rescue of credit institutions by allowing their resolution and the transfer of part of their assets and liabilities to a bridge bank. The applicant was among the account holders of the Banco Espirito Santo (“BES”), one of the credit institutions to which that legislation had been applied. He complained about the financial losses which he had incurred as a consequence of the resolution of the BES. In his opinion, they were disproportionate and amounted to a breach of his right to property protected by Article 1 of Protocol No. 1 to the Convention.

Interestingly, the legislation at issue in this case is the same as the one declared compatible with the right to property (Article 17(1) of the EU-Charter) by the CJEU in BPC Lux 2 and Others, in which the CJEU adopted the methodology followed by the ECtHR in assessing compliance with Article 1 of Protocol No. 1, except for the assessment of the limitations applied to the property rights involved, which it examined applying Article 52(1) of the EU-Charter.

Yet, the test provided for by Article 52(1) is slightly different from the one applied in Strasbourg under Article 1 of Protocol No. 1, which is based on the “fair balance to be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”. Thus, it was the latter test which the ECtHR applied in Freire Lopes and which led to the finding that, having regard to all the general and individual circumstances of the case, the complaint about a violation of Article 1 of Protocol No. 1 was manifestly ill-founded, because a fair balance had been struck between the competing interests.

While the European Courts came to similar conclusions on the substance, some lessons can nonetheless be drawn from these parallel cases.

First, the same fundamental rights can have to be applied to similar cases by each of the European Courts acting at different stages of the respective proceedings involved and from a different perspective: Luxembourg will examine in abstracto, Strasbourg in concreto.

Secondly, the final ex post assessment of compliance with fundamental rights in such cases only takes place in Strasbourg, on the basis of the sole Convention. Thus, the liability which may be incurred by domestic judges in Strasbourg is only with respect to their compliance with the Convention, even when the domestic law at stake, as in the present case, is based on Union law.

Thirdly, in Freire Lopes the ECtHR repeatedly relied on the assessments made by the CJEU on the basis of the criteria which it borrowed from the Convention case-law on property rights. This not only demonstrates the impact on the outcome of a case in Strasbourg of the use by the CJEU of harmonised criteria, it also considerably facilitates the task of national judges.

The fact remains, though, that national judges are (partly) confronted with a duality of methodologies when dealing with property rights.

In the case of Künsberg Sarre v. Austria (19475/20, 17.1.2023), the European Court of Human Rights found a violation of the applicants’ private and family life (Art. 8 of the Convention) on account of the fact that after long periods of accepted use, in 2018 their surnames were changed by the authorities from “von Künsberg Sarre” to “Künsberg Sarre”, pursuant to the Abolition of Nobility Act of 1919. The ECtHR considered, inter alia, that the domestic courts had not explained why, as claimed by the Government, the prohibition of the use of the impugned surname was necessary to maintain democratic equality and public safety.

Considered from the perspective of the interplay between the Convention and EU law, the following passage from the ECtHR’s reasoning is noteworthy:

It appears that the change in the administrative practice and, consequently, in the authorities’ attitude towards the applicants’ surnames, occurred only after the Constitutional Court departed from its previous case-law, starting with its decision of 26 June 2014 … This change seems in turn to have been prompted by the judgment of the CJEU of 22 December 2010 in Sayn-Wittgenstein … It should be stressed, however, that the latter judgment considered the question at issue only from the perspective of Article 21 of the Treaty on the Functioning of the European Union …, but not from the perspective of Article 8 of the Convention. The fundamental rights issue of “private and family life”, which includes a proportionality test under the Convention standards relating to Article 8, was not addressed. Consequently, that CJEU judgment does not appear pertinent to the present context, which concerns questions relating to Article 8 of the Convention. (§ 69)

In Sayn-Wittgenstein, the CJEU had indeed ruled that:

Article 21 TFEU must be interpreted as not precluding the authorities of a Member State, in circumstances such as those in the main proceedings, from refusing to recognise all the elements of the surname of a national of that State, as determined in another Member State – in which that national resides – at the time of his or her adoption as an adult by a national of that other Member State, where that surname includes a title of nobility which is not permitted in the first Member State under its constitutional law, provided that the measures adopted by those authorities in that context are justified on public policy grounds, that is to say, they are necessary for the protection of the interests which they are intended to secure and are proportionate to the legitimate aim pursued. (§ 95)

This approach was later confirmed in Bogendorff von Wolffersdorff.

The lessons to be drawn from this are that:

a) The examination of certain issues from the perspective of fundamental rights is specific in that another perspective such as the freedom of movement in the EU cannot be considered equivalent to it.

b) Despite its different perspective, the CJEU’s ruling is not clashing with the above Strasbourg judgment. The CJEU indeed only set the criteria to be applied by the domestic authorities under Article 21 TFEU (justification, necessity, proportionality), without applying them itself.

c) The fact that these criteria bear some similarities with those applicable under Article 8 of the Convention is useful in view of the fact that the ultimate control over the domestic decisions on such issues, notably their weighing of the competing interests, is done ex post in Strasbourg under that same Article 8 only.