On 15 September last, the CJEU handed down two important rulings on different aspects of the right of an accused person to be present at his or her trial, thereby applying Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

In the case of HN (C-420/20), the CJEU ruled that while Art. 8 of Directive 2016/343 does not preclude national legislation imposing an obligation on suspects and accused persons to be present at their criminal trial, it does preclude legislation permitting a trial to be held in the absence of the suspect or accused person, where that person is outside the Member State concerned and is unable to enter its territory because of an entry ban imposed on him or her by the competent authorities of that Member State.

In the case of DD (C-347/21), the CJEU in essence ruled that where, for the sake of preserving the right to be present at the trial, an additional examination of an incriminating witness is necessary because the first examination could not be attended by the accused person and his lawyer for reasons beyond their control, Article 8(1) of Directive 2016/343 and Article 3(1) of Directive 2013/48 (on the right of access to a lawyer) do not require the whole previous examination of that witness to be repeated. Rather, it is sufficient that the accused person and his or her lawyer be able freely to question that witness, provided that, prior to that additional examination, the accused person and his or her lawyer are provided with a copy of the minutes of the previous examination of that witness.

One striking aspect of both rulings is the fact that here, in contrast for instance with the recent ruling in TL, the CJEU explicitly drew on relevant Strasbourg case-law, notably on the leading cases of Hermi v. Italy, Sejdovic v. Italy, Jussila v. Finland and Al-Khawadja and Tahery v. United Kingdom, as a basis, along with the two directives, on which to build its own reasoning. These references each time follow a clear indication by the CJEU to the effect that, since the right to a fair trial as guaranteed by Articles 47 §§2-3 and 48 of the EU-Charter corresponds to that same right as protected by Article 6 of the Convention, “the Court must, accordingly, ensure that its interpretation of the latter provisions ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights” (C-420/20, §§ 54-55; C-347/21, § 31).

Thus, in addition to drawing on the said Strasbourg case-law, the CJEU also rightly pointed to the need to preserve under EU law the minimum level of protection emerging from it. In so doing, it not only made use of the “toolbox function”of the Convention, as it indeed quite often does when simply taking on board Convention elements as it deems fit. In addition, in a move which is less frequent in its case-law and is therefore to be commended, it acknowledged – and effectively applied – the “benchmark function” which was conferred on the Convention in relation to EU law by Article 52(3) of the EU-Charter. The Explanations to this provision indeed state: “In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR.” This is clearly in order to protect national judges from being held liable in Strasbourg for breaching the Convention when applying EU law.

All of this is of course without prejudice to the possibility for EU law to provide “a more extensive protection” (Art. 52(3), 2^nd sentence, of the EU-Charter). In this connection, there is also room for a fruitful interaction between Article 6 of the Convention and the directives on procedural rights in criminal proceedings. A striking illustration of such an interaction is provided by the fact that while, on the one hand, the directive on the right to access to a lawyer (2013/48) clearly draws on the Strasbourg case-law relating to that right, the European Court of Human Rights, on the other hand, in Ibrahim and Others v. United Kingdom took on board the specifications contained in that directive concerning the notion of compelling reasons justifying an exception from the right to access to a lawyer (§ 259).

At any rate, since procedural rights in criminal proceedings are an area with a significant overlap between EU law and the Convention, in terms not only of the scope and substance of the rights concerned but also of the high number of cases in which Article 6 of the Convention is invoked, such explicit indications by the CJEU about the Strasbourg sources of its reasoning would appear to be of great importance, for at least three reasons.

First, as part of the CJEU’s legal reasoning which, as with any judicial decision, citizens have in principle a right to know and understand by virtue of the rule of law.

Secondly, for pedagogical reasons, as an illustration of the existing interaction between the Convention and EU law regarding many fundamental rights. For why suggest autonomy from the Convention where there is none and a wholistic approach would be required instead?

Thirdly, because any domestic judgment applying preliminary rulings by the CJEU may ultimately be reviewed in Strasbourg under Article 34 of the Convention (see Bivolaru et Moldovan c. France). Consequently, domestic judges have an interest in being given the legal arguments to satisfy themselves that by applying a preliminary ruling of the CJEU, they will not remain under the Convention level of protection and not run the risk of being found in Strasbourg to have breached the Convention. After all, it is their own responsibility and that of their respective Member States which are engaged in Strasbourg, interpretations of the Convention by the CJEU not being authoritative. Contrary to EU law itself, domestic judges are indeed not autonomous.

In the case of Valstybės sienos apsaugos tarnyba (C-72/22 PPU, 30.06.2022), the CJEU ruled that a domestic regulation which, by reason of the state of emergency created by a mass influx of migrants, precludes a foreigner who unlawfully entered a Member State from lodging an application for international protection, is incompatible with Articles 6 and 7(1) of the Procedures Directive (2013/32). Moreover, the domestic regulation allowing in the same circumstances asylum seekers to be placed in detention for the sole reason that they are staying illegally on the territory of that Member State was declared incompatible with Article 8(2) and (§) of the Reception Directive (2013/33).

A comparison of this CJEU ruling with the relevant Strasbourg case-law reveals a number of striking similarities but also some particularities. Here is a short overview of them, concerning four different aspects. In view of the duty of domestic judges to apply EU law in conformity with the requirements of the European Convention on Human Rights, which basically means that in case of divergencies they should apply the norm providing the higher protection, such considerations would not appear totally irrelevant. What is indeed required here is a wholistic approach which does no longer consider the Convention and EU law separately but rather as interacting with each other whenever EU law applies.

a. Unlawful stay on the territory of a State

A first striking element of the present CJEU ruling is its reliance on the need to interpret the relevant provisions of the Procedures Directive so as to ensure the effectiveness of the rights at stake, i.e. the right to access to the procedure in which applications for international protection are examined and the right to asylum enshrined in Article 18 of the EU-Charter (§§ 61-62).

Another remarkable element is the reminder by the CJEU, in light of the wording of the Directive, that the “making” of an application for international protection cannot be made dependent on the observance of administrative formalities, such formalities applying only at a later stage, when the application is “lodged”. Furthermore, a third-country national or stateless person is entitled to make such an application on the territory of a Member State even if that person is staying illegally on the said territory and irrespective of the prospects of success of such an application (§ 58).

On all these points, there is strong convergence with the case-law of the European Court of Human Rights (ECtHR). It is indeed well-established Strasbourg case-law that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, a principle which the ECtHR frequently applies in migration cases, as in M.K. and Others v. Poland where it stated:

The Court’s main concern in cases concerning the expulsion of asylum‑seekers is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (§ 167).

As regards the role played by formalities in applying for asylum, the ECtHR stated in N.D. and N.T. v. Spain:

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

As the ECtHR put it in M.K. and Others v. Poland: Taking into account the absolute nature of the right guaranteed under Article 3, the scope of that obligation was not dependent on whether the applicants had been carrying documents authorising them to cross the Polish border or whether they had been legally admitted to Polish territory on other grounds. (§ 178)

b. Pushback at the State border

It is worth noting, however, that the ruling of the CJEU concerns the situation of a migrant who already found himself on the territory of Lithuania, though unlawfully, which is different from the situation occurring when migrants are not admitted to the territory of a State and face pushbacks at the border instead.

Regarding that kind of situation, the ECtHR, relying notably on the Schengen Borders Code and the Procedures Directive, ruled in N.D. and N.T. v. Spain that States should ensure effective access to means of legal entry:

With regard to Contracting States like Spain whose borders coincide, at least partly, with external borders of the Schengen Area, the effectiveness of Convention rights requires that these States make available genuine and effective access to means of legal entry, in particular border procedures for those who have arrived at the border. Those means should allow all persons who face persecution to submit an application for protection, based in particular on Article 3 of the Convention, under conditions which ensure that the application is processed in a manner consistent with the international norms, including the Convention. … However, where such arrangements exist and secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner, the Convention does not prevent States, in the fulfilment of their obligation to control borders, from requiring applications for such protection to be submitted at the existing border crossing points (see also Article 6 of the EU Procedures Directive, …). Consequently, they may refuse entry to their territory to aliens, including potential asylum-seekers, who have failed, without cogent reasons … to comply with these arrangements by seeking to cross the border at a different location, especially … by taking advantage of their large numbers and using force. (§§ 209-210)

As regards asylum-seekers at the State border, there is again some convergence between the present CJEU ruling and the Strasbourg case-law on access to the territory of the State concerned. The ECtHR indeed stated in M.K. and Others v. Poland:

In order for the State’s obligation under Article 3 of the Convention to be effectively fulfilled, a person seeking international protection must be provided with safeguards against having to return to his or her country of origin before such time as his or her allegations are thoroughly examined. Therefore, the Court considers that, pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk. (§ 179)

c. Derogations

A further interesting aspect of the present ruling is the denial by the CJEU of the possibility for the national authorities to rely on Article 72 TFEU in order to derogate from the prescriptions of the Procedures Directive by reason of the threat to public order or internal security flowing from the mass influx of migrants at the border. This approach would appear to be in line with the absolute nature of Article 3 of the Convention, the effect of which is to prohibit torture and inhuman or degrading treatment or punishment even in the most difficult circumstances (Gäfgen v. Germany, § 87).

However, an element which would appear to raise some doubts is the reference by the CJEU to the possibility, provided for by Article 43 of the Directive, to establish special procedures, to be applied at the border, for assessing the admissibility of applications for international protection “where the conduct of the applicant suggests that his or her application is manifestly unfounded or abusive” (§ 74).

While the reference to the conduct of applicants bears some resemblance with the N.D. and N.T. jurisprudence concerning the conduct of migrants who lose the benefit of the protection against collective expulsions by crossing a State border in an unauthorised manner outside existing border checkpoints (§ 211), it must be noted that the eventuality being addressed by the CJEU in the present ruling potentially covers a much wider range of situations occurring at State borders. This might render the suggestion by the CJEU that the mere conduct of an applicant could indicate that his/her application is unfounded or abusive difficult to reconcile with the safeguards required by Article 4 of Protocol no. 4 to the Convention when no unlawful crossing of a State border has taken place. In such cases this provision indeed requires the State authorities to ensure that each of the aliens concerned has a genuine and effective possibility of submitting arguments against his or her expulsion (§ 198).

d. Detention

Finally, by not allowing asylum-seekers to be placed in detention for the sole purpose of the processing of their application, EU law applies a higher protection standard than the Convention, as demonstrated by the present CJEU ruling (compare with Z.A. and Others v. Russia, § 162).

In the case of BV (C-570/20, 5.5.2022), the CJEU again ruled on the requirements of the non bis in idem principle (prohibition of double jeopardy) laid down in Article 50 of the EU-Charter on fundamental rights. The referring court in this case, the French Court of cassation, had doubts as to whether, basically, the French legislation allowing VAT-related offences to be punished through a combination of a financial administrative penalty of a criminal nature and a custodial sentence was precise enough to comply with the EU law requirements in this area.

What is somewhat surprising in this ruling, from a Convention point of view, is yet again an apparent lack of methodological coherence by the CJEU as regards the exceptions which can be made to the non bis in idem principle in respect of dual proceedings. Whereas the CJEU in its recent Grand Chamber ruling in the bpost case seemed willing to somewhat close the methodological gap between its own Menci jurisprudence and the Strasbourg A and B jurisprudence, the present judgment seems to take a step back in this respect, by not at all referring to either A and B or bpost and even seemingly ignoring the progress achieved by the latter in bringing some more coherence between the Strasbourg and Luxembourg case-law on this issue. All case-law references are indeed to the sole Menci case which, one could have thought, had been complemented or superseded by bpost in the meantime.

In concrete terms, whereas bpost took on board some of the Strasbourg criteria which in Menci had played no role, notably the fact that for a duplication of proceedings to be acceptable, the two sets of proceedings at stake had to be complementary in nature and form a “coherent whole” (§ 49), or indeed that there was to be a “sufficiently close connection in substance and time” between them (§ 53), in the present ruling these elements are completely left out of the enumeration made by the CJEU of the requirements to be fulfilled under Article 52(1) of the EU-Charter (§§ 30-36), despite their importance, as underlined both in bpost and A. and B.

Perhaps one should not read too much into the present judgment, bearing in mind that the focus in BV was on the precision of the domestic legislation. The fact remains, though, that in an area which is already highly complex and has over the years been the subject of a succession of varying approaches, any additional confusion as to the applicable standards should preferably be avoided. From this perspective, a clear indication about the methodological continuity between bpost and BV would have been welcome, thus dispelling the – hopefully false – impression that Menci still looks like the leading case when it comes to dual proceedings in Luxembourg.

In the case of BPC Lux 2 and Others (C-83/20, 5.5.2022), the CJEU examined the compatibility of Portuguese legislation on the resolution of credit institutions with the right to property protected by Article 17 of the EU-Charter of fundamental rights. It concluded that the legislation at issue was compatible with it.

The preliminary ruling is noteworthy in that for the interpretation of Article 17 the CJEU relied to a large extent on the Strasbourg methodology and case-law relating to Article 1 of Protocol No. 1 to the Convention, notably the “three distinct rules” approach developed by the ECHR (see §§ 37-44 and 56). This comes after a reminder about Article 52(3) of the EU-Charter the effect of which is to require that the case-law of the ECHR on Article 1 of Protocol No. 1 be taken into account as minimum protection level (§ 37).

The explanations relating to Article 17 of the EU-Charter indeed state that while the wording of Article 1 of Protocol No. 1 has been updated in Article 17 of the EU-Charter, “in accordance with Article 52(3), the meaning and scope of the right are the same as those of the right guaranteed by the ECHR and the limitations may not exceed those provided for there.”

Interestingly, though, when examining the lawfulness of the limitations imposed by the legislation at issue, notably its detrimental impact on shareholders and creditors, the CJEU applied Article 52(1) of the EU-Charter, which is the provision laying down the requirements to be fulfilled by limitations to the rights of the EU-Charter. It did so without subsequently addressing the question whether those criteria – or at least their effect in the present case – were meeting the Strasbourg minimum standards, even though the test provided for by Article 52(1) is slightly different from the one applied in Strasbourg under Article 1 of Protocol No. 1. The latter is indeed 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”. The implicit conclusion from the CJEU’s silence on this issue seems to be that the Luxembourg limitations applied in this case met the Strasbourg standards.

This conclusion could indeed find some support in the relevant Strasbourg case-law heavily relied on in the judgment, as well as in the use of a good deal of the conceptual framework emerging from it, including the consideration that because national authorities are better placed to assess the economic situation, they should enjoy a wide margin of appreciation (§ 55).

On these issues, see also the following post.