Rule of Law Update – January 2024


Cases ECtHR

Ikotity and Others v. Hungary – Application no. 50012/17 5/10/2023
Right to freedom of expression
Opposition members of parliament were sanctioned for using posters without permission during an interpellation speech by a colleague. The Court determined that the reasons behind the decisions were relevant to the legitimate aim pursued and were sufficient to demonstrate that the interference was deemed “necessary” in a democratic society. Therefore, the Court concluded that there was no violation of the right to freedom of expression (Art. 10 ECHR).

Takó and Visztné Zámbó v. Hungary – Application nos. 82939/17 and 27166/19 12/10/2023
Enforced separation during prison visits
Complaints were raised under Article 8 ECHR (Right to respect for private and family life) concerning the enforced separation from a relative during prison visits as a result of a 2017 Directive issued by the Hungarian Prison Service. Despite there being a recommendation against the separation, it persisted and complaints were dismissed by prosecutorial offices. Upon review, the Court found the complaints admissible while acknowledging the lawful interference with family life and at the same time stressing the necessity for proportionality in security concerns. The Court ruled that the application of the measure failed to balance prison security and the right to family life, therefore resulting in a violation of Article 8 ECHR.

S.S and Others v. Hungary – Application nos. 56417/19 and 44245/20 12/10/2023
Unlawful Removal of Asylum Seekers to Serbia
The applicants, including a mother and her five children, arrived at Budapest Airport using counterfeit diplomatic travel documents and were refused entry into Hungary. After requesting for asylum they were removed to Serbia before the examination of their claims. The Court found that Hungary violated its procedural duty under Article 3 ECHR due to failing to assess whether the applicants would have access to a fair asylum procedure in Serbia.

A.D. v. Malta – Application no. 12427/22 17/10/23
Unlawful and arbitrary detention of migrants and lack of timely and effective legal remedies
The applicant, a vulnerable individual due to his alleged minority and health situation, was held in various detention centres for different purposes over several months. The Court found a portion of his detention period to be arbitrary and in violation of Art. 5(1) ECHR, basing its findings on the fact that the Maltese courts did not issue any judicial order allowing for the detention as they are empowered to do under the national law. Furthermore, a violation of Art. 13 ECHR was established, highlighting deficiencies in Malta’s asylum system to address the applicant’s grievances, and basing such claim on, inter alia, its previous caselaw against Malta. 

Wałęsa v. Poland – Application no. 50849/21 23/11/2023
Systemic violations of the Polish judicial reform
The Court found a breach of the rights of the Polish former president Lech Wałęsa, namely the right to an independent and impartial tribunal established by law, the principle of legality and the right to respect for private and family life, because of the Polish reform of the judiciary. Most importantly, the Court seized the opportunity to apply the pilot-judgment procedure in this case, calling on Poland to implement measures to address “systematic violations” caused by the latest judicial reforms.

M.L. v. Poland – Application no. 40119/21 14/12/23
Composition of Constitutional Court, restrictive abortion laws
The ECtHR ruled that the Poland’s ban on abortion in cases of foetal abnormality, following a 2020 Constitutional Court judgment, violated the applicant’s right to respect for private life under Article 8 ECHR. The ECtHR emphasized the importance of the rule of law, stating that any interference with Article 8 rights must come from a “lawful” body. However, it found that the Constitutional Court’s composition involved judges appointed through a procedure previously deemed in breach of the Convention, undermining the legitimacy of the ruling.

Frankowski and Others v. Poland – Application nos. 32589/22, 35548/22 and 42267/22 14/12/23
Breach of fair trial rights in lengthy criminal proceedings
In the joined cases the Court found the complaints raised by applicants admissible regarding Poland’s excessive length of criminal proceedings as well as there not being any effective remedies in domestic law. The ECtHR ruled that Poland violated both Articles 6(1) and 13 ECHR guaranteeing the right to a fair trial as well as the right to an effective remedy.

Cases CJEU

C-81/21 Staatsanwaltschaft Aachen 9/11/23
Systemic or generalised rule of law deficiencies as an obstacle to mutual recognition
The CJEU addressed the concerns of a German Regional Court regarding the enforcement of a custodial sentence imposed by a Polish District Court, given that the Polish judicial system itself is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU. The Court ruled that a Member State may refuse to recognise and enforce a judgment imposing a criminal sentence delivered by a court of another Member State where it has evidence of systemic or generalised deficiencies in that Member State regarding the right to a fair trial, in particular so far as concerns the independence of the courts (in abstracto test), and where there are substantial grounds for believing that those deficiencies may have had a tangible influence on the criminal proceedings brought against the person concerned (in concreto test).

AG Opinions

Joined Cases C‑554/21, C‑622/21 and C‑727/21 Financijska agencija v HANN-INVEST d.o.o. (C‑554/21) and Financijska agencija v MINERAL-SEKULINE d.o.o. (C‑622/21) and UDRUGA KHL MEDVEŠČAK ZAGREB (C‑727/21)
According to AG Pikamäe’s opinion, national rules and practices which provide, as part of a single mechanism designed to ensure the consistency of a court’s case-law, for the intervention, in the judicial decision-making process at second instance, of the registrations judge and the section of judges, are compatible with Article 19(1) TEU. That is because the organisation of justice, including the course of the deliberation stage of proceedings, falls within the competence of Member States, which enjoy a certain degree of discretion in implementing the principles of the rule of law, as regards inter alia reconciling the requirements of legal certainty, as applied to courts of second instance, and the independence of those courts.

C‑634/22 OT, PG, CR, VT, MD intervener: Sofiyska gradska prokuratura
In its opinion, AG Bordona stated that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a national judicial reform according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time. Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness.

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