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Case of Spasov v. Romania: the Relationship Between the Application of EU Law and the Right to a Fair Trial

 The protection of fundamental human rights and freedoms in Europe takes place at several levels. In this respect, the legal literature distinguishes three main dimensions: the national level of protection and the two regional levels of protection, namely the protection level of the European Union (hereinafter: EU) and the Council of Europe (hereinafter: CoE).[1] Differences between the two regional levels of protection can already be seen in their development. The CoE was founded on the need to protect fundamental human rights, which it has made a priority objective. The EU, on the other hand, was created essentially to promote economic integration.[2] Hence, “the status of human rights within the EU has emerged in a more ad hoc manner than in the CoE.[3]

The legislative framework of the two regional levels of protection are essentially the European Convention on Human Rights (hereinafter: ECHR) and the Charter of Fundamental Rights of the European Union (which has been legally binding only since the 2009 Treaty of Lisbon). The accession of the EU to the ECHR could be a solution to resolve the conflicts between the parallel frameworks of protection. This accession is underway, however noticeable questions have arisen following the issuing of Case Opinion 2/13 of the Court of Justice of the European Union (hereinafter: CJEU).[4]

Over the years, both the European Court of Human Rights (hereinafter: ECtHR) and the CJEU have ruled on the relationship between the ECHR and the EU law provisions on human rights in a number of judgments. Probably one of the most noteworthy of these judgments was pronounced in the Bosphorus case, where the CJEU[5] and the ECtHR[6] reached a somewhat opposite conclusion. The difference between the two levels of protection was resolved by the ECtHR, with the doctrine still referred to as the “Bosphorus presumption”.[7]

The ECtHR has also addressed the relationship between the refusal of a request for a referral for preliminary ruling and the right to a fair trial [Article 6 (1) of the ECHR] in several of its judgments, for example in Sanofi Pasteur v. France[8] or Ullens de Schooten and Rezabek v. Belgium[9]. The case of Spasov v. Romania[10] fits into this context, although by this judgment the ECtHR opened up a new area of interpretation. In the following, this contribution will present the Spasov v. Romania case in detail.

 

The Facts of the Case

 

Mr. Spasov, a Bulgarian citizen, was boarded by the Romanian coastguard on 13 April 2011 while fishing with his vessel 20 nautical miles off the Romanian coast. During the investigation, the Romanian authorities found that Mr. Spasov was fishing for turbot, but the mesh size of the nets found on board was smaller than allowed by Romanian law. Mr. Spasov was taken into police custody and later charged by the Romanian prosecutor’s office for illegal turbot fishing in the exclusive economic zone of Romania, pointing out that Mr. Spasov did not have a Romanian fishing license and his nets did not comply with Romanian regulations.[11]

During the proceedings before the Court of Mangalia, Mr. Spasov highlighted that the exclusive economic zone of Romania is part of the Community waters and therefore the rules of the Common Fisheries Policy are applicable (in particular the provisions of Council Regulation No. 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy). In addition, Mr. Spasov underlined that the nets found on the vessel were not his own. The public prosecutor’s office sought the opinions of both the Romanian National Fisheries Agency and the Romanian Institute of Marine Research, which indicated the need for a Romanian fishing license and that non-compliance with Romanian regulations would endanger the turbot population.[12]

In its judgment of 18 October 2011, the Court of Mangalia did not find Mr. Spasov guilty of illegal turbot fishing, noting that he had all the authorisations required by EU law and that it could not be proved beyond reasonable doubt that Mr. Spasov used unauthorised fishing nets. However, the Court imposed an administrative fine on him. Both Mr. Spasov and the prosecutor appealed against this judgment. The Court of Appeal of Constanța upheld the prosecutor’s appeal and pointed out that, in the absence of a bilateral agreement between Romania and Bulgaria, the court of first instance should have explained why it was taking into account EU law and not national provisions and the United Nations Convention on the Law of the Sea. Hence, the Court of Appeal sent the case back to the Court of Mangalia.[13]

Meanwhile, Bulgarian authorities referred the case to the European Commission. On 21 December 2011, the Director-General for Maritime Affairs and Fisheries of the European Commission wrote a letter to Romanian authorities pointing out that serious errors had been made in the interpretation and application of EU law (of Council Regulation No. 2371/2002 and of Council Regulation No. 1256/2010). On the one hand, the absence of a Romanian fishing license should not lead to the sequestration of the vessel, and on the other hand, EU law does not impose any technical conditions on nets used for turbot fishing, and Romanian legislation only applies to nets used within 12 nautical miles of the coast. Moreover, in a letter addressed to a Bulgarian association on 13 March 2012, the Director-General for Maritime Affairs and Fisheries pointed out that it is allowed to fish within the exclusive economic zone of Romania with a Bulgarian license.[14]

On the basis of these letters, the prosecutor requested the Court of Mangalia to refer the matter to the CJEU for a preliminary ruling, seeking clarification of the rules governing the Common Fisheries Policy. This request was rejected by the Court of Mangalia, which stated that the questions raised do not relate to the application of EU law but to the merits of the case. In its judgment of 12 February 2013, the Court of Mangalia ruled that EU law is applicable as regards fishing in the exclusive economic zone of Romania, under which vessels holding license from a Member State may fish beyond 12 nautical miles from the coast. In the present case, the vessel of Mr. Spasov was a Community fishing vessel and was therefore guaranteed to fish under a Bulgarian license. On this basis, the Court of Mangalia found that Mr. Spasov was not guilty of illegal fishing and merely imposed an administrative fine.[15]

Both the prosecutor and Mr. Spasov appealed against this judgment. In the appeal, the Court of Appeal of Consanța pointed out that the court of first instance incorrectly found that EU law is applicable as regards fishing in the exclusive economic zone of Romania. The Court of Appeal held that the national legislation established sovereign rights, therefore vessels under the Bulgarian flag operating in the exclusive economic zone of Romania are under Romanian jurisdiction. In addition, the Court of Appeal highlighted that EU law provisions did not preclude a domestic regulation establishing an obligation to hold a Romanian fishing license. Based on these arguments, it found Mr. Spasov guilty of illegal fishing and sentenced him to one-year suspended imprisonment and a fine. Furthermore, as an additional sanction, it imposed the confiscation of part of the value of the vessel and a temporary ban on fishing.[16]

One should also point out that the European Commission opened an infringement procedure against Romanian on 25 April 2013, but the procedure was closed in 2018 after Romania, through an order of the Ministry of Agriculture and Fisheries,[17] ensured access to the water and resources of the Black Sea for vessels holding a fishing license issued by any of the Member States.[18]

 

The claims of the Applicant and the conclusions of the ECtHR

 

In essence, the applicant simultaneously claimed the violation of Article 6 (1) of the ECHR and of Article 1 para. 1 of Protocol No. 1.

In relation to the right to a fair trial [Article 6 (1) of the ECHR], Mr. Spasov claimed that the Court of Appeal of Constanța had misinterpreted and misapplied the rules of the Common Fisheries Policy, moreover, it had not referred the preliminary question to the CJEU, despite the request of the applicant before the court of first instance. On this basis, the applicant considered that he was convicted arbitrarily.[19]

With regard to this claim, the ECtHR underlined that the ECHR does not guarantee the right to have a case referred for a preliminary ruling and that it is essentially for national courts to apply domestic law in conformity with EU law provisions.[20] At the same time, the ECtHR pointed out that the present case differs substantially from the previous case law since the applicant claimed not only that the national court had not referred the question to the CJEU for preliminary ruling, but also that he had been arbitrarily sentenced, as his conviction was contrary to the requirements of EU law. The ECtHR underlined that it had already stated in its case law that the Regulations of the EU have precedence over contrary domestic law provisions and are directly applicable. Moreover, the European Commission indicated to the Romanian authorities that the proceedings against Mr. Spasov were contrary to EU law provisions. On these bases, the ECtHR concluded that the Court of Appeal—by non-applying EU law—committed a manifest error of law, hence the applicant was a victim of a denial of justice.[21]

In connection to the peaceful enjoyment of possession [Article 1 para. 1 of Protocol No. 1] the applicant claimed that the additional financial sanctions (the value confiscation and the temporary ban on fishing) were illegal and disproportionate.[22] With regard to this claim, the ECtHR found that the financial sanctions imposed on the applicant were based on the provisions of national law (on the provisions of Government Emergency Ordinance No 23 of 2008). At the same time, the ECtHR just found that the conviction of the applicant was a result of a manifest error of law, thus the provisions of national law could not provide an appropriate legal basis for the financial sanctions.[23]

 

4. Some remarks on the judgment of the ECtHR

 

            In the present judgment, the ECtHR mainly reiterated the principles already set out in its previous case law. In this respect, it underlined the direct applicability of EU regulations and their precedence over contrary domestic law provisions. Furthermore, it reiterated that the refusal to refer a question for a preliminary ruling does not automatically lead to a violation of the right to a fair trial, however, such a refusal (by a court decision) has to be reasoned by the national court. In this sense, national courts are responsible for applying the national law in accordance with EU law provisions.

            At the same time, the ECtHR in Spasov v. Romania opened a new area of interpretation in the relationship between EU law and ECHR. It is pivotal that the ECtHR linked “the misapplication of EU law to the right to a fair trial through the concept of ‘denial of justice’”.[24] In the interpretation of the ECtHR, the misapplication of EU law by a national court in a concrete case can lead to a denial of justice, which violates the right to a fair trial, i.e. Article 6 (1) of the ECHR. This connection between the national application of EU law and the right to a fair trial has not so far appeared in the case law of the ECtHR. Such an interpretation opens Pandora’s box, as in theory, it allows for the possibility of having recourse—in the absence of any other domestic remedy— to the ECtHR in cases where a national court has not applied EU law.

Nonetheless, it is salient to consider this principle in the light of the specificities of the case, since the interpretation of EU law was clear in this situation, as it was given by the European Commission itself. A much more interesting situation will arise in cases where the interpretation of EU law is not so evident.[25] The ECtHR cannot become the interpreter of EU law in these cases either, as this task can only be performed by the CJEU.[26]

It goes without saying that the principles held in Spasov v. Romania are somewhat novel in the case law of the ECtHR, though the precise impact of these findings can only be evaluated in the light of future decisions on similar issues.

Reference

[1] Tanja Karakamisheva Jovanovska. 2021. The Bosphorus and Other Principles – A European Bridge towards Protection of Fundamental Rights in the CJEU and the ECtHR?, Iustinianus Primus Law Review, 12(special issue), 1–12., p. 2.

[2] Jen Neller and Sonia Morano-Foadi. 2016. The Status of Human Rights Protection in Europe: It’s Complicated, Birckbeck Law Review 4(1), 1–14., p. 3.

[3] Ibidem.

[4] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CV0002 (Accessed on 8 May 2024).

[5] Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications and Others.

[6] Case of Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Application no. 45036/98.

[7] Jen Neller and Sonia Morano-Foadi. 2016. p. 7. The ECtHR stated that “[i]f equivalent protection is considered to be provided by the organization [the EU], the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization.” Case of Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, Application no. 45036/98, para. 156.

[8] Case of Sanofi Pasteur v. France, Application no. 25137/16.

[9] Case of Ullens de Schooten and Rezabek v. Belgium, Application nos. 3989/07 and 38353/07.

[10] Case of Spasov v. Romania, Application no. 27122/14.

[11] Idem., para. 7–9.

[12] Idem., para. 11–15.

[13] Idem., para. 17–21.

[14] Idem., para. 22–27.

[15] Idem., para. 28–34.

[16] Idem., para. 37–46.

[17] Order No 79 of 2017 of the Ministry of Agriculture and Rural Development on the equal access for EU fishing vessels to all waters and living aquatic resources in the Black Sea under the Common Fisheries Policy.

[18] Case of Spasov v. Romania, Application no. 27122/14, para. 36., 49–52.

[19] Idem., para. 75.

[20] Idem., para. 82–83.

[21] Idem., para. 87–98.

[22] Idem., para. 110.

[23] Idem., para. 116–118.

[24] Groza Anamaria. 2023. Denegarea de dreptate în contextul (ne)aplicării dreptului Uniunii Europene. O analiză a cauzei Spasov împotriva României sau despre contribuția Curții Europene a Drepturilor Omului la aplicarea dreptului Uniunii Europene, Revista Română de Drept European, 2023(1), 74–83., p. 82.

[25] Ibidem., Krommendijk Jasper, Timmerman Mikhel. 2022. The Slippery Slope of a Snooping Strasbourg: The erroneous application of EU law as an ECHR breach, VerfBlog. Available at:  https://verfassungsblog.de/the-slippery-slope-of-a-snooping-strasbourg/ (Accessed on 9 May 2024).

[26] Krommendijk Jasper, Timmerman Mikhel. 2022.

Sources

Groza Anamaria. 2023. Denegarea de dreptate în contextul (ne)aplicării dreptului Uniunii Europene. O analiză a cauzei Spasov împotriva României sau despre contribuția Curții Europene a Drepturilor Omului la aplicarea dreptului Uniunii Europene, Revista Română de Drept European, 2023(1), 74–83.

Jen Neller and Sonia Morano-Foadi. 2016. The Status of Human Rights Protection in Europe: It’s Complicated, Birckbeck Law Review 4(1), 1–14.

Krommendijk Jasper, Timmerman Mikhel. 2022. The Slippery Slope of a Snooping Strasbourg: The erroneous application of EU law as an ECHR breach, VerfBlog. Available at:  https://verfassungsblog.de/the-slippery-slope-of-a-snooping-strasbourg/ (Accessed on 9 May 2024).

Tanja Karakamisheva Jovanovska. 2021. The Bosphorus and Other Principles – A European Bridge towards Protection of Fundamental Rights in the CJEU and the ECtHR?, Iustinianus Primus Law Review, 12(special issue), 1–12.

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