EU accession to the ECHR: practical implications Marie Demetriou QC 27 November 2014...
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Transcript of EU accession to the ECHR: practical implications Marie Demetriou QC 27 November 2014...
EU accession to the ECHR:practical implications
Marie Demetriou QC
27 November 2014
brickcourt.co.uk+44 (0)20 7379 3550
Brick Court Chambers
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3 main practical consequences
New grounds of substantive challenge (to the extent that the ECHR is different to
the EU Charter of Fundamental Rights)
A further remedy (before the Strasbourg Court)
Impact on case-law (convergence between EU CFR/ general principles/ ECHR)
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Current position
Limited ability to challenge EU measures before Strasbourg Court. Judicial
review is ‘indirect’.• See: Matthews v UK• Bosphorus v Ireland – “manifestly deficient” protection of human rights• Connolly v 15 Member States• Michaud v France
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Challenges to EU legislation/ acts of
institutions
Post accession: will be able to challenge EU legislation/ measures directly
Ultimate recourse to Strasbourg Court but ‘domestic remedies’ must first be
exhausted.
What does that mean?• Direct challenges; if standing to challenge directly must do so first before
EU Courts;• Indirect challenges; first exhaust remedies in national courts. If there has
not been a reference for a preliminary ruling, CJEU will first be given opportunity to consider the case
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National measures based on EU measures
New opportunities to:• Mount indirect challenge to the EU measures on ECHR grounds• Argue that the EU measure must be interpreted in light of the ECHR
Coherence to multi-targeted challenge
Strasbourg will be ultimate arbiter
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Impact on case-law
Convergence because greater cross-fertilisation between Strasbourg /
Luxembourg;
EU Courts already purport to apply Strasbourg jurisprudence
There is also ‘reverse effect’, see Kadi and Nada
Convergence will speed up
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Effect on English courts: a case-study
Dublin II returns
MSS v Belgium and Greece – transfer from Belgium to Greece under Dublin Reg
had infringed Art 3 ECHR
Cases 411 etc/10 NS v SSHD, 21 Dec ‘11• Duty on M Sts not to return asylum seeker to ‘responsible’ state if there
existed “a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers” in the responsible State
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EM(Eritrea) v SSHD
Is the existence of “systemic deficiencies” a necessary requirement
Court of Appeal: • Yes, because that’s proper interpretation of NS;• Inconsistent with Strasbourg jurisprudence;• But English courts must apply CJEU’s ruling.
Supreme Court:• No, the CJEU did not elevate ‘systemic deficiencies’ into a necessary
requirement. Nothing CJEU said was intended to deviate from the Soering test
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But now...
Case C-394/12 Abdullahi, 10 Dec ’13, at [62]:• “The only way in which the applicant for asylum can call into question [the
jurisdiction of the responsible state] is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum” in that state.
• Where does that leave us?
Where would that leave the English courts post-accession?