Principle of mutual recognition in criminal matters and fundamental rights.

Order Description

Title: The impact of mutual recognition on the rights of individuals protected by the charter of fundamental rights of the European union. The perspective of the
European arrest warrant.
Abstract: The implementation of mutual recognition regimes shows the prevalence of mutual distrust, as many examples from the Framework Decision on the European Arrest
Warrant. This distrust is often caused by the view that national standards of penal and procedural law differ too much to be mutually recognized. Moreover, concerns
regarding democratic legitimacy are expressed. As a result, at least two effects can be observed. First, national legislators introduce new grounds for refusal when
implementing the Framework Decision on the European Arrest Warrant. Second, national judges become gate-keepers in the operation of the mutual recognition regime and
show uncooperative behavior if they regard a request as not in line with national standards, thereby undermining the envisaged European extradition system.
Dissertation should cover these effects.
Outline and content:
Session 1. The principle of mutual recognition in the perspective of the protection of EU fundamental rights
A. Fundamental Rights as limits to mutual recognition
Content:
Overview of how fundamental rights act as a limit to mutual recognition upon the acts of Member States (when they are implementing EU law)
– Legal effect of regulations, directives and framework decisions
– example: the first rebuttal of the trust-presumption in N.S. and M.E (Joined Cases C-411 and C-493/10 N.S. and others, EU:C:2011:865.)
B. Grounds of refusal by Member States when implementing the European Arrest Warrant (Explain mandatory and optional grounds as well as grounds introduced by some
Member States which have not implemented all grounds for refusal as indicated in the Framework Decisions, but have introduced additional grounds making them mandatory.
Argue if this is contrary to the letter and spirit of the Framework Decisions or legitimate as not all Member states have the same standards – example cases of ill-
treatment see Alexander Adamescu case at https://hrwf.eu/wp-content/uploads/2017/04/EAW-Report-March-2017.pdf).
C. From formal trust to substantive trust (allowing rebuttal of the trust presumption) – A Change of perspective?
– Perspective of the European investigation order (includes expressly non-compliance with fundamental rights as grounds for refusal to recognize and execute)

Session 2 – Difficulties with the European Arrest Warrant related to the protection of EU fundamental rights: a lack of trust ?
A. Problems regarding the decision FD 2002/584/JHA itself (vagueness of provisions):
– The absence of an explicit ground for refusal based on human rights
– Absence of time limits / question whether they include legal remedies or not
– No wording on the procedure to be followed in case of multiple request
– Exemple – Anne Weyembergh analyses the decision of the Belgian “Cour d’arbitrage/Arbitragehof” which questioned the validity of the framework decision at the
European Court of Justice. (https://eucrim.mpicc.de/archiv/eucrim_06-01.pdf)

B. Problems due to the imbalances of the European justice area in general :
– Lack of approximation of criminal justice systems and the remaining deep differences between national procedural and substantive criminal law, which lead to
disproportionate use of the EAW (example, EAW issued for minor offences such as the theft of tires, bicycles, etc…)
– Excessive use of pre-trial detention discouraging extradition
– Silence of the EU on the sensitive field of detention conditions (liked to EAW, and mutual trust)
– Silence of the EU on the MS liability for damages caused to individuals resulting of the implementation of MR and the absence of rules of compensation.
– See report of the European Commission on the implementation of the FD (https://ec.europa.eu/justice/policies/criminal/extradition/docs/com_2011_175_en.pdf)
C. In practice – Analysis of the case-Law of the ECJ on mutual recognition and individual rights (and legal framework – Charte)
Main problems found: excessive use of pre-trial detention discouraging extradition, lack of a proportionality check and different legality principles, poor detention
conditions and prison overcrowding, lengthy procedures…For instance, statistics from the ECtHR find that, between 1959-2016, more than 40% of the violations found in
member states by the Court have concerned Article 6 of the Convention, whether on account of the fairness (17.35%) or the length (21.34%) of the proceedings (see
annex).
Idea: towards lack of clarity ? principle of supremacy of EU law?
Base this part also on the following decisions from the ECJ concerning the extent of control by the executing authorities and linked to protection of human rights :
– ECJ, 16 Nov. 2010, C-261/09, Mantello
– ECJ, 29 January 2013, Radu, C-396/11;
– ECJ, 26 Febr. 2013, Melloni, C-399/11;
– ECJ, 30 May 2013, Jeremy F, C-168/13 PPU
– C-404/15, Aranyosi and C- 659/15, Caldararu (PPU), submitted by the same court (Hanseatisches Oberlandesgericht in Bremen), raising the same question: should
surrender on a EAW be refused if there is reason to fear the wanted person will be exposed to inhumane prison conditions in the requesting state? (Highlight the
conclusions of Attorney General Y. Bot in this case and the fact that experts from Legal Experts Advisory Panel and Fair trial international have signed a letter
titled ‘A Threat to Justice in Europe’ expressing concern regarding the opinion, see https://www.fairtrials.org/fair-trials-joins-with-criminal-justice-experts-on-
european-arrest-warrant/ as well as recent developments after the event).