Policy updates
Rule of law concerns about Spain
Spain has recently come under scrutiny, at EU level, for its actions in relation to the rule of law. In 2025, the Supreme Court of Spain ruled that the Chief Prosecutor had leaked confidential information to the press about a tax fraud case involving the partner of a government opposition figure. The government- who elected the Chief Prosecutor- have continued to proclaim the Chief Prosecutor’s innocence after this ruling. In June 2025, a plenary debate on the rule of law in Spain took place in the European Commission, specifically focussing on the independence of the Chief Prosecuting Office. This was followed, in October 2025, by a debate within the LIBE Committee on judicial independence and the rule of law in Spain. Resulting from this meeting, the European Parliament’s Democracy, Rule of Law and Fundamental Rights Monitoring Group (DRFMG) will be conducting a fact-finding mission in Spain in February 2026, to investigate the democratic situation there. Whilst the aforementioned ruling is one aspect under consideration, several other worrying emergences have sparked interest. Weaknesses in Spain’s anti-corruption network, the inability to renew the General Council of the Judiciary in Spain, way in which sexual harassment allegations within the governing party (PSOE) are handled and the reliance on emergency powers to pass laws are also highlighted as causes for concern in Spain.
Committee of Ministers commit to the creation of a political declaration regarding interpretation of the ECHR
On 10th December, representatives of 42 State parties to the ECHR declared an informal conference to discuss the interpretation of the ECHR by the ECtHR. This meeting took place in the aftermath of the letter of nine EU Member States of 22 May 2025 in which they expressed their criticisms of the ECtHR’s interpretation of the ECHR, particularly in the context of asylum and migration. Amnesty International contended that limiting the scope of the ECHR risks creating a “hierarchy of people” deserved of different levels of human rights protection depending on their asylum status.
The Meijers Committee responded to this debate, highlighting that constructive dialogue with the Court is both legitimate and valuable but attempts to curtail its interpretative authority undermine the integrity of the Convention system, particularly where these arguments are based on factual misrepresentations. We further warned that preserving the Court’s independence is essential to maintaining trust, stability, and justice across Europe. On 15th May 2026, the next formal session of the Committee of Ministers in Chisinau (Republic of Moldova) will take place, where a draft political declaration on the interpretation of the ECHR is expected to be adopted.
Poland refuses to enforce Digital Services Act
Poland’s right-wing president, Mr Karol Nawrocki, has sparked controversy by vetoing a bill enforcing the EU Digital Services Act in Poland. Nawrocki contended that this bill would “give control of content on the internet to officials subordinate to the government, not to independent courts”. There is a likelihood that the EU will roll out fines for non-implementation, as has already occurred during the Nawrocki presidency, reminiscent of the rule of law mechanism and fund freezing which had already been levelled against Poland. In his criticism of the Digital Services Act- which aims to create a safer online environment- Nawrocki drew the Digital Service Act parallel to the Ministry of Truth from George Orwell’s book 1984.
CJEU judgments
Judgment of the Court (Grand Chamber) of 18 December 2025, Case C-448/23 Commission v Poland ECLI:EU:C:2025:975
Can national constitutional identity override a state’s duty to make EU law effective?
In July 2023, the European Commission, Belgium and the Netherlands brought an action against Poland under Article 258 TFEU, for its failure to fulfil Treaty obligations. This action came about as a result of two 2021 judgments of the Polish Constitutional Court regarding its interpretation that the supremacy of EU law is incompatible with the Polish Constitution. The Commission contended that EU law was not being made effective under Article 19(1) TEU, and that such judicial proclamations are out of suit with the general principles of EU law (primacy, autonomy, effectiveness, uniform application of EU law and the binding effect of judgments).
Additionally, the Commission argued that the Constitutional Court of Poland does not satisfy the requirements of an independent, impartial tribunal previously established by law due to the manner in which judges were appointed. Five judges had been elected on the 8th October 2015 to replace existing judges of the Polish Constitutional Court, however these judges were not sworn in and none of the elected persons took an oath before the president of the constitutional court.
To summarise the contested cases of the Polish Constitutional Court, in case P 7/20 of 14 July 2021, the Constitutional Court delivered its judgment in a case examining the compatibility of the Polish Constitution with the interim measures imposed on Poland pursuant to Commission v Poland (C-791/19). The Constitutional Court declared that these measures were not covered by the principles of direct application or primacy laid down in the Polish Constitution. Therefore, the CJEU’s judgment was declared to be contrary to the Polish Constitution and was declared as having no legal effect as these obligations stemming from the judgment were ultra vires (beyond the EU’s legal authority).
This was compounded by case K 3/21 of 7 October 2021, where the Constitutional Court delivered its judgment stating that Article 1 TEU read in conjunction with Article 4(3), in so far as it {1. permits bodies of the EU to act outside the competencies given by Poland in the treaties; 2, entails that the supreme court of Poland does not have primacy 3. means Poland cannot function as a sovereign state} is contrary to the Polish Constitution. It also ruled that Article 19(1) TEU is contrary to the Polish Constitution in so far as it confers on national courts the competence to disregard the provisions of the Polish Constitution and adjudicate on the basis of non-binding provisions which have been repealed or declared unconstitutional by the parliament. Additionally, this case found that the second sub-paragraph of Article 19(1) and Article 2 TEU in so far as it confers national courts the power to {1. review the legality of the procedure for appointing judges, 2. review the legality of a resolution of a proposal to appoint a judge and to 3. rule on the defective nature of this appointment process and therefore refuse to recognise the judge} is contrary to the Polish constitution.
In this judgment of 18th December 2025, the CJEU ruled firstly that it has exclusive jurisdiction to provide definitive and binding interpretation of EU law. It thereafter found the fact that a national court performs the tasks entrusted to it by the Treaties and complies with its obligations under those Treaties, by giving effect to provisions such as the second subparagraph of Article 19(1) TEU, cannot, by definition, be prohibited. The judgment of 7 October prevents courts from applying Article 19(1) TEU and is therefore manifestly incompatible with the requirements inherent in that provision, meaning Poland has by virtue of judgment P 7/20, failed to fulfil its obligations under Article 19(1). It therefore upheld the first of the Commission’s complaints in its entirety.
Turning to the second complaint regarding the violation of EU principles, the Court noted that even though the EU respects the national identities of the Member States and does indeed allow for some discretion in implementing the principles of the rule of law, this in no way enables the result achieved to vary from Member State to Member State. At [180] the Court notes that ‘the Member States adhere to a concept of ‘the rule of law’ which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times’. It therefore found that provisions prevailing from a domestic legal system- even the constitution- cannot justify a failure to observe Treaty obligations. Further, stemming from the principle of primacy of EU law, a Member State cannot undermine the unity and effectiveness of EU law by relying on national law. Poland, by virtue of the two judgments issued, had failed to fulfil its obligations under the general principles of EU law.
Additionally, these judgments infringed on the binding effect of the Court’s case law. Where a question relating to the scope of the European Union’s competence or to the legality of an act of secondary law is raised before a national court, that court is under an obligation to respect the exclusive jurisdiction of the Court and, if necessary make a preliminary reference, rather than simply refusing to give effect to the decision.
Finally, the CJEU held that the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU since the Constitutional Court does not meet the requirements of an independent and impartial tribunal previously established by law, on account of irregularities in the procedures used to appoint three of its members in December 2015.
Judgment of the Court (Grand Chamber) of 27 January 2026, Case C-271/23 Commission v Hungary (Rescheduling of cannabis) ECLI:EU:C:2026:45
Can a Member State vote in a manner which contradicts a Council Decision establishing the EU position, on the grounds that it considers that position unlawful?
This case concerns the failure of a Member State to fulfil its obligations, due to the fact that Hungary voted against the Council’s common position regarding the rescheduling of cannabis. The Commission brought an action for breach of obligations, alleging that Hungary infringed EU law by involving itself in an area of exclusive EU external competence. Hungary, in defence, alleged that the Council decision was unlawful. The Court ruled in favour of the Commission, finding that Hungary disregarded EU competence in this area, thereby breaching the principle of sincere cooperation. Finally, the Court found that in such an action resulting from a failure to fulfil obligations, a Member State cannot plead that the act in question was unlawful. To take the law into one’s own hands like this is counter to the principle of the rule of law and the principle of solidarity and as such challenges the fundamental basis of the European Union’s legal order. The Member State’s options are either to alert the Commission to these irregularities, or to bring legal proceedings to have incompatibilities eliminated. The only exception to this would be where the act contains serious and manifest defects, therein warranting characterisation as a “non-existent act”.
Judgment of the Grand Chamber of 18/12/2025, Case C-136/24 P, Hamoudi v Frontex ECLI:EU:C:2025:977
Ought the burden of proof to shift when asylum seekers allege that a pushback has occurred?
An alleged pushback occurred in April 2020 in the Aegean Sea, off the coast of Samos, a Greek island. Mr Hamoudi claimed to have been denied the right to seek asylum as a result of this pushback. This alleged pushback was orchestrated by the Greek authorities with two operational activities ongoing on the part of Frontex (the EU’s Border and Coast Guard Agency). The applicant asked the General Court to order Frontex to give compensation for the damage he suffered. This was dismissed by the General Court on the grounds that there was insufficient evidence that he was present at that pushback.
In this recent appeal, the Court of Justice set aside the General Court’s decision. The General Court infringed upon Mr Hamoudi’s right to effective judicial protection by not correctly applying the rules on the burden of proof and evidence in the context of a pushback by Frontex. They noted that considering the extreme difficulty faced by alleged victims of a pushback involving Frontex to provide evidence of this, and the likelihood that Frontex possess such proof, effective judicial protection in such cases requires an adaptation in this burden of proof. The General Court must investigate the case in order to assess the truth of that pushback and the presence of the applicant at the pushback, once the applicant has substantiated the occurrence. The General Court should have sought to obtain from Frontex all information the agency possessed.
Leading on from this judgment, the General Court must ensure that in exceptional cases where the application of the rules on the burden of proof and the taking of evidence do not make it possible to guarantee the effective judicial protection of an applicant, it must use its powers to supplement the information it possesses in the case before it, in order to ensure effective protection, which is derived from the rule of law [80]. The General Court must now issue a fresh ruling on the issue, taking in to account the Court of Justice’s proclamations.
Judgment of the Grand Chamber of 18/12/2025, Case C-679/23 P – WS and Others v Frontex ECLI:EU:C:2025:976
Can Frontex be held liable for fundamental rights violations in joint return operations?
The EU’s Border and Coast Guard Agency (Frontex) conducted a joint return with Greece in 2016, wherein a family of Syrian nationals were sent to Turkey after expressing a desire to lodge an application for international protection in Greece. The family sought damages, finding this return to Turkey to constitute refoulement which infringed on their fundamental rights, in part by Frontex for their role in the return operation. The family claimed Frontex had failed to comply with its obligation to ensure respect for fundamental rights and the principle of non-refoulement.
This appeal came before the Court of Justice, which largely set aside the prior judgment of the General Court. The General Court had failed to correctly assess the role of Frontex in the return operation. Frontex was not exempted from an obligation to verify that return decisions exist for all the persons being returned, and other obligations on Frontex applied too. Additionally, during the return operations, Frontex as well as the Member State, can be held accountable for infringements of rights which occur.
Additionally, the Court took liberty to proclaim on Frontex’s complaints mechanism, finding at [172] that the mechanism is not a precondition for the exercise of a judicial remedy. The Court essentially says that the complaints mechanism exists for a different purpose than the judicial procedure – not (necessarily) to guarantee an effective remedy. Now the General Court must provide a new ruling on the matter, taking in to account the obligations drawn out by the Court of Justice of the EU which apply in joint return operations.
Judgment of the First Chamber of 22/01/2026, Case C-554/24 P, Poland v Commission (Retroactive annulment of interim measures) ECLI:EU:C:2026:28
Can a settlement agreement extinguish obligations to pay penalty payments retroactively?
In this appeal before the CJEU, Poland claimed that the General Court had erred in its ruling that it must pay the penalty payments for non-compliance which accrued up until Poland entered a settlement agreement with the Czech Republic. The General Court had found that this settlement agreement did not extinguish existing obligations to pay penalty payments, therefore refusing Poland’s request to annul the corresponding Commission decisions. The CJEU agreed with the General Court, striking down Poland’s appeal.
The obligation to pay the daily penalty to the EU budget is intended to ensure compliance with interim measures and to guarantee the effectiveness of EU law. This is an essential component of the rule of law, as the CJEU noted on several occasions in the judgment (see for instance [71]). A judgment imposing periodic penalty payments may only be lifted of its effects for the future, not retroactively. Additionally, a settlement agreement cannot retroactively extinguish these penalty payments.
ECtHR judgments
Danileţ v Romania, 15/12/2025, (Application number 16915/21) (Grand Chamber)
The balance between a judge’s freedom of speech online, and the duty to remain impartial
In January 2019, Mr Danileț, a judge at Cluj County Court in Romania, posted two messages on Facebook to his 50,000 followers. His messages were critical of perceived efforts to attack and discredit public institutions such as the public prosecutor’s office and the police. In one of these messages, he asks “Do people realise what it would mean to weaken [these] institutions or, worse, to bring services, the police, the courts and the army under political control?”. This post was published in the context of the extension of the Army Chief’s term in office by presidential decree. For publishing these comments, he received a sanction from the Disciplinary Board for Judges for failing to comply with his duty of discretion and tarnishing the image of the justice system. After an unsuccessful appeal to the High Court, the applicant brought a case before the ECtHR, alleging that the sanction he received was a disproportionate interference with his right to freedom of expression enshrined in Article 10 ECHR.
The facts of this case afforded the ECtHR to clarify the general principles of its case law on the scope of freedom of expression for judges on social media, and to refine the terms of the balancing act between competing rights and interests.
The Court assessed whether the breach of Article 10 was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. Having found that the provisions were formulated in law with sufficient precision and pursued a legitimate aim, the Court moved to consider whether the disciplinary measure was necessary in a democratic society. The Court considered that, whilst judges enjoy a right to speak out regarding the protection of the rule of law, this right is complementary with the duty of discretion which protects the impartiality of the justice system. However, in the present case, the applicant’s messages did not upset the balance between judicial involvement in society to defend the rule of law and the need for him to be seen as impartial. Participating in a political controversy, as had occurred in the first message, did not prevent the judge from expressing himself on a matter of public interest. Moreover, judges have the right to speak out about issues which the public have a legitimate interest in being informed about, such as, in this case, democracy and the rule of law. In this context, Article 10 provides a high level of protection.
The interference with the applicant’s rights was not based on “relevant and sufficient” reasons and therefore did not acquaint to a “pressing social need”. Such deterrent sanctions had the potential to create a chilling effect on the judicial profession. Therefore, a violation of Article 10 was found.
AR v Poland, 13/11/2025 (Application no. 6030/21) (First Section)
Whether publishing a high-profile judgment three months after it is ruled upon is in breach of foreseeability rules.
This case concerned Polish restrictions on abortion rights and legal certainty. The ECtHR was tasked with determining whether delays by the Polish Constitutional Court in publishing it’s judgment on abortion had caused a violation of the right to respect for private and family life (Article 8). The Polish court’s judgment took place on 22 October 2020, declaring unconstitutional provisions of the Law on family planning, protection of the human foetus and conditions permitting the termination of pregnancy (which allowed for abortion in cases of foetal defects and abnormalities). However, it was more than three months later that this judgment was published. The applicant was 15 weeks pregnant, with a foetus with a genetic defect, when the ruling was shared. Due to the considerable uncertainty between the judgment and publication of the judgment, she had to go abroad for an abortion. It was unclear whether the restrictions were already in place or if an abortion could still occur.
The ECtHR found that the interference was not in accordance with the law because of lack of foreseeability and the composition of the bench of the Constitutional Court. To be in accordance with the law, two conditions must be fulfilled. Firstly, the measure must have basis in domestic law and be compatible with the rule of law, and secondly, it must be in accordance with the law in the sense that it is accessible to the individual and has foreseeable consequences [108-109]. These two conditions are designed to safeguard against arbitrariness. Due to the uncertainty prevailing due to the delay in publishing the judgment, the violation was not in accordance with the law.
Ilievska and Zdraveva v. North Macedonia, 13/11/2025 (application nos. 19689/21 and 42794/22) (Second Section) and Ribarev v. North Macedonia, 13/11/2025 (application no. 39987/22) (Second Section).
Is it necessary to be able to appeal a judge’s dismissal decision?
Several judges were dismissed from office by the State Judicial Council in North Macedonia in 2020, 2021 and 2022. This occurred after appeal panels quashed the initial decisions of the State Judicial Council (SJC) to dismiss them, and remitted the case to the SJC. Under the procedure in effect here, once a case is remitted, it is not possible to appeal subsequent decisions, including this dismissal. The subsequent appeals were not assessed on the merits and this rendered the first appeals before the Appeal Panels devoid of any meaning. Since it was not possible to subsequently review the decisions to dismiss the judges taken after the remittal, it was not possible to assess whether the SJC had indeed complied with instructions given by it or considered the findings of the initial appeals which had quashed the initial dismissal decisions.
The ECtHR highlighted that a full appeal here was required to uphold the rule of law and ensure public confidence in the judiciary. The procedure as it stood restricted the applicants’ right of access to court, impairing the very essence of this right under Article 6 (1). When assessing the justification for excluding access to the court, the Court considered it necessary to highlight the ‘strong public interest in upholding the independence of the judiciary and the rule of law’ [102] which should have meant that the SJC’s assessment was reviewed for its completeness.
Manukyan v. Armenia 13 November 2025, (application no. 5778/17) (Fifth Section)
The chilling effect of security service threats
This case concerned an Armenian national, who was elected to the standing governing body of an opposition political party in 2014. He was asked to cooperate with the National Security Service of Armenia around this time. He refused to cooperate and threats were made regarding consequences of such refusal. The applicant submitted a report to the Prosecutor General but no criminal proceedings were brought. The applicant complained of an unjustified interference with his private and family life and of a lack of an effective investigation.
The ECtHR found that the threat levelled against the individual by the National Security Service had been of “a serious nature and capable of causing well-founded fear, anxiety and a feeling of uncertainty, affecting the applicant’s psychological integrity and well-being.” They were further deemed to have the potential to cause a chilling effect on free speech and political and career activity for the individual. Whilst voluntary engagement with security services is permitted, the use of coercive methods was ‘fundamentally at odds with the rule of law’ [61]. Thereby, a violation of Article 8 ECHR was found.
Stanev and the Bulgarian Helsinki Committee v. Bulgaria 18/11/2025 (application no. 50756/17) (Third Section)
Public access to information and civil society organisations
This case concerns the denial of access to information of public interest, regarding reports of migrant deaths, which was in the possession of the public prosecutor’s office. In 2016, the applicant, a writer for the Bulgarian Helsinki Committee sought to ascertain whether criminal investigations had been opened following press reports of two incidents of migrant deaths at the Bulgarian Turkish border. Their request for information was rejected by the Deputy Prosecutor General, who claimed the law on public information access was not applicable in this context.
The ECtHR stressed that civil society organisations enact a function through which the public can verify the state authorities’ compliance with the rule of law. As such, refusing to allow access to such information and limiting analysis to formal application of legislation without considering the public interest or harm of non-disclosure violated Article 10 ECHR.
Another case about public access to information occurring in recent months is Khaghaghutyan Yerkhosutyun v Armenia, where Article 10 was also found to be violated. In this case, domestic authorities refused to provide an NGO with information about fatalities in the Armenian armed forces between 1994 and 2014 on national security grounds.
Selima v Albania 25/11/2025 (Application no. 37896/19) (Third Section)
Pleading one’s case in response to dismissal on the grounds of new vetting process
A judge was dismissed in Albania as part of a new “vetting process” as part of the Albanian justice system’s package of reforms. An aspect of this vetting process was assessment as to the individual’s involvement with organised crime groups and individuals. Thereafter, a report concluded that the applicant was not fit to remain in office due to information alleging he was involved in corrupt activities, which was also upheld on appeal. The applicant claimed before the ECtHR that the vetting process was unfair and the facts underlying the decision were not disclosed, so as to violate Article 6 ECHR. The Court found a violation of Article 6(1), because the applicant had been insufficiently informed as to the allegations against him and was in part not afforded the chance to plead his case in response to these findings.
Europa Way SRL v Italy 27/11/2025 (application no. 64356/19) (First Section)
Whether a new bidding process for digital broadcasting violates the right to free expression.
In this judgment, the ECtHR was asked to rule on whether abnormalities in the bidding process for the allocation of frequencies for digital broadcasting violated Article 10 (the freedom of expression). In 2011, the applicant had taken part in a bidding process to allocate frequencies for digital broadcasting. However, the process was suspended by ministerial decree and replaced by a fee-based selection procedure. National courts found that the new law allowing this change in the selection procedure undermined the regulatory powers of the regulator (AGCOM) and thereby undermined its independence. Furthermore, the new framework therefore did not provide adequate safeguards against arbitrariness, in breach of the applicant company’s freedom to express information.
Vujović and Lipa D.O.O. v. Montenegro (no.2) 27/11/2025 (application no. 43050/22) (First Section)
Whether slow legal procedures can violate the right to property
In this case, the Court considered whether there had been a violation of Article 6 (the right to a fair hearing within a reasonable time) and Article 1(1) (protection of property). Insolvency proceedings had been remitted from the Constitutional Court to the Court of Appeal of Montenegro on multiple occasions, wherein the decisions of the Court of Appeal had been quashed on the grounds that they were inadequately reasoned or arbitrary. The Court of Appeal had failed to comply with the constitutional court’s decisions on four occasions, and it was only upon the fifth re-examination that the Court of Appeal complied with the decisions of the Constitutional Court.
The ECtHR noted that the ‘repeated re-examination of a single case following remittal may in itself disclose a serious deficiency in a given State’s judicial system’ [84]. Due to the excessive length of the proceedings, a violation of Article 6(1). Further, by the time a decision was made, most of the applicant’s property had been sold. The Court therefore found that the applicants had not been afforded the opportunity to effectively challenge the interference with their possessions, constituting a violation of Protocol 1 Article 1.
Stephan Kucera v. Austria 9/12/2025 (application no. 13810/22) (Fourth Section)
Whether trial by video link during Covid period was violated the right to a fair hearing
This case concerns administrative criminal court proceedings in Austria, which occurred during the Covid-19 pandemic. During this time, proceedings took place via videolink. The applicant claimed that his right to a fair trial and legal assistance (Article 6 ECHR) had been violated as he was not permitted to participate in person and the public had been excluded. Whilst the Court agreed that it is a fundamental principle enshrined in Article 6 § 1 that an individual is afforded an oral, and public, hearing [48], it found that trial by videolink had a basis in law and pursued the legitimate aim of minimising the spread of Covid-19. The Court noted that, ‘while the physical presence of an accused in the courtroom is highly desirable, it is not an end in itself: it rather serves the greater goal of securing the fairness of the proceedings, taken as a whole’ [62]. The Court therefore concluded that the applicant was able to enjoy his rights despite the alternative nature of the proceedings, finding no violation to have occurred.
Tsaava and Others v. Georgia 11/12/2025 (applications nos. 13186/20, 16757/20, 20129/21, 20175/21 and 39382/21) Grand Chamber
Whether dispersing a protest with rubber bullets was justified.
In this case, the Grand Chamber ruled on the dispersal by police of a major anti-government protest in 2019 in Georgia. This protest was sparked by a key figure of the Russian Duma sitting in the Speaker’s Chair at the Georgian Parliament and giving a speech in Russian. Many people sustained injuries at this protest from the use of rubber bullets or suffered assaults by police officers. The investigation into this had still not led to a thorough assessment of the circumstances surrounding the protest and its suppression and no findings had been made about the alleged ill-treatment of the participants or the identity of the agents who had used excessive force.
The investigation was deemed not effective, resulting in a violation of the procedural aspect of Article 3 ECHR.
Furthermore, the ECtHR found that the police had used rubber bullets as a general crowd control tool, rather than in response to specific conduct. The Georgian legal framework was also found to have significant shortcomings, requiring rectification so as to at the very least lay out safety requirements for the deployment of kinetic impact projectiles by police in times of demonstrations, so that they are only used in a targeted manner.
Additionally, preventing safe and free reporting of the protests by journalists was not justified. The Court found any use of force by the authorities which interfered with their ability to gather information was an Article 10 interference. Due to lack of justification, this resulted in a violation of Article 10 ECHR.
Whilst it could be said that there was justification for dispersing the protest due to where it occurred, outside the parliament building and the threat of this being stormed, the relatively limited group of protestors trying to storm the building was insufficient to justify depriving the rights of many thousands of people to demonstrate. Further, the way in which the dispersion was enacted was not justified. There had been no dispersal order and no warning about the usage of rubber bullets. The usage of rubber bullets was an unjustified use of force. The ECtHR thereon found a violation of the substantive aspects of Article 3 ECHR and Article 11 ECHR.
Anti-Corruption Foundation (FBK) and Others v. Russia 16/12/2025 (application no. 13505/20 and 138 others) Third Section
Whether Russia can be held accountable for dismantling political plurality prior to its exit from the ECHR.
This case concerned a slew of measures from 2019 taken against affiliates and connections of Russian opposition figure Aleksey Navalnyy, who died as a result of poisoning whilst imprisoned in 2021. These measures included mass searching of homes, freezing of bank accounts, designating individuals as “foreign agents” and “extremists” and seizing property. As a result of these measures, some of the applicant organisations faced dissolution and those associated with them faced being labelled criminals. These measures were part of a campaign to eliminate democratic opposition, found the ECtHR, and to destroy political pluralism in Russia. The alleged reasoning behind the measures lacked evidentiary basis.
Having found that the measures intervened with the applicants’ Convention rights, the Court turned to consider whether the measures were accompanied by protections against arbitrariness (“in accordance with the law”). The applications of the investigators to the district court were couched in broad terms, yet still approved by the court. In essence, the Court found that there had been no effective judicial scrutiny and that the court served to ‘rubber-stamp’ the investigator’s requests. As such, the review was solely formalistic and did not protect against arbitrariness [73]. Further, in respect of the freezing of funds, the Court found that the express statutory requirements of individual justification and periodic review was bypassed. Depriving the applicants of legal protection and foreseeability meant Russia had failed to uphold the principles inherent in the rule of law.
The ECtHR held that in respect of all 139 applications, Articles 8, 10, 11, 18 and Article 1 of Protocol 1 ECHR had been violated. Whilst Russia is no longer party to the ECHR, it must still enforce judgments concerning facts occurring before 16 September 2022.
Gondert v. Germany 16/12/2025 (application no. 34701/21) Fourth Section
Does failure to issue a preliminary ruling violate the right to a fair hearing?
In this case, a highest-level national court in Germany failed to make a preliminary reference to the CJEU. Gondert had explicitly requested such a referral and failed to obtain reasons for why it had been refused. With no right to appeal at the highest tribunal level, the ECtHR found that the court was required to give reasons for the rejection, culminating in a violation of Article 6 § 1 ECHR (right to a fair hearing).
The violation turned on the fact that the reference had been explicitly requested and yet refused without elaboration. Whilst the Court recognised the strain of high caseloads and the difficulty in balancing speed with reasoned decisions, the Court found that procedural fairness required further elaboration here, at a minimum indicating which of the at least indicate the CILFIT criteria the rejection was based on [44].
Biliński v. Poland 15/01/2025 (application no. 13278/20) First Section
Relocation of a judge to a different court and the right to a fair trial
In this case, the ECtHR was tasked with ruling if the transfer of a Polish judge between two divisions of the same court violated the ECHR. Mr Biliński had been transferred between two divisions of the same court and had subsequently appealed this decision. He was concerned that his transfer had been conducted arbitrarily due to the fact that he had faced criticism from politicians for his rulings in certain cases, and that the judge who had ordered his transfer had previously served under the Minister of Justice and had been appointed to his present position by this same minister.
The applicant claimed that he had been deprived of an effective review of the transfer by an independent and impartial body, as the NCJ who conducted the review were not independent, and the law stipulated that he could not review the decision in front of a court. The Court was particularly concerned by the lack of reasoning for the decision, considering in particular that the initial decision ordering the applicant’s transfer was annulled by the President of Warsaw’s Regional Court, as the NCJ knew. Additionally, at no point had the applicant been given the opportunity to be heard. Finally, the Court had already ruled in a prior case that the recomposed NCJ (which faced reform under the 2017 Amending Act) was not an independent body, and that domestic law specifically excluded the judicial review of the decisions of the NCJ. The Court upheld the complaint of the applicant, finding that the review of the decision to transfer the judge had not been reviewed by a judicial body, thereby impairing Mr Biliński’s access to court, culminating in a violation of Article 6 § 1 ECHR.