scholarly journals The Impact on National Sovereignty of Mutual Recognition in the AFSJ. Case-Study of the European Arrest Warrant

2021 ◽  
Vol 22 (1) ◽  
pp. 45-64
Author(s):  
Suzanne Andrea Bloks ◽  
Ton van den Brink
Keyword(s):  
Mutual Recognition ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
National Sovereignty ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Dynamic Perspective ◽  
The Impact

AbstractNational sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.

scholarly journals Towards the end of mutual trust? Prison conditions in the context of the European Arrest Warrant and the transfer of prisoners framework decisions

2018 ◽  
Vol 25 (6) ◽  
pp. 704-717 ◽  
Author(s):  
TP Marguery
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
The European Union ◽  
Judicial Cooperation ◽  
Social Functions ◽  
Member States ◽  
Legal Fiction ◽  
European Arrest Warrant

This article contends that the presumption of mutual trust between the European Union Member States is a legal fiction. In the context of transfer of a custodial sentence from one country to another based on mutual recognition and mutual trust, a failure of the latter can have detrimental effects on judicial cooperation and, especially, on the functions of punishment. In particular, mutual recognition and mutual trust create a bridge between the external limits of punishment (fundamental rights) and the internal limits to the functions of punishment (retribution, deterrence and rehabilitation). The non-compliance with individuals’ fundamental rights undermines the very social functions of punishment. Such a failure can only be prevented if the Member States and the European Union endeavour to establish and maintain a truly integrated penal policy with concerns for individuals at its very core.

scholarly journals The Perils of the ‘Europeanisation’ of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees

2007 ◽  
Vol 14 (2) ◽  
pp. 179-200
Author(s):  
Theodore Konstadinides
Keyword(s):  
Mutual Recognition ◽  
Civil Liberties ◽  
Fundamental Rights ◽  
The European Union ◽  
Constitutional Treaty ◽  
Judicial Cooperation ◽  
Current Application ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
The Eu

This article focuses on the main problems regarding the current application of EU extradition procedures in relation to the area of judicial cooperation in criminal matters. It introduces the ‘Europeanisation’ of extradition procedures through a discussion based on the continuity of the principle of mutual recognition from the EC Treaties to the EU Constitutional Treaty. The latest manifestation of this continuity is the introduction of the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying the extradition procedures for suspected criminals within the territory of the European Union by creating a positive list of criminal areas. The author discusses the innovations introduced by the Framework Decision on the European Arrest Warrant (abolition of the test of dual criminality) and then focuses on two main problem areas based on the reaction of certain Member States: i) the compatibility with constitutional guarantees, where the author focuses on the eagerness of the national courts to contest the constitutionality of the EU Arrest Warrant implementation laws for authorising the extradition of their own nationals; ii) the compatibility with Human Rights, where the author argues that the principle of mutual recognition is not adequate for adjudicating interstate criminal cases when it operates in isolation. The article then focuses upon the balance between procedural efficiency and civil liberties and proposes certain procedural and institutional checks that would assist in moving from the current embryonic stage of EU criminal law to its adolescence.

scholarly journals THE FUTURE OF EUROPEAN ARREST WARRANT IN LIGHT OF DECISION THE EUROPEAN COURT OF JUSTICE IN THE CASE ARANYOSI AND CALDARARU

TEME ◽  
2019 ◽  
pp. 631
Author(s):  
Aleksandar Mićo Bošković ◽  
Tomislav Trajković ◽  
Gordana Nikolić
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
European Court Of Justice ◽  
The European Union ◽  
Judicial Cooperation ◽  
Dominant Form ◽  
Arrest Warrant ◽  
Court Of Justice ◽  
European Court ◽  
European Arrest Warrant

For a long time, extradition has been a dominant form of international mutual legal assistance, but in many cases it has proven to be an insufficiently efficient instrument. Having that in mind, on the territory of the European Union, a European arrest warrant has been established as an institute that should contribute to the effectiveness of combating modern crime and facilitate the surrender of persons between member states in order to effectively prevent the escape of suspects or convicted persons. Regarding this, the Article will first give a brief overview of the Council of the European Union Framework Decision, which regulates the European arrest warrant, and will analyze it in order to define the strengths and weaknesses of the task itself. The subject of research in this article is primarily devoted to the analysis of the judgment of the European Court of Justice in the “Aranyosi and Caldararu” case. With this verdict, the European Court of Justice, derogates some of the key principles that order is based on and special attention is devoted to the devaluation of the principles of mutual trust and the principles of mutual recognition of judicial decisions among EU states, which the Council of the European Union considers as the cornerstone of judicial cooperation.

Wpływ Brexitu na współpracę sądową w sprawach karnych w Unii Europejskiej

2020 ◽  
pp. 35-56
Author(s):  
Anastazja Gajda
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Mutual Recognition ◽  
The European Union ◽  
Judicial Cooperation ◽  
Arrest Warrant ◽  
Unique Position ◽  
The United Kingdom ◽  
European Arrest Warrant ◽  
Criminal Matters

The withdrawal of the United Kingdom from the European Union is one of the main challenges for the continued functioning of the European judicial area in criminal matters. In this article, special attention will be paid to selected aspects of ensuring further judicial cooperation in criminal matters after Brexit. This primarily concerns the possibility of further participation of the United Kingdom in specific organs supporting this cooperation (Eurojust and Europol) and the the application of legal instruments implementing the principle of mutual recognition of judgments, with reference to the flagship legal instrument, i.e. the European arrest warrant. It also presents a unique position of the United Kingdom in the Area of Freedom Security and Justice EU, which that state is guaranteed under the provisions of Treaties.

Limiting mutual trust on fundamental rights grounds under the European arrest warrant and lessons learned from transfers under Dublin III

2020 ◽  
Vol 11 (2) ◽  
pp. 184-203
Author(s):  
Fenella M. W. Billing
Keyword(s):  
European Union ◽  
Lessons Learned ◽  
Fundamental Rights ◽  
Supplementary Information ◽  
Mutual Trust ◽  
The European Union ◽  
Arrest Warrant ◽  
Real Risk ◽  
European Arrest Warrant ◽  
The Right

The Court of Justice of the European Union (CJEU) has examined the limitation of the principle of mutual trust in European arrest warrant (EAW) cases in a number of recent decisions. The court has found that when the executing judicial authority possesses information demonstrating that the requested person is at a real risk of violation of the right to be free from inhuman or degrading treatment guaranteed in art 4 of the Charter of Fundamental Rights of the European Union, then the individual should not be automatically surrendered. Instead, the proceedings should be postponed to obtain supplementary information or discontinued if the risk cannot be discounted. The ‘real risk’ test has also been extended to non-absolute rights, such as the right to a fair trial. However, the CJEU’s reasoning about the limitation of mutual trust is not yet fully formed in relation to certain aspects concerning the nature of fundamental rights and the EAW procedure. This article explores these gaps of understanding about the scope of the limitation on mutual trust in surrender cases and, in doing so, assesses the consistency of similar developments in the area of transfers of asylum seekers under the Dublin Regulation III.

Grenzen der gegenseitigen Anerkennung bei der Vollstreckung eines Europäischen Haftbefehls

2021 ◽  
Author(s):  
Karina Kopowski
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Fundamental Rights ◽  
The European Union ◽  
Arrest Warrant ◽  
Framework Decision ◽  
European Arrest Warrant ◽  
Judicial Authority

Individual circumstances can limit the scope of mutual recognition in surrender procedures and lead to non-execution of a European arrest warrant. The study focuses on the limits to mutual recognition, apart from standardised grounds for refusal, that result from the Framework Decision being embedded in the primary law of the European Union. Because grounds for refusal are vitally important for the protection of (Union) fundamental rights in surrender procedures, the study develops a guideline for steps to be considered by the executing judicial authority when deciding upon surrender.

The European Arrest Warrant and Fundamental Rights

2014 ◽  
Vol 22 (2) ◽  
pp. 135-165 ◽  
Author(s):  
Nina Marlene Schallmoser
Keyword(s):  
Mutual Recognition ◽  
Division Of Labour ◽  
Fundamental Rights ◽  
The European Union ◽  
Arrest Warrant ◽  
Framework Decision ◽  
European Arrest Warrant ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
Phd Thesis

The following article is a short summary of the author’s PhD thesis (N.M. Schallmoser, Europäischer Haftbefehl und Grundrechte. Risiken der Verletzung von Grundrechten durch den EU-Rahmenbeschluss im Lichte der EMRK (Manz‘sche Verlags- und Universitätsbuchhandlung, Vienna, 2012), hereafter Schallmoser (2012)). The framework decision on the European arrest warrant and the surrender procedures between EU member states established a new and uniform system of surrender within the EU. Nevertheless, there is no fundamental rights clause that makes it possible to refuse surrender for reasons of fundamental rights and hardly any fundamental rights guarantees of the accused person are ensured in this framework decision. This is — besides the principle of mutual recognition — the consequence of the currently practiced concept of “division of labour” in fundamental rights matters within the EU, according to which the EU legislator only has to omit, but not to prevent fundamental rights infringements through legislation, and therefore waives establishing such fundamental rights guarantees. The consequences are different risks of the accused person to become a victim of violations of fundamental rights during an internationally labour-divided criminal proceeding. A “risk” in this regard is defined as the substantial likelihood that interference in a person’s fundamental rights leads to a violation or an aggravation of a violation that has already occurred. The present article declares the European legislator as the responsible authority for minimizing such risks. This obligation can be derived from the autonomous and independent commitment of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms and of course the Charter of Fundamental Rights of the European Union as set forth in Article 6 TEU.

Hard Way from Extradition to European Arrest Warrant

2010 ◽  
pp. 22-31
Author(s):  
O. Potyomkina
Keyword(s):  
Mutual Recognition ◽  
Criminal Cases ◽  
Judicial Cooperation ◽  
Arrest Warrant ◽  
Freedom Of Movement ◽  
Existing Problems ◽  
Judicial Decisions ◽  
European Arrest Warrant ◽  
National Boundaries ◽  
The Eu

The article is referred to a hard way of the European Arrest Warrant adoption, which became the first tool in the field of judicial cooperation on criminal cases having embodied the judicial decisions mutual recognition principle. The foundation of a single European Arrest Warrant with due regard to all existing problems of its appliance is a significant breakthrough in the EU states cooperation, given that it forces them to rely on each other's legislation. The European Warrant was designed to efface national boundaries in the sphere of court cooperation, to establish a "freedom of movement" and a single market of judicial decisions.

Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM

2019 ◽  
Vol 15 (1) ◽  
pp. 17-47 ◽  
Author(s):  
Mattias Wendel
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
European Arrest Warrant ◽  
Eu Fundamental Rights

Mutual trust – Essence of EU fundamental rights – Values under Article 2 TEU – Intrinsic link between essence and values – Federalism – LM judgment – Rule of law crisis in Poland – Right to fair trial – Judicial independence – Fundamental right to an independent tribunal – Prohibition on transfers – Obligation to presume compliance with fundamental rights – Condition of ‘systemic deficiencies’ as a federal safeguard – Area of Freedom, Security and Justice – European Arrest Warrant – Dublin system

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