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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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Presentation on theme: "EU accession to the ECHR: practical implications Marie Demetriou QC 27 November 2014 brickcourt.co.uk +44 (0)20 7379 3550 Brick Court Chambers."— Presentation transcript:

1 EU accession to the ECHR: practical implications Marie Demetriou QC 27 November 2014 brickcourt.co.uk +44 (0) Brick Court Chambers

2 brickcourt.co.uk +44 (0) 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)

3 brickcourt.co.uk +44 (0) 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

4 brickcourt.co.uk +44 (0) 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

5 brickcourt.co.uk +44 (0) 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

6 brickcourt.co.uk +44 (0) 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

7 brickcourt.co.uk +44 (0) 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

8 brickcourt.co.uk +44 (0) 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

9 brickcourt.co.uk +44 (0) 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?


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