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.

Denial of justice by not applying EU law: judgment of the ECHR in the case of Spasov v. Romania

In the case of Spasov v. Romania (27122/14, 6.12.2022), the ECHR found that the applicant, the owner and captain of a vessel registered in Bulgaria who was fishing in Romania’s exclusive economic zone, had been the victim, inter alia, of a denial of justice (Art. 6 of the Convention) because he had been convicted on the basis of Romanian criminal law which previously had been found to be in breach of EU law, notably the rules of the Common Fisheries Policy, by the European Commission. By not applying these rules, which had direct effect in the Romanian legal order and prevailed over national law, the Romanian courts had made a manifest error of law.

In evaluating the impact of the relevant EU law in the present case, the ECHR did not engage in its own interpretation of EU law, for which it has indeed no competence, as recalled in § 83 of the judgment. Rather, it relied, in the absence of a ruling by the CJEU, on the clear position which had been expressed in this case by the European Commission in its exchange with the Romanian authorities, indicating to them that by prosecuting the applicant, they had committed serious breaches of EU law, notably of Regulations nos. 2371/2002 and 1256/2010.

This case is an illustration of the fact that it is not only compliance with EU law by the domestic authorities which can give rise to an issue under the Convention (see, among others, Bosphorus v. Ireland; Bivolaru and Moldovan v. France). It is also, in certain specific circumstances, the failure to comply with EU law (in a similar sense, see Romeo Castaño v. Belgium).

AG zum Grundrechtsschutz durch den EGMR: Sitzung vom 15. Dezember 2022

Liebe Studierende,

auf dem Programm unserer Sitzung an diesem Donnerstag stehen folgende zwei Themen:

1. Das Verbot der Kollektivausweisung von Flüchtlingen, am Beispiel der Geschehnisse an der spanisch-marokkanischen Grenze in Melilla, die Gegenstand der Rs. N.D. und N.T. / Spanien wurden;

2. Lebensbeendende Maßnahmen an einer unheilbar kranken Person im Dauerkoma, am Beispiel der Rs. Lambert u.a. / Frankreich.

Beide Urteile liegen bei.

Bis Donnerstag,

Prof. Dr. Johan Callewaert

AG zum Grundrechtsschutz durch den EGMR: Sitzung vom 8. Dezember 2022

Liebe Studierende,

Zwei brisante Themenbereiche stehen auf der Tagesordnung unserer morgigen Sitzung:

1. Die Auslandseinsätze von vertragsstaatlichen Streitkräften, am Beispiel der Rs. Hanan / Deutschland, betreffend Einsätze der Bundeswehr in Afghanistan;

2. Die Rechtsprechung des EGMR zum Schutz der Umwelt, am Beispiel der Rs. di Sarno u.a. / Italien und Pavlov u.a. / Russland.

Ich freue mich auf spannende Diskussionen mit Ihnen darüber.

Prof. Dr. Johan Callewaert

16th 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 16th meeting in Strasbourg from 22 to 24 November 2022.

The Group’s discussions focused mainly 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. The Group examined various options for addressing this issue and identified areas for further exploration.

In this context, the representative of the EU also updated the Group on the EU’s ongoing work to find a solution to the Basket 4 issue (cases relating to the EU’s Common Foreign and Security Policy). He noted that the issue would be raised at a meeting of the EU Ministers of Justice in early December.

The Quest for Consistency between the EU and the European Convention on Human Rights

Last Tuesday it was my pleasure to participate in the seminar brilliantly organised and run by Prof. Jan Wouters and Prof. Pietro Franzina at the Università Cattolica del Sacro Cuore in Milan on the topic: “How strong is the European Union’s commitment to International Law?”.

My own presentation was about “The Quest for Consistency between the EU and the European Convention on Human Rights”. It was built around the following five key findings.

1. Consistency between EU law and the European Convention on Human Rights (“Convention”) is needed not least because the domestic courts of the EU Member States are bound to comply with the Convention when applying EU law. Their compliance with the Convention can be assessed by the European Court of Human Rights in the context of an application under Article 34 of the Convention. This can give rise to the finding of a violation of the Convention (as in Bivolaru and Moldovan v. France). Thus, the domestic judges engage their responsibility under the Convention when applying EU law.

2. The EU legislature has developed an appropriate methodology designed to ensure the necessary consistency between EU law and the Convention, by establishing the latter as minimum protection level in the field of EU law. This is indeed the rationale of Article 52(3) of the EU-Charter on Fundamental Rights, of the non-regression clauses which can be found in several instruments of secondary legislation enshrining fundamental rights and, ultimately, of Article 6(2) TEU ordering the EU to accede to the Convention. Under this scheme, the Convention level can be raised but should not be lowered by EU law.

3. The implementation of this methodology by the EU courts gives rise to a mixed picture, though. It would indeed appear that the Convention is much more frequently used by the CJEU as a simple toolbox designed to fill gaps in EU legislation or jurisprudence (as, typically, in Spetsializirana prokuratura (trial of an absconded suspect)) than as a benchmark of the requisite minimum protection level sheltering domestic judges from breaching the Convention when applying EU law (as, typically, in HN).

4. Where the CJEU relies on the Convention, it often does so by using a terminology and/or a methodology which is not entirely similar to that of the Convention, but not entirely different either (as, typically, in bpost). This creates a kind of permanent ambivalence as to whether the duality of norms thus created also entails a duality of protection and, if so, in what sense. It is also ignoring the fact that contrary to EU law itself, domestic judges are not autonomous.

5. In such situations, domestic judges are left in the dark as to whether they can rely on the fact that they will not breach the Convention when applying CJEU standards (as they would actually do by applying, for instance, a test such as the one emerging from N.S. and Others).  A more general commitment by the CJEU to the benchmark function of the Convention established by the EU legislature would be most helpful here.

The Powerpoint presentation of my talk is enclosed below.