Napisane przez AEA - EAL w dniu . Opublikowano w News.
Attorney at law Anna Kaczyńska, Member of AEA-EAL Young Lawyers Committee participated on 16-17 November in the 2020 online edition of The Athens Roundtable on Artificial Intelligence and the Rule of Law. The Roundtable was co-founded in 2019 by IEEE SA, The Future Society, and ELONtech (The European Law Observatory on New Technologies, the initiative exploring the interface of law and new technologies, http://www.elontech.org/). The Roundtable is a major international, multi- stakeholder event specifically focused on legal systems and the rule of law. The 2020 virtual event ( https://www.europarl.europa.eu/stoa/en/events/details/the-athens-roundtable-on-artificial-inte/20201029WKS03042), co- hosted from New York City by inter alia STOA (The Scientific Foresight Unit) together with UNESCO, gathered more than 700 policy-makers, executives, legislators, regulators, judges, lawyers, academics, advocates and other stakeholders from five continents. The event aimed to review the progress of the AI governance initiatives of key participating regulatory and non-regulatory bodies, to hear the perspectives of senior representatives of global corporations and civil society stakeholders, to exchange views on emerging best practices, to discuss the world’s most mature AI standards and certifications initiatives, and to examine those initiatives in the context of specific real-world AI applications. One of important aspects covered by the event was the relation between new technologies, AI, ethics and human right. Also the role of the lawyers in reducing bias in AI systems (during an interesting breakout session with ELONtech participation) as well as proactive legal ethics in the age of AI were stressed and discussed. The context of AI and online dispute resolutions was inspiring too as ADR and ODR are more and more used and popular and more and more connected with the use of new technologies, especially in COVID-19 pandemic times. The Speakers underlined the need of continuous, ongoing dialogue on current core issues concerning AI, on its regulation and the impact and challenges from the point of view of the rule of law, Human rights and privacy. Having in mind all those interesting Roundtable’s discussions, privacy as protected e.g. by the GDPR provisions, can be a good reference to a certain conclusion’s attempt – that trying to make the AI solutions and tools more and more useful, reliable and technologically perfect, ethics and trying to eliminate bias should be included as essential elements in those processes too, and by design.
The Supreme Administrative Court of Lithuania has asked (1) the European Court of Human Rights to provide an advisory opinion on impeachment legislation, a question which is at issue in a case currently pending in Lithuania.
Lithuania is the fourth country to seek such an opinion under Protocol No. 16 to the European Convention on Human Rights. France made the first request in October 2018 and the Court delivered its opinion, on rights related to surrogacy, in April 2019. Armenia made the second request in August 2019, concerning an Article of the country’s Criminal Code which penalises the overthrowing of the Constitutional order, and the Court delivered its opinion in May 2020. Slovakia recently submitted a request concerning the independence of its police complaints mechanism.
Protocol No. 16 allows the highest courts and tribunals, as specified by member States which have ratified it, to request advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the European Convention or its Protocols.
The Supreme Administrative Court of Lithuania stated that its request was made in the context of a case brought by a former member of the Seimas (the Lithuanian parliament) who had been impeached and was running for election again in 2020. In the case the former member of the Seimas brought a complaint about the Central Electoral Commission’s (“the CEC”) refusal to register her as a candidate in elections to the Seimas following a Constitutional Court ruling of 2014 finding that she had breached the oath and grossly violated the Constitution by failing to attend many sittings of the Seimas.
In particular according to her the CEC decision failed to take into account the legislation on impeachment as amended following the European Court’s judgment in the case of Paksas v. Lithuania of 2011, the Constitutional Court having subsequently found that the new legislation was in conflict with the Constitution. In the Paksas judgment the Court held that the permanent and irreversible disqualification of a former President from taking a seat in the Seimas following impeachment proceedings had been disproportionate, in violation of the European Convention. In its questions, the Supreme Administrative Court has asked for guidance from the European Court on the criteria to be applied when assessing the compatibility of the legislation on impeachment, as currently applied, with Article 3 of Protocol No. 1 (right to free elections) to the European Convention.
An advisory opinion may only be requested in the context of a case pending before the domestic courts. The acceptance or refusal to examine the request is at the Court’s discretion. A panel of five judges decides whether to accept the request, giving reasons for any refusal.
Advisory opinions, given by the Grand Chamber, give reasons and are not binding. Opinions are published and communicated to the requesting court or tribunal and to the relevant High Contracting Party. Judges are entitled to deliver a separate opinion. The panel and the Grand Chamber include ex officio the judge elected in respect of the High Contracting Party to which the requesting court or tribunal pertains.
Footnotes:
(1) The request, initially submitted on 2 October 2020, was completed on 5 November 2020 and was thus formally considered to have been lodged on the latter date.
The aim of Protocol No. 16 is to enhance interaction between the Court and national authorities and thereby reinforce the implementation of Convention rights and freedoms by requesting courts in their adjudication of pending cases.
On 11 December 2020 the AEA-EAL acted, together with the World Trade Institute in Berne and the Swiss law firm Prager Dreifuss Ltd, as a co-organiser of a webinar about Financial Services in Europe in the Global Context Bridges and Ditches for Switzerland. The AEA-EAL and the other two organisers have, in the last two years, successfully launched annual conferences on market access. As this year, for very well known reasons, such a conference could not be held, they organized a virtual conference. At this conference, which attracted an important number of people, we hosted Stefan Flückiger, Deputy State Secretary and Christoph König, Head Policy Issues & International Relations of the Swiss State Secretariat for international Finance (SIF).
Their presentations gave an excellent overview on Switzerland as an important financial centre and its possible ways on how to build „bridges” towards the EU and the UK. The two speakers also explained the global context of the financial services area and informed about future markets and sector growth and where future wealth and clients will be situated. They concluded that European markets will remain important, demographic growth in Asia be marginal and that the US will still matter for wealth and asset management. For Switzerland bilateral financial dialogues as well as multilateral relations, in particular the G20/OECD, will therefore also in the future be important tools to be present in the international financial services world.
Detention of Swedish refugee in Slovakia for extradition to Russia unlawful.
In today’s Chamber judgment (1) in the case of Shiksaitov v. Slovakia (application no. 56751/16) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 5 § 1 (right to liberty and security) and 5 § 5 (enforceable right to compensation) of the European Convention on Human Rights.
The case concerned the alleged unlawfulness of the applicant’s arrest and detention with a view to his extradition to Russia, despite his having refugee status in Sweden. The Court found in particular that the applicant’s arrest and the individual detention orders had complied with Slovak law and the Convention. However, the overall length that the applicant had been held had been overlong and the grounds for his detention had ceased to be valid, breaching his rights. The Court also found that the applicant had not had an enforceable right to compensation for the above breach.
Principal facts
The applicant, Hamzat Shiksaitov, is a Russian national who was born in 1982 and lives in Alvesta (Sweden).
On 12 July 2007 an international arrest warrant for the applicant was issued by a court in the Chechen Republic in Russia. He was alleged to have committed acts of terrorism. In 2011 the applicant fled from Ukraine to Sweden, fearing extradition from the former. He was granted asylum in Sweden. In 2015 the applicant was arrested in Slovakia en route to Ukraine as he was on Interpol’s international watch list.
The Košice Regional Court ordered the applicant’s preliminary detention until the circumstances surrounding his status in Sweden could be determined. That decision was upheld following an interlocutory appeal and later by the Constitutional Court, which also stated that his rights had not been infringed.
On 23 February 2015 the applicant was placed in detention pending extradition to Russia. The applicant lodged an interlocutory appeal, arguing that Slovakia was bound by the Swedish courts’ decision on his refugee status. That appeal was dismissed by the Supreme Court, a decision later confirmed by the Constitutional Court.
On 8 September 2016 the applicant’s extradition to Russia was ordered. The Regional Court noted, in particular, that refugees did not automatically enjoy immunity from prosecution (because the applicant was wanted for a serious non-political crime in this case) and that it was satisfied with the general guarantees given by the Russian authorities.
The Constitutional Court then dismissed a constitutional complaint by the applicant. They remitted the case to the lower-level to establish whether the applicant should have been excluded from being accorded the status of refugee.
The Supreme Court later overturned the decision of 8 September 2016 and ordered the applicant’s release on 2 November 2016. The border police expelled the applicant to Sweden.
Decision of the Court
The applicant argued that his arrest had not been in compliance with Slovak law, in particular the Police Corps Act and the Code of Criminal Procedure. He argued that as Russia had not requested his detention, and as he had been a refugee in Sweden, his preliminary detention and detention pending extradition should not have been ordered.
The Court reiterated that deprivation of liberty must be “lawful”. However, compliance with national law is not sufficient; the decision must be taken in good faith, and for the grounds given, and detention must not be too long. In particular, detention related to extradition must be reasonably considered necessary.
The Court was satisfied that the applicant’s preliminary arrest had been lawful, as the Slovak authorities could not have been aware of the applicant’s status in Sweden.
Likewise, the Court considered that the applicant’s preliminary detention had been lawful, despite the lack of a request from the Russian authorities, as in Slovakia preliminary detention only had to be ordered by a prosecutor.
Regarding the applicant’s detention pending extradition, the Court agreed with the domestic courts that that detention had not been fundamentally proscribed, as the Swedish authorities’ decisions had not been binding on Slovakia. Furthermore, it was acceptable for the Slovak authorities to have examined the applicant’s case thoroughly, especially given that the Swedish authorities had not checked his status with Interpol. Overall, the applicant’s detention had been justified by the need to keep him in Slovakia with a view to determining whether there had been any legal or factual impediments to the applicant’s extradition.
Overall the applicant’s detention had lasted one year, nine months and eighteen days. This is despite the fact that the authorities had had information concerning the applicant’s status in Sweden and his prosecution in Russia from a very early stage and that nothing had prevented the courts from reaching a final decision on the admissibility of the applicant’s extradition much earlier than they in fact had done.
In the light of the above, the Court concluded that the authorities had not acted with diligence, and the grounds for the applicant’s detention had ceased to be valid. This had led to a violation of Article 5 § 1 of the Convention.
The Court also judged that the applicant had not had an enforceable right to compensation for his unlawful detention, in violation of Article 5 § 5.
Just satisfaction (Article 41)
The Court held that Slovakia was to pay the applicant EUR 1,200 in respect of non-pecuniary damage and EUR 8,000 in respect of costs and expenses.
The judgment is available only in English.
Footnotes:
(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
Proceedings before the administrative courts following the imposition of financial penalties by an administrative entity complied with the Convention.
In today’s Chamber judgment (1) in the case of Edizioni Del Roma Societa Cooperativa A.R.L. and Edizioni del Roma S.R.L. v. Italy (application no. 68954/13) the European Court of Human Rights held, unanimously, that there had been:
no violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.
These two cases concerned the financial penalties imposed by the Italian Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni – “AGCOM”) on the applicant companies, which operated in the publishing field. As a result of these penalties, the companies lost the public funding on which they had relied, which led to the collapse of one of them.
The Court considered that the proceedings before AGCOM did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing, which would have allowed for an oral confrontation. However, the administrative courts – the regional administrative court and the Consiglio di Stato – had been able to review whether, in the special circumstances of the case, AGCOM had made appropriate use of its powers, and been able to examine the merits and proportionality of its choices.
Principal facts
The first applicant, Edizioni Del Roma Società Cooperativa A.R.L., is an Italian cooperative society, and the second applicant, Edizioni Del Roma S.R.L., is an Italian limited liability company (S.R.L.).
The department for information and publications in the Prime Minister’s Office (DIP), which awards grants to publishing companies, asked AGCOM to inform it of the position (on the register of telecommunications operators) of publishing houses which were applying for grants, and to check whether there existed any situation of controlled or affiliated companies within the meaning of Article 2359 of the Civil Code.
On 7 March 2011 AGCOM opened proceedings against the companies for a breach, over the period 2008-2010, of the obligation to declare a situation of control, in accordance with section 1 § 8 of Law No. 416 of 1981. The companies had access to the case file, and hearings were held on 2 and 11 May 2011.
On 30 May 2011 AGCOM issued an order, imposing on the second applicant company an administrative penalty amounting to 103,300 euros, on the grounds that it had failed to declare that it had exercised control over the applicant companies during the period 2008-2010, and that it had therefore acted in breach of section 8 § 1 of Law No. 416 of 1981.
In two separate appeals, the applicant companies lodged an action with the Rome Administrative Court to challenge AGCOM’s decision.
By a judgment of 25 June 2012, the Rome Regional Administrative Court dismissed these appeals, having ordered the joinder of the two appeals.
The applicant companies appealed against this judgment, challenging the dismissal of their appeals against the penalty imposed on them by AGCOM. In a judgment of 22 April 2013, the Consiglio di Stato dismissed the appeal lodged by the applicant companies. The Consiglio di Stato also dismissed the applicant companies’ complaints concerning the Administrative Court’s interpretation of the “situation of control”.
Lastly, in a judgment delivered on 26 March 2016, the Rome Criminal Court acquitted the directors of the two applicant companies of the offence of fraud, holding that it had not been for the purpose of obtaining the grants in question for the periods 2008/2009 and 2009/2010 that the companies had hidden a situation of control.
Decision of the Court
Article 6 § 1
The Court noted that, in the context of the proceedings before AGCOM, the applicant companies had been given the opportunity to submit evidence in their defence. However, the report by the revenue police on the investigative measures, based on which the relevant AGCOM committee had taken its decision, had not been communicated to the applicant companies, and they had thus not had an opportunity to defend themselves in relation to the document ultimately submitted by AGCOM’s investigatory bodies to that committee, which was responsible for ruling on the merits of the accusations. The Court also noted that the procedure before AGCOM was essentially a written one, as no public hearing was provided for.
Although the obligation to hold a hearing was not absolute and there could be proceedings in which an oral hearing was not necessarily required under Article 6, the Court considered that a public hearing, open and accessible to the applicant companies, had been necessary in the present case. The facts were contested, especially with regard to whether there existed a situation of control of one applicant company over the other, and, quite apart from their financial severity, the penalties which the applicant companies were liable to incur were likely to adversely affect their professional honour and reputation.
The Court noted that AGCOM’s regulations provided for a certain separation between the investigatory bodies and the committee responsible for ruling on whether or not there had been a breach of the rules and for imposing sanctions. In particular, it is the person in charge of the procedure who draws up accusations and conducts the investigation, while the final decision on imposing penalties lies solely with the committee.
It was nevertheless the case that the person in charge of the procedure and the committee were merely branches of the same administrative body, acting under the authority and supervision of a single chairperson. In the Court’s opinion, this situation amounted to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions was not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention.
The Court therefore considered that the proceedings before AGCOM did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing which would have allowed for an oral confrontation.
With regard to whether the applicant companies had had access to a court with full jurisdiction, the Court noted that the finding that the proceedings before AGCOM did not comply with the principles of a fair hearing were not sufficient to warrant the conclusion that there had been a violation of Article 6.
In the present case, the applicant companies had been able to appeal to the Rome Regional Administrative Court against the contested penalty and to lodge a further appeal against that court’s decision with the Consiglio di Stato. As hearings had been held publicly before these two courts, an oral confrontation between the parties and compliance with the principle of equality of arms had been possible. The Court reiterated that, under its case-law, the Rome Regional Administrative Court and the Consiglio di Stato satisfied the requirements of independence and impartiality so as to constitute a “tribunal” for the purposes of Article 6 of the Convention.
The Court therefore noted that the administrative courts’ jurisdiction was not merely confined to reviewing lawfulness. The administrative courts had been able to review whether, in the special circumstances of the case, AGCOM had made an appropriate use of its powers. They had been able to examine the merits and proportionality of AGCOM’s choices.
As AGCOM’s decision had been subsequently reviewed by judicial bodies with full jurisdiction, it followed that there had been no violation of Article 6 § 1 of the Convention.
The judgment is available only in French.
Footnotes:
(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
Drink-driving acquittal did not remove Greek applicant’s civil liabilities. In today’s Chamber judgment (1) in the case of Ilias Papageorgiou v. Greece (application no. 44101/13) the European Court of Human Rights held, unanimously, that there had been:
no violation Article 6 § 2 (presumption of innocence) of the European Convention on Human Rights.
The case concerned decisions not in the applicant’s favour in civil proceedings despite his having been acquitted in criminal proceedings for the same events. The Court found in particular that his acquittal had not exonerated the applicant from his civil responsibility, and the civil case had, rightly, been separate to the criminal case and applied different standards of proof. The courts had in no way implied the applicant’s guilt or criminal liability.
Principal facts
The applicant, Ilias Papageorgiou, is a Greek national who was born in 1974 and lives in Athens.
In 2005 the applicant had a car accident. His passenger was injured. The applicant took two breathalyser tests, with results of 0.67 and 0.57 mg/l. In 2007 he was acquitted in criminal proceedings of drink driving in a final judgment.
The passenger lodged an action against the applicant and his insurance company. The insurance company took an action against the applicant, claiming that he, rather than the company, was responsible as he had been over the alcohol limit at the time. The first-instance court ordered the applicant and the insurance company to pay compensation, but dismissed the insurance company’s claim vis-à-vis the applicant. On appeal, the Athens Court of Appeal held that it was not bound by the applicant’s acquittal in the criminal courts and that, under the terms of the insurance contract, the applicant’s conduct exempted the insurance company from liability.
The Court of Cassation rejected an appeal on points of law by the applicant, finding that the Athens Court of Appeal had taken into account the acquittal.
Decision of the Court
Article 6 § 2
The Court reiterated that the presumption of innocence encompassed the burden of proof, legal presumptions of fact and law, privilege against self-incrimination, pre-trial publicity and premature pronouncements of a defendant’s guilt. Public officials must not treat someone acquitted as guilty.
The court noted that the civil proceedings in the case had not been an extension of the criminal proceedings. It was acceptable that the evidentiary standards had differed.
The Court considered that an acquittal had not exonerated the applicant from civil responsibility. The insurance company had had a right to rely on the clauses of the insurance contract regardless of the acquittal. Moreover, the Court of Appeal had not attributed guilt or criminal liability to the applicant.
The proceedings had, in the light of this, not been contrary to the presumption of innocence and there had been no violation of the Convention.
The judgment is available only in English.
Footnotes:
(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.
By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.
The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.
From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.
Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed. The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a „right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Otherwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.
The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the „reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the „confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).
Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.
On 4 November 1950 the European Convention on the Protection of Human Rights and Fundamental Freedoms was adopted. Seventy years have passed since that momentous date. The Convention sets forth a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination). It also created an enforcement mechanism : each and every person under jurisdiction of states parties can bring an individual complaint about a breach of her or his rights before the European Court of Human Rights based in Strasbourg, France. Since 1950 Europe has changed beyond recognition and so has the legal environment within which each and every practicing lawyer in Europe works and thinks about law. A question naturally arises in this connection what is the Convention’s relevance today to practicing lawyers’ everyday work and to their involvement in public matters. This anniversary coincides with the worldwide pandemics of COVID 19. The pandemics affects – and not for the better – the way in which human rights, including those protected by the Convention, can be exercised, enjoyed and vindicated. It is the responsibility of lawyers to scrutinise the manner in which this calamity restricts individual rights and to react where necessary.
What do we owe as lawyers to the Convention ? What is its significance today for citizens of Europe in turmoil, to the troubled societies and political systems in flux?
It came as a bad surprise to many, including the legal community in Europe, that values and fundamental ideas which the Convention embodies and protects are currently under attack in many countries. Indeed, the « common heritage of political traditions, ideals, freedom and the rule of law », referred to in the Preamble to the Convention, is being either denigrated by public authorities, or openly disregarded in the application of laws, or both. The very notion of « effective political democracy » that the Preamble reaffirms is in certain countries reduced to mere majority rule, without proper regard to division of powers, checks and balances and the situation of political minority. Worse, there are sad examples of overt and unashamed violations of human rights in certain countries.
In this context the Convention and human rights can no longer be taken for granted. « Observance and common understanding » of human rights are not a given we have somewhat blithely assumed during the last thirty years to serve as a bottom line for the actions of all public authorities. Hence, the obligations, attitudes and emotions of the legal community towards the Convention should evolve in the light of recent developments. What are those obligations ?
In our view, the are the following :
RELEVANCE AND RELIANCE Firstly, to ensure that practsing lawyers are well aware of the Convention’s – and, broadly, human rights – significance to their everyday practice. The Strasbourg Court is not a far away institution interested in lofty ideas and grandstanding, unrelated to the realities of legal practices in big and small cities in Hungary, Poland, France or Spain. Human rights are relevant to our clients’ cases before the each and every court in Europe. Be it in a civil case where the essence of access to court is restricted by unduly high court fee, or in a criminal case where a lawyer cannot have access to a freshly detained person who is being questioned by the police in lawyer’s absence, or in an administrative case concerning the amount of compensation to be paid by the state for expropriation of property – all those apparently run- of- the-mill situations known to every lawyer touch upon the rights guaranteed by the Convention. It is the lawyer’s responsibility to raise human right complaints before the domestic courts all the way to the highest national court ; also to comply with an obligation to exhaust domestic remedies before bringing an application about a breach of individual rights to Strasbourg. In other words, it is the lawyer’s obligation to rely on and to invoke the Convention rights and guarantees in our everyday practice ; not necessarily in order to bring the case to Strasbourg, but also to remind the courts and all public authorities that human rights are normal part of the legal landscape in which they operate.
PROFESSIONAL KNOW-HOW In order to be able to do so, human rights education and knowledge of the Court’s case law must be a natural part of legal training, both this leading to access to legal professions and the ongoing one. The Court’s case-law is vast, the Convention is a living instrument adjusting itself to changing realities of modern life by way of the Court’s decisions and judgments. It is our responsibility to follow it, to make it a part of our legal thinking and, importantly, to learn and teach within the profession how the Convention standards are to be made operational in our country, in the context of our legal systems and in cases where we represent clients.
THE CONVENTION AS YARDSTICK In the context of public life it is a major task of the professional associations to be vigilant and able to assess new legislation, parliamentary bills and practice of the public authorities from the Convention perspective. Does a new statute respect the Convention standards ? Will a Bill debated by national parliament enhance human rights or rather shamelessly breach them ? Do public authorities willing and able to assess human rights consequences of legislation they envisage ? Does the established practice of domestic courts, prosecutors, police and public administration take heed of the Convention standards ? Do we as associations of legal professionals have enough resources to carry out such assessment ? Do we have human rights bodies within our associations which are tasked with it ? Is the voice of such bodies heard within our professional associations ? Do lawyers’ associations take position and voice their concerns where human rights are breached or disregarded by the public authorities ? Of course the position and importance of professional associations of lawyers in public life will vary from country to country depending on their seriousness, longevity, national legal tradition – and by willingness, or lack of it, they display to take part in public life. It is for us lawyers to make our professional associations actors of public and political life instead of mere trade unions concerned only with defence of our professional interests. To sum up, the Convention, the Strasbourg Court’s case law and, more broadly, human rights are a yardstick by which public policies, laws and public governance should be measured – and legal professions should be willing and able to take them to task.
THE CONVENTION IN THE COURTS « Dialogue between the European Court of Human Rights and the national judicial systems is fundamental to the Convention system. » said Robert Spano, the Court’s President elected in 2020, in his recent message to the Superior Courts Network, set up by the Court in 2015. The task of the Network is to ensure the effective exchange of information between the Court and the national courts belonging to the Network, on the case-law of the Court, Convention law and practice and the domestic law of States whose superior courts are members of the Network. Indeed, the national courts are primary actors who have a central role to play, implementing the principles and values of the European Convention. It is for the courts to apply the case-law of the Court in everyday judicial practice ; not only superior courts but for each and every court in Europe. It is the responsibility of judicial systems to make the Convention a part and parcel of judicial training. The attitude of the courts to lawyers invoking the Convention and the Court’s case-law in their submissions made on behalf of the parties will certainly vary, depending on the substance of the case, on the clarity of the argument made by the party, on the relevance of the human rights element to the subject matter of the case. However, it also happens that the courts routinely disregard or lend a deaf ear to arguments based on the Convention, either because they do not understand them or because they consider them irrelevant or because they are of the view that they are not obliged to apply the Convention in their decisions. It falls to the lawyers to keep the courts awake to the Convention as living and binding legal reality.
STRATEGIC LEGISLATION We can and should think of the ways in which strategic legislation techniques are to be used in order to correct discrepancies between our national legal systems and the Convention standards. A finding of a violation of the Convention rights by the Strasbourg Court gives rise, on the one hand, to an obligation on the part of the respondent state to comply with individual measures provided for by that judgment. Most often, it would entail payment of the amount of just satisfaction awarded by the Court. On the other hand, the judgment imposes on a respondent state an obligation to amend domestic laws or practices in which the violation originated. Hence, the Convention system provides for a mechanism by which national laws incompatible with human rights can eventually be changed. On the national level, some serious thinking should be given by legal assiciations on ways and means of identifying problems which raise an issue as to their compatibility with the Convention. Legal community should not only be aware of such problems, but also actively be on the lookout for and search live cases before domestic courts where such problems are involved. Such cases, if lost by the party to it before national courts, can further be brought before the Strasbourg Court with a view to obtaining a judgment to the advantage of an applicant whose rights have been violated on the domestic level. Ideally, some coordination in identification of such problems, finding appropriate leading cases and encouraging parties to it to bring them before the European Court of Human Rights is certainly called for within legal professions. It is of course in the nature of things that representing the applicants before this Court in cases which can be vehicles for legal reform is of essence.
SUPPORTING APPLICANTS It is common knowledge that the Strasbourg Court has a very heavy docket. Currently approximately 60 thousand cases are pending before it. It has also been often criticised for the time it takes the Court to rule on an individual case. Quite apart from the reasons of such length and from various and well-known measures which have been taken over the last twenty or so years to make the Court act more speedily, it is a lawyer’s professional and ethical obligation to support her or his client who might get discouraged and disappointed by the duration of the proceedings. It should be borne in mind that the case most often than not touches on issues of vital importance to the client, not only legal one, but oftentimes also emotional or even existential. This can be said in particular about cases touching on matters of private and family law, children access cases, cases relating to personal identity, names, gender or cases concerning medical or health issues. There’s more to those cases than just interesting legal issue ; there’s also a human life story against which such issue has arisen. It is the lawyer’s responsibility to convince the client that his or her case is worth being taken to the Strasbourg Court and to accompany the applicant throughout the long legal life of the case, both in legal and sometimes also emotional terms ; it is for the lawyer to demonstrate perseverance and courage and to hold the client’s hand, so to speak, until the end of the case, in the hope that the outcome will be to the client’s favour.
EDUCATION OF SOCIETY AT LARGE Against the background of COVID 19 and the rise of populisms in a number of countries it is important that lawyers educate the society at large. Human rights are not luxury that can be dispensed with in difficult times. The Convention is there to protect rights which way too often are currently presented to the public as impediments to various government policies, allegedly designed to combat the pandemics and to enhance security. It is for the lawyers to remind the general public the substantive content of rights guaranteed by the Convention and to alert it to dangers of shortcuts taken or envisaged by public authorities. Failure to do so may contribute to rendering rights guaranteed by the Convention and interpreted by the Strasbourg Court toothless and regarded by the powers that be as mere lip service of no relevance to political realities and to everyday life. Worse ; certain governments and public officials have adopted and encouraged hate speech against marginalised groups, against LGBT people or migrants, women or people of minority religions, or against citizens not sharing the views of the ruling parliamentary majorities in order to rule by fear.
STRASBOURG JUDGES It is vital to have the best and brightest human rights lawyers sitting on the Strasbourg bench. Currently, terms of office of nine judges (Bosnia/Herzegowina, Moldova, Croatia, Russia, Belgium, Poland, Czech Republic, Greece and Switzerland) have either come to end or will end shortly, in 2021. Either relevant domestic procedures are under way in order to form lists of three candidates ; one of them will later be elevated to this judicial post by a vote in the Parliamentary Assembly of the Council of Europe. Legal communities are well placed to monitor the national procedures and to see to it that they are fair and transparent. The Convention itself does not provide for any specific manner in which the candidates should be selected on the national level, but human rights lawyers and legal associations should insist that the involvement of the civil society at large, the academia, the professional associations and also the parliamentary bodies in this national selection procedures is significant. The decisions in this respect should not be made behind closed doors of ministerial offices. It is obvious that the Strasbourg judge mustn’t be a representative of state, but a human rights judge, committed, hard working and respected by his or her peers in the national legal community – but it always serves a purpose to publicly repeat this apparent platitude.
Human rights go hand in hand with rule of law; they are intrinsically intertwined. Hence, the community of practicing lawyers in Poland regard certain acts and declarations of the political powers with mounting concern. The authority of judicial institutions has been undermined or compromised, the election laws have been amended so as to weaken guarantees of fair elections, women’s rights, especially reproductive rights, are under attack, statutes are adopted with unseemly haste, without proper parliamentary debate ; in short, human rights are in danger.
We are certainly living in interesting times. Human rights are not something which has been safely acquired and irrevocably won. We cannot be complacent about them. Let us have a good rest during the coming festive season – and let’s come back to work full of new energy in the defence of human rights and rule of law.
The Court of Justice annuls a Commission decision making binding the commitments offered by a company in order to preserve competition on the markets.
The fact that it is possible, for the contracting partners of a company which has made commitments not to comply with certain contractual clauses, to bring proceedings before the national court cannot remedy the effects of the Commission decision which made those commitments binding over the contractual rights of those contracting partners.
Paramount Pictures International Ltd and its parent company, Viacom Inc. (together referred to as ‘Paramount’) concluded licensing agreements on audio-visual content with the main pay-TV broadcasters of the European Union, including Sky UK Ltd and Sky plc (together referred to as ‘Sky’) and Groupe Canal + SA. On 13 January 2014, the European Commission opened an investigation into possible restrictions affecting the provision of pay-TV services under the licensing agreements in question, in order to assess the compatibility of those restrictions with Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA). On 23 July 2015, that investigation led the Commission to send Paramount a statement of objections concerning certain clauses in the licensing agreements which Paramount had concluded with Sky. In the present case, there are two related clauses, the first of which was intended to exclude or limit Sky’s ability to respond favourably to unsolicited requests from consumers resident in the EEA but outside the United Kingdom and Ireland, for the purposes of the provision of television distribution services, while the second required Paramount to insert a clause into the agreements which it concluded with broadcasters established in the EEA but outside the United Kingdom, containing a similar prohibition in respect of those broadcasters in relation to such requests from consumers residing in the United Kingdom or in Ireland. In that regard, the Commission was of the view that the agreements which, through such clauses, led to absolute territorial exclusivity, were capable of constituting a restriction of competition ‘as their object’ within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement, in so far as they restored the partitions of national markets and frustrated the Treaty’s objective of establishing a single market. By letter of 4 December 2015, the Commission communicated that assessment, together with a preliminary view, to Groupe Canal + in the latter’s capacity as an interested third party. For its part, Paramount offered commitments in order to address the concerns raised by the Commission. In that regard, Paramount stated that it was prepared, inter alia, no longer to comply with or act in order to enforce the clauses leading to the broadcasters’ absolute territorial protection. Those clauses are in the licensing agreements concluded between Paramount and those broadcasters.
After receiving observations from other interested third parties, including Groupe Canal +, the Commission, by decision of 26 July 2016 (1) (‘the decision at issue’), accepted the commitments offered and made them binding, as provided for in Article 9 of Regulation No 1/2003 (2). Paramount then notified Groupe Canal + of the terms of the commitments which had been made binding, and of the implications of those commitments, in the present case Paramount’s intention no longer to ensure compliance with the absolute territorial exclusivity granted to Groupe Canal + on the French market. Taking the view that those commitments, entered into in proceedings involving only the Commission and Paramount, cannot be relied on against Groupe Canal +, the latter brought an action before the General Court of the European Union seeking annulment of the decision at issue, which was dismissed by judgment of the General Court of 12 December 2018 (3). In its judgment of 9 December 2020, the Court of Justice finds, however, that the General Court erred in law in its assessment of the proportionality of the adverse effects on the interests of third parties resulting from the decision at issue. Consequently, upholding the form of order sought in the appeal brought by Groupe Canal +, the Court sets aside the judgment under appeal and, giving final judgment in the matter, annuls the decision at issue. In that context, the Court provides new clarification concerning the relationship between the respective prerogatives of the Commission and the national courts in the implementation of EU competition rules.
Findings of the Court of Justice
In the first place, the Court of Justice holds that the General Court was entitled to reject the plea in law alleging misuse of powers, which sought, in essence, to show that the Commission, by adopting the decision at issue, circumvented the legislative process relating to the issue of geoblocking. In that regard, the Court of Justice agrees in particular with the General Court’s observation that, so long as the legislative process relating to the issue of geo-blocking has not resulted in the adoption of a legislative text, that process is without prejudice to the powers conferred on the Commission by Article 101 TFEU and Regulation No 1/2003. In the present case, it is common ground that the decision at issue was adopted under such powers, prior to the completion of the legislative process in question.
In the second place, the Court of Justice holds that it was also on adequate grounds and without any error of law that the General Court rejected the arguments of Groupe Canal + seeking to demonstrate that the relevant clauses were lawful in the light of Article 101(1) TFEU and that there was therefore no basis for the concerns which gave rise to the decision at issue. In so far as the licensing agreements in question contained clauses designed to eliminate the cross-border provision of broadcasting services for the audio-visual content concerned and, to that end, conferred on broadcasters absolute territorial protection guaranteed by reciprocal obligations, the General Court was entitled to find that such clauses are, without prejudice to any decision definitively finding the existence or absence of an infringement of Article 101(1) TFEU following a thorough examination, such as to give rise to competition concerns for the Commission. In the same vein, the Court of Justice emphasises the preliminary nature of the assessment of the anticompetitive nature of the conduct at issue in the context of a decision adopted under Article 9 of Regulation No 1/2003. Consequently, the General Court was also correct to hold that Article 101(3) TFEU is applicable only if an infringement of Article 101(1) TFEU has first been found, thereby concluding that it was not for it, in the context of the review of the lawfulness of such a decision, to rule on complaints based on the conditions for the application of Article 101(3) TFEU.
In the third place, the Court of Justice concurs with the General Court’s finding that the relevant clauses could validly raise competition concerns for the Commission as regards the whole of the EEA, without the Commission being under an obligation to analyse the relevant national markets one by one. In so far as the relevant clauses were intended to partition national markets, the General Court rightly pointed out that such agreements could jeopardise the proper functioning of the single market, thereby counteracting one of the principal objectives of the European Union, irrespective of the prevailing situation in the national markets. In the fourth place, the Court of Justice examines the complaint alleging that the General Court erred in law, in particular in the light of the principle of proportionality, in its assessment of the effect of the decision at issue on the contractual rights of third parties such as Groupe Canal+.
The Court of Justice points out, at the outset, that, in the context of Article 9 of Regulation 1/2003, the Commission is required to verify commitments offered, not only from the perspective of whether they are appropriate to address its competition concerns, but also with regard to the effect of the commitments on the interests of third parties, so that those third parties’ rights are not rendered meaningless. However, as the General Court itself observed, the Commission’s decision to make binding an operator’s commitment not to apply certain contractual clauses vis-à-vis its contracting partner, such as Groupe Canal +, which had only the status of interested third party, when that contracting party did not consent to it, constitutes an interference with the contractual freedom of that contracting partner and goes beyond the provisions of Article 9 of Regulation No 1/2003.
In that context, the Court of Justice considers that the General Court could not refer such contracting partners to the national courts in order to have their contractual rights enforced without infringing the provisions of Article 16 of Regulation No 1/2003, which prohibit those courts from adopting decisions running counter to an earlier Commission decision on the matter. A decision of a national court requiring an operator to breach its commitments which have been made binding by a Commission decision would clearly run counter to that decision. In addition, given that the second sentence of Article 16(1) of Regulation No 1/2003 requires national courts to avoid giving decisions which conflict with a decision contemplated by the Commission for the application, inter alia, of Article 101 TFEU, the General Court also erred in law by holding that a national court could declare the relevant clauses compatible with Article 101 TFEU, even though the Commission could still, under Article 9(2) of Regulation No 1/2003, reopen the proceedings and, as it had initially envisaged, adopt a decision containing a formal finding that there had been an infringement.
Consequently, the Court of Justice concludes that the judgment under appeal is vitiated by an error of law as regards the assessment of the proportionality of the decision at issue in relation to the adverse effects on the interests of third parties, with the result that the judgment under appeal must be set aside.
Taking the view that the state of the proceedings permits final judgment to be given, the Court examines, lastly, the plea for annulment alleging infringement of the principle of proportionality. Drawing the consequences of the grounds for setting aside the judgment under appeal, the Court notes the essential character, in the scheme of the licensing agreements in question, of the obligations intended to ensure the territorial exclusivity granted to the broadcasters which are affected by the commitments made binding by the decision at issue. The Court reaches the conclusion that, by adopting the decision at issue, the Commission rendered the contractual rights of the third parties meaningless, including the contractual rights of Groupe Canal + vis-à-vis Paramount, and thereby infringed the principle of proportionality, with the result that the decision at issue must be annulled.
Footnotes:
(1) Decision of the Commission of 26 July 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA
Agreement (Case AT.40023 – Cross-border access to pay-TV).
(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down
in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).
(3) Judgment of 12 December 2018, Groupe Canal + v Commission, T-873/16.
Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.
Unlike a European arrest warrant, a European investigation order may be adopted by the public prosecutor’s office of a Member State exposed to the risk of being subject to individual instructions from the executive.
The fundamental rights of the person who is the subject of the European investigation order are sufficiently protected both at the stage of issuing that order and at the stage of its execution in another Member State.
A criminal investigation for fraud was initiated against A and several unidentified persons by the Staatsanwaltschaft Hamburg (Public Prosecutor’s Office, Hamburg, Germany). Those persons were all suspected of having, in July 2018, falsified thirteen bank transfer orders using unlawfully obtained data, thus enabling the probable transfer of around € 9 800 to a bank account opened in A’s name with an Austrian bank. In May 2019, during the investigation of that case, the Hamburg Public Prosecutor’s Office issued a European investigation order (1), which it forwarded to the Staatsanwaltschaft Wien (Public Prosecutor’s Office, Vienna, Austria), and by which it requested the latter to send it copies of the bank statements in question for the relevant period. However, under the Austrian Code of Criminal Procedure, the Austrian public prosecutor’s office may not order such an investigative measure without prior court authorisation. Accordingly, at the end of May 2019, the Vienna Public Prosecutor’s Office requested the Landesgericht für Strafsachen Wien (Regional Court in Criminal Matters, Vienna, Austria) to authorise that investigative measure.
Noting inter alia that, under German law on the organisation of the courts, the Hamburg Public Prosecutor’s Office may receive instructions, including in individual cases, from the Justizsenator von Hamburg (Senator for Justice, Hamburg, Germany), that court was uncertain whether that European investigation order should be executed by the Austrian authorities. Its uncertainty related, more specifically, to the applicability, in the context of the European Investigation Order Directive, of the Court’s recent case-law relating to the concept of ‘issuing judicial authority’ of a European arrest warrant (EAW) (2), within the meaning of Framework Decision 2002/584 (3). Consequently, that court decided to ask the Court whether the public prosecutor’s office of a Member State may be regarded as a ‘judicial authority’ having competence to issue a European investigation order, within the meaning of that directive, in spite of the fact that it is exposed to a risk of being subject to individual instructions or orders from the executive when adopting such an order.
Findings of the Court
The Court, sitting as the Grand Chamber, rules that the concepts of ‘judicial authority’ and ‘issuing authority’, within the meaning of the European Investigation Order Directive, include the public prosecutor of a Member State or, more generally, the public prosecutor’s office of a Member State, even though they are in a relationship of legal subordination to the executive of that Member State, which exposes them to the risk of being directly or indirectly subject to orders or individual instructions from the executive when adopting a European investigation order.
In that regard, the Court notes, as a preliminary point, that, under that directive, a European investigation order may be executed only if the authority which issued it is an ‘issuing authority’ (4), and that, where such an order is issued by an issuing authority other than a judge, a court, an investigating judge or a public prosecutor competent in the case concerned, it must be validated by a ‘judicial authority’ before being transmitted for the purposes of its execution in another Member State.
That clarification being made, the Court notes, first of all, that, unlike what is provided for in the EAW Framework Decision, which uses the concept of ‘issuing judicial authority’ without specifying the authorities covered by that concept, the European Investigation Order Directive expressly provides (5) that the public prosecutor is included among the authorities which, like a judge, court or investigating judge, are understood as an ‘issuing authority’. Furthermore, the Court points out that, in that directive, the public prosecutor is also one of the ‘judicial authorities’ empowered to validate a European investigation order before it is forwarded to the executing authority, where that order has been issued by an issuing authority other than a judge, court, investigating judge or public prosecutor competent in the case concerned (6). The Court states that, in that directive, the classification of the public prosecutor as an ‘issuing authority’ or ‘judicial authority’ is not made subject to there being no relationship of legal subordination to the executive of the Member State to which the public prosecutor belongs.
Next, the Court emphasises that the issuing or the validation of a European investigation order is subject to a procedure and to guarantees distinct from those governing the issuing of an EAW. In particular, it notes that, pursuant to the European Investigation Order Directive, the public prosecutor who issues or validates such an order must take into account the principle of proportionality and the fundamental rights of the person concerned and that the order must be capable of being the subject of effective legal remedies, at least equivalent to those available in a similar domestic case. The Court also notes the possibility offered by that directive to the executing authority and, more broadly, to the executing State, of ensuring, by various mechanisms, that that principle and the fundamental rights of the person concerned are respected. The Court concludes that, both at the stage of the issuing or validation and of the execution of the European investigation order, the European Investigation Order Directive contains a set of safeguards to ensure the protection of the fundamental rights of the person concerned.
Lastly, the Court states that the objective pursued by a European investigation order is distinct from that pursued by an EAW. While the EAW seeks the arrest and surrender of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order, the aim of a European investigation order is to have one or several specific investigative measures carried out to obtain evidence. Thus, while some of those investigative measures may be intrusive, a European investigation order is not, however, unlike an EAW, such as to interfere with the right to liberty of the person concerned.
Therefore, in the Court’s view, in the light of all those differences between the EAW Framework Decision and the European Investigation Order Directive, the interpretation in its recent judgments (7) – according to which the concept of ‘issuing judicial authority’ within the meaning of that framework decision does not cover the public prosecutor’s offices of a Member State which are exposed to the risk of being subject to individual instructions from the executive – is not applicable in the context of the European Investigation Order Directive.
Footnotes:
(1) That European investigation order was issued in accordance with Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1) (the ‘European Investigation Order Directive’).
(2) Judgments of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) (C-508/18 and C-82/19 PPU), paragraph 90, and PF (Prosecutor General of Lithuania) (C-509/18, paragraph 57); see also Press Release No 68/19. In paragraph 90 of the judgment in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), relating to German public prosecutor’s offices, the Court ruled that the concept of ‘issuing judicial authority’, within the meaning of Framework Decision 2002/584, does not cover the public prosecutor’s offices of a Member State which are exposed to the risk of being directly or indirectly subject to orders or individual instructions from the executive, in connection with the adoption of a decision to issue a European arrest warrant.
(3) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) (the ‘EAW Framework Decision’).
(4) Within the meaning of Article 2(c) of the European Investigation Order Directive.
(5) This is provided for in Article 2(c)(i) of the European Investigation Order Directive.
(6) This is set out in Article 2(c)(ii) of the European Investigation Order Directive.
(7) Judgments in OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau) and PF (Prosecutor General of Lithuania), see footnote 2.
NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.
Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.
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The Supreme Administrative Court of Lithuania has asked (1) the European Court of Human Rights to provide an advisory opinion on impeachment legislation, a question which is at issue in a case currently pending in Lithuania.
The Court of Justice annuls a Commission decision making binding the