The requirement of consent by the data subject declared compatible with the Convention: Judgment of the ECtHR in Jehovah’s Witnesses v. Finland

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

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

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

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

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

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

One step is enough? Judgment of the CJEU in E.D.L.

In the case of E.D.L. (C-699/21, 18.4.2023) the CJEU was again called upon to rule on how to handle the situation arising out of a legal obligation to deport a person who is seriously ill to a State where the required medical treatment might not be available. Whereas in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) this issue presented itself in the context of a return procedure, in the case at hand it did so in the context of the execution of a European arrest warrant (EAW).

In its ruling the CJEU distinguished three different scenarios:

a) Where there are substantial grounds to believe that the surrender of the requested person manifestly risks endangering his or her health, the executing judicial authority may, exceptionally, postpone that surrender temporarily, on the basis of Article 23(4) of Framework Decision 2002/584.

b) Where the executing judicial authority concludes that there are substantial and established grounds for believing that the surrender of the requested person would expose that person to a risk as the one which was at stake in Staatssecretaris van Justitie en Veiligheid (Éloignement – Cannabis thérapeutique) referred to above, i.e. a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health, that authority is required, in accordance with Article 4 of the Charter, to exercise the power provided for in Article 23(4) of Framework Decision 2002/584 by deciding to postpone the surrender. It is also required to ask the issuing judicial authority to provide all information relating to the conditions under which it intends to prosecute or detain that person and to the possibility of adapting those conditions to his or her state of health in order to prevent such a risk from materialising.

c) If, in the light of the information provided by the issuing judicial authority and all the other information available to the executing judicial authority, it appears that that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the European arrest warrant, by virtue of Article 1(3) of Framework-Decision 2002/584, which provides that that Framework-Decision “shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU]”. On the other hand, if the said risk can be ruled out within such a period of time, a new surrender date must be agreed with the issuing judicial authority.

What is noteworthy about this case is that the CJEU here did not apply its two-step methodology for the assessment of the existence of a risk in the issuing Member State such as to justify an exception, based on the duty to respect fundamental rights, from the obligation to execute a EAW. On this methodology, see e.g. Openbaar Ministerie (Tribunal established by law in the issuing Member State). The CJEU indeed immediately dealt with the nature of the risk incurred by the requested person in the issuing Member State (Croatia), without also assessing the existence of any systemic or generalised deficiencies in that Member State, as it did for instance in Aranyosi and Căldăraru, which also concerned a risk of a breach of Article 4 of the EU-Charter in the issuing Member State. The future will tell whether this case is to be seen as an exception or a new trend.

A different “ne bis in idem” in Luxembourg? Judgment of the CJEU in Generalstaatsanwaltschaft Bamberg

In the case of Generalstaatsanwaltschaft Bamberg (Exception to the ne bis in idem principle) (C-365/21, 23.3.2023), the CJEU was called on to rule on possible exceptions to the ne bis in idem principle. The main issue was about the compatibility with Article 50 of the EU-Charter of the declaration which Germany made pursuant to Article 55(1)(b) of the Convention implementing the Schengen Agreement (CISA). According to this declaration, Germany would not be bound by the ne bis in idem principle laid down in Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against its national security or its other equally significant interests.

The accused in the main proceedings in Germany, MR, had been convicted in Austria for serious commercial fraud and money laundering. While he served his sentence in Austria, a German court issued a European arrest warrant (EAW) requesting his transfer on charges of formation of a criminal organisation and investment fraud. In this context, the CJEU was asked for a preliminary ruling on, inter alia, the question whether the German courts could lawfully rely on the said declaration and consider that ne bis in idem would not preclude the execution of the EAW in the case at hand.

In its ruling, the CJEU took the view that the possibility, provided for in Article 55(1)(b) of the CISA, for a Member State to derogate from the ne bis in idem principle when the acts to which the foreign judgment relates constitute an offence against its security or other equally essential interests is to be seen as a limitation to ne bis in idem as guaranteed by Article 50 of the EU-Charter. Consequently, its lawfulness had to be assessed in light of Article 52(1) of the EU-Charter (§§ 47-48). The CJEU then embarked on a detailed analysis of whether the requirements of the latter provision were met. It thereby came to the conclusion that Article 55(1)(b) was compatible with Article 50 of the EU-Charter.

What is noteworthy about this ruling from a Convention point of view is some confusion between limitations and exceptions to ne bis in idem. A limitation to a fundamental right, which is called “interference” in the Convention terminology, usually refers to a measure affecting the enjoyment of a fundamental right by an individual without precluding it entirely, thus only restricting it. By contrast, there will be an exception from a fundamental right when its enjoyment is actually precluded altogether, here by reason of the category of offences involved. This is also why the CISA refers to Article 55 (1) (b), which provides for a scenario where States are not at all bound by ne bis in idem, as entailing an exception from its Article 54 (§ 5).

Thus, in light of this distinction, the present case is in fact about an exception to ne bis in idem rather than a mere limitation or restriction, since it is about denying the benefit of that principle altogether to MR. The notion of exception is therefore correctly used in paragraphs 5, 53 and 63 of the ruling. Yet, the CJEU nonetheless analyses this exception as a pure limitation and applies to it the test laid down in Article 52(1) of the EU-Charter. As if the benefit of ne bis in idem in the present case was only to be limited, as it was for instance in Menci and bpost, whereas in fact the suggestion was to reduce it to nothing at all.

This ambivalence becomes particularly apparent when, applying Article 52(1), the CJEU addresses the question whether the essence of ne bis in idem would be preserved in case the German declaration could be applied. It answers that question in the affirmative, but it does so by adopting a general perspective rather than that of the individual concerned. The CJEU indeed sees this requirement as fulfilled because “it permits that Member State to punish offences which affect the Member State itself and, in so doing, to pursue objectives that necessarily differ from those for which the person prosecuted has already been tried in another Member State.” (§ 57)

Thus, according to this reasoning, the essence of ne bis in idem is to be preserved for the benefit not of the accused person but of the State concerned, which will remain able to conduct its own prosecutions. It is therefore all the more surprising to read later in the judgment that this derogation from ne bis in idem “is accompanied by rules that will guarantee that the resulting disadvantages, for the persons concerned, are limited to what is strictly necessary” (§ 65, emphasis added). In fact, there is nothing left of that right for the individuals in the situation of MR, because ne bis in idem here is not subject to a mere limitation but to a full exception.

This approach would appear to be in serious contrast with the case-law of the European Court of Human Rights, for at least two reasons.

First, Article 4 of Protocol no. 7 to the Convention, which is the provision laying down the ne bis in idem principle in the Convention system, provides for no limitations at all to that principle. Exceptions from it are allowed only in two different situations: if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case (Art. 4 § 2). Ne bis in idem cannot even be derogated from under Article 15 of the Convention, in times of emergency (Art. 4 § 3).

Secondly, when the Strasbourg Court examines whether the essence of a fundamental right has been preserved by an interference with that right, it does so from the perspective of the applicant, thereby asking the question whether the latter enjoyed at least part of his or her fundamental right in the circumstances. In other words, it adopts an individual approach, not a general one. This is because, if a fundamental right is to be enjoyed by an individual, the preservation of its essence by definition must be in the interest of that same individual, not in that of the State interfering with his or her right (see, e.g. Regner v. Czech Republic, § 148).

All in all, the approach followed by the CJEU in the present case would appear to remain below the protection level ensured by Article 4 of Protocol No. 7 to the Convention. This is in spite of the explanations to Article 50 of the EU-Charter, according to which “As regards the situations referred to by Article 4 of Protocol No 7, namely the application of the principle within the same Member State, the guaranteed right has the same meaning and the same scope as the corresponding right in the ECHR”. This level of protection can hardly be allowed to vary according to whether ne bis in idem should apply between several States or within one and the same.

Reopening of domestic proceedings suggested following a failure to act upon a request for a preliminary ruling by the CJEU: judgment of the ECtHR in Georgiou v. Greece

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

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

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

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

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

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

First assessment of the “hotspot approach”: a prefiguration of the co-respondent mechanism? Judgment of the ECtHR in the case of J.A. and Others v. Italy

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

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

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

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

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

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

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

Extraordinary meeting of the Steering Committee for Human Rights of the Council of Europe

The Steering Committee for Human Rights of the Council of Europe (CDDH) held an extraordinary meeting online on 4 April 2023, at which it adopted its Interim Report to the Committee of Ministers, for information, on the accession of the European Union to the European Convention on Human Rights.

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.

Final meeting of the Negotiating Group on EU Accession

The CDDH ad hoc negotiation Group (“46+1”) on EU accession to the European Convention on Human Rights held its 18th and final meeting in Strasbourg from 14 to 17 March 2023.

The meeting was mainly devoted to the discussion of issues relating to Article 7 of the Accession Agreement regarding voting in the Committee of Ministers on decisions concerning the implementation of judgments of the European Court of Human Rights by the EU.

The Group furthermore discussed and agreed to make some changes to Article 3, paragraphs 5-8, and to the corresponding paragraphs of the explanatory report, concerning the triggering and termination of the co-respondent mechanism, the principle of joint responsibility, and the prior involvement procedure.

Thus, the only outstanding issue was that of the EU acts in the area of the Common Foreign and Security Policy (Basket 4). The problem here stems from paragraph 256 of Opinion 2/13 in which the CJEU stated that “jurisdiction to carry out a judicial review of acts, actions or omissions on the part of the EU, including in the light of fundamental rights, cannot be conferred exclusively on an international court which is outside the institutional and judicial framework of the EU”.

As regards the latter issue, the representative of the EU informed the Group of the EU’s intention to resolve it internally, and of its expectation that the Group would not be required to address this issue as part of its own work, but that resolution of this issue had not yet been achieved within the EU.

This being so, the Group concluded that it had resolved all of the issues that it was currently expected to address. It therefore provisionally agreed to adopt the resulting package of revised draft accession instruments, and adopted its report to the CDDH. The latter and the final meeting report are appended below.

An extraordinary meeting, at which the CDDH will adopt its report to the Committee of Ministers of the Council of Europe, will take place on 4 April 2023.

With all the issues raised by the CJEU in its Opinion 2/13 now having been addressed by the 46+1 Group, except that of Basket 4 which the EU undertook to address internally, the future of EU accession now lies entirely in the hands of the EU and its Member States. The progress of the procedure leading to the entry into force of that Agreement will therefore not least depend on how quick the EU will be in keeping-up the momentum for EU accession and offering a solution for Basket 4. In any event, the agreement amongst the “46 + 1” shows that all States involved remain committed to see EU accession become reality.

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.

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.