In the case of Ilias and Ahmed v. Hungary (21.11.2019), a Grand Chamber of the ECHR inter alia found that Hungary had failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants, two asylum seekers from Bangladesh, from Hungary to Serbia. As the case had given rise to the application of EU law at national level, the Court made the following clarifications regarding the interplay between the Convention and EU law in this field.

Firstly, in response to the Hungarian Government who argued that the national authorities had acted in accordance with EU law, the Court recalled that even when applying EU law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, when two conditions are met – the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law – those obligations must be assessed in the light of the presumption of Convention conformity as established in the Court’s case-law. The State remained fully responsible under the Convention for all acts falling outside its strict international legal obligations. In the present case the relevant EU law consisted of directives which did not impose on Hungary an obligation to act as they did. The Hungarian authorities therefore exercised a discretion granted under EU law, and the impugned measures taken by them did not fall within Hungary’s strict international legal obligations. Accordingly, the presumption of equivalent protection by the legal system of the EU did not apply in this case and Hungary was fully responsible under the Convention for the impugned acts (§§ 96-97).

Secondly, on the concept of “safe third country” as relied on by the respondent Government, the Court noted that Articles 33, 38 and 43 of the EU Asylum procedures directive provided for a possibility to enact national legislation that allows, under certain conditions, to forego an examination of requests for international protection on the merits and to undertake instead an examination of admissibility, in the sense of the above-mentioned EU directive (in particular, on whether it can reasonably be assumed that another country would conduct the examination on the merits or provide protection). In that case, however, the expelling State had to make sure that the intermediary country’s asylum procedure afforded sufficient guarantees to avoid an asylum-seeker being removed, directly or indirectly, to his country of origin without a proper evaluation of the risks he faced from the standpoint of Article 3 of the Convention (§§ 132-133). Any presumption that a particular country is “safe”, if it has been relied upon in decisions concerning an individual asylum seeker, must be sufficiently supported at the outset by an analysis of the relevant conditions in that country and, in particular, of its asylum system (§ 152). This had not been done in the present case.

In the case of A.K. (19.11.2019) the CJEU dealt with the issue of the independence of the Disciplinary Chamber of the Polish Supreme Court. In setting out the requirements to be fulfilled under EU law for a court to be independent and impartial, it relied on the second paragraph of Article 47 of the Charter (right to a fair trial), thereby pointing out that, by virtue of Art. 52(3) of the Charter, “the Court must … ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 of the ECHR, as interpreted by the European Court of Human Rights” (§ 118).

The CJEU then went on to give an overview of its own case-law on the independence and impartiality of courts (including C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the system of justice) and C-619/18, Commission v. Poland (Independence of the Supreme Court)) and pointed out that its interpretation of article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention (§ 126) which the CJEU then proceeded to describe in some detail.

One may just wonder why the CJEU did not mention that same Strasbourg case-law in its previous judgment in C-619/18 mentioned above, which deals with very similar issues.

In two landmark judgments dated 6.11.2019 the German Constitutional Court (Bundesverfassungsgericht – hereinafter “GCC”) dealt with the “right to be forgotten” and thereby clarified the relationship between the fundamental rights of the national Constitution (Grundgesetz), the EU Charter of Fundamental Rights and the European Convention on Human Rights.

In the first judgment (“Right to be forgotten I” – 1 BvR 16/13) the GCC stated that in areas not fully regulated by EU law it was to be assumed that the EU legislature allowed for some variety also in the field of fundamental rights. In such areas, the GCC would therefore only apply the fundamental rights of the Constitution, even when the EU Charter also applied by virtue of its Article 51(1). It would do so on the basis of a presumption that the level of protection of the EU Charter is already included in the protection afforded by the fundamental rights of the Constitution (§ 55). This presumption, which could be rebutted on a case-by-case basis (§ 63), was rooted not least in the European Convention on Human Rights which is both binding on the EU member States and being relied upon by the TEU (Art. 6(3)) as well as by the Charter itself (Preamble and Art. 52(3) and 53) (§ 56-57). In this connection, the GCC highlighted the role of the European Convention on Human Rights, which was to ensure an overarching minimum pan-european protection as a basis underlying both the national and the EU protection of fundamental rights (§ 62).

The applicant in this case claimed a right to have newspaper articles on his criminal conviction dating back 30 years removed from online archives. The GCC considered that the facts of the case were not entirely regulated by the applicable EU law (Directive 94/46 on the protection of individuals with regard to the protection of personal data; now replaced by the GDPR, 2016/679) in that the latter left some discretion to the member States in applying the so-called media privilege laid down in Articles 9 of the Directive and 85 of the GDPR (§ 12). It thus solely applied the fundamental rights of the Constitution, thereby leaving open the question whether the EU Charter also applied to the facts of the case by virtue of its Article 51(1). At the same time, the GCC took the view that there was no reason to assume that the protection level of the EU Charter would not be respected by its judgment, since the latter relied on the case-law of the European Court of Human Rights which, by virtue of Article 52(3) of the Charter, was decisive in interpreting the Charter (§ 154).

By contrast, in the second judgment (“Right to be forgotten II” – 1 BvR 276/17) the GCC stated that in areas fully regulated by EU law only the EU fundamental rights were to be applied, provided they were sufficiently effective. Departing from its previous case-law, the GCC ruled in this context that it would henceforth assess itself compliance of domestic judgments with EU fundamental rights, including the EU Charter, and that it would do so in cooperation with the CJEU, pursuant to Article 267 TFEU (§ 68). The applicant in this case claimed a right to have a hyperlink to an unfavourable media report removed from the list of results provided by a search engine operator (Google). As, unlike in the first judgment (above), the facts of the case did not give rise to the application of the so-called media privilege, the GCC considered that the issue at stake was fully regulated by EU law (Directive 94/46 and the GDPR, as above) and that therefore only the EU fundamental rights, including the EU Charter, applied. It then went on to apply in particular Articles 7, 8 and 16 of the EU Charter, thereby referring to the case-law of the CJEU and, by virtue of Article 52(3) of the Charter, to that of the ECHR. Having regard to those two sets of case-law, the GCC concluded that in the absence of any unsettled issues concerning the interpretation of EU law, there was no need to make a preliminary reference to the CJEU under Article 267 TFEU (§ 137).

One of the striking features of those two judgments of the GCC is their detailed analysis of how the national Constitution, the EU Charter and the Convention interact in practice and of the consequences at domestic level of the substantive link established by Article 52(3) of the EU Charter between the latter and the Convention. It plays a role notably for the assessment of whether domestic protection levels match EU protection levels (Right to be forgotten I) and of whether a preliminary reference to the CJEU is called for (Right to be forgotten II).

In the case of Dumitru-Tudor Dorobantu (15.10.2019), a Grand Chamber of the CJEU confirmed and specified its case-law on the execution of a European arrest warrant in the face of a real risk of inhuman or degrading treatment, in this case a risk arising out of the conditions of detention in the issuing Member State. Relying on Article 52(3) of the EU-Charter, the CJEU confirmed the absolute nature of the prohibition of ill-treatment as it resulted from Article 4 of the EU-Charter, which corresponded to Article 3 of the Convention. Still on the basis of Article 52(3) of the EU-Charter, the CJEU referred to the Mursic-jurisprudence of the ECHR (20.10.2016) for the assessment of the level of severity of conditions of detention. Interestingly, in § 57 of its judgment the CJEU also relied on the Romeo Castaño-jurisprudence of the ECHR (see below), holding that under the Convention, the refusal by a Member State to execute a European arrest warrant by reason of a risk of ill-treatment in the issuing State had to be based on an up-to-date and detailed examination of the situation as it existed at the time of the decision not to execute the warrant. The CJEU thereby apparently ignored the fact that the Romeo Castaño-jurisprudence has so far only been applied by the ECHR in respect of criminal proceedings falling under the scope of Article 2 of the Convention, i.e. in the event of a homicide, which is not the case in Dorobantu.

In Rayonna prokuratura Lom (19.9.2019) the CJEU ruled on the scope of three of the directives on procedural rights in criminal proceedings, being Directive 2012/13 on the right to information, Directive 2013/48 on the right of access to a lawyer and Directive 2016/343 on the presumption of innocence and the right to be present at the trial.

As regards the directives on the right to information and on access to a lawyer, the CJEU stated that these Directives also apply to proceedings for the committal to a psychiatric hospital of a person who committed a criminal offence, provided that such a measure was justified not only on therapeutic grounds but also on safety grounds. The CJEU came to this conclusion by relying inter alia on the case-law of the ECHR on Article 5 of the Convention (right to liberty and security), which also covers deprivations of liberty resulting from psychiatric or medical care measures. After recalling that Art. 6 of the EU-Charter corresponded to Art. 5 of the Convention and therefore, by virtue of Art. 52(3) of the Charter, had to be interpreted having regard to that case-law of the ECHR, the CJEU concluded: “Accordingly, in the light of the right to liberty and security guaranteed by Article 6 of the Charter, Directives 2012/13 and 2013/48 cannot be interpreted as excluding from their scope judicial proceedings in which an order may be made for the committal to a psychiatric hospital of a person who, at the conclusion of earlier criminal proceedings, was found to be the perpetrator of acts constituting a criminal offence.” (§ 46)

Thus, through this new case-law the concept of “criminal proceedings” – and the fair-trial guarantees which go with it – are being extended, for the purpose of the said directives, to “proceedings for committal to a psychiatric hospital which, although they do not lead to a ‘sentence’ in the strict sense, nevertheless result in a measure involving a deprivation of liberty, provided that such a measure is justified not only on therapeutic grounds but also on safety grounds” (§ 41). Moreover, the court dealing with a request for such a committal must have the power to verify that the procedural rights covered by those directives were respected in proceedings prior to those before that court (§ 63).

In simple terms, the procedure for the committal to a psychiatric hospital with a “penal purpose” (§ 71) is being assimilated with standard criminal proceedings on the ground that both can lead to a deprivation of liberty coming under the scope of Articles 5 of the Convention and 6 of the Charter.

By contrast, the CJEU ruled in the same judgment that the Directive on the presumption of innocence – and indeed EU law as such – did not apply to a procedure for the committal to a psychiatric hospital which had a purely therapeutic purpose and was implemented independently of any criminal proceedings (§ 66).

As a result of this case-law, domestic authorities dealing with procedures for the committal to a psychiatric hospital which are governed by any of the above-mentioned directives will now have to combine the safeguards laid down in those directives with the requirements under Art. 5 of the Convention relating to the deprivation of liberty of persons of unsound mind, as they have been recapitulated by the ECHR in the cases of Stanev v. Bulgaria (17.1.2012) and Rooman v. Belgium (31.1.2019). While those requirements to some extent draw on the fair-trial guarantees laid down in Art. 6 of the Convention, they cover many more aspects of the committal than just the rights of the defence.

Finally, as regards the substance of the rights at stake in the present case, it is perhaps worth noting that in relation to the right to information in criminal proceedings as enshrined in Directive 2012/13, the CJEU ruled that the relevant information was to be provided “as soon as possible” and “at the latest, before [the persons concerned] are first officially questioned by the police” (§ 53). This would appear to be in slight contrast with the requirement flowing from Simeonovi v. Bulgaria (ECHR 12.5.2017) according to which this information is to be provided immediately (§ 119).

In AH and Others (5.9.2019) the CJEU applied Directive 2016/343 on the presumption of innocence and the right to be present at the trial in criminal proceedings to an agreement with the prosecution in which only one of the co-accused persons had recognized his guilt in exchange for a reduction in sentencing. In doing so, the CJEU considered inter alia:

“… it should be noted that the presumption of innocence is enshrined in Article 48 of the Charter, which corresponds to Article 6(2) and (3) of the ECHR, as is apparent from the explanations to the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) of the ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection…” (§ 41)

In light of the above, the CJEU then relied on the judgments of the ECHR in the cases of Karaman v. Germany (27.2.2014) and Navanyy and Ofitrov v. Russia (23.2.2016).

In Gambino and Hyka (29.7.2019) the CJEU, relying on Articles 47 and 48 of the Charter and, by virtue of Article 52(3) of the Charter, on the case-law of the ECHR on the right to a fair trial (Article 6 of the Convention), ruled that Articles 16 and 18 of Directive 2012/29/EU on the rights of victims of crime do not prevent the victim of a criminal offence from having to be heard a second time following a change in the composition of the bench, if one of the parties to the proceedings so wishes.

In Funke Medien NRW GmbH v. Bundesrepublik Deutschland (29.7.2019) a Grand Chamber of the CJEU applied Directive 2001/29/EC (on the harmonisation of certain aspects of copyright and related rights in the information society) to a set of facts concerning the publication by a newspaper of certain documents “classified for restricted access” drawn up by the German Government and relating to the operation of the German army in Afghanistan. In examining the scope of the exceptions for the benefit of the press and the information of the public, provided for in Article 5 of the directive, the CJEU stated the need for a fair balance to be struck between the protection of intellectual property (Article 17(2) of the Charter) and the freedom of expression and information (Article 11 of the Charter). In this connection, the CJEU referred, by virtue of Article 52(3) of the Charter, to the case-law of the European Court of Human Rights according to which, in balancing copyright against freedom of expression, due consideration was to be given to the nature of the expression or information at stake and in particular to the question whether it concerned matters of public interest. Given that the CJEU leaves it to the national courts to strike this balance which, at the end of the day, can be challenged by way of an application to the Strasbourg Court against the final domestic judgment, reliance by the CJEU on the Strasbourg case-law would appear to also serve the interests of domestic judges.

In Mihalache v. Romania (8.7.2019) a Grand Chamber of the ECHR had to determine whether a public prosecutor’s order discontinuing criminal proceedings while imposing a fine on the applicant was a “final acquittal or conviction” triggering the application of the non bis in idem principle as laid down in Article 4 of Protocol No 7 to the Convention. In answering that question the ECHR relied on a series of criteria (determination as to the merits, availability of ordinary remedies, expiry of the time-limit within which those remedies are to be used) which in substance coincide with those relied on by the CJEU in similar cases such as Piotr Kossowski v. Generalstaatsanwaltschaft Hamburg (C-486/14). Only when a penalty has been imposed does EU law depart from Article 4 of Protocol No 7 in that Article 54 of the Convention implementing the Schengen Agreement requires, as a condition for the application of the non bis in idem principle, that the penalty has been enforced, is in the process of being enforced or can no longer be enforced under the laws of the sentencing Member State (see Spasic, C-129/14).

In Melvin West v. Hungary (decision, 25.6.2019) the ECHR confirmed that Article 6 of the Convention does not apply to the procedure for the execution of a European Arrest warrant but that, by virtue of Article 5 § 1 f) of the Convention, any detention with a view to transferring the person concerned to the issuing Member State has to be in compliance with the relevant domestic and European Union law, which it is primarily for the national authorities to interpret. Moreover, Article 5 prohibits any transfer of a person to a country where he or she would be exposed to a real risk of a flagrant breach of this provision. Finally, the ECHR reiterated that there is no basis under Article 8 of the Convention for a convicted person to avoid having to serve a prison sentence in a foreign country.

In Romeo Castaño v. Belgium (9.7.2019) the ECHR confirmed the applicability of Article 3 of the Convention to the execution by EU Member States of a European Arrest Warrant but extended its scrutiny to Article 2 of the Convention in cases where a European Arrest Warrant has been issued with a view to enabling criminal proceedings for homicide in the issuing State to go ahead. In such cases, Article 2 imposes on the executing State an obligation to cooperate with the issuing State in facilitating those criminal proceedings, notably by transferring the person who is the subject of the European Arrest Warrant, without however ignoring the limits to such a transfer flowing from Article 3 of the Convention. Any refusal of a transfer on this ground should therefore be duly reasoned by reference to updated and individualised information.

In Nodet v. France (6.6.2019) the ECHR applied the non bis in idem principle according to its recent A. & B. v. Norway jurisprudence (24130/11 and 29758/11, 15.11.2016), which is in some contrast with the Menci jurisprudence of the CJEU (C-524/15, 20.3.2018), also mentioned in the Nodet judgment (at § 31).

In Repcevirag Szövetkezet v. Hungary (30.4.2019) the ECHR examined whether the Kúria breached Article 6 of the Convention by refusing to request a preliminary ruling by the CJEU in proceedings relating to an action in tort against Hungary for infringement of European Union law (Köbler case-law).

In Baltic Master Ltd. v. Lithuania (16.4.2019) the ECHR found a violation of Article 6 § 1 of the Convention on the ground that the Supreme Administrative Court of Lithuania had not made sufficiently clear in its judgment on what specific legal grounds it had considered the application of EU law to be so obvious that no referral to the CJEU was required under Article 267 TFEU, despite the applicant company’s request to that effect. What is also noteworthy about this judgment is that it was given by a Committee of three judges acting under Article 28 § 1 b) of the Convention, the outcome of this case being considered to flow from well-established case-law within the meaning of that provision.

In Harisch v. Germany (11.4.2019) the ECHR assessed compliance with Article 6 of the Convention of the failure by the Federal Court of Justice (BGH), in the context of its examination of a refusal of leave to appeal, to give reasons for its refusal to request a preliminary ruling from the CJEU (Art. 267 TFEU).

In Jawo v. Bundesrepublik Deutschland (19.3.2019) the CJEU inter alia further specified the impact of Article 4 of the EU-Charter on the execution of the Dublin Regulation and drew on the M.S.S. v. Belgium and Greece judgment of the ECHR. It also described the relationship between systemic deficiencies in the asylum procedure of a Member State and the requirement of an individual assessment of the situation of asylum seekers.

In TC (12.2.2019) the CJEU examined in light of Article 6 of the EU-Charter and 5 of the Convention whether the time limits for adoption of the decision to execute a European Arrest Warrant can be suspended.

In Pirozzi v. Belgium (17.4.2018) the ECHR applied the Avotiņš-jurisprudence to the execution of a European Arrest Warrant. In this jurisprudence (Avotiņš v. Latvia, 23.5.2016) the ECHR set out its approach to the mutual recognition mechanisms established under EU law.

In Thimothawes v. Belgium (4.4.2017) the ECHR explained the impact of EU law when assessing compliance with Article 5 of the Convention of a detention ordered by virtue of domestic law transposing the Reception Directive.