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.

The applicant in the case of S.H. v. Malta (37241/21, 20.12.2022) is a journalist from Bangladesh who applied for asylum in Malta on the ground that since he had reported on the 2018 election irregularities in his country, he would be at risk of ill-treatment contrary to Article 3 of the Convention if returned. The ECtHR found a violation of his right to an effective remedy (Article 13) because of serious procedural shortcomings in the processing of his application by the Maltese authorities. It also considered that returning him to Bangladesh without a fresh assessment of his claim would breach Article 3 of the Convention.

In finding a violation of the applicant’s right to an effective remedy, the ECtHR had regard to all the circumstances surrounding the proceedings at domestic level. These included in particular the lack of legal assistance and the applicant’s detention at crucial stages of the proceedings which, in the ECtHR’s view, explained much of the difficulties the applicant had encountered in correctly presenting his case and led to his application being dismissed at every stage of the proceedings.

Thus, the ECHR made an assessment of the proceedings and their outcome considered as a whole, from the point of view of the effectiveness of the procedural remedies used. In this context, and without formally acknowledging the existence of a general right of asylum seekers to legal assistance or representation, it nonetheless considered the absence of such assistance in the circumstances of this case as having had a significant impact on the (in)ability of the applicant to make his case before the competent authorities (§§ 82, 84 and 85). The ECtHR also had regard to substantive aspects of the proceedings, such as the reasons given by the domestic authorities for their decisions, which it found insufficient (§ 86), superficial (§ 90) or incongruent (§ 94).

Interestingly, it would appear that much of the procedural shortcomings noted by the ECtHR would not have taken place, had the Procedures Directive (2013/32/UE), notably its Articles 19 et seq., been properly complied with at domestic level. This case is therefore another illustration of the complementarity between the Convention and EU law, in that breaches of EU law provisions which correspond to Convention safeguards can be indirectly disclosed and remedied in Strasbourg, in an ex post assessment at the very end of the domestic proceedings.

But this case also illustrates the fact that it might not always be enough to simply apply EU law in order for domestic judges to automatically meet the Convention requirements. Under the Procedures Directive the right to an effective remedy and to free legal assistance and representation indeed only kicks in in appeals procedures (Art. 20 and 46). Prior to those, there is only a right to free legal and procedural information (Art. 19). Moreover, the said Directive would not appear to spell out any requirements in terms of the substantive quality and coherence of the reasoning of domestic decisions, which the ECtHR had regard to in the present case.

In the case of Moraru v. Romania (64480/19, 8.11.2022) the ECHR found a violation of Article 14 of the Convention (prohibition of discrimination) taken together with Article 2 of Protocol No. 1 to the Convention (right to education) on account of the failure by the domestic authorities to put forward any reasonable and objective justification for the disadvantage faced by the applicant, whose height and weight were below the statutary threshholds, in the admission process to study military medecine.

What is noteworthy in this judgment in terms of the interplay between the Convention and EU law is the reliance placed by the ECHR in its reasoning, among other considerations, on the fact that in adjudicating the applicant’s case, the domestic courts failed to “meaningfully engage” with the relevant case-law of the CJEU which the applicant had invoked before them and which the ECHR also extensively quoted , notably the ruling in Kalliri (C-409/16) (§§ 24 and 54). While the ECHR specified that it had no competence to itself interpret EU law, it held that the domestic courts ought to have properly examined its relevance.

This seems like a rather novel way of reinforcing both compliance with the Luxembourg case-law and the overall coherence of fundamental rights in Europe.

The judgment in the case of Rutar and Rutar Marketing D.O.O. v. Slovenia (21164/20, 15.12.2022) is another application by the ECHR of its doctrine on the obligation under Article 6 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, Quintanel and Others v. France).

The case concerned minor offence proceedings in Slovenia for breach of the Consumer Protection Act. Its particularity lies in the fact that the constitutional complaint filed by the applicants was declared inadmissible for formal reasons which however the ECHR was not prepared to accept as entailing the consequence that the applicants would not have exhausted domestic remedies as prescribed by Article 35 § 1 of the Convention (§ 49).

The Local Court, which was the first-instance court and the only one to decide the case on the merits (§ 61), was therefore considered by the ECHR to be bound in principle by Article 267 TFEU to refer any relevant issues to the CJEU. This finding was confirmed by the fact that the respondent Government had not argued that a complaint before the Constitutional Court, which had jurisdiction to decide cases as the present one only on an exceptional basis, should be regarded in the circumstances of the present case as the only judicial remedy triggering an obligation under Art. 267 TFEU. The ECHR added however: “Be that as it may, the Court notes that neither the Nova Gorica Local Court nor the Constitutional Court at all addressed the applicants’ request to seek a preliminary ruling, nor any other of their legal arguments.” (§ 63)

As the applicants had explicitly requested the Local Court to make such a request concerning the interpretation of the “Unfair Commercial Practices Directive” (2005/29/EC) and the Local Court ignored that request, Article 6 § 1 of the Convention was found by the ECHR to have been breached.

In the case of Veres v. Spain (57906/18, 8.11.2022), the ECHR found a violation of the applicant’s right to respect for his family life (Article 8 of the Convention) on account of the fact that Spanish courts had failed to recognise and enforce without delay a judgment by a Hungarian court acting under Article 21 et seq. of the Brussels IIa Regulation (No. 2201/2003) and ordering the return to Hungary of the applicant’s daughter.

The ECHR noted in particular that it had taken the Spanish courts more than two years to enforce the decision by the Budapest Metropolitan Court ordering the return of the child. Having regard to what was at stake for the applicant, i.e. his family ties and contact with his daughter, this was not justified in the circumstances of the case. Not only did the excessive length of the proceedings in Spain affect the relationship between the applicant and his daughter by interrupting it for two years, it also affected the decision of the Hungarian courts to eventually grant custody over the child to her mother, since they found that the passage of time had strengthened the bonds between the child and her mother and weakened the child’s connection with the applicant (§ 88).

This judgment is another illustration, along with cases such as Ullens de Schooten and Rezabek v. Belgium, Romeo Castaño v. Belgium and Spasov v. Romania, of how the Convention system can lend support to the obligation on EU Member States to comply with EU law, i.e. through the finding of a violation of those Convention rights which are affected by the failure to fulfil that obligation.

In the case of Spasov v. Romania (27122/14, 6.12.2022), the ECHR found that the applicant, the owner and captain of a vessel registered in Bulgaria who was fishing in Romania’s exclusive economic zone, had been the victim, inter alia, of a denial of justice (Art. 6 of the Convention) because he had been convicted on the basis of Romanian criminal law which previously had been found to be in breach of EU law, notably the rules of the Common Fisheries Policy, by the European Commission. By not applying these rules, which had direct effect in the Romanian legal order and prevailed over national law, the Romanian courts had made a manifest error of law.

In evaluating the impact of the relevant EU law in the present case, the ECHR did not engage in its own interpretation of EU law, for which it has indeed no competence, as recalled in § 83 of the judgment. Rather, it relied, in the absence of a ruling by the CJEU, on the clear position which had been expressed in this case by the European Commission in its exchange with the Romanian authorities, indicating to them that by prosecuting the applicant, they had committed serious breaches of EU law, notably of Regulations nos. 2371/2002 and 1256/2010.

This case is an illustration of the fact that it is not only compliance with EU law by the domestic authorities which can give rise to an issue under the Convention (see, among others, Bosphorus v. Ireland; Bivolaru and Moldovan v. France). It is also, in certain specific circumstances, the failure to comply with EU law (in a similar sense, see Romeo Castaño v. Belgium).

The case of Willems v. the Netherlands (57294/16, 9.11.2021) concerned the refusal by the applicant to provide fingerprints that would be digitised and saved in his passport and in a database. Applying Regulation 2252/2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation 444/2009, the Administrative Jurisdiction Division of the Dutch Council of State dismissed as ill-founded the objections which the applicant had raised in this connection. The applicant then complained before the ECHR inter alia about a violation of Article 8 of the Convention (right to respect for private life).

In respect of the applicable EU legislation, the Administrative Jurisdiction Division considered, after referring questions to the CJEU for a preliminary ruling, that it left no room for the Member States to use alternatives to the prescribed way of storing the biometric data, nor did it provide for any applicable exceptions to the obligation to provide fingerprints.

In light of this finding, the ECHR recalled the requirements for the presumption of equivalent protection (“Bosphorus presumption”) to apply and concluded that they were fulfilled in the present case. As a consequence, there would only be a violation of the Convention in case of a “manifest deficiency” in the protection afforded by it (on this notion, see also Bivolaru and Moldovan v. France). As such a manifest deficiency had not been shown to exist by the applicant, the ECHR declared manifestly ill-founded the applicant’s complaint about a violation of Article 8.