Bivolaru and Moldovan v. France: A New Challenge for Mutual Trust in the European Union?

By William Julié, founding partner of William Julié Law Office and international criminal law officer at the International Bar Association, and Juliette Fauvarque, trainee lawyer at William Julié Law Office.

In the recent Bivolaru and Moldovan v. France case, the European Court of Human Rights (ECtHR) handed a landmark judgment in relation to the execution of European arrest warrants (EAWs) between Member States of the European Union (EU) and the equivalent protection doctrine. For the first time, the ECtHR decided that the execution of an EAW violated Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture, inhumane and degrading treatment. As we shall see, this case sends a clear warning to all European judges – national or supranational – that the execution of EAWs is subject to the ECtHR’s jurisdiction.

Under the doctrine of equivalent protection, also known as the ‘Bosphorus presumption (by reference to the case in which it was first established by the Court), States Parties to the ECHR are presumed to have abided by their obligations under the Convention when applying EU law. This presumption was established by the ECtHR in consideration of the fact that the EU, as an international organization, offers substantive guarantees in the protection of fundamental rights under the Charter of Fundamental Rights, general principles of EU law and the case law of the Court of Justice of the European Union (CJEU).

Two applications were joined in this case. Both concerned French decisions granting the execution of EAWs issued by the Romanian authorities against Romanian nationals for the purpose of serving a custodial sentence. The joinder of these two cases nevertheless resulted in different verdicts, as the Court found a violation of Article 3 in respect of one of the applicants, and no violation in respect of the other.

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Romeo Castaño: “meticulously elaborated interpretations” for the sake of prosecution

By Mattia Pinto, PhD Candidate at the London School of Economics, Department of Law

 On 9 July 2019, the Second Section of the European Court of Human Rights (ECtHR or the Court) delivered its judgement in Romeo Castaño v. Belgium, concerning Belgium’s failure to execute multiple European Arrest Warrants (EAWs) issued by Spanish authorities in relation to a suspected ETA terrorist. Extradition cases involving the ECtHR usually concern complaints of ill-treatment likely to occur if an individual is extradited to a country where human rights appear not adequately protected (see, e.g., Soering, Trabelsi, Othman (Abu Qatada) and Pirozzi). In the case here at issue, the situation is reversed: the applicants complained that Belgian authorities’ refusal to surrender would amount to a breach of their right to an effective investigation into their father’s murder. The Second Section accepted this complaint and ruled unanimously that Belgium had breached its procedural obligation to cooperate under Article 2 ECHR. It is the first time the Court has found a violation of the Convention because a State refuses to surrender an individual sought by an extradition request. The decision is interesting but also controversial in its attempt to engage with multiple and complex issues, involving the relation between the ECHR and EU law, positive obligations to prosecute human rights violations and the principle of non-refoulement in EAW requests. In my opinion, the Court tries but eventually fails to properly deal with these issues. Continue reading

(In)justice and admissibility: No standing for their representative, but effective protection for disappeared victims?

By Helena De Vylder

In the inadmissibility decision delivered on 26 April 2016 in the case of N. v. Russia and M. v. Russia, the Court rejects the petition for lack of standing of the applicants’ representative. The victims were unable to formally appoint their representative by signing a ‘power of attorney-document’, since they disappeared, allegedly as the result of a forced extradition to Uzbekistan. The Court considered that their representative could not lodge applications to the Court in their name, in the absence of a duly signed power of attorney to represent them, not just in the domestic proceedings, but also before the ECtHR. According to the Court, the vulnerable applicants did not risk being deprived of effective protection, since it was open to their immediate family to complain. The fact that the direct family members all reside in Uzbekistan, and were formerly questioned by the authorities there, were not considered to prevent the family members from applying. It will consequently never be examined whether the applicants’ abduction and transfer to their home state of Uzbekistan violate the prohibition of torture (article 3 ECHR).

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Belgium violated the ECHR by extraditing a terrorist to the USA despite an interim measure by the Strasbourg Court: Trabelsi v. Belgium

The Trabelsi case is noteworthy for two reasons. Firstly, because of the blatant disregard by Belgium of the interim measure issued by the European Court of Human Rights. Secondly, because of the application of the reasoning from Vinter v. UK – in which the Court found that life without parole is incompatible with Article 3 ECHR – to the context of extradition proceedings. The Court finds that the applicant’s extradition by Belgium to the USA, where he ran the risk of being convicted to life without parole and despite an interim measure to the contrary, was in violation of Articles 3 and 34 ECHR. This blog post will first highlight the latter violation, before questioning the Court’s reasoning with respect to the former one.

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