European Court of Justice - Study-Guide-EUropa.S. 2020

EUropa.S. 2020 April 10-13 | University of Piraeus

Organized by:​ Institute of Research & Training on European Affairs

EUropa.S. 2020 Study Guide European Court of Justice

EUropa.S. 2020 European Court of Justice Study Guide

Table of Contents

Table of Contents

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1.1 Greeting of the Board

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1.2 Composition of the European Court of Justice

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1.3 Jurisdiction of the European Court of Justice

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1.4 The Preliminary Ruling Procedure

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1.5 The doctrine of precedent

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2. Is the European Convention on Human Rights part of the EU legal system?

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2.1 The right to a fair trial, article 6 ECHR

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2.2 Access to justice for prisoners and pre-detainees

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2.3 The presumption of innocence, art. 6§2 ECHR, art. 48 EUCFR

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2.4 Article 11 of The Universal Declaration of Human Rights

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3.

Directive 2011/95

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4.

Articles 18, 19 of the Charter of Fundamental Rights of the European Union 17

5.

Articles 18, 19 of the Treaty on the Functioning of the European Union

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Case Law

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ECJ Case

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Bibliography

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EUropa.S. 2020 European Court of Justice Study Guide

1.1 Greeting of the Board

Dear Participants, It is with great pleasure to welcome you in this year’s Europa.S and in particular in the European Court of Justice. As an EU institution, first established in 1952, the ECJ has a concrete mission; to ensure that “the law is observed” the same way, in every member state when interpreting and applying the Treaties.

This year’s case concerns a reference for a preliminary ruling, brought before the ECJ by the German Administrative Appeal Court. During the procedures, the Court will encounter the heated legal topic of international protection provided to refugees and the respective process for accepting such applications. Moreover, the reasons for persecution based on religion will be examined, along with fundamental human rights deriving from the Treaties.

In this Study Guide you will find useful information about the functioning of the Court and the case in hand. The second part encircles a law analysis of principal articles of the Treaty of the Functioning of the European Union (hence TFEU), the European Union’s Charter of Fundamental Rights (hence EUCFR) and secondary EU law related to the case, which we hope to be a stimulus for your own further research.

Should you require further assistance, all members of the Board are more than eager to answer your questions.

We would like to thank you in advance for expressing your interest in the European Court of Justice and ascertain you that we will have a superb four-day long simulation experience.

Best regards, The Board of the European Court of Justice

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EUropa.S. 2020 European Court of Justice Study Guide

1.2 Composition of the European Court of Justice Once the European Union was established, the Member States formed a jurisdictional body, which would resolve legal disputes and act as a basic pillar of unity inside the Union, which would resolve legal disputes and act as a basic pillar of unity inside the Union. This body is the European Court of Justice, which consists of the General Court, the Court and more specific courts. In the Article 220 of the Treaty of Rome it is stated that the ECJ is responsible to ensure that in the interpretation and application of the Treaty the law is observed.

It is composed of 28 Judges, one from each member state, as well as 8 Advocates General. Both the Judges and the Advocates General must be qualified to be appointed to the supreme courts of their countries, differently they must be 1 academic lawyers. Moreover they ought to be impartial and rule the cases objectively, while their independence must also be “beyond doubt”. Moreover, they are appointed by joint agreement of the member states’ governments and their incumbency lasts 6 years, however they Judges are partially replaced every three years. The President of the Court, who directs the work of the Court and presides at the hearings, is selected amongst the Judges and by them every three years.

The Advocates General’s role according to article 223 of the Treaty of Rome is to present a reasoned and thorough opinion in the cases with impartiality after they have analyzed all legal issues. Their conclusions are not binding for the Judges but they are usually taken into account for the final judgment.

A Registrar is also appointed based on the Article 223 of the Treaty of Rome and on the Article 18 of the Ruled of Procedure of the Court of Justice. They are the Secretary General of the European Court of Justice, managing its departments under the authority of the President.

A Judge Rapporteur is also assigned to each case, in order to organize the arguments of the parties and to create a draft judgment according to the deliberations taking place prior to the final judgement.

The Court may sit as a full court in a Grand Chamber of 13 or in Chambers of 3 or 5 Judges, according to Article 251 TFEU. In cases of high significance or in the ones Citizens Information, 2017. ​European Court of Justice, https://www.citizensinformation.ie/en/government_in_ireland/european_government/eu_institutio ns/european_court_of_justice.html 1

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EUropa.S. 2020 European Court of Justice Study Guide described in the Statue of the Court, the Court sits as a full court. In particularly complex and important cases and after the request of a Member State or of an Institution the Court sits in Grand Chamber, hence the Chamber of 5 Judges rules the most disputes.

In Europa.S 2020 the Grand Chamber of the Court of Justice is simulated, therefore only its rules of procedure are in order​.

1.3 Jurisdiction of the European Court of Justice

The EU is an autonomous legal order: this is a very early doctrine, reflected in article 344 TFEU and established by the Court of Justice of the EU already in early 60s in the 2 famous Costa v. E.N.E.L case. This doctrine is preserved by the European Court of Justice itself which consists of two courts, the Court of Justice and the General Court and provides different means of redress, as cited in Article 19 of the Treaty on 3 European Union (hence TEU).

In order to fulfil its task, the ECJ has been given a defined jurisdiction, which is being exercised on various proceedings; A. Proceedings against a Member State for failure to fulfil an obligation Actions brought: ● Either by the Commission, after a preliminary procedure (Article 258 TFEU): the member state is given the chance to provide the Commission with explanations and submit a reasoned opinion on the matter; ● Or by a Member State against another Member State after bringing the matter before the Commission (Article 259 TFEU).

If the Court finds that an obligation has not been fulfilled, the State must bring the failure to an end without delay. If, the Commission brings a further action against the Member State concerned and the Court of Justice finds that the Member State has not complied with its judgment, it may decide to impose on it a financial penalty, the amount being determined by the Court on the basis of a Commission proposal 4 (Article 260 TFEU).​

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Recital 39, C-284/16

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https://www.europarl.europa.eu/factsheets/en/sheet/12/competences-of-the-court-of-justice-of-the -european-union 4 ​https://curia.europa.eu/jcms/jcms/Jo2_7024/en/#competences EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide B. Proceedings against the EU institutions for annulment and for failure to act This proceeding encircles cases where the applicant seeks the annulment of a measure which they find contradictory to EU law (annulment: Article 263 TFEU) or, in cases of infringement of EU law, where an institution, body, office or agency has failed to act (Article 265 TFEU).

The actions may be brought by the Member States, the institutions themselves or any natural or legal person if the actions relate to a measure (in particular a regulation, directive or decision) adopted by an EU institution, body, office or agency are directly addressed to them.

The Court declares the act void or declares that there has been a failure to act, in which case the institution at fault must take all adequate measures to comply with the Court’s judgment and therefore, the EU law (Article 266 TFEU).

C. Indirect proceedings: question of validity raised before a national court or tribunal (Article 267 TFEU — preliminary rulings) Based on the effective impact of the EU law, national courts are responsible for applying EU law when a case in hand requires. However, when an issue relating to the interpretation of the law is raised before them and national courts are uncertain of the compliance of national legislation to EU law, they may seek a preliminary ruling. Last instance courts are obliged to refer the matter to the Court of Justice.

Through this procedure, national courts can request the clarification of a point concerning the interpretation of the EU law and thus, ascertain that their national legislation complies with EU law.

The Court of Justice's reply is not merely an opinion. It takes the form of a judgment or reasoned order, which is not only binding for the said national court but for all other national courts as well.

D. Responsibility at second instance The Court has the jurisdiction to review appeals limited to points of law in rulings and orders of the General Court. The appeals do not have suspensory effect.

If the appeal is considered admissible and well-founded, the Court of Justice sets aside the General Court’s decision and decides the case itself, or else must refer the case back to the General Court, a reference binding for the latter.

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EUropa.S. 2020 European Court of Justice Study Guide

1.4 The Preliminary Ruling Procedure Under Article 267 of the TFEU in cases of interpretation of the Treaties and validity and interpretation of EU legislations and where a decision of the ECJ is necessary for a national court to give judgment or where there is no judicial remedy under national law, the tribunals or the national courts may refer to the European Court of Justice for a preliminary ruling.

Moreover, the EU law needs to apply in the referring case, in order for the ECJ to proceed with the ruling, which will only resolve the legislative issue and then the national court will rule the case. At this point it is necessary to emphasize that the ECJ’s preliminary ruling is binding both for the national referring court and for all the courts inside the European Union when a similar case is brought before them. A disobedience of either is regarded as an infringement of EU law and can be offended in court. Therefore, the significance of the preliminary ruling can be found at the need for a unilateral approach and resolution to any questions that may arise concerning the interpretation of EU laws, as well as the right and 5 according to the European legislation interpretation of the secondary law of the Union.

Taking the above into consideration, the clarification of the term ‘court’ is of the outmost importance. This term should be read based on the criteria which are set from the European Court of Justice, such as ➔ whether the national body has jurisdictional duties ➔ is established by law, ➔ is permanent, ➔ has compulsory jurisdiction, ➔ its decisions are binding, ➔ is independent, ➔ it rules the cases brought before it applying rules of law and it has an inter partes procedure.

The abovementioned criteria are non-absolute. Furthermore, the national courts, as described through the criteria, have the competence to decide whether there is a necessity to refer the question to the ECJ and in which stage of the proceeding they will do so, while they are also responsible to form the question and pose it to the European Court of Justice.

In the second and third paragraph of Article 267 of the TFEU it is described when a national court has an obligation to refer a case for a preliminary ruling to the ECJ and when it has a right to act in such a way. Firstly, the obligation to send the case to the 5

Dettmers, W.,​The preliminary ruling procedure pursuant to Article 267 TFEU, http://www.ejtn.eu/PageFiles/17865/EJTN_Article%202016_DETTMERS_final.pdf EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide European Court of Justice exists when a question of EU law is raised before a national court of last resort or when the question concerns the validity of the secondary European law, regardless of the degree of the court. On the contrary, all the other courts have the discretion to refer a case when they believe a decision of the ECJ would be necessary for the interpretation of the European legislation.

However, in cases where the is no relevance between the question raised and the main proceedings or there has already been a preliminary ruling for a previous identical question from the European Court of Justice or the answer to the question and the right interpretation is so obvious that there is no scope for any reasonable doubt, the Court does not have the abovementioned obligation to refer the case.

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1.5 The doctrine of precedent

Judicial precedents are a knot of legal theory and doctrine. According to conventional wisdom, precedents are, in general, not legally binding, at least outside of common law legal systems, which adopt the doctrine of stare-decisis. This doctrine is not adopted by the European Court of Justice, however, the Court has formed a practice of employing precedents when justifying its decisions, whereas, lawyers are also used to cite previous case law when arguing a point of law before the Court. This unformal practice aims to maintain the coherence and systematicity of EU law.

2. Is the European Convention on Human Rights part of the EU legal system?

The European Convention on Human Rights [hereinafter ECHR] and its European Court of Human Rights [HEREINAFTER ECtHR] are part of a completely different legal system to the EU. The ECHR and ECtHR are both part of the Council of Europe which has 47 member states including Russia and the UK. The ECtHR only has jurisdiction over Member States that are signatories to the ECHR. The European Union is an autonomous legal system, consisting of 28 Member States.

Manifestation of the aforementioned principal is that the Court of Justice of the European Union is the judicial body responsible for the interpretation of the EU law, as established in article 344 of the TFEU; “Member States undertake not to submit a

​Marc Jacob, ​Precedents and Case-based Reasoning in the European Court of Justice.​ Cambridge University Press, 2014 6

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EUropa.S. 2020 European Court of Justice Study Guide dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for [in the Treaties].”

Although all 28 Member States of the EU have signed the ECHR, the European Union itself is not bound by the ECHR and has not accessed to it. In other words ECHR rules do not apply to the Court of Justice and it can not be tested whether the European Union by its institutions or bodies’ actions violates the rights established under the ECHR. The EU was first and foremost set up to promote the economic cooperation of its Member States. Although human rights were not part of the EU legal system, the necessity to guarantee their protection was raised and the protection set out under various conventions, including both the ECHR, was viewed as “general principles” that must be respected. Moreover, one can argue that the ECHR is part of the 7 common constitutional traditions of the member-states. EU as a legal order is required to join up to the ECHR Council of Europe as a new member (in the same way that Russia is member) and has unsuccessfully attempted to do so. On December 2000 the Charter of Fundamental Rights of the European Union was ratified and consequently, the EU institutions do have to comply with human rights protections when they take action.

The EU and the Council of Europe systems are intertwined because the ECHR lies behind many of the general principles of EU law and its provisions have been used as 8 a basis for the Charter of Fundamental Rights. The ECJ also over the ten years, cites case law of the ECHR.

2.1 The right to a fair trial, article 6 ECHR 9

1. In the determination of their civil rights and obligations or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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​https://www.lawteacher.net/free-law-essays/european-law/the-ecj-and-echr-relationship.php

https://ukandeu.ac.uk/fact-figures/whats-the-difference-between-the-european-convention-on-hum an-rights-the-european-court-of-human-rights-and-the-european-court-of-justice/# 9 ​https://www.echr.coe.int/Documents/Convention_ENG.pdf EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

‘’When a person is charged with a crime, or involved in some other legal dispute, they have the right to a fair trial. This means a fair and public hearing, within a reasonable 10 time, by an independent and impartial court.’’

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A. Right to a court

The right to a fair trial, as established under Article 6 § 1, requires that litigants should have an effective judicial remedy with respect to their civil rights. Everyone is entitled the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal. Article 6 guarantees the right to a court, which includes the right to seek procedural actions aiming to protect civil rights.

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The right of access to a court must be “practical and effective”. The individual must therefore, “have a clear, practical opportunity to challenge an act that is an interference with his rights”.

The principle of legal certainty requires the rules for instituting proceedings and their 13 respective time-limits to comply with the principle of proportionality. It is clearly required that the rules in question, or their application, should not pose any obstacle 14 to litigants from using an available remedy . In applying procedural rules, the courts

​https://www.coe.int/en/web/impact-convention-human-rights/right-to-a-fair-trial ​https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf 12 Bellet v. France, ECHR, 21/1995/527/613 13 Cañete de Goñi v. Spain, ECHR 55782/00 14 Miragall Escolano and Others v. Spain, ECHR, 25/04/2000 10 11

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EUropa.S. 2020 European Court of Justice Study Guide must avoid both excessive formalism that would impair the fairness of the proceedings and excessive flexibility.

The right to bring an action or to lodge an appeal must arise from the moment the parties become aware of a legal decision imposing an obligation on them, rejecting a request, or potentially harming their legitimate rights or interests.

Regarding citizens from third countries and their right to access national courts it is more than vigilant that more safeguards to the right to a fair trial should be established. Directive (EU) 2016/343 establish minimum rules for procedural rights across the EU in accordance with a 2009 roadmap. It consists of rules on interpretation and reaffirms the rights to translation, information, and access to a 15 lawyer.

B. Waiver An individual cannot be deemed to have waived their right if they had no knowledge of the existence of the right or of the related proceedings. The person is considered to have waived their right when such intention has been established and expressed in an unequivocal way.

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C. An impartial tribunal

Article 6 § 1 requires a tribunal falling within its scope to be impartial. Impartiality signifies the absence of prejudice or bias and its existence and can be tested in various ways. The concepts of independence and impartiality are closely linked and, depending on the circumstances, may require joint examination.

Criteria for assessing impartiality ● a subjective test: the behavior of a particular judge is examined to conclude whether the judge held any personal prejudice or bias against the litigants or the alleged criminal. ● an objective test: ascertaining whether the tribunal and especially its composition, offered all the guarantees required to exclude any legitimate doubt in respect of its impartiality.

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​https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:130107_3&from=EN ​https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide 17

2.2 Access to justice for prisoners and pre-detainees Prisoners and pre-trial detainees require access to court to defend themselves in criminal proceedings or to pursue civil actions. They also have the right to legal representation in parole and disciplinary hearings and the right to be informed and be granted permission to access important files.

Under Articles 5 (1), (3) and (4) of the ECHR and Article 6 of the EU Charter of Fundamental Rights prisoners are provided with protection regarding their civil rights. Specifically, article 5 (1) guarantees the right to liberty; Article 5 (3) requires a detainee to be brought promptly before a judge; and Article 5 (4) provides detainees the right to challenge the lawfulness of their detention.

Although this is not specifically set out in the text of Article 6 of the EU Charter of Fundamental Rights, the Explanations to the Charter confirm that Article 6 18 guarantees all rights set out in Article 5 of the ECHR. Article 5 (5) of the ECHR and Article 6 of the EU Charter of Fundamental Rights provide the right to compensation for unlawful arrest or detention.

The rights under Article 47 of the EU Charter of Fundamental Rights correspond to the rights set out in Article 6 of the ECHR. Article 47 EU Charter of Fundamental Rights 1.Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

2.Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

3.Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

The first paragraph of article 47 EUCFR reaffirms Article 13 of the ECHR:

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Official Journal of the European Union C 303/17 - 14.12.2007 ​https://fra.europa.eu/en/charterpedia/article/47-right-effective-remedy-and-fair-trial EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’

However, in article 47 the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined that right as a 19 general principle of Union law, which must be respected by the Member States when implementing EU law.

The second paragraph of article 47 is in accordance with article 6(1) of the ECHR provided in section 2.1. Based on the rule of law as stated by the Court in previous 20 case law , one must assume that the right to a fair hearing is not confined to disputes relating to civil law rights and obligations.

2.3 The presumption of innocence, art. 6§2 ECHR, art. 48 EUCFR The presumption of innocence (set out in Article 6 (2) ECHR and Article 48 (1) EU Charter) is the cornerstone of the right to a fair trial. It is rooted in the need to protect the individual against the improper use of state power. It encircles both a procedural burden and standard of proof (the prosecution must prove the case against the defendant beyond reasonable doubt, otherwise, ​in dubio pro reo)​ and a privilege.

The scope of the presumption of innocence covers the whole process from the 21 preliminary examination of the alleged crime, until the final judgment.

The accused must be presumed innocent until the court’s verdict and in case of his acquittal, this must be respected and not questioned by any judicial and public 22 authority or by any representative of the State.

The presumption of innocence is linked with the principles ‘nullum crimen, nulla poena sine procesu’, which means that for the conviction of an individual, a trial is required, which must therefore be lawfully conducted, the principle ‘in dubio pro reo’, meaning that the lack of proof dismiss the accused person of any charges 19

Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313 20 Case 294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986, [1986] ECR 1339 21 ​Ανδρουλάκης. Ν., Θεμελιώδεις έννοιες της ποινικής δίκης, 4​η έκδοση, Δίκαιο & Οικονομία Π.Ν. Σάκκουλας, Αθήνα, 2012. Θεμελιώδη Δικαιώματα, Σπύρος Βλαχόπουλος, Νομική Βιβλιοθήκη, 2017,σελ. 183-184 22

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EUropa.S. 2020 European Court of Justice Study Guide pressed against him. Moreover, the presumption of innocence is followed by the right to remain silent and not to incriminate oneself and the right to be present at one’s own trial; a trial can be held in the absence of the accused person when one of these criteria are met; ● the person has been informed in due time of the trial and of the consequences of non-appearance ● the person is represented by a mandated lawyer Question raised relating to the case: Did the accusations for human trafficking have an impact on rejecting Mr. Sibari’s application for international protection and therefore, if so, did an infringe of art. 6 par. 2 ECHR and 48 EUCFR take place?

2.4 Article 11 of The Universal Declaration of Human Rights 1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

It should be noted that the UN has also developed non-binding guidelines for persons remanded in custody or being imprisoned: the draft Basic Standards for 23 people deprived of their liberty. The guidelines highlight that ​habeas corpus petitions (petitions filed with courts by persons who object to their own or someone 24 else’s detention) must be heard by a competent, independent and impartial court.​ The document also provides guidance on legal representation and legal aid, and a detainee’s right to contact lawyers.

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UN, Draft basic principles and guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before the court.

24 Principle 6 and Guideline 4. See also Guideline 14 on authorities’ obligation to justify the need and proportionality of detention.

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EUropa.S. 2020 European Court of Justice Study Guide

3. Directive 2011/95 This legislation has as purpose the creation of a common approach from all the member states towards the non-EU citizens or the stateless persons that can be characterized as refugees, in regards to their identification and classification into one of the categories described in the Directive, so as to ensure that they have a minimum level of rights and benefits in all member states. However, if a state sets more beneficial provisions than the ones stated in the Directive, the first ones are applied. In those bases, the member states have the duty to cooperate with the applicant to effectively examine each application and to ensure that specific circumstances, as defined in the Directive, are taken into account, as well as that the final decision concerning the application is a result of objective and impartial judgement. T the cases when someone is excluded from the refugee status are also clarified in the Directive. Lastly, the rights that the refugee is entitled to are stated and analyzed, in order to guarantee their right and effective implementation from each EU country. Some of these rights include family unity, access to employment 25 and to education and freedom of movement.

Article 10 (1) (b) states that Member States shall take into account when assessing the reasons for persecution the concept of religion, shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief.

The abovementioned Article sets as a requirement for someone to be considered as a refugee that the reasons for persecution in his country include their religion, in the abovementioned forms. However, in the article the concept of religion and the forms mentioned are not stated in an exhaustive list. Therefore, the term religion should be interpreted in a broader way as the wording of the article also indicates with the phrase “in particular”. In those bases, the concept of religion should cover any religious belief or conviction, including minority beliefs and convictions, as well as the refusal to observe a particular religion or to hold religious beliefs, while it is also considered as being a ‘belief’, an ‘identity’ or a ‘way of life’. The ‘belief’ must be viewed as a decision of one’s own free will, the ‘identity’ must be associated with one’s cultural ties and nationality and the ‘way of life’ must be taken into account while also examining the changes that have been made to one’s rules of conduct in various aspects of its life. Hence, a religion should cover both the forum internum EUR-Lex, 2018. ​Refugees and stateless persons — common standards for qualification, https://eur-lex.europa.eu/legal-content/EN/LSU/?uri=celex:32011L0095 25

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EUropa.S. 2020 European Court of Justice Study Guide and the forum externum, meaning both the beliefs of someone and the expression of their beliefs. The above mention were reaffirmed in the case of C-71/11 and C-99/11 adding also that Member States should not expect the citizens to refrain from such acts or conceal their origin, characteristics and beliefs in order to avoid 26 persecution.

Meanwhile, in Article 9 (1) it is stated that in order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms or must be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a). In order to reach the conclusion whether in a specific case we can apply Article 9, we must firstly effectively examine the gravity of the punishment that one will face in their country of origin so as to be considered a violation of human rights. Secondly, we must also examine if those penalties are indeed applicable in the country of origin and if the specific person runs a risk of being subject to them shall they return to their country.

More specifically, the first element that needs to be taken into consideration is the severity of the violation of the freedom in order for this violation to be considered as an act of persecution and fall in the scope of Article 9 of the Directive. Hence, such a violation has to constitute interference and consequently violation of the freedom of religion, in order to characterize it as an act of persecution. Moreover, the seriousness of the acts to which the applicant is exposed because of the exercise of freedom of religion in his country of origin has to be independently examined to reach a conclusion in the question of the existence of persecution based on religious grounds. Thus, ‘a violation of the right to freedom of religion may constitute persecution within the meaning of Article 9(1)(a) of Directive 2011/95 where an applicant for asylum, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of 27 the Directive’.

ECRE, ​ECRE Information Note on the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011, https://www.ecre.org/wp-content/uploads/2016/07/ECRE-Information-Note-on-the-Qualification-Dir ective-recast_October-2013.pdf 26

The International Association of Refugee Law Judges, 2016. ​EASO, Qualification for Interantional Protection (Directive 2011/95/EU), https://www.easo.europa.eu/sites/default/files/QIP%20-%20JA.pdf 27

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EUropa.S. 2020 European Court of Justice Study Guide The second element that should be taken into consideration is whether the abovementioned severe punishments are applicable in the country of origin of the asylum seeker. This can be verified by up-to-date documents that will provide the competent authorities with adequate information about the practices in the country of origin. These documents should provide information in regards to the specific individual asking for the asylum and whether the punishments will actually be 28 applicable to his case specifically.

Questions raised relating to the case: Is it necessary for Mr.Sibari to bring in front of the court documents that will prove his claims that he converted to Christianity and that such acts are punishable in his country of origin, according to Directive 2011/95?

Should the documents also include evidence regarding the gravity of the punishments in his country of origin for those converting to Christianity, as well as evidence that the abovementioned punishments are actually applicable?

4. Articles 18, 19 of the Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union is a legal document, which is the result of an effort to include all the fundamental rights enjoyed by a person in one binding, for all the EU states, document. Thus, it covers the rights stated in the European Convention on Human Rights, the rights that have been established through the case laws of the European Court of Justice and rights which are based on common constitutional traditions of the member states. The Convention is binding since 2009 and the ratification of the Treaty of Lisbon for the EU bodies and the 29 national authorities of the EU states, when applying European law. Since 2009 the European Commission has actively enforced the implementation of the Convention by new legislative procedures, which will take into account and respect the rights

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CJEU Case C​-​56/17/ Judgement European Commission, n.d. ​When does the Charter Apply ?.​https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-cha rter-fundamental-rights/when-does-charter-apply_en 29

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EUropa.S. 2020 European Court of Justice Study Guide 30 stated in the Convention. This will ensure that the fundamental human rights are 31 always respected and that the EU citizens will fully comprehend their rights. The above mentioned is also ensured through annual reports that state the progress made in all areas where the EU has power to act, concerning the implementation of 3233 the Convention.

In Article 18 of the Charter of Fundamental Rights of the European Union the right to asylum is established. In particular, the article states that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”. This Article is in accordance with the Geneva Convention on Refugees which guarantees that a refugee should not return to his country of origin if there is a threat for his life or his 34 freedom. Hence, whoever complies with the criteria set in the 1951 Geneva Convention can be characterized as a refugee and therefore he will have the right to asylum as set by Article 18. It is an obligation for all member states to follow the Charter of Fundamental Rights when deciding on whether to admit someone onto their territory, while they must also guarantee the right to an assessment of an asylum with a fair, effective and objective procedure, which will respect 35 international and European law.

In Article 19 of the Charter of Fundamental Rights of the European Union the prohibition of collective expulsions, torture and inhuman or degrading treatment or punishment is secured. With this Article member states cannot force someone to return to his country of origin if he faces a danger of torture or inhuman and degrading treatment, regardless of whether the person has asked for asylum. The same elements need to be taken into consideration as well when a country is examining and deciding on a request for asylum. Moreover, the first paragraph of the article guarantees that every decision is based on the examination of a specific 30

European Commission,​Incorporating fundamental rights into EU legislative process, https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-chart er-fundamental-rights/application-charter/incorporating-fundamental-rights-eu-legislative-process_e n 31 European Commission,​Why do we need the Charter?, https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-chart er-fundamental-rights/why-do-we-need-charter_en 32 European Commission, ​Annual reports on the application of the Charter, https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-chart er-fundamental-rights/application-charter/annual-reports-application-charter_en 33 EUR-Lex, 2007. ​Explanations relating to the Charter of Fundamental Rights, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32007X1214%2801%29 34 UNHCR, ​The 1951 Refugee Convention,​ ​https://www.unhcr.org/1951-refugee-convention.html 35 FRA, n.d. ​EU Charter of Fundamental Rights, Article 18-Right to Asylum. https://fra.europa.eu/en/charterpedia/article/18-right-asylum EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide case of a specific individual and not based on a general examination of various similar cases. This acts as a safeguard in order for the individual asking for asylum to be protected by the government’s arbitrary decisions. The second paragraph constitutes one more safeguard for the refugees ‘that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or 36 punishment’.

5. Articles 18, 19 of the Treaty on the Functioning of the European Union The Treaty on the Functioning of the European Union was originally the treaty that established the European Economic Community, namely the Treaty of Rome, but with the signing of the Maastricht Treaty in 1992 and the creation of the European Union the EEC was transformed into the Treaty establishing the European Community. After the signing of the Treaty of Lisbon the TEC was once more renamed and the Treaty on the Functioning of the European Union was created.

Today, it is one of the two main treaties inside the European Union, which sets the rules that organize the function of the Union. The goal of this new Treaty was the creation of a more profound Union in which the citizens would be even closer than in the past, brining economic, social, political and cultural development. In the Treaty the principles and objectives of the European Union are reaffirmed, in the first part of the document. In the second part the rules for the citizenship of the European Union and the non-discrimination right are established. Finally, in the third part the Treaty sets the legal basis for numerous aspects, including the free movement of citizens and goods, transportation, public health, education, environmental and 37 research and development policies.

The prohibition of discrimination based on nationality is established in article 18 of the Treaty on the Functioning of the European Union. Thus with the above mentioned article if a person falls under the scope of the treaty then he should be treated equally. At this point it must be noted that this article must be applied in cases where the Treaties are applicable and when we do not have a violation of a more specific non-discriminatory right. The ultimate goal of this article is to ensure FRA, n.d. ​EU Charter of Fundamental Rights, Article 19-Protection in the event of removal, expulsion or extradition, https://fra.europa.eu/en/charterpedia/article/19-protection-event-removal-expulsion-or-extradition 37 EUR-Lex, 2017. ​Summary on the Treaty on the Functioning of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:4301854&qid=1574351281795 36

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EUropa.S. 2020 European Court of Justice Study Guide that same cases are treated the same way, while different cases are treated differently. It is therefore significant to mention that provision covers measures which directly or indirectly discriminate on the grounds of nationality. Furthermore, the article gives the Council the right to take the appropriate actions against a member state, if there is a breach of the right to non-discrimination on grounds of nationality. In conclusion, in order to apply Article 18 in the particular case we firstly 38 need to examine if it falls under the application of the Treaties.

The adoption of legislation to combat all forms of discrimination, including that of nationality is enabled in Article 19 of the Treaty on the Functioning of the European Union. The special legislative procedure, which is established with this article, calls for the European Council unanimously and with the consent of the European Parliament to procedure with the legislative acts that will benefit its effort to combat any discrimination. However, in the second paragraph of the article it is stated that the European Parliament and the Council may support the acts of a member state when they are promoting the non-discriminatory guidelines and laws set by the 39 Union. In this direction it is imperative to underline that Article 19 does not have a direct effect as it does not in itself prohibit discrimination on grounds of nationality, instead it enforces the control of a member state’s legislative actions by the central 40 bodies of the European Union and in accordance with the principles of the Union.

Case Law CJEU Case C​-5 ​ 6/17/ Judgement CJEU Case C-233/18/ Judgment CJEU Case C-556/17/ Judgment CJEU Case C-24/17/ Judgment CJEU C-230/18 / Judgment

ANKERSMIT, L., 2014. ​European Law Blog, The outer limits of article 18 TFEU? Case C-628/11 International Jet Managemen,​https://europeanlawblog.eu/2014/03/24/the-outer-limits-of-article-18-tfeu-case-c-6281 1-international-jet-management/ 38

LawTeacher, 2013. ​Non-Discrimination Legislation, https://www.lawteacher.net/free-law-essays/european-law/non-discrimination-legislation-law-essays .php#citethis 40 Piotr Bąkowski, N. C., 2012. ​Library Briefing, The EU's role in combating discrimination, https://www.europarl.europa.eu/RegData/bibliotheque/briefing/2012/120299/LDM_BRI(2012)12029 9_REV2_EN.pdf 39

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EUropa.S. 2020 European Court of Justice Study Guide CJEU Case C-396/17/ Judgment CJEU - C-183/12 P / Judgment CJEU Case C​-1 ​ 82/15 / Judgment CJEU Case C-233/18/ Judgment CJEU Case C-661/17 / Judgment CJEU Case C 31/09 / Judgment CJEU Case C-239/14 /Judgment CJEU Case C 542/13 /Judgment CJEU Case C​-2 ​ 2/18 /Judgment CJEU Case C 191/16 /Judgment ECHR Case 222/84 ECHR Case 294/83 ECHR 55782/00 ECHR, 25/04/2000

ECJ Case Mr Sibari is an Iranian national of Kurdish origin who, on 2 June 2016, lodged an application for international protection with the GCR(German Commission for Refugees), based on the persecution by the Iranian authorities he claimed to have suffered on grounds of religion and, in particular, because he had converted to Christianity between late 2008 and early 2009.

In his interviews with the German authorities, Mr Sibari stated that he possessed an illegal satellite dish which he used to receive the prohibited Christian television channel ‘Christ TV’ and that, on one occasion, he participated by telephone in a live television programme. As proof, Mr Sibari produced before those authorities a letter from Christ TV dated 29 November 2012. He also claimed that he was in possession of a Bible in a language which he understood and declared that he had been in contact with other Christians at meetings, but that he was not, however, a member of a religious community.

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EUropa.S. 2020 European Court of Justice Study Guide The GCR decided and rejected Mr Sibari’s application for international protection as being unfounded, claiming that Mr Sibari’s account contained contradictions and that neither the existence of persecution or the risk of future persecution, nor the existence of a risk of the death penalty, had been established. The GCR also considered, in light of the fact that the account given by Mr Sibari was, as a whole, implausible, that the document dated 29 November 2012, submitted by Mr Sibari to substantiate his conversion to Christianity, was a forgery.

Moreover it came into GCR’s attention that Mr. Sibari had made a fortune by human trafficking in both Iran and Bulgaria. There is actually a complaint formed against him followed by accusations of witnesses.

Mr Sibari sought the annulment of that decision before the Administrative Court of Berlin. He submits that the authority did not take sufficient account of the information according to which the ‘Islamic law on apostasy’ (law on recantation) provides for the death penalty for such conversion as being proselytism, ‘enmity against God’ and ‘insulting the Prophet’. The referring court states that Mr Sibari is of Kurdish origin, but that, according to Mr Sibari, his difficulties in Iran are caused by his relationships with Christians and by his conversion to Christianity.

Mr Sibari submits that he should be recognized as a refugee on the basis of his religious affiliation and, as regards proof of the relevant circumstances, that the principle of giving the applicant the benefit of the doubt should be applied.

However, in the mid time the District Attorney of Berlin pressed charges against him.

As a result, he was brought upon the criminal court of Berlin and the court decided to enforce restraining orders. Mr. Sibari was remanded in custody.

Although he was in custody, his request was not met in the Administrative Court regarding the annulment of GCR’s decision. He was judged in absentia and his motion was rejected on the grounds that he performed criminal activities and that he did not reach the necessary burden of proof as to his conversion to Christianity.

Mr. Sibari appealed the rejection of his application and claimed that his fundamental rights were violated arguing the following: 1)Mr. Sibari seeks for the annulment of the Administrative Court’s decision and he requests his application for international protection to be granted since their actions to judge him in absentia violated article 6 ECHR and 48 EUCFR. 2)Mr. Sibari accused Germany of violating article 11 of the Universal Declaration of Human Rights since there is no sufficient proof regarding his implication. The Administrative Court should not have taken into account an unproven fact which is EUropa.S. 2020, April 10-13, Athens, Greece europas.irtea@gmail.com​ | ​www.europas.irtea.gr

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EUropa.S. 2020 European Court of Justice Study Guide only an allegation and the criminal Court should not have pressed charges without evidence.

3)Mr. Sibari asks the annulment of Administrative Court’s decision, arguing that the adduction of documents relating to all the components covered by the concept of religion and the manifestation of his beliefs violate his right to the protection of privacy.

It should be therefore examined, whether under Article 10(1)(b) of Directive 2011/95, the applicant for international protection who claims, in support of his application, that he is at risk of persecution for reasons based on religion must submit statements or documents that will prove his claims .

4) Mr. Sibari, under Article 9(1) and (2) of Directive 2011/95, interpreted in conjunction with Articles 18 and 10 of the Charter of Fundamental Rights of the European Union and the concept of religion as defined in Article 10(1)(b) of the directive, asks the court: a) To recognize that his acts are considered criminal in the country in question and therefore they constitute acts of persecution. b)To acknowledge that the prohibition of proselytism and the prohibition of acts contrary to the religion, on which the laws and regulations in the country in question are based, are not permitted, irrespective of their establishment in order to protect the rights and freedoms of others and public order in the applicant’s country of origin. On the contrary they should be considered by the court as acts of persecution, taking into account that they are punishable by the death penalty.

5) Mr. Sibari states that GCR’s refusal to grant him international protection is a violation of Directive 2011/95 since he denies every accusation of human trafficking.

Furthermore, he argues that the Directive covers every kind of refugee including criminals.

6) He accuses GCR of violating articles 18 and 19 TFEU since the real reason why he was not granted international protection was his nationality as it was revealed to him after the discussion he had with GCR’s Commissioner.

The German Administrative Appeal Court in order to ascertain that the interpretation of Directive 2011/95 by the First Instance Administrative Court complies with the EU law and no breach of core articles of primary EU law has been made, sent a preliminary ruling to the ECJ (art. 267 TFEU), asking about the reasoning of Mr. Sibari’s claims.

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EUropa.S. 2020 European Court of Justice Study Guide In the meantime, it must be underlined that the European Commission, having heard that numerous appeals to rejections of applications for international protection have been raised on the grounds of pretextual rejection, is questioning whether the GCR is following a settled practice and has therefore the ‘locus standi’ in the preliminary ruling proceedings.

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