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.

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.

AG zum Grundrechtsschutz durch den EGMR: Sitzung vom 18. Januar 2023 am Sitz des EGMR in Straßburg

Liebe Studierende,

im Mittelpunkt der kommenden Sitzung unserer Arbeitsgemeinschaft, diesmal in Straßburg, stehen folgende zwei Themen:

1) Aktive Sterbehilfe aus Sicht der Europäischen Menschenrechtskonvention (Rs. Pretty / Vereinigtes Königreich und Haas / die Schweiz)

2) Festnahmen in der Türkei im Zuge der staatlichen Maßnahmen in Reaktion auf den versuchten Staatsstreich vom 15.7.2016 (Rs. Ilker Deniz Yücel / Türkei)

Wie gewohnt liegen die betreffenden Urteile bei.

Bis Mittwoch,

Prof. Dr. Johan Callewaert

AG zum Grundrechtsschutz durch den EGMR: Sitzung vom 12. Januar 2023

Liebe Studierende,

in der kommenden Sitzung werden wir uns mit den folgenden zwei Themen beschäftigen:

1) Schutz des Privat- und Familienlebens gemäß Artikel 8 der EMRK, am Beispiel der Rechtsprechung des EGMR zur Leihmutterschaft (Rechtssachen Mennesson / Frankreich und Valdís Fjölnisdóttir u.a. / Island).

2) Schutz der Demokratie gegen demokratiefeindliche politische Parteien und Vereinigungen, am Beispiel der Rechtssachen Refah Partisi / Türkei und Vona / Ungarn.

Alle Urteile liegen bei.

Bis Donnerstag,

Prof. Dr. Johan Callewaert

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.).

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.

AG zum Grundrechtsschutz durch den EGMR: Sitzung vom 5. Januar 2023

Liebe Studierende,

Die folgenden zwei Fragestellungen stehen auf der Tagesordnung unserer nächsten Sitzung:

1) Haben französische Staatsbürger, die in Syrien an der Seite des “islamischen Staates” gekämpft haben und gegenwärtig dort in Gefangenenlagern gehalten werden, einen Anspruch auf Repatriierung durch französische Einsatzkräfte (Rs. H.F. u.a. / Frankreich)?

2) Wie darf bzw. soll gegen Hassrede im Internet vorgegangen werden (Rs. Delfi AS/ Estland)?

Die beiden Urteile liegen bei.

Bis morgen,

Prof. Dr. Johan Callewaert

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.

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.

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.