scholarly journals Exploring mutual trust through the lens of an executing judicial authority: The practice of the Court of Amsterdam in EAW proceedings

2020 ◽  
Vol 11 (3) ◽  
pp. 282-298
Author(s):  
Adriano Martufi ◽  
Daila Gigengack
Keyword(s):  
National Level ◽  
Fundamental Rights ◽  
District Court ◽  
Mutual Trust ◽  
The European Union ◽  
Real Risk ◽  
European Arrest Warrant ◽  
Judicial Reasoning ◽  
The Right ◽  
Dutch Court

In the groundbreaking decision Aranyosi and Căldăraru, the Court of Justice of the European Union (CJEU) recognised that in exceptional circumstances, the risk of a possible breach of the right not to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgment (and in the subsequent decision in LM, dealing with the right to a fair trial), the Court has devised a two-tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court has left significant discretion to executing authorities in conducting their assessment of risk, thus raising questions as to how the two-tier test would be implemented at the national level. To address some of these questions, this article examines the practice of the executing authority for the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued between June 2016 and June 2020 which implement the tests designed by the CJEU in Aranyosi and LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity and scrutinises the relevance of any information attentively. This attitude indicates a readiness to engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.

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.

scholarly journals Who is Entitled to the Right to Respect for Family Life Under the European Union Law?

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 24-45
Author(s):  
Ingrida Danėlienė
Keyword(s):  
European Union ◽  
Human Rights ◽  
Family Life ◽  
National Level ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
European Union Law ◽  
The Republic ◽  
The Right

[full article, abstract in English; abstract in Lithuanian] The article investigates the right to respect for family life, established by Article 7 of the Charter of Fundamental Rights of the European Union, as applied and interpreted in conjunction with the right to marry and the right to found a family, laid down in Article 9 of the Charter. The standard of protection set by European Union law regarding these rights is identified by taking into account the standard of protection of the relevant rights established by the European Convention on Human Rights and the established case law of the European Court of Human Rights. Topical issues relating to the consolidation of these individual rights at the national level in the Republic of Lithuania are also addressed in the article. In doing so, an emphasis is laid on the content of the concepts of “family” and “family life” under supranational and national law.

scholarly journals Supremacía de la constitución versus primacía del derecho de la UE en materia derechos fundamentales: concordancias y discordancias entre el tribunal constitucional y el tribunal de justicia de la UE en el asunto Melloni

2017 ◽  
pp. 637
Author(s):  
Francisco Javier Donaire Villa
Keyword(s):  
European Union ◽  
National Level ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Arrest Warrant ◽  
Charter Of Fundamental Rights ◽  
The Eu

Se analiza en este artículo el primer diálogo judicial directo entre el TC español y el Tribunal de Justicia de la UE, sobre la Euroorden y la interpretación del artículo 53 de la Carta de los Derechos Fundamentales de la UE cuando el nivel nacional de protección de los derechos es superior al dispensado por una norma de Derecho derivado de la Unión. Se ponen de manifiesto las posibles tensiones entre supremacía constitucional y primacía del Derecho de la Unión Europea, y la evocación por el Tribunal Constitucional de su doctrina de los derechos constitucionalmente reconocidos como límites a la integración en la Sentencia que cierra el diálogo con el Tribunal de Justicia en el Asunto Melloni.This paper surveys the first direct judicial dialogue between the Spanish Constitutional Court and the Court of Justice of the European Union on the European Arrest Warrant and the interpretation of Article 53 of the Charter of Fundamental Rights of the EU when the national level of protection of rights is higher than that provided by a rule of secondary legislation of the Union. It highlights the possible tensions between constitutional supremacy and primacy of European Union law, and the evocation made by the Constitutional Court of its doctrine on rights constitutionally recognized as limits to the European integration contained in the judgment which closes the dialogue between both Courts within the so-called Melloni case.

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.

Resisting a European Arrest Warrant: A social rights perspective

2020 ◽  
Vol 11 (3) ◽  
pp. 299-312
Author(s):  
Neža Šubic
Keyword(s):  
Civil Rights ◽  
Fundamental Rights ◽  
High Threshold ◽  
Social Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
Real Risk ◽  
The Social ◽  
European Arrest Warrant ◽  
Degrading Treatment

This article starts from the premise that social rights should be taken seriously in the context of the European Arrest Warrant (EAW). Historically neglected, social rights have slowly gained recognition as legal entitlements. The article focuses on the protection of social rights – understood here as the rights to an adequate standard of living, healthcare and education – in regard to one aspect of the EAW: resisting its execution due to a real risk of a breach of social rights in detention in the issuing Member State. The social rights–based argument for resisting an EAW is premised on the Court of Justice of the European Union’s jurisprudence on ‘exceptional circumstances’ in which mutual trust can be rebutted, in particular Aranyosi and LM. The article identifies three ways for protecting social rights in the context of resisting an EAW. First, elements of social rights can be protected through resisting an EAW on the basis of a real risk of a breach of the prohibition of inhuman and degrading treatment. Second, social rights could be protected by resisting an EAW on the grounds of those non-absolute civil rights that indirectly protect elements of social rights. Third, the option of resisting an EAW by relying directly on social rights is also examined. Taking a social rights perspective expands the type of cases in which an individual can resist surrender due to a risk of facing poor detention conditions; this includes certain situations where the potential breach does not reach the high threshold of the prohibition of inhuman and degrading treatment. However, the article concludes that the rigid framework for balancing mutual trust and fundamental rights established by Aranyosi and LM ultimately creates a ceiling for the protection of social rights and prevents them from being fully respected and protected in the context of resisting an EAW.

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 Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant

2016 ◽  
Vol 24 (2-3) ◽  
pp. 197-219 ◽  
Author(s):  
Szilárd Gáspár-Szilágyi
Keyword(s):  
Case Note ◽  
Fundamental Rights ◽  
Mutual Trust ◽  
Arrest Warrant ◽  
Real Risk ◽  
European Arrest Warrant ◽  
Scope Of Application ◽  
Degrading Treatment ◽  
Human Rights Standards ◽  
Critical Overview

This case-note provides a critical overview of Joined Cases C-404/15 and C-659/15 ppu, Aranyosi and Căldăraru. The cjeu tries to reconcile the principles of mutual trust and recognition with the protection of the fundamental rights of the requested person. Instead of introducing a new ground of refusal for a European Arrest Warrant based on the breach of fundamental rights, the cjeu opted for a ground of postponement. Furthermore, it brings its two-tier ‘systemic deficiencies’ test closer to the standards used by the ECtHR and encourages dialogue between the issuing and executing judicial authorities. Nevertheless, the scope of application of the new ground of postponement is not entirely clear and it is not yet sure what happens after the executing judicial authority postpones its decision due to evidence of a real risk that the requested person will be subjected to inhuman and degrading treatment in the issuing Member State.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Within the Public-Private Divide. Right to Housing and Consumer Law in Recent European Private Law Trends

Global Jurist ◽  
2018 ◽  
Vol 19 (2) ◽  
Author(s):  
Rocco Alessio Albanese
Keyword(s):  
Fundamental Rights ◽  
Private Law ◽  
The European Union ◽  
The Public ◽  
Consumer Law ◽  
Charter Of Fundamental Rights ◽  
Recent Trends ◽  
New Perspective ◽  
The Right ◽  
Protection Of Right

Abstract This paper intends to discuss some major European legal issues by building on the critique of a certain narrow relevance of human basic needs, according to traditional Western legal conceptions of the subject as well as of the public-private divide. In particular it aims at verifying the potentiality of consumer law for rethinking the right to housing, within recent trends of European Private Law, by adopting a remedial approach. For this reason the paper analyzes three well-known cases decided by the Court of Justice of the European Union (CJEU) – namely Aziz, Sanchez Morcillo and Kušionová – as examples of this meaningful trend. Through the combination of the fairness test over contractual terms with the criteria of effectiveness and proportionality, a broader protection of right to housing is recognised even in horizontal private relationships. Art. 7 of the EU Charter of Fundamental Rights (CFREU) could represent the constitutional reference for this new perspective. The paper also intends to show how the relevance of the basic need for housing is traced to debtor's families. CJEU's interpretative itinerary seems to start from a fairness test about contractual terms, but eventually comes to give protection to subjective situations that are even out of the domain of the contract.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

Sign in / Sign up

Export Citation Format

Share Document