Procedural rights in criminal proceedings and the European Convention on Human Rights: judgments by the CJEU in the cases of HN and DD

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), 2nd 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.