EJTN-AEAJ Training on Conflicts of Norms in the Application of Fundamental Rights

Transcription

1 1 EJTN-AEAJ Training on Conflicts of Norms in the Application of Fundamental Rights University of Naples Parthenope, Naples, Italy, March 2016 Dr. Danutė JOČIENĖ Conflicts between EU Fundamental Rights and Freedoms, EU and ECHR law, and UN acts and the ECHR Some principles and extracts from the relevant courts (the CJEU and the ECtHR) case-law I. Conflicts between EU Fundamental Rights and Freedoms: According to well-established case-law of the Court of Justice, fundamental rights form an integral part of the general principles of EU law. Stauder case 29/69 [1969] - "Fundamental rights [are] enshrined in the general principles of Community law and protected by the Court." The Court of Justice draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights [ ] and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States (judgments in Internationale Handelsgesellschaft, 11/70, and Nold v Commission, 4/73). On 7 December 2000 the Charter of Fundamental Rights of the European Union (furthermore the Charter) in Nice was proclaimed. The Treaty of Lisbon, which entered into force on 1 December 2009, now in amended Article 6 (3) TEU, states: 1. The Union recognises the rights, freedoms and principles set out in the [Charter], which shall have the same legal value as the Treaties.

2 2 Case-law of the CJEU, some conflicts between the EU fundamental rights: Article 42 of the Charter - any EU citizen and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the EU institutions, bodies, offices and agencies. This right is subject to certain exceptions; the institutions refuse access where disclosure would undermine the protection of the public interest. Case C-266/05 P - Jose Maria Sison, residing in Utrecht (Netherlands) against the Council of the European Union Access to documents of the institutions Refusal of access Public interest sensitive documents On 28 October 2002, the Council of the European Union adopted Decision 2002/848/EC implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/460/EC. That decision included the applicant in the list of persons whose funds and financial assets are to be frozen. The applicant requested access to the documents which had led the Council to adopt Decision 2002/848 and consequently, such access (even partial) was refused relying on the protection of the public interest as regards public security and the effectiveness of the fight against terrorism. The CJEU - It follows that the Council did not make a manifest error of assessment in considering that disclosure of the document requested was likely to undermine the public interest as regards international relations. It must therefore be held that sensitive documents are covered by a derogation [ ]. Article 7 Respect for private and family life, Article 8 Protection of personal data, Article 11 Freedom of expression and information of the Charter The CJEU has clearly underlined the need to protect but also balance fundamental rights correctly in the digital environment. In the Digital Rights Ireland case, (judgment of , Cases C-293/12 and C- 594/12) the Court reiterated the EU institutions obligations to respect the Charter in their activities, namely where they affect the right to privacy, private life and personal data protection.

3 3 It declared the data retention directive invalid because it disproportionately restricted rights to privacy and to the protection of personal data, as this directive had required Member States to ensure that telecommunications service providers retain traffic and location data of their customers for between six months and two years and to make these data available, on request, to law enforcement authorities for the purposes of investigating, detecting and prosecuting serious crime and terrorism. It is noteworthy that the CJEU in this case found also a limitation of the right to freedom of expression under Article 11 of the Charter. However, it did not continue to examine whether such a limitation by the challenged data retention directive was justified, since the directive was annulled on the established infringement of Articles 7 and 8 of the Charter. In the Google case (judgment of in Case C-131/12 Google Spain and Google) the CJEU clarified that Google, as a data controller established in the EU, is obliged to respect EU data protection law (Articles 7 and 8 of the Charter) and therefore has to comply with requests to remove links to certain personal data, under certain circumstances ( right to be forgotten ). A, B, C v Staatssecretaris van Veiligheid en Justitie case (judgment of 2 December 2014 in Joined Cases C-148/13, C-149/13 and C-150/13) touched on questions of the protection of privacy in the context of the right to asylum (Art. 7 and 18 of the Charter). It concerned the interpretation of EU provisions on asylum in relation to the methods by which national authorities may assess the credibility of the declared sexual orientation of applicants for asylum. The applicants here had claimed that they feared persecution in their countries of origin on account of their homosexuality. The Court underlined that the Member States are entitled to assess the credibility of such statements, however the methods used must ensure the respect of fundamental rights, including the right to respect for private and family life. A case dealing with the right to data protection, on the one hand, and the interest of an individual to protect his or her home and family, on the other, was dealt with in the case Ryneš (CJEU judgment of 11 December 2014, Case C-212/13). The Charter, in its Article 15(1), protects the right to engage in work and to pursue a freely chosen or accepted occupation/limitations and Article 17 Right to property.

4 4 In Giordano v Commission case (judgment in Case C-611/12 P) the CJEU held that the imposition of a fishing ban due to evidence of a serious threat to the conservation of a particular fish stock did not infringe the freedoms and rights, as set out in Articles 15 and 17 of the Charter, of owners of vessels endowed with a licence and individual quota to fish a particular type of fish, even if the ban became effective before the individual quota was exhausted. The Court considered that the freedom to pursue a trade or profession does not constitute an absolute prerogative, but must be viewed in relation to its function in society. Limitations may be imposed on the exercise of that freedom provided that in accordance with Article 52(1) of the Charter (prescribed by law, within the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others). In the case of UPC Telekabel v Constantin Film ( judgment of 27 March 2014, Case C-314/12) the CJEU, building upon its earlier case-law, stated that a blocking injunction ordered against an Internet service provider on the basis of Article 8(3) of Directive 2001/29/EC needs to strike a balance, primarily, between (i) copyrights and related rights, which are IP and are therefore protected under Article 17(2) of the Charter (protection of intellectual property), (ii) the freedom to conduct a business under Article 16 of the Charter, and (iii) the freedom of information of Internet users, whose protection is ensured by Article 11 of the Charter. Article 21 of the Charter - Non-discrimination, Article 26 Integration of persons with disabilities/ possibilities for employment and occupation The Kaltoft case (judgment of , Case C-354/13) The Danish court asked the CJEU to specify whether EU law itself prohibits discrimination on grounds of obesity and whether obesity can constitute a disability and therefore falls within the scope of the employment equality directive. The CJEU specified that in the area of employment and occupation, EU law does not lay down a general principle of non-discrimination on grounds of obesity as such. However, if under circumstances the obesity of the worker entails a long-term limitation which results in hindering the full and effective participation of that person in professional life on an equal basis with other workers, such obesity can be covered by the concept of disability within the meaning of the directive.

5 5 Articles 20 (equality before the law), 21(1) (non-discrimination against persons with disabilities) and 26 (the integration of persons with disabilities) of the Charter In the Glatzel case (judgment of 22 May 2014, Case C-356/12), the CJEU was asked by the referring German court whether the refusal of a driver s licence on the grounds of bad eyesight constituted a violation of Articles 20, 21 and 26 of the Charter without permitting any derogation that applicants for Category C1 and Category C1E driving licences have a minimum visual acuity of 0.1 in their worst eye, even if those persons use both eyes together and have a normal field of vision when using both eyes. The court stated that the differential treatment of a person with impaired eyesight can be justified by a concern such as road safety, which fulfils an objective of public interest, is necessary and is not a disproportionate burden. II. Conflicts between EU and ECHR law: According to established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. 1. Opinion 2/13 of 18 December 2014, Accession of the European Union to the European Convention for the Protection of Human rights and Fundamental Freedoms 1 The Court of Justice of the EU has clearly stated that the ECHR has special significance (see, in particular, judgments in ERT, C-260/89 and Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P). The planned accession of the European Union to the ECHR was stopped for the moment with the delivering of the Opinion 2/13 by the CJEU. 1 On 18 December 2014, the CJEU delivered its opinion on the draft agreement on EU accession to the ECHR. The Court identified problems as to its compatibility with EU law; it ruled the draft accession agreement incompatible with Article 6(2) TEU and the related Protocol No 8. The Court called for certain amendments: primacy of Union law in relation to the possibilities conferred by Article 53 of the Charter as regards stronger fundamental rights in Member States constitutions; mutual trust between Member States in particular in the area of freedom, security and justice; relation with the new Additional Protocol 16 to the ECHR; preservation of the exclusive jurisdiction of the CJEU for deciding disputes between Member States concerning interpretation or application of the Treaties; certain aspects of the procedure before the European Court of Human Rights (ECtHR) involving the EU; and judicial protection in the area of common foreign and security policy. The Commission remains fully committed to EU accession to the ECHR. Accession will strengthen fundamental values, improve the effectiveness of EU law and enhance the coherence of fundamental rights protection.

6 6 a) Main principle of the EU law - Fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union s law. 1. The Case C-617/10, (REQUEST for a preliminary ruling under Article 267 TFEU from the Haparanda tingsrätt (Sweden), Åklagaren v Hans Åkerberg Fransson: - Question - whether a national judicial practice is compatible with European Union law if it makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the ECHR and by the Charter [ ]? - First, the conclusions to be drawn by a national court from a conflict between national law and the ECHR, it is to be remembered that whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law (See Opinion 2/13 of the CJEU of 18 December 2014 as regards the European Union s accession to the ECHR). - Next, the conclusions to be drawn by a national court from a conflict between provisions of domestic law and rights guaranteed by the Charter, it is settled case-law that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation [ ] (Case 106/77 Simmenthal [1978] ECR 629, paragraphs 21 and 24; Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 43). - European Union law does not govern the relations between the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law (see, to this effect, Case C-571/10 Kamberaj [2012] ECR, paragraph 62).

7 7 - European Union law precludes a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the guaranteed by the Charter of Fundamental Rights of the European Union [ ], since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter. - The ne bis in idem principle laid down in Article 50 of the Charter of Fundamental Rights of the European Union does not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of value added tax, a tax penalty and a criminal penalty in so far as the first penalty is not criminal in nature, a matter which is for the national court to determine. For comparison the case from the ECtHR Jussila v. Finland [GC], appl. No /01, judgment of 23 November 2006, 38 concerning the criminal nature of the imposed tax surcharges. [ ] the nature of the offence, is the more important. The Court observes that, as in the Janosevic and Bendenoun cases, it may be said that the tax surcharges were imposed by general legal provisions applying to taxpayers generally; [ ] the tax surcharges were not intended as pecuniary compensation for damage but as a punishment to deter reoffending. It may therefore be concluded that the surcharges were imposed by a rule whose purpose was deterrent and punitive [ ]. Hence, Article 6 applies under its criminal head notwithstanding the minor nature of the tax surcharge. b) Protection of fundamental rights by EC law equivalent to that of the European Convention on Human Rights (furthermore the Convention or the ECHR) system, unless the presumption to that effect was rebutted 1. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], appl. No /98, Judgment [GC] Article 1 of Protocol No. 1 - Control of the use of property (Impounding of leased aircraft in pursuance of UN sanctions regime and EC Council Regulation). No violation

8 8 Facts: In May 1993 an aircraft leased by Bosphorus Airways, an airline charter company registered in Turkey, from Yugoslav Airlines ( JAT ) was seized by the Irish authorities. It had been in Ireland for maintenance by TEAM Aer Lingus, a company owned by the Irish State, and was seized under EC Council Regulation 990/93 which, in turn, had implemented the UN sanctions regime against the Federal Republic of Yugoslavia (Serbia and Montenegro). Before the European Court of Human Rights (furthermore the ECtHR or the Court) the applicant company complained that the manner in which Ireland had implemented the UN sanctions regime violated Article 1 of Protocol No. 1 (protection of property). Law: It was not disputed that the impoundment of the aircraft had been implemented by the Irish authorities; clear jurisdiction of the Irish State under Art. 1 of Protocol I of the Convention. As to the legal basis for the impoundment the Court observed that EC Regulation 990/93 had been generally applicable and binding in its entirety, thus applying to all Member States [ ]; the impugned interference had not been the result of an exercise of discretion by the Irish authorities, either under EC or Irish law, but rather had amounted to compliance by the Irish State with its legal obligations flowing from EC law and, in particular, Article 8 of EC Regulation 990/93. As to the justification of the impoundment the ECtHR found that the protection of fundamental rights by EC law could have been considered to be, and to have been at the relevant time, equivalent to that of the Convention system. Consequently, a presumption arose that Ireland had not departed from the requirements of the Convention when it had implemented legal obligations flowing from its membership of the EC. Such a presumption could be rebutted if, in a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention s role as a constitutional instrument of European public order in the field of human rights. [ ]. It could not be said that the protection of Bosphorus Airways Convention rights had been manifestly deficient. Conclusion: no violation (unanimously). 2. M.S.S. v. Belgium and Greece [GC], appl. No /09 case against the EU law principles

9 9 Deficiencies in the asylum procedure in Greece and risk of expulsion without any serious examination of merits of asylum application or access to effective remedy. The case concerned the expulsion of asylum seekers in application of the EU Dublin II Regulation under which European Union member States are required to determine, based on a hierarchy of objective criteria (Articles 5 to 14), which member State is responsible for examining an asylum application lodged on their territory. Many violations as regards both countries established. Facts The applicant, an Afghan national, entered the European Union via Greece. In February 2009 he arrived in Belgium, where he applied for asylum. In accordance with the Dublin Regulation, the Aliens Office asked the Greek authorities to take responsibility for the asylum application. Late in May 2009 the Aliens Office ordered the applicant to leave the country for Greece. [ ] The Greek authorities confirmed their responsibility to examine the asylum application. He was sent back to Greece on 15 June 2009 [ ] having no means of subsistence, he lived in the street [ ] Law Article 3 Conditions of detention in Greece The difficulties caused by the increasing numbers of migrants and asylum-seekers from States around the external borders of the European Union did not absolve the States of their obligations in respect of Article 3. Conclusion: violation (unanimously) (Findings by the CPT and the UNHCR also confirmed the applicant s allegations about the unsanitary conditions and the overcrowding in the detention center next to Athens international airport). Living conditions in Greece In spite of the obligations incumbent on the Greek authorities under their own legislation and the European Union s Reception Directive, the applicant had lived for months in the most abject poverty, with no food and nowhere to live or to wash. Therefore the Greek authorities must be held responsible because of their inaction and failure to process his asylum application for the conditions he had had to endure for many months. Conclusion: violation. The applicant s transfer from Belgium to Greece the Belgian authorities must have been aware of the deficiencies in the asylum procedure in Greece when the expulsion order against the applicant had been issued; moreover the United Nations High Commissioner for Refugees had warned the Belgian Government about the situation there [ ]

10 10 The Belgian authorities should not simply have assumed that the applicant would be treated in conformity with the Convention standards; they should have verified it; but they had not done so. Conclusion: violation. The responsibility of Belgium under the Convention NOT application of the presumption of the equivalent protection 338. [ ] reference to the Bosphorus judgment ( 330). The Court reiterated in that case that the Convention did not prevent the Contracting Parties from transferring sovereign powers to an international organisation (see Bosphorus case, 152). The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations ( 153). State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. The Court found that the protection of fundamental rights afforded by Community law was equivalent to that provided by the Convention system. In reaching that conclusion it attached great importance to the role of the Court of Justice of the European Union (CJEU), considering that the effectiveness of the substantive guarantees of fundamental rights depended on the mechanisms of control set in place to ensure their observance The Court notes under Article 3 2 of the Dublin Regulation which provides the derogation from the general rule set forth in Article 3 1, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called sovereignty clause The Court concludes that, under the Dublin Regulation, the Belgian authorities could have refrained from transferring the applicant if they had considered that the receiving country, namely Greece, was not fulfilling its obligations under the Convention. Consequently, the Court considers that the impugned measure taken by the Belgian authorities did not strictly fall within Belgium s international legal obligations. Conclusion - Accordingly, the presumption of equivalent protection does not apply in this case.

11 11 Question whether it is clear why the presumption of equivalent protection is not applicable in that case? Violation of Art. 13 taken together with Art. - because of the deficiencies in the Greek authorities examination of the applicant s asylum application and the risk he faced of being removed back to his country of origin without any serious examination of the merits of his application and without having had access to an effective remedy. (To be noted the ECtHR found in another case (K.R.S. v. the United Kingdom (decision) (32733/08) of 2 December 2008) that removing an asylum seeker to Greece under the Dublin II Regulation did not violate the Convention; however, numerous reports and materials had been compiled by international bodies and organisations since then which agreed as to the practical difficulties involved in the application of the Dublin system in Greece). Article 46: General measures under ECHR: Without prejudice to the general measures required to prevent other similar violations in the future, Greece was to proceed, without delay, with an examination of the merits of the applicant s asylum request in keeping with the requirements of the Convention CJEU follow-up: In Saciri and Others (Judgment of 27 February 2014, Case C-79/13) the CJEU clarified the minimum standards Member States must observe to ensure that asylum applicants are housed adequately. The CJEU emphasised that the question of what constitutes minimum standards must be interpreted in light of fundamental rights and, in particular, Article 1 of the Charter, under which human dignity must be protected. Where a Member State has opted to grant material reception conditions in the form of financial allowances, the total amount of the financial allowances covering the material reception conditions must be sufficient to ensure a dignified standard of living, adequate for the health of applicants, and capable of ensuring their subsistence [ ] Another case from the ECtHR - Tarakhel v. Switzerland [GC] (appl. No /12, 4 November 2014) - whether a Dublin transfer of a family with children by Switzerland to Italy would violate Articles 3, 13 and 8 of the ECHR. Tarakhel case step back (or NOT?) after the criticism coming from the EU bodies after M.S.S. judgment?

12 12 The ECtHR did not consider that there are systemic deficiencies in the Italian asylum system such as would justify a systematic suspension of Dublin transfers to Italy, stressing that the situation in Italy is not comparable to the situation in Greece which led to the ECtHR M.S.S judgment. In view of complying with Article 3 of the ECHR, Switzerland should seek individual guarantees from Italy that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together before sending the applicants to Italy. Another important judgment concerning Dublin transfers was rendered in the case Sharifi and Others v. Italy and Greece (appl. No /09, judgment of 21 October 2014). The case concerned 32 Afghan nationals, two Sudanese nationals and one Eritrean national, who alleged, in particular, that they had entered Italy illegally from Greece and been returned to that country immediately, with the fear of subsequent deportation to their respective countries of origin, where they faced the risk of death, torture or inhuman or degrading treatment. The Court shared the concerns of several observers with regard to the automatic [collective and indiscriminate] returns, implemented by the Italian border authorities in the ports of the Adriatic Sea which could NOT be justified by reference to the Dublin system. Several violations established (including a violation by Italy of Article 4 of Protocol No 4 (prohibition of collective expulsion of aliens), etc.). Right of residence in the EU/ Protection of Family life/legitimate restrictions for the freedom of movement CJEU - Case Carpenter C-60/00 [2002] ECJ I- 6279, Ruling of 1 July 2002 The Immigration Appeal Tribunal referred to the Court for a preliminary ruling under Article 234 EC on the interpretation of Article 49 EC and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. Right of residence in that State of a spouse who is a national of a third country. Fundamental rights affect the scope and application of Community law - in Carpenter, the Court weaved principles of respect for family and private life from Article 8 of the ECHR into its analysis of the rights of Union citizens. CJEU - the decision to deport Mrs Carpenter constitutes an interference with the exercise by Mr Carpenter of his right to respect for his family life within the meaning of Article 8 of the Convention, which is among the fundamental rights [ ] protected in Community law. Even though no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention, the removal of a person from a

13 13 country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed by Article 8(1) of the Convention [ ] if it does not meet the requirements of paragraph 2 of that article [ ] (see, in particular, Boultif v Switzerland, no /00, 39, 41 and 46, ECHR 2001-IX). A fair balance between the competing interests, that is, on the one hand, the right of Mr Carpenter to respect for his family life, and, on the other hand, the maintenance of public order and public safety, was not struck out. Question whether the case law of the ECtHR does NOT go, to some extend, to the opposite direction see, as example, Üner v. the Netherlands case [GC], (appl. No /99, judgment of 18 October 2006) where the ECtHR afforded a right to the State to expel an alien convicted of criminal offences (who had clearly family life in the Netherlands, as his partner and 2 kids, all were nationals of the Netherlands). In the same case the ECtHR went a big step forward from the jurisprudential point of view deciding that the State in such expulsion cases should consider not only family life issues, but also private life aspects which may be more important for migrants who do not have any family ties in that country (see also Yoh-Ekale Mwanje v. Belgium, appl. No /10, judgment of 20/12/2011 on the very high standards concerning the health of the person under deportation. In this case the applicant, a Cameroonian national, who began in 2006 a relationship with a Dutch national living in Belgium, was not complaining under Art. 8 of the European Convention, even all their applications for permission to marry were refused. Subsequently, an order requiring the applicant to leave the country, on the grounds that she did not have valid papers for residence in Belgium and was in possession of a false passport, was issued. The applicant complained under Art. 3 as she had been HIV-positive since 2003 (No violation of Art. 3 in the case of her deportation see also N. v. the United Kingdom [GC], appl. No /05, 27/05/2008). Relationship under the right/obligation of the national courts to bring the matter before the Court of Justice for a preliminary Ruling/and the right to a fair trial under Art. 6 of the ECHR (reasoning of the decisions). ECtHR case of Ullens de Schooten and Rezabek v. Belgium, Appl. Nos. 3989/07 and 38353/07, judgment of 20/09/2011, No violation of Art. 6 (fair trial). 56. The Court [ECtHR] first observes that, under the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union), when a question concerning, in particular, the interpretation of the Treaty is raised in a

14 14 case pending before a national court or tribunal against whose decisions there is no judicial remedy under national law such as, in the present case, the Court of Cassation and the Conseil d Etat, that court or tribunal is required to bring the matter before the Court of Justice for a preliminary ruling. However, this obligation is not absolute. The Cilfit case-law of the Court of Justice shows that it is for the national courts to decide whether a decision on a question of Community law is necessary to enable them to give judgment. National courts are also obliged to give reasons for their refusal to refer for a preliminary ruling. The Cilfit judgment - national courts are not obliged to refer a question concerning the interpretation of Community law raised before them if they establish that the question is irrelevant, that the Community provision in question has already been interpreted by the Court [of Justice] or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt The Court would further point out, firstly, that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling (see, in particular, Coëme and Others v. Belgium, 114, ECHR 2000-VII; Ernst and Others v. Belgium, no /96, 74, 15 July 2003). Conclusion of the ECtHR in Ullens case: 67. In conclusion, having regard to the reasons given by the Court of Cassation and the Conseil d Etat in support of their refusal to grant the applicants requests to refer to the Court of Justice preliminary questions on the interpretation of Community law that they had submitted in the course of the proceedings before those courts, and considering those proceedings as a whole, the Court finds that there has been no violation of the applicants right to a fair hearing within the meaning of Article 6 1 of the Convention. ECtHR - Konnoly Bertrand v. 15 Member States of the European Union, appl. No /01, 09/12/2008 Decision on inadmissibility (ratione personae incompatible with the Convention) as regards the legal procedures before the European Commission, Court of Justice and some other EU bodies. La Cour estime qu'il convient d'examiner si la responsabilité d'etats parties à la Convention pouvait être engagée au regard d'actions ou d'omissions tenant à l'appartenance de ces Etats à une organisation internationale. Ces principes ont été rappelés et développés en particulier dans les affaires Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi dite «Bosphorus Airways» c. Irlande ([GC], no 45036/98, CEDH 2005-VI), Behrami et Behrami c. France ((déc.) [GC], no 71412/01, 31

15 15 mai 2007) et Saramati c. Allemagne, France et Norvège ((déc.) [GC], no 78166/01, 31 mai 2007) et se trouvent également repris dans une décision récente de la Cour (Boivin c. 34 Etats membres du Conseil de l'europe (déc.), no 73250/01, CEDH ) qui portait, comme en l'espèce, sur un litige entre un fonctionnaire international. [ ] la Cour rappelle qu'elle a déjà admis que la protection des droits fondamentaux offerte par l'ordre juridique communautaire était «équivalente» à celle assurée par le mécanisme de la Convention (Bosphorus, 165); elle ne voit rien dans la présente affaire qui pourrait l'amener à une conclusion différente. Quant à une responsabilité éventuelle de l'union européenne, elle rappelle que cette organisation internationale n'a pas adhéré à la Convention et qu'elle ne peut donc voir sa responsabilité engagée au titre de celle-ci (voir, mutatis mutandis, Boivin c. 34 Etats membres du Conseil de l'europe). III. Conflicts between UN acts and the ECHR Article 103 provides that United Nations Member States obligations under the UN Charter shall prevail in the event of a conflict with obligations under any other international agreement. a) The European Convention on Human Rights could NOT be interpreted in such a way as to place under the control of the Strasbourg Court the actions and omissions of contracting parties covered by Security Council resolutions and committed prior to or during UN missions aimed at preserving international peace and security. 1. Behrami and Behrami v. France and Saramati v. France, Germany and Norway case (dec.), Appl. No /01, Decision [GC] Inadmissible Ratione personae - Applications concerning acts performed by KFOR and UNMIK in Kosovo under the aegis of the United Nations: Behrami and Behrami case: The two applicants, Agim Behrami and his son, Bekir Behrami, live in Kosovo; the application was also filed on behalf of another son, Gadaf Behrami, who is now deceased. At the material time, in March 2000, the applicants lived in the sector of Kosovo for which a multinational brigade led by France was responsible. The brigade was part of the international security force (KFOR) presence in Kosovo, mandated by UN Security Council Resolution 1244 of June 1999.

16 16 A group of children, including Bekir and Gadaf, found a number of unexploded cluster bombs left from the bombardment of FRY by NATO in One of the children threw a bomb into the air; it exploded, killing Gadaf and seriously injuring Bekir. Police from the UN Interim Administration in Kosovo (UNMIK) also mandated by Resolution 1244 of the United Nations investigated the incident. They found that the accident amounted to an unintentional homicide committed by imprudence. It was decided that no criminal prosecution would be brought because the bomb did not explode during the NATO bombardment. Saramati case: The applicant, of Albanian origin and living in Kosovo, was arrested by UNMIK police in 2001 and placed in detention while a criminal investigation was conducted. He appealed successfully against a further detention order and was released. Later, he was again arrested by two UNMIK police officers, acting on orders from the KFOR commander (COMKFOR), a Norwegian officer at the time. The police station was located in the zone where the KFOR multinational brigade was under the authority of Germany. After the Supreme Court of Kosovo quashed the applicant s conviction, his case was sent for re-trial and he was released. Saramati application in respect of Germany struck out: thorough investigations had failed to produce evidence of any involvement of a German KFOR officer in the arrest. The Behramis complained that de-mining had not been carried out, noting that France had been in charge of the multinational brigade responsible for the sector. Mr Saramati complained of his detention by KFOR, emphasising that it had been ordered by COMKFORs of French and Norwegian nationality. The question was accordingly whether the Court had jurisdiction ratione personae to examine, in the light of the Convention, the role played by the mentioned States in these civil and security capacities which were effectively controlling Kosovo. Given that KFOR was exercising powers duly delegated to it by the UN Security Council, in application of Chapter VII, and that UNMIK, which had been set up by virtue of that same Chapter VII, was a subsidiary body of the UN, answerable for its actions to the Security Council, the impugned action and inaction were, in principle, attributable to the UN. That organisation was a legal entity distinct from its member states and was not a contracting party to the Convention. More generally, what was the relationship between the European Convention on Human Rights and actions carried out by the UN under Chapter VII of its Charter, entitled Action with respect to threats to the peace, breaches of the peace and acts of aggression?

17 17 The ECtHR - The main aim of the UN was to maintain international peace and security. The protection of human rights made an important contribution to international peacekeeping. The Chapter VII enabled the Security Council to adopt coercive measures set out in Security Council Resolution 1244 establishing UNMIK and KFOR. It followed that the Convention could NOT be interpreted in such a way as to place under the control of the Strasbourg Court the actions and omissions of contracting parties covered by Security Council resolutions and committed prior to or during UN missions aimed at preserving international peace and security. This would amount to interference in the accomplishment of an essential mission of the UN in this field, or in the effective conduct of such operations. Therefore the complaints must be declared incompatible ratione personae. 2. Nada v. Switzerland case, Appl. No /08, Judgment of [GC] b) Prohibition, under legislation implementing UN Security Council Resolutions, on travel through country surrounding enclave: violation Facts The Swiss Federal Taliban Ordinance was enacted pursuant to several UN Security Council Resolutions. It had the effect of preventing the applicant, an Egyptian national, from entering or transiting through Switzerland due to the fact that his name had been added to the list annexed to the UN Security Council s Sanctions Committee of persons suspected of being associated with the Taliban and al-qaeda ( the list ). The applicant had been living in Campione d Italia, an Italian enclave of about 1.6 square kilometres surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by a lake. The applicant claimed under Art. 8 of the Convention that the restriction made it difficult for him to leave the enclave, to see his friends and family, to receive appropriate medical treatment, etc. Law Compatibility ratione personae: The Court did not endorse the argument of the Swiss Government that the measures taken by the member states of the United Nations to implement the relevant Security Council resolutions were attributable to that organisation, rather than to the respondent State (unlike the position in Behrami and

18 18 Behrami v. France, in which the impugned acts and omissions were attributable to UN bodies). HERE - The measures imposed by the Security Council resolutions had been implemented at national level by an Ordinance of the Federal Council therefore, the acts in question were thus attributable to Switzerland only. When considering the relationship between the Convention and Security Council resolutions, the Court had found in Al-Jedda v. the United Kingdom case that there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the present case, however, that presumption had been rebutted as Resolution 1390 (2002) expressly required the States to prevent individuals on the list from entering or transiting through their territory. Nevertheless, the UN Charter did not impose on States a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII, but instead left them a free choice among the various possible models for transposition of those resolutions into their domestic legal order. Accordingly, Switzerland had enjoyed a limited but real latitude in implementing the relevant binding resolutions. Proportionality of the measures under art. 8 (private and family life) taken by the Swiss authorities [ ] the Swiss authorities had apparently not informed the Sanctions Committee until September 2009 of the Federal Prosecutor s findings in May 2005 that the accusations against the applicant were clearly unfounded [ ]; there was also a medical aspect - the applicant, who was born in 1931, had serious health problems [ ]; Nor had the Swiss authorities offered him any assistance in seeking a broad exemption from the ban in view of his particular situation [ ]; therefore, Violation of Art. 8. That finding dispensed the Court from determining the question of the hierarchy between the obligations arising under the Convention on the one hand and under the UN Charter on the other. 3. Al-Jedda v. the United Kingdom [GC], Appl. No /08, judgment of 07/08/2011 c) Continued preventive detention of Iraqi national by British Armed Forces in Iraq on basis of United Nations Security Council Resolution: violation

19 19 [ ] the ECtHR therefore had to choose the interpretation which was most in harmony with the requirements of the Convention and which avoided any conflict of obligations. In the light of the United Nations important role in promoting and encouraging respect for human rights, [ ] there had to be a presumption when interpreting Security Council resolutions that the Security Council did not intend to impose any obligation on Member States to breach the requirements of the international protection of human rights Facts In March 2003 a United States of America-led coalition, including British armed forces, invaded Iraq. Major combat operations in Iraq were declared complete in May As from that date, the United Kingdom became an occupying power [ ] and a United Nations Assistance Mission for Iraq (UNAMI) was established. In its Resolutions 1511 (2003) and 1546 (2004), the United Nations Security Council described the role of UNAMI [ ] to take all necessary measures to contribute to the maintenance of security and stability in Iraq. The applicant is an Iraqi national. In October 2004 he was arrested on suspicion of involvement in terrorism and subsequently detained for over three years at a detention facility in Basra (Iraq) run by British troops. In June 2005 he brought judicial-review proceedings in the United Kingdom challenging the lawfulness of his continued detention. The case was ultimately decided by the House of Lords on 17 December Although accepting that the actions of the British troops in Iraq were attributable to the United Kingdom and NOT the United Nations, the House of Lords found that Resolution 1546 effectively authorised British forces within the multinational force to use internment where necessary for imperative reasons of security in Iraq and that obligations imposed by Security Council resolutions took primacy over all other international obligations, even those arising under the European Convention. (a) Jurisdiction of the United Kingdom under Art. 1 of the Convention the Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force. The applicant s detention was therefore not attributable to the United Nations. The internment had taken place within a detention facility controlled exclusively by British forces. Conclusion: within the jurisdiction (unanimously). The Court had also considered that Resolution 1546 had authorised the United Kingdom to take measures to contribute to the maintenance of security and stability in Iraq. However, neither that nor any other resolution explicitly or implicitly required the

20 20 United Kingdom to place individuals considered a security risk into indefinite detention without charge. Violation of Article 5 1 of the Convention. 4. Hague Convention cases/ Abduction of children requirements of Article 8 of the ECHR X. v. Latvia Case [GC] (appl. No /09, judgment of 26/11/2013): 93. As regards, more specifically, the question of the relationship between the Convention and the [UN] Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, the Court reiterates that in the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention (see the case Maumousseau and Washington, appl. No /05, judgment of 06/12/2007, 60) and those of the Convention on the Rights of the Child of 20 November 1989 (see Neulinger and Shuruk [GC], appl. No /07, judgment of 06/07/2010, 132), and of the relevant rules and principles of international law applicable in relations between the Contracting Parties (see Demir and Baykara v. Turkey [GC], no /97, 67, ECHR 2008). 94. This approach involves a combined and harmonious application of the international instruments, and in particular in the instant case of the Convention and the Hague Convention, regard being had to its purpose and its impact on the protection of the rights of children and parents. Such consideration of international provisions should not result in conflict or opposition between the different treaties [ ] 96. [ ] best interests of a child must be paramount The Court further notes that the European Union subscribes to the same philosophy, in the framework of a system involving only European Union member States and based on a principle of mutual trust. The Brussels II bis Regulation, whose rules on child abduction supplement those already laid down in the Hague Convention, likewise refers in its Preamble to the best interests of the child [ ] while Article 24 2 of the Charter of Fundamental Rights emphasises that in all actions relating to children the child s best interests must be a primary consideration. 98. [ ] it follows directly from Article 8 of the Convention that such a return [of the child] cannot be ordered automatically or mechanically (see Neulinger and Shuruk, 138).

21 21 Question the ECtHR suggests that the domestic courts were required to conduct an in-depth examination of the entire family situation when examining the return of the child to his country of habitual residence under the Hague Convention (see Neulinger and Shuruk judgment) - whether this requirement cannot be regarded as conflicting with the international obligations of the States under the Hague Convention to return a child (see X. v. Latvia, 104)? ECtHR position in X. v. Latvia [GC] case (where the ECtHR departed from the deep examination requirement to the sufficiently detailed examination WHY?): 107. [ ] the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child s return, the courts must not only consider arguable allegations of a grave risk for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly, [ ] is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it Furthermore, as the Preamble to the Hague Convention provides for children s return to the State of their habitual residence, the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place. Neulinger and Shuruk case: 145. [ ] If it is enforced a certain time after the child s abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis [ ]