AG 505 zum EGMR: Sitzung vom 7. Dezember 2023

Liebe Studierende,

auf unserer kommenden Sitzung wollen wir folgenden Rechtsfragen aus konventionsrechtlicher Perspektive nachgehen:

1. Ausnahmen vom absoluten Folterverbot zur Rettung eines Menschenlebens? (Rs. Gäfgen / Deutschland)

2. Formen der nicht-verbalen Meinungsäußerung und ihre Grenzen (Rs. Bouton / Frankreich)

Die zu besprechenden Urteile liegen bei.

Ich freue mich auf einen spannenden Austausch mit Ihnen.

Prof. Dr. Johan Callewaert

Two steps of unequal weight? Judgment of the CJEU in the case of Staatsanwaltschaft Aachen

In the case of Staatsanwaltschaft Aachen (C-819/21, 9.11.2023), the CJEU addressed the concerns of a German Regional Court regarding the enforcement in Germany of a custodial sentence imposed on a Polish national (M.D.), resident in Germany, by a Polish District Court after a hearing in absentia.

The referring court asked the CJEU whether, under 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), it could refuse to declare the custodial sentence imposed on M.D. in Poland to be enforceable in Germany, because of systemic or generalised deficiencies in the Polish judicial system, in violation of the second paragraph of Article 47 of the Charter and of Article 2 TEU. The referring court relied inter alia on the reasoned proposal of the European Commission of 20 December 2017 submitted on the basis of Article 7(1) TEU regarding the rule of law in Poland (COM(2017) 835 final), and to the recent case-law of the CJEU on that matter (§ 14).

Drawing a parallel between Framework Decision 2008/909, at stake in the present case, and Framework Decision 2002/584 on the European arrest warrant, the CJEU first recalled its case-law about the limitations of the principles of mutual recognition and mutual trust which can be made in exceptional circumstances and which derive from the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU, notably the prohibition of ill-treatment enshrined in Article 4 of the EU-Charter ( as in Aranyosi und Căldăraru) and the right to a fair trial laid down in the second paragraph of Article 47 of the EU-Charter (as in Minister for Justice and Equality (Deficiencies in the system of justice), and Openbaar Ministerie (Tribunal established by law in the issuing Member State)).

Addressing the methodology to be applied in such cases, the CJEU recalled the well-known obligation on the competent authority of the executing Member State to carry out a two-step examination.

As a first step, that authority must “determine whether there is objective, reliable, specific and duly updated material indicating that there is a real risk of breach, in the issuing Member State, of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generalised deficiencies so far as concerns the independence of that Member State’s judiciary”. (§ 29, emphasis added)

The CJEU then went on to say: “If that is the case, the competent authority of the executing Member State must, as a second step, determine, specifically and precisely, to what extent the deficiencies identified in the first step may have had an impact on the functioning of the courts of the issuing Member State which have jurisdiction over the proceedings brought against the person concerned and whether, having regard to that person’s personal situation, the nature of the offence for which he or she was tried, and the factual context of the sentence in respect of which recognition and enforcement are requested, and, where appropriate, to additional information provided by that Member State pursuant to that framework decision, there are substantial grounds for believing that such a risk has actually materialised in the present case”. (§ 30, emphasis added)

The opening words “if that is the case” in the above quotation read as a condition and suggest that it is only if the existence of systemic or generalised deficiencies is confirmed in the context of the first step of the examination that, as a second step, it can be assessed whether these deficiencies may have had a concrete impact on the individual concerned in terms of the fairness of the criminal proceedings which led to his conviction.

Assuming this interpretation is correct, it would mean that conversely, in the absence of such systemic or generalised deficiencies, no such individual assessment would be permissible. This would be in line with the CJEU’s approach in Puig Gordi and Others where a similar question was asked to the CJEU in relation to the execution of a European arrest warrant for the purpose of conducting criminal proceedings against the person concerned. In that case too, the CJEU denied the possibility for the executing authority to apply an individual test in the absence of systemic or generalised deficiencies (§ 111), the only difference being that in Staatsanwaltschaft Aachen the referring court had itself found such systemic or generalised deficiencies to exist.

Applied in this way, the two steps of this methodology appear of unequal weight and not on the same footing. Rather, the individual test seems subordinated to the general test, performing an ancillary function compared to that of the general test. Unlike the general test, the individual test is indeed not autonomous in the sense that it could on its own justify a conclusion as regards the existence of a risk of breach of a fundamental right – here the right to a fair trial – in the issuing State, as it can do under the European Convention on Human Rights.

Under this approach the individual test can only operate to validate or not the findings under the general test that systemic or generalised deficiencies do exist. But if the general test is negative about the existence of such deficiencies, this is the end of the story: no assessment of the individual situation of the person concerned can be allowed to rebut the conclusions regarding the general situation.

This, in fact, amounts to allowing the general test to replace the individual test and strongly reminds of the position taken by the CJEU in N.S. and Others to the effect that only systemic flaws could justify an exception based on Article 4 of the EU-Charter to the Dublin Regulation (§§ 82-86). Here too, efficiency considerations were allowed to prevail over fundamental rights.

In essence, however, fundamental rights are individual rights and call for an autonomous individual assessment. It can be complemented but not replaced by a general assessment. This is also reflected in the central position in the Convention system of the right of individual petition which, by definition, calls for an individual assessment. The way to handle this in a mutual recognition context has been set out by the ECtHR in Avotiņš v. Latvia, in the following terms:

[The Court] must verify that the principle of mutual recognition is not applied automatically and mechanically … to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context …. Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116, emphasis added)

The CJEU argues that “allowing the competent authority of the executing Member State to suspend, on its own initiative, the mechanism laid down in Framework Decision 2008/909 by refusing, in principle, to give effect to all the requests seeking recognition of judgments and enforcement of criminal sentences from the Member State concerned by those deficiencies would call into question the principles of mutual trust and mutual recognition which underpin that framework decision” (§ 34).

However, this is no answer to the question why an individual test should not be allowed to be applied in the absence of systemic or generalised deficiencies. By definition, the result of such a test would be limited to the individual case concerned and could therefore not call into question the entire system of mutual recognition. Under the Avotins approach referred to above, it would at the same time remain exceptional, in line with the CJEU’s doctrine on mutual recognition.

Conditions for granting subsidiary protection “fully compatible” with – but not “more extensive” than – Strasbourg : judgment of the CJEU in the case of Staatssecretaris van Justitie en Veiligheid

In the case of Staatssecretaris van Justitie en Veiligheid (Notion d’atteintes graves) (C-125/22, 9.11.2023), the CJEU ruled on the requirements to be fulfilled for the granting of subsidiary protection under Article 15 of Directive 2011/95/EU (“Qualification Directive”).

Under that provision, the “serious harm” justifying the granting of subsidiary protection can consist of either the death penalty or execution (a), or torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (b), or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (c).

The main issue raised in this case was about the criteria to be used for the assessment of whether any of these three situations materialised in a given case: only the general situation in the country concerned or also the individual position and personal circumstances of the applicant for subsidiary protection?

In essence, the CJEU ruled that the application of Article 15 (a) and (b) required a “clear degree of individualisation” (§§ 37, 72), whereas under Article 15 (c), one had to distinguish between exceptional and less exceptional situations.

According to this approach, the exceptional situations are those which occur when the applicant for subsidiary protection comes from an area of a given country hit by “the most extreme cases of general violence”, within the meaning of the judgment of the ECtHR in NA. v. United Kingdom. In such cases, substantial grounds would exist for believing that a civilian, returned to the relevant country or region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to a serious and individual threat to his or her life or person (§§ 58, 63). Therefore, the existence in such cases of a risk of a “serious and individual threat”, within the meaning of Article 15(c), is not conditional on the applicant proving that he or she is specifically affected by reason of factors particular to his or her personal circumstances (§ 41).

By contrast, in the “less exceptional situations”, factors relating to the individual position and personal circumstances of the applicant are relevant, to the effect that the more the applicant is able to show that he or she is specifically affected by reason of factors particular to his or her individual position or personal circumstances, the lower the level of indiscriminate violence required for him or her to be eligible for subsidiary protection (§ 42). Consequently, in such cases more relevant personal elements are needed to justify subsidiary protection than just the fact of coming from an area where “the most extreme cases of general violence” occur (§ 65).

What is very helpful in this ruling is that the CJEU takes care of indicating that by virtue of Articles 6(3) TEU and 52(3) of the EU-Charter, the case-law of the ECtHR on Article 3 of the Convention (prohibition of ill-treatment) must be taken into account “as the minimum threshold of protection”, when interpreting Directive 2011/95 and Article 4 of the EU-Charter (§§ 59-60).

What is perhaps even more remarkable as a result, and regrettably still very rare in the Luxembourg jurisprudence (one isolated example being Menci, § 62), is a clear statement by the CJEU about its interpretation of EU law being “fully compatible” with the corresponding Strasbourg case-law, here on Article 3 of the Convention (§ 66). Such a useful clarification – which indeed corresponds to reality – can only facilitate the task of domestic judges who, when they apply EU law, must also comply with the Convention (see Bivolaru and Moldovan v. France, § 103).

Somewhat surprisingly, though, the CJEU adds that its interpretation of Article 15(c) would provide applicants for international protection a more extensive protection than that offered by Article 3 of the Convention (§ 66). As such, this would not be a problem, as the Convention is open to its own standards being raised at domestic level (Art. 53 of the Convention) and Article 52(3) of the EU-Charter allows EU law to do the same.

However, this statement would appear to be a misrepresentation of the situation. It seems based on the following false assumption by the CJEU:

The Court has already held that it is Article 15(b) of Directive 2011/95 which corresponds, in essence, to Article 3 ECHR. By contrast, Article 15(c) of that directive is a provision, the content of which is different from that of Article 3 ECHR, and the interpretation of which must, therefore, be carried out independently, in order, inter alia, to ensure that that provision has its own field of application, although with due regard for the fundamental rights guaranteed under the Charter and the ECHR (§ 62)

This analysis seems to be missing the fact that while the wording of Article 3 of the Convention is reflected only in Article 15 (b), the ECtHR has interpreted Article 3 so as to extend its scope to most of the situations described in Article 15 (b), thereby applying both individual and general criteria for the assessment of whether an individual can be considered to be at a risk relevant under Article 3 if returned to his or her country of origin. For instance, in Khasanov and Rakhmanov v. Russia, the ECtHR stated:

The risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances …. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two. (§ 95, emphasis added)

These are exactly the kind of situations described in paragraphs 63 and 64 of the ruling which, according to the CJEU, come with the scope of Article 15 (c) of Directive 2011/95. In other words, under the current case-law Article 3 of the Convention covers the situations coming within the scope of Article 15 (b) or (c), the level of personal circumstances being required for Article 3 to kick in hinging on the nature of the risk at stake. This means, as a consequence, that the CJEU is not dispensed from complying with the Convention minimum standard under Article 3 when interpreting Article 15 (c) of the Directive.

Last but not least, another useful clarification made by the CJEU is about the burden of proof, the CJEU stating that although, under Article 4(1) of Directive 2011/95, Member States may require the applicant, during the first of those stages, to submit as soon as possible all elements needed to substantiate the application for protection, the authorities of the Member States must, if necessary, actively cooperate with him or her in order to determine and supplement the relevant elements of the application, those authorities being often better placed than the applicant to gain access to certain types of documents (§ 47). This is very much in line with the Strasbourg approach as described in J.K. and Others v. Sweden.

AG 505 zum EGMR: Sitzung vom 30. November 2023

Liebe Studierende,

auf der Tagesordnung der kommenden Sitzung stehen folgende zwei Themen:

1. Die nachträgliche Sicherungsverwahrung in Deutschland im Licht der Anforderungen aus Art. 5 und 7 EMRK (Rs. Ilnseher / Deutschland)

2. Islamistische Vereinigungen und das Recht auf Vereinigungsfreiheit (Rs. Internationale Humanitäre Hilfsorganisation e. V. / Deutschland)

Die zu besprechenden Urteile liegen bei.

Freundliche Grüße,

Prof. Dr. Johan Callewaert

AG 505 zum EGMR: Sitzung vom 23. November 2023

Liebe Studierende,

Auf der Tagesordnung unserer kommenden Sitzung stehen folgende zwei Themen:

1. Auslieferungen an Drittstaaten, in denen eine lebenslange unverkürzbare Haft droht (Urteil in der Rs. Sanchez-Sanchez / Vereinigtes Königreich)

2. Hassrede auf Facebook (Urteil in der Rs. Sanchez / Frankreich)

Die zwei zu besprechenden Urteile liegen bei.

Freundliche Grüße,

Prof. Dr. Johan Callewaert

The interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights

The enclosed Powerpoint relates to a presentation given on the occasion of the launch at the Council of Europe, on 13 November last, of the HELP Course on the Interplay between the European Convention on Human Rights and the EU-Charter of Fundamental Rights. It is accessible here.

This course is one of the very few commendable initiatives undertaken so far to comprehensively explain, in an on-line format, the interplay between these two major European sources of fundamental rights. It is a very promising tool designed to help legal practitioners come to terms with that duality which, while globally ensuring quite some convergence between Strasbourg and Luxembourg, e.g. in the field of procedural rights or judicial independence, also generates some differences which should not downplayed, given their impact on the respective protection levels in several important areas.

The key to more convergence is a wholistic approach. It should allow European law-makers and caselaw-makers alike, while remaining within their own competences, to nonetheless look beyond the limits of their respective legal systems and to ensure as much compatibility as possible between the co-existing sources of fundamental rights, which will help domestic judges discharge their complex task of applying those sources simultaneously. The on-going judicial dialogue between the two European Courts is a major contribution towards achieving this.

The enclosed presentation gives an overview of recent case-law relating to this interplay, with an emphasis on judgments by the European Court of Human Rights illustrating the control exercised by the latter over compliance with the European Convention on Human Rights when domestic courts apply Union law. Interestingly, the breaches of the Convention identified in this case-law result not only from faithful applications of EU law, as in Bivolaru and Moldovan v. France or Šneersone and Kampanella v. Italy, but also from shortcomings in the application of EU law, as in Veres v. Spain or Spasov v. Romania.

Migrants at the border: fundamental rights at stake or just another breach of secondary law? Comparing “European Commission v. Hungary” with “N.D. and N.T. v. Spain”

In the case of European Commission v. Hungary (Déclaration d’intention préalable à une demande d’asile) (C-823/21, 22.6.2023), the CJEU applied Article 6 of Directive 2013/32 (the Procedures Directive), which regulates access to the procedure for international protection, to the situation of migrants at the State border.

The CJEU ruled that Hungary had failed to fulfil its obligations under Article 6 of Directive 2013/32 because it had made the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at its borders, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory. Thus, these people have to leave Hungary and come back with papers delivered by a Hungarian embassy abroad before being able to apply for international protection.

In essence, the CJEU’s ruling is based on the following five considerations.

1. Article 6 of Directive 2013/32 allows any third-country national or stateless person to make an application for international protection, including at the borders of a Member State (Art. 3(1)), by expressing his or her wish to benefit from international protection to one of the authorities referred to in that article, without the expression of that wish being subject to any administrative formality. That right must be recognised even if that person is staying illegally on the territory of the Member State concerned and irrespective of the prospects of success of such a claim (§ 43).

2. The obligation imposed on migrants at the border by the impugned Hungarian legislation is not provided for by Article 6 of the Directive and runs counter to the objective pursued by it, which is to ensure effective, easy and rapid access to the procedure for granting international protection (§ 51).

3. This obligation also deprives migrants of their right, under Article 18 of the EU-Charter, to effectively seek asylum (§ 52).

4. A Member State cannot unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection (§ 47).

5. The public health and public policy and security grounds invoked by the Hungarian government as justification for this scheme are ill-founded (§§ 54-69). 

Interestingly, , in the landmark case of N.D. and N.T. v. Spain a unanimous Grand Chamber of the European Court of Human Rights recently dealt with the same topic, i.e. the forcible return of migrants from the Spanish border surrounding the enclave of Melilla. It did so under Articles 4 of Protocol No. 4 (prohibition of collective expulsion) and 3 of the Convention (prohibition of ill-treatment, including refoulement). In that same judgment, the ECtHR set out its doctrine about the rights and duties of migrants at the border of Contracting States. It is based on the following five principles, listed hereinafter with relevant excerpts from the judgment.

1. No formalities are required for a valid application for asylum

In the specific context of migratory flows at borders, the wish to apply for asylum does not have to be expressed in a particular form. It may be expressed by means of a formal application, but also by means of any conduct which signals clearly the wish of the person concerned to submit an application for protection. (N.D. and N.T., § 180)

2. The non-admission of a refugee is to be equated with refoulement

The “non-admission” of a refugee is to be equated in substance with his or her “return (refoulement)”. Consequently, the sole fact that a State refuses to admit to its territory an alien who is within its jurisdiction does not release that State from its obligations towards the person concerned arising out of the prohibition of refoulement of refugees. (§ 181)

3. The protection of the Convention is not subject to formal considerations

The protection of the Convention cannot be dependent on formal considerations such as whether the persons to be protected were admitted to the territory of a Contracting State in conformity with a particular provision of national or European law applicable to the situation in question. The opposite approach would entail serious risks of arbitrariness, in so far as persons entitled to protection under the Convention could be deprived of such protection on the basis of purely formal considerations, for instance on the grounds that, not having crossed the State’s border lawfully, they could not make a valid claim for protection under the Convention. States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions cannot go so far as to render ineffective the protection afforded by the Convention, and in particular by Article 3. (§ 184)

4. Expulsion is to be understood as any forcible removal of an alien from a State’s territory

The term “expulsion” is to be interpreted in the generic meaning in current use (“to drive away from a place”), as referring to any forcible removal of an alien from a State’s territory, irrespective of the lawfulness of the person’s stay, the length of time he or she has spent in the territory, the location in which he or she was apprehended, his or her status as a migrant or an asylum-seeker and his or her conduct when crossing the border. (§ 185)

5. States must make available genuine and effective access to means of legal entry, in particular border procedures

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. In the context of the present case, the Court also refers to the approach reflected in the Schengen Borders Code. The implementation of Article 4 § 1 of the Code, which provides that external borders may be crossed only at border crossing points and during the fixed opening hours, presupposes the existence of a sufficient number of such crossing points. In the absence of appropriate arrangements, the resulting possibility for States to refuse entry to their territory is liable to render ineffective all the Convention provisions designed to protect individuals who face a genuine risk of persecution. (§ 209)

However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (§ 210)

What conclusions can be drawn from a comparison of these two rulings?

The good news is that in terms of their outcome, i.e. the obligations of States regarding the treatment of migrants at the border, the two rulings appear to be very similar in that in essence, they both require the effective possibility for migrants at the border to make an application for international protection.

A striking difference, though, lies in the approach followed by each of the two European Courts. Whereas the CJEU adopted a rather textual approach based on the wording of Articles 6 and 3(1) of Directive 2013/32 and previous case-law, the ECtHR adopted a more principled approach, thereby going to great lengths, notably with a thorough analysis of the current state of international law, to explain that what is at stake in such cases are two basic fundamental rights of migrants, i.e. the right not to be subject to refoulement or collective expulsion. By contrast, nothing is said about these fundamental rights in Commission v. Hungary, despite the suggestion by the Commission that this case is in fact about refoulement (§ 23). The resulting impossibility for migrants at the Hungarian border to seek asylum is mentioned only incidentally by the CJEU (§ 52).

This is indeed the paradox of Commission v. Hungary and several other similar rulings: it is ultimately about basic fundamental rights, but nothing is said about them. Instead, the matter is addressed on the basis of a textual interpretation of “ordinary” provisions of secondary law of a rather technical nature. These provisions may perhaps have the same concrete impact in practice, but they also have the effect of trivialising the issues at stake and ignoring what is their very essence.

While the main issue characterising the situation of migrants at the Hungarian and other State borders is ultimately one of basic fundamental rights, i.e. one of refoulement and collective expulsion, as recently confirmed in S.S. and Others v. Hungary, this issue is being ignored in European Commission v. Hungary and treated as just another breach of an ordinary provision of EU law. The Strasbourg case-law therefore seems a good reminder of the deeper issues behind these ordinary provisions.

The practical relevance of this distinction is that, being of a higher rank and less easily modifiable, fundamental rights can be expected to provide a better protection in the long run. Moreover, they raise the importance of the issues involved, preventing them from being considered as purely technical matters.

AG 505 zum EGMR, erste Sitzung am 9. November 2023

Liebe Studierende,

im Hinblick auf die erste Sitzung unserer Arbeitsgemeinschaft zum Grundrechtsschutz durch den Europäischen Gerichtshof für Menschenrechte (Donnerstag 9.11. um 19.15 Uhr in HS 1), bei der Sie sich auch jeweils ein Urteil des EGMR zur Präsentation und Besprechung in der AG aussuchen sollten, finden Sie anbei die Themenliste, aus der Ihre Auswahl erfolgen soll.

Damit können Sie sich schon mit den in der AG anstehenden Themen etwas vertraut machen und vielleicht auch schon eine Vorauswahl treffen. Die einzelnen Themen werde ich in der AG auch noch näher erläutern.

Ich freue mich darauf, Sie am 9.November persönlich kennenzulernen.

Prof. Dr. Johan Callewaert

The CJEU goes for the Strasbourg test of the “proceedings as a whole”: Judgment of the CJEU in K.B. and F.S.

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

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

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

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

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

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

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

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

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

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

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

Which judge should assess the best interests of a wrongfully removed child? Judgment of the CJEU in TT

In the case of TT (unlawful removal of a child) (C-87/22, 13.7.2023), the CJEU ruled on the requirements of Article 15 of Regulation No 2201/2003  concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis). This provision allows a case concerning the wrongful removal of a child to be transferred from the court of the Member State of the habitual residence of the child to a court of another Member State which is considered to be better placed to hear the case, if such a transfer is in the best interests of the child and the latter has a particular connection with that other Member State.

In the case at hand, two children had been wrongfully removed from Austria to Slovakia by their mother, without the agreement of their father. The mother made an application for the Austrian courts, which under Article 10 of the Regulation had jurisdiction in relation to parental responsibility over the children, to request a court in Slovakia to assume jurisdiction, pursuant to Article 15 of the Regulation. One of those courts interrogated the CJEU about the requirements of that provision, and more particularly about whether the court to which a case would be transferred on this basis could also be a court of the Member State to which the child concerned had been wrongfully removed.

After recalling the rationale of the scheme put in place by the Regulation in this field, which is based on the Hague Convention on the Civil Aspects of International Child Abduction and aims at preserving the best interests of the child while at the same time deterring parents from wrongfully removing their children, the CJEU concluded that Article 15 of the Regulation did not oppose a transfer of the case to a court located in the Member State to which the child has been removed (§ 44). The CJEU notably stated:

The court with jurisdiction as to the substance, under Article 10 of Regulation No 2201/2003, must be satisfied, having regard to the specific circumstances of the case, that the transfer proposed is not likely to have a negative impact on the emotional, family and social relationships of the child concerned or on the child’s material circumstances … and must make a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment ….

Hence, it is not contrary to the objectives pursued by Regulation No 2201/2003 for a court with jurisdiction in matters of parental responsibility on the basis of Article 10 of that regulation to be able, exceptionally and after having taken due account, in a balanced and reasonable manner, of the best interests of the child, to request the transfer of the case of which it is seised to a court in the Member State to which the child concerned has been wrongfully removed by one of his or her parents. (§§ 50-51)

Interestingly, these are exactly the kind of considerations which the ECtHR relies on when assessing whether a decision made on the return of a child is compatible with Article 8 of the Convention (right to family life). In such situations, the ECtHR indeed examines whether the judge concerned, whether from the Member State of the habitual residence of the child or from their new residence, duly considered all the circumstances of the case and whether their decision on the return of the child could be said to be in the best interests of the child, as it did e.g. in Royer v. Hungary.

Thus, while under the Regulation the consideration of whether it is in the best interests of a wrongfully removed child to be returned to their habitual residence is, pursuant to Article 10 of the Regulation, the exclusive competence of the court of the habitual residence of the child, unless its competence was transferred by virtue of Article 15, there is no such exclusive competence under Article 8 of the Convention.

While adhering in principle to the approach underlying the Hague Convention and the Regulation according to which a wrongfully removed child should be quickly returned to his habitual residence (see Michnea v. Romania, Voica v. Romania, Veres v. Spain), the ECtHR’s competence is limited to examining whether any judicial decision made on the return of the child, whether in the former or the new residence of the child, was in conformity with Article 8 of the Convention. As the ECtHR put it:

The Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (X. v. Latvia, § 102; Voica v. Romania, § 53).

This can result in the ECtHR considering that the refusal by a court of the new residence of the child to order the return of the latter was not in breach of Article 8 of the Convention, as in M.K. v. Greece, Royer v. Hungary and O.C.I. and Others v. Romania, or that the return order by a court of the habitual residence of the child was in breach of Aricle 8 because that court had not thoroughly examined the case, as in Šneersone and Kampanella v. Italy. As the ECtHR repeatedly stated in such cases, it must verify that the principle of mutual recognition is not applied automatically and mechanically (Royer v. Hungary, § 50).

In other words, the absence of a transfer of jurisdiction over the child under Article 15 of the Regulation does not prevent the ECtHR from scrutinising the decision over the return of the child made by a court from another State than the one of the habitual residence of the child. This is because issues about exclusive jurisdiction – which in principle do not fall within the scope of Article 8 anyway – should not prevent a grave risk to the best interests of the child from being taken care of by the judge before whom this risk happens to be pleaded. In one sentence: in the face of grave risks, the best interests of the child should not be allowed to hinge on issues about jurisdiction.

This, in turn, means that by virtue of Article 8, a judge of the new residence of the removed child is not bound, in the event of a grave risk for the child, to wait for a formal transfer of jurisdiction to him/her by the court having jurisdiction under Article 10 of the Regulation – a scenario which indeed rather rarely occurs – before considering whether the child should be returned or not. A failure to act accordingly might even entail the Convention liability of the judge concerned. This is in line with what the ECtHR stated in Avotiņš v. Latvia :

Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116)