Category Archives: Recent Case Law

The right to cross-examine witnesses, a tale of two methodologies: judgment of the CJEU in the case of HYA and Others

In the case of HYA and Others (C-348/21, 8.12.2022), the CJEU ruled on whether national legislation which allowed a person to be convicted on the basis of statements by witnesses who had not been cross-examined by the defence at the trial was compatible with the Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (2016/343), read in combination with Articles 47(2) and 48, paragraph 2, of the EU-Charter.

The issue at the heart of the present case was about whether there was a right for the accused not only to attend their trial, as stipulated by Article 8(1) of the Directive, but also to cross-examine witnesses at the trial. Whereas under the Convention the answer to that question is obvious, spelled out as it is in its Article 6 § 3 d), the CJEU had to make long developments, thereby relying on the Strasbourg case-law, to come to the same conclusion. This is because the said Directive is silent about that issue.

Thus, next to such other recent rulings as in Spetsializirana prokuratura, HN and DD applying the same Directive, this case is another telling illustration of the limits of what the Directives on procedural rights in criminal proceedings, as the one at stake in this case, can achieve. While these directives are meant to codify and reinforce current case-law with a view to enhancing mutual trust amongst member States (see Recital 10 of the Directive at stake in this case), their weakness lies in the fact that they can cover only part of the huge amount of case-law existing in this field, while at the same time they freeze the part of the case-law which they actually cover, with the risk of being overtaken by events in case of further developments of that case-law. The result are important lacunae in these directives which the CJEU undertakes to gradually fill, not least by drawing to a significant extent on the Strasbourg case-law.

In the present case, the CJEU first found, after some lengthy developments, that a right for an accused to just attend their trial without at the same time having the possibility to exercise at this trial the rights of the defence, including the right to cross-examine the witnesses for the prosecution, would strip the right to a fair trial of its essential content (§ 45).

The CJEU then turned to the possible limitations to the right to cross-examine witnesses, more specifically to the question whether the accused could be convicted on the basis of witness statements made during the investigation of the criminal case, in the absence of the accused and their lawyer. Here, another difficulty arose in that the Strasbourg and Luxembourg methodologies on this score differ. The CJEU, for its part, opted for squeezing the methodology applied by the ECtHR into its own methodology, which is based on Article 52(1) of the EU-Charter, thus complicating matters much more than would be necessary under the sole Convention.

In concrete terms, whereas the Strasbourg approach concerning limitations is based on an assessment of the proceedings as a whole, looking at whether any limitations or procedural flaws may have been offset by counter-balancing factors (see among several others Ibrahim and Others, Beuze), the CJEU relied on Article 52(1) of the EU-Charter and in that context applied three different criteria: the existence of a legal basis, the preservation of the essential content of the right at stake and the proportionality of the limitations to it (§ 50).

It is under the second criterion, the essential content of the right, that the domestic courts are instructed by the CJEU to apply the Strasbourg case-law here, in particular the test of the proceedings considered as a whole (§§ 52 and 55), as in Al-Khawaja and Tahery and Schatschaschwili. What follows is a faithful description of that Strasbourg jurisprudence and its criteria, ordered to be applied as part of the said Directive and in the context of Article 52(1) of the EU-Charter. The final assessment is thereby left to the referring court, the CJEU recalling that under Art. 267 TFEU it has competence only to interpret EU law, not to apply it (§ 49).

All in all, this ruling is a welcome contribution by the CJEU to maintaining jurisprudential harmony with Strasbourg, by taking on bord large parts of the Strasbourg case-law, thus protecting domestic courts from having to face Convention liability. That said, the lacunae of Directive 2016/343 and the combination of two partly different methodologies generate a regrettable level of complexity for domestic courts, when compared with the Strasbourg approach.

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Same national legislation examined in Luxembourg and Strasbourg: decision by the ECtHR in the case of Freire Lopes

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.

FREIRE-LOPES-c.-PORTUGAL Download PDF (only French version available)

General test made autonomous for the assessment of risks involved in the execution of a EAW: judgment of the CJEU in the case of Puig Gordi and Others

In the case of Puig Gordi and Others (C-158/21, 31.1.2023), the CJEU ruled on the refusal by Belgian courts to execute a European arrest warrant (EAW) which had been issued by the Spanish Supreme Court in respect of several Catalan separatists. The refusal was based on concerns about the lack of jurisdiction of the court called upon to try them.

In its ruling, the CJEU relied on the two-step examination which it had previously applied, in such cases as Openbaar Ministerie, and which basically comes down to applying a double test, a general one followed by an individual one, for the assessment of any risks of a serious breach of fundamental rights which could be triggered by the execution of a EAW. While this methodology differs from the one applied by the ECtHR when assessing the execution of a EAW, which is more focussed on the individual risks, it is not problematic as such, as confirmed by Bivolaru and Moldovan v. France.

However, in Puig Gordi and Others the CJEU went one step further in developing its “two step” methodology, by denying the possibility to examine individualised risks in the event of a surrender if, prior to that, no systemic or generalised deficiencies have been found to exist. In substance, it ruled inter alia that in the absence of systemic or generalised deficiencies in the issuing State to the effect that persons in that State would be generally deprived of an effective legal remedy enabling a review of the jurisdiction of the criminal court called upon to try them, a court of the executing State may not refuse to execute a EAW (§ 111).

This comes down to autonomising the general test, to the effect that the application of the individual test is precluded if the result of the prior general test is negative. Thus, in that case the general test is suffient and can replace any further individual analysis. In that logic, the scale which deficiencies must reach to become relevant under the general test would appear to be of a magnitude which may be rarely reached in practice and which, in the few cases where it could still be reached, may be difficult to evaluate by domestic judges and even more difficult to prove by the persons concerned by the EAW. It can therefore be assumed that under this methodology, in most cases the assessment by the executing judicial authority will stop, out of convenience, after the first general step, leaving out the second individual step altogether. This would bring us back, de facto, to the much-criticised single collective test used in N.S. and Others, which would appear to be difficult to reconcile with the individual test being systematically and exclusively applied by the ECtHR, not least because one of the cornerstones of the Convention system is the right of individual petition.

Fortunately, in Puig Gordi and Others the CJEU did not go as far as suggested by its Advocate General, who wanted this new version of the “two step” examination potentially precluding the application of an individual test to be applied to all aspects of the right to a fair trial before a tribunal previously established by law under Art. 47(2) of the EU-Charter (on this Opinion, see the following comment).

By contrast, the CJEU limited the scope of its ruling to issues relating to the sole lack of jurisdiction of the courts in the issuing State, thereby placing some emphasis on the existence of efficient legal remedies which should avoid “the very occurrence” of the infringement at issue or avoid irreparable damage arising from that infringement (§ 113). Yet this latter consideration seems in contrast with other rulings in which the CJEU denied the relevance of existing domestic remedies in the issuing State for the assessment of risks to fundamental rights in that State (CJEU 25.7.2018, Generalstaatsanwaltschaft (Conditions of detention in Hungary), C-220/18 PPU, § 74, and CJEU 15.10.2019, Dorobantu, C-128/18, § 80).

The fact remains, though, that in this way, a door has again been opened, for the sake of the efficiency of the EAW mechanism (§ 116), to a general rather than an individual assessment of respect for fundamental rights. One may wonder whether it will be further widened in the future. In this context, it might be useful to recall the following finding by the ECtHR in Avotins v. Latvia, § 113-114:

The Court has repeatedly asserted its commitment to international and European cooperation …. Hence, 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. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited.

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Imposed changes to the name of a person: judgment of the ECtHR in the case of Künsberg Sarre v. Austria

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.

CASE-OF-KUNSBERG-SARRE-v.-AUSTRIA Downlaod PDF

Enjoyment by private companies of the presumption of innocence and the rights of the defence: judgment by the CJEU in the case of Delta Stroy 2003

In the case of Delta Stroy 2003 (C-203/21, 10.11.2022), the CJEU declared incompatible with Article 48 of the EU-Charter (presumption of innocence and rights of the defence) national legislation under which a national court may impose on a legal person a criminal penalty for an offence for which a natural person who has the power to bind or represent that legal person is allegedly liable, where that legal person has not been put in a position to dispute the reality of that offence.

In the case at hand, a company, Delta Stroy, was prosecuted in separate proceedings for the purpose of imposing on it a financial penalty for a criminal offence relating to value added tax alleged against its manager and representative.

What is noteworthy, from a Convention point of view, is first of all the similarity between the facts underlying this case and those which gave rise to the case of G.I.E.M. S.r.l. and Others v. Italy before the ECtHR. The question at the heart of both cases was whether companies could be convicted and sentenced for a criminal offence committed by their managers.

This is why the CJEU amply relied on G.I.E.M., thereby stating that the principle of the legality of criminal offences and penalties enshrined in Article 7 of the Convention, as applied by the ECtHR, corresponds to Article 49 of the EU-Charter and, by virtue of Article 52(3) of the EU-Charter, should therefore be interpreted so as not to disregard the level of protection guaranteed by Article 7 of the Convention, as interpreted by the ECtHR (§§ 43-44). The CJEU also noted that, according to the ECtHR, the violation of Article 7 of the Convention resulting from the imposition of a criminal sanction on an individual without his or her personal liability being established also breached the presumption of innocence protected by Article 6 § 2 of the Convention (§ 45).

In the case at hand, Delta Stroy was itself the subject of separate criminal proceedings triggering the application of the right to a fair trial. This is a significant difference with the 3 applicant companies in G.I.E.M. which could, not being themselves prosecuted, not invoke the right to a fair trial under Article 6 of the Convention and had therefore to rely on its Article 7. Consequently, the CJEU could confine itself to applying only Article 48 (presumption of innocence and rights of the defence), specifying that this provision too had to be interpreted so as not to disregard the corresponding Strasbourg protection level.

In sum, and regardless of these factual differences, there is correspondence between the Strasbourg and the Luxembourg jurisprudence in this area, something which can only be welcomed.

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Return of a seriously ill person: judgment of the CJEU in the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique)

In the case of Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) (C-69/21, 22.11.2022), the CJEU ruled on the lawfulness under the Return Directive (2008/115) of a return procedure initiated in the Netherlands against a Russian national who developed a rare form of blood cancer the treatment of which consists, inter alia, of the administration of medical cannabis for analgesic purposes, which is forbidden in Russia.

The CJEU dealt with that issue inter alia from the perspective of the prohibition of ill-treatment (Article 4 of the EU-Charter) and the right to protection of private life (Article 7 of the EU-Charter). In light of Article 52(3) of the EU-Charter, both provisions were found to have the same meaning and scope as the corresponding provisions of the Convention, Articles 3 and 8 respectively.

As regards the impact of Article 4 of the EU-Charter on the return decision at issue, a striking feature of this judgment is its extensive reliance on Strasbourg case-law, notably Paposhvili v. Belgium and Savran v. Denmark, which are the leading cases on the deportation of seriously ill persons considered under Article 3 of the Convention.

This is another illustration of the “toolbox function” fulfilled by the Convention when Strasbourg case-law is used to fill lacunae in EU legislation or case-law (for another example, see Spetsializirana prokuratura(trial of an absconded suspect)). This kind of reliance on the Convention, which is to be welcomed as an important contribution to the coherence of European fundamental rights protection, is to be distinguished from the “benchmark function” of the Convention, which is less frequently mentioned and refers to the fact that pursuant to Article 52(3) of the EU-Charter, the Convention protection level also applies under EU law (as recently applied in Politsei- ja Piirivalveamet, §§ 47 et seq.).

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The right to an effective remedy in the context of asylum proceedings: judgment of the ECtHR in the case of S.H. v. Malta

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.

CASE-OF-S.H.-v.-MALTA Download PDF

Failure to “engage meaningfully” with CJEU case-law: judgment of the ECHR in the case of Moraru v. Romania

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.

CASE-OF-MORARU-v.-ROMANIA Download PDF

No reasons given by a first-instance court for its refusal to seek a preliminary ruling: judgment of the ECHR in the case of Rutar and Rutar Marketing D.O.O. v. Slovenia

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.

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Breach of the right to family life following delayed return of a child ordered under the Brussels IIa Regulation: judgment of the ECHR in the case of Veres v. Spain

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.

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