Castaño avoids a clash between the ECtHR and the CJEU, but erodes Soering. Thinking human rights transnationally
| DOI | 10.1177/2032284420979746 |
| Date | 01 March 2021 |
| Author | Paul De Hert,Sibel Top |
| Published date | 01 March 2021 |
| Subject Matter | Articles |
Article
Castan
˜oavoids a clash
between the ECtHR and
the CJEU, but erodes
Soering. Thinking human
rights transnationally
Sibel Top
Vrije Universiteit Brussel, Belgium
Paul De Hert
Vrije Universiteit Brussel, Belgium; Tilburg University, the Netherlands
Abstract
This article examines the changing balance established by the European Court of Human Rights
(ECtHR) between human rights filters to extradition and the obligation to cooperate and how this
shift of rationale brought the Court closer to the position of the Court of Justice of the European
Union (CJEU) in that respect. The article argues that the ECtHR initially adopted a position
whereby it prioritised human rights concerns over extraditions, but that it later nuanced that
approach by establishing, in some cases, an obligation to cooperate to ensure proper respect of
human rights. This refinement of its position brought the ECtHR closer to the approach adopted
by the CJEU that traditionally put the obligation to cooperate above human rights concerns. In
recent years, however, the CJEU also backtracked to some extent from its uncompromising
attitude on the obligation to cooperate, which enabled a convergence of the rationales of the two
Courts. Although this alignment of the Courts was necessary to mitigate the conflicting obligations
of European Union Member States towards both Courts, this article warns against the danger of
making too many human rights concessions to cooperation in criminal matters.
Keywords
Strasbourg and Luxembourg dialogue, human rights and judicial cooperation, policy change CJEU
and ECtHR, human rights, extradition
Corresponding author:
Sibel Top, Fundamental Rights Research Center, Law Faculty & Migration, Diversity and Justice Cluster, Institute for
European Studies, Pleinlaan 2, Vrije Universiteit, Brussel, Building B, 1050 Brussels, Belgium.
E-mail: sibel.top@vub.be
New Journal of European Criminal Law
ªThe Author(s) 2020
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DOI: 10.1177/2032284420979746
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NJECL
NJECL
2021, Vol. 12(1) 52 –68
Top and De Hert 53
The (EU Charter) rights of citizenship, which presuppose movement, also provide the basis for the
movement of coercive state powers. These powers enter into networks to extend their reach and in so
doing exceed the national settlements of civil liberties and police powers. A similar extension of civil
liberties into a network of accumulating rights is not occurring or apparently intended. The result then
is an imbalance which favours extension of coercive powers and diminishes the force of protections of
the individual.
E Guild, ‘Citizenship, Immigration and the EU Charter’ (Paper presented at experts’ brainstorming
meeting on: Complementarity and conflicts between security and civil liberties, Brussels, 18 March
2002).
Silence in human rights law about cooperation in criminal matters
This piece is about the balance between human rights and cooperation in criminal matters. It is
about the fact that the European Convention on Human Rights (ECHR)
1
remains mostly silent on
the issue of the human rights of extradited persons. It is also about how Soering
2
introduced
safeguards for human rights in extradition proceedings that were absent from the Convention. It
is about how the European Court of Human Rights (ECtHR) later appeared to have changed its
policy priorities in Gu
¨zelyurtlu
3
and Castan˜o
4
and how this brought it closer to the position of the
Court of Justice of the European Union (CJEU) concerning human rights filters to extradition. In
short, this piece is about the priorities of the Court between human rights protection and easing
judicial cooperation among states and, in particular, about the dangers of automatising extraditions
in the name of human rights protection.
The second section will address the question of whether and how the human rights of extradited
ECtHR subordinated extraditions to human rights concerns. The fourth and fifth section will then
scrutinise the Gu
¨zelyurtlu and Romeo Castan˜o cases where the ECtHR established that in fact
proper respect of human rights requires, in some cases, a positive obligation to extradite. These
developments mirror to some extent the rationale traditionally followed by the CJEU and how the
two Courts have come to resolve the growing tension between their different approaches. The final
section contrasts the approach in Gu¨zelyurtlu and Romeo Castan˜o with that in Soering and draw
the relevant conclusions as to the Court pushing towards an automatisation of extradition
procedures.
Need for specific fundamental rights for individuals caught
in transnational cooperation. Going beyond ne bis in idem?
Treaty-based provisions protecting the human rights of people facing extradition or international
investigations are not exactly lining up in the ECHR. Admittedly, the 1957 Convention on
1. Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) ETS
005.
2. Soering v UK (App no 14038/88) ECtHR 7 July 1989.
3. Gu
¨zelyurtlu and Others v Cyprus and Turkey (App no 36925/07) ECtHR 29 January 2019.
4. Romeo Castan˜o v Belgium (App no 8351/17) ECtHR 9 October 2019.
2New Journal of European Criminal Law XX(X)
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