Die Konstitutionalisierung der gegenseitigen Anerkennung

2019 ◽  
Author(s):  
Christoph Burchard
Keyword(s):  
Mutual Recognition ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
Member States ◽  
Legal Principle ◽  
Criminal Matters ◽  
The Eu

The increasing level of judicial cooperation in criminal matters in the field of freedom, security and justice of the EU is based on the principle of mutual recognition. Christoph Burchard examines the scope and limits of this principle from a strictly union-constitutional perspective. He points out that the mutual recognition constituted in Article 82 No.1 TFEU has the effect of merely substantiating competence and thus needs to be more firmly established by way of secondary legislation. Just as unconditional trust between Member States of the Union, unrestricted mutual recognition must not be elevated to the rank of a constitutional legal principle of the EU. Therefore, the fundamental rights of the Union as well as the federal principle (including the protection of the identity of the Member States), serve as recognition barriers for the secondary legislator as well as the secondary law users.

scholarly journals Il principio del mutuo riconoscimento nell'ordinamento dell'Unione europea

2020 ◽  
Author(s):  
Eloisa Giorgi
Keyword(s):  
Mutual Recognition ◽  
Point Of View ◽  
Fundamental Rights ◽  
Variable Geometry ◽  
Legal Systems ◽  
Judicial Cooperation ◽  
Member States ◽  
Distinctive Features ◽  
Legal Nature ◽  
Criminal Matters

The essay analyses the principle of mutual recognition as a legal technique of coordination of the Member States’ legal systems. We examine its ability of ensuring effectiveness of the individual’s fundamental rights and of favouring the European integration. The study of the principle is both static and dynamic. From a static standpoint, the analysis attempts to delineate the anatomy of mutual recognition, identifying its legal nature, its distinctive features in each of the three areas of its implementation (internal market, judicial cooperation in civil and criminal matters) and the variable geometry that characterises its application. From a dynamic point of view, the research examines the principle of mutual recognition as a technique for coordinating the legal systems of the Member States, in both its horizontal and vertical dimension.

Human rights and the rule of law in judicial cooperation in criminal matters under the EU–UK Trade and Cooperation Agreement

2021 ◽  
pp. 203228442199593
Author(s):  
Wolfgang Schomburg ◽  
Anna Oehmichen ◽  
Katrin Kayß
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
Cooperation Agreement ◽  
Judicial Cooperation ◽  
Human Rights Protection ◽  
Criminal Matters ◽  
The Eu

As human rights have increasingly gained importance at the European Union level, this article examines the remaining scope of human rights protection under the EU–UK Trade and Cooperation Agreement. While some international human rights instruments remain applicable, the Charter of Fundamental Rights of the European Union did not become part of the Trade and Cooperation Agreement (TCA). The consequences, especially the inapplicability of the internationalised ne bis in idem principle, are analysed. Furthermore, the conditionality of the TCA in general as well as the specific conditionality for judicial cooperation in criminal matters are discussed. In this context, the risk that cooperation may cease at any moment if any Member State or the UK leave the European Convention of Human Rights is highlighted. Lastly, the authors raise the problem of the lack of judicial review, as the Court of Justice of the European Union is no longer competent.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

Implementation of European Arrest Warrant in Croatia: A Risk for the Functioning of Judicial Cooperation in Criminal Matters in the eu?

2015 ◽  
Vol 23 (3) ◽  
pp. 258-280 ◽  
Author(s):  
Tomislav Sokol
Keyword(s):  
Public Attention ◽  
Judicial Cooperation ◽  
Member States ◽  
Arrest Warrant ◽  
Legal Principles ◽  
Framework Decision ◽  
European Arrest Warrant ◽  
Definition Of ◽  
Criminal Matters ◽  
The Eu

Croatian accession to the eu included the implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The way Croatia implemented the eaw Framework Decision, however, has resulted in controversies and public attention, both in Croatia and other Member States, revealing many problems within the system of judicial cooperation in criminal matters within the eu. The aim of the paper is to investigate the implementation of the eaw Framework Decision within Croatia; to determine whether the manner in which the said Member State has carried out the implementation has highlighted a risk for the functioning of judicial cooperation in criminal matters within the eu; and which legal measures should be used in order to prevent disintegration of the cooperation from happening. Several legal measures are proposed, both on the national and the European level, to prevent the risk of further undermining the system of judicial cooperation within the eu. These measures are presented within the context of several overarching legal principles like (providing clearer definition of the notion of) non-verification of double criminality and protection of legal interests of the Member States issuing the European Arrest Warrant.

Caught Between National and Supranational Values: Limitations to Judicial Cooperation in Criminal Matters as Part of the Area of Freedom, Security and Justice within the European Union

2008 ◽  
Vol 10 (1) ◽  
pp. 51-72
Author(s):  
Olivia den Hollander
Keyword(s):  
European Union ◽  
Legal Framework ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
Eu Member States ◽  
The Third ◽  
The One ◽  
Criminal Matters ◽  
The Eu

AbstractCurrently, the European Union is based on both supranational (first pillar) and international (second and third pillar) law. The third pillar signifies police and judicial cooperation in criminal matters and although formally based on international law, it has been under increasing "supranational pressure" by the developments in the "Area of Freedom, Security and Justice". This Area is focused on a set of common values and principles closely tied to those of the single market and its four "freedoms". The main argument of this article is that the legal framework of the third pillar is an impediment to judicial cooperation in criminal matters in general, and to the coordination of conflicts of jurisdiction and the principle of ne bis in idem in particular. The legal framework of the third pillar finds itself in the middle of an identity crisis, since it can neither be identified as a traditional intergovernmental, nor as a supranational institutional framework. Criminal law is a politically sensitive matter, which on the one hand explains why the EU member states are reluctant to submit their powers over the issue to the European level and on the other hand, it implies that if the EU member states really want to cooperate on such an intensive level, they will have to submit some of their powers in order to strengthen EU constitutional law. The article suggests a reform of the third pillar through the method of "communitization", which is exactly what will happen in case the EU Reform Treaty will enter into force. This would offer the ingredients for a true international community in which the ambitious agenda of the Area of Freedom, Security and Justice can realise its aim of a common set of values and principles which supersedes those of each of the member states individually.

scholarly journals Wzmocnienie praw procesowych jednostki w postępowaniu karnym w Unii Europejskiej - propozycje Komisji Europejskiej z listopada 2013 r.

2015 ◽  
pp. 103-139
Author(s):  
Anastazja Gajda
Keyword(s):  
European Commission ◽  
Fundamental Rights ◽  
Presumption Of Innocence ◽  
Legal Regulations ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Judicial Cooperation ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

The aim of the study is to present the proposals of legal regulations presented by the European Commission in one of the fields of Area of Freedom, Security and Justice (JHA), i.e. within the framework of judicial cooperation in criminal matters. The European Commission’s proposals aim at strengthening of the rights of suspects/defendants in criminal proceedings in the EU. They consist of the right to a fair trial and include: strengthening of the presumption of innocence principle and the right to be present at the trial, special safeguards for children suspected or accused of a crime and the right to provisional legal aid for citizens suspected or accused of a crime. In the paper I analysed the most important provisions of the projects and showed that these proposals are intended to ensure the protection of fundamental rights within the JHA.

Modern Instruments for Evidence-Gathering in Criminal Matters Across EU

2018 ◽  
Vol 24 (2) ◽  
pp. 248-254
Author(s):  
Ralitsa Voynova
Keyword(s):  
Criminal Justice ◽  
Mutual Recognition ◽  
Legal Assistance ◽  
Criminal Cases ◽  
Member States ◽  
Eu Member States ◽  
European Area ◽  
Evidence Gathering ◽  
Criminal Matters ◽  
The Eu

Abstract Subjects of analysis in this paper are the latest instruments for investigation and collection of evidence in criminal cases applicable to the legal cooperation between the EU Member States. Emphasis is placed on the European Investigation Order (EIO) - the newest EU measure for legal assistance in criminal matters. Based on a comparison with existing tools in the same field there are highlighted the advantages of EIO for affirmation of the principle of mutual recognition of judgments in the European area of criminal justice

scholarly journals Mutual recognition in criminal matters, deprivation of liberty and the principle of proportionality

2018 ◽  
Vol 25 (6) ◽  
pp. 718-732
Author(s):  
Leandro Mancano
Keyword(s):  
Mutual Recognition ◽  
Eu Law ◽  
The European Union ◽  
Judicial Cooperation ◽  
European Arrest Warrant ◽  
Principle Of Proportionality ◽  
The One ◽  
The Right ◽  
Criminal Matters ◽  
The Eu

This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.

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.

Fundamental Rights and the Transformation of Governance in the European Union

2007 ◽  
Vol 9 ◽  
pp. 133-175 ◽  
Author(s):  
Olivier de Schutter
Keyword(s):  
European Union ◽  
Mutual Recognition ◽  
Fundamental Rights ◽  
Regulatory Competition ◽  
The European Union ◽  
Member States ◽  
Mutual Cooperation ◽  
Eu Member States ◽  
Charter Of Fundamental Rights ◽  
The Eu

It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.

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