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.
17th meeting of the Negotiation Group on EU Accession
The CDDH ad hoc negotiation Group (“46+1”) on EU accession to the European Convention on Human Rights held its 17th meeting in Strasbourg from 31 January to 2 February 2023.
The Group continued discussions on the issue of voting in the Committee of Ministers when supervising the implementation of judgments of the European Court of Human Rights in cases to which the EU is a party. It also examined proposals by one delegation for some minor changes to Article 3 of the Draft Accession Agreement.
As regards EU acts in the area of the Common Foreign and Security Policy, the representative of the European Union informed the Group that an agreement had not yet been reached between the European Union member States on a solution to the issue in Basket 4. The European Union and its member States were well aware of the Fourth Summit deadline and understood the sense of urgency; all concerned were working hard, and he hoped to have more news before the Group’s next meeting.
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