Problem 6 – Facing detention in Romania
Can a EAW be refused based on human rights?
Mitsilegas (2015) – The symbiotic relationship between mutual trust and fundamental rights in Europe’s Area of
Criminal Justice
The entry into force of the Treaty of Lisbon has brought questions of the compatibility of aspects of EU criminal law, in
particular the application of the principle of mutual recognition, with fundamental rights. This article will examine the
relationship between the protection of fundamental rights and mutual trust before and after Lisbon. It will examine four
different types of relationship:
- Fundamental rights as the outcome of trust; ne bis in idem principle;
- Fundamental rights as a limit to trust; grounds for refusal;
- Fundamental rights as the source of trust; legislation for human rights via adoption of minimum standards on
procedural rights in criminal proceedings;
- Fundamental rights as a source of trust via the development of uniform concepts.
Fundamental rights as the outcome of mutual trust: the case of ne bis in idem
Ne bis in idem has both a rule of law and a human rights function. The rule of law function arises from the need to achieve
legal certainty and finality with regard to state action in the field of criminal law. The human rights function arises from
the need to protect the rights of affected individuals and address the imbalance between individual rights and state power.
On the other hand, limitations to the ne bis in idem principle have been advocated as necessary in order to enhance trust to
the state as a security provider effectively delivering broader criminal justice objectives.
The question that is most important in addressing this problem is whether another state can enforce its criminal
law over the same individual for the same conduct, or whether it is precluded from doing so in order to safeguard legal
certainty and fundamental rights in an area without frontiers. The Court of Justice has been called to deal with these issues
in interpreting the scope of the ne bis in idem principle. The Court has interpreted the principle broadly, focusing on the
need to achieve a high degree of legal certainty in order to ensure free movement in a borderless AFSJ. The need to achieve
the effective enjoyment of free movement takes precedence over national priorities with regard to the delivery of criminal
justice.
Fundamental rights as limits to mutual trust: the case of the European Arrest Warrant
The construction of the AFSJ has intensified and justified an inter-state cooperation. This means that a national decision
will be enforced beyond the territory of the issuing Member State by authorities of the other EU Member States. The
method chosen to secure this automaticity has been the application of the principle of mutual recognition in the fields of
judicial cooperation in criminal matters.
Membership of the EU presumes the full respect of fundamental rights by all Member States, which creates mutual
trust. The best example of mutual recognition in these terms is the system of the Framework Decision on the European
Arrest Warrant. The legislative choice of this system reflects the view that cooperation can take place on the basis of a high
level of mutual trust in the criminal justice systems of Member States, premised upon the presumption that fundamental
rights are in principle respected fully across the EU.
In a consistent line of case law the Court of Justice has adopted a broad approach to mutual recognition, stressing
the need to achieve the effectiveness of the Framework Decision by ensuring that in principle mutual recognition takes
place in a speedy and simplified manner. The entry into force of the Treaty of Lisbon has added a further dimension to the
question the extent to which fundamental rights should be taken into account and form ground of refusal in a system of
mutual recognition based on mutual trust. The first case in the context was the Radu-case. The focus on the effective
operation of mutual recognition was repeated in the Melloni-case.
Fundamental rights as a source of mutual trust: harmonisation (the case of procedural rights)
Member State’s vision of the application of the principle of mutual recognition did not include a strong focus on the need
for the EU to accompany mutual recognition by a series of parallel measures to harmonise national legislation on criminal
procedure. The Commission’s proposal for a Framework Decision on procedural rights was not adopted by Member States.
This changed with the entry into force of the Lisbon Treaty, which accepts that mutual recognition must be accompanied
by a degree of harmonisation of criminal procedural law. Article 82(2)(b) TFEU confers upon the EU competence to adopt
minimum rules on the rights of individuals in criminal procedures. On the basis of this article, a number of measures have
been adopted (like a Directive on the right to access to a lawyer).
Can a EAW be refused based on human rights?
Mitsilegas (2015) – The symbiotic relationship between mutual trust and fundamental rights in Europe’s Area of
Criminal Justice
The entry into force of the Treaty of Lisbon has brought questions of the compatibility of aspects of EU criminal law, in
particular the application of the principle of mutual recognition, with fundamental rights. This article will examine the
relationship between the protection of fundamental rights and mutual trust before and after Lisbon. It will examine four
different types of relationship:
- Fundamental rights as the outcome of trust; ne bis in idem principle;
- Fundamental rights as a limit to trust; grounds for refusal;
- Fundamental rights as the source of trust; legislation for human rights via adoption of minimum standards on
procedural rights in criminal proceedings;
- Fundamental rights as a source of trust via the development of uniform concepts.
Fundamental rights as the outcome of mutual trust: the case of ne bis in idem
Ne bis in idem has both a rule of law and a human rights function. The rule of law function arises from the need to achieve
legal certainty and finality with regard to state action in the field of criminal law. The human rights function arises from
the need to protect the rights of affected individuals and address the imbalance between individual rights and state power.
On the other hand, limitations to the ne bis in idem principle have been advocated as necessary in order to enhance trust to
the state as a security provider effectively delivering broader criminal justice objectives.
The question that is most important in addressing this problem is whether another state can enforce its criminal
law over the same individual for the same conduct, or whether it is precluded from doing so in order to safeguard legal
certainty and fundamental rights in an area without frontiers. The Court of Justice has been called to deal with these issues
in interpreting the scope of the ne bis in idem principle. The Court has interpreted the principle broadly, focusing on the
need to achieve a high degree of legal certainty in order to ensure free movement in a borderless AFSJ. The need to achieve
the effective enjoyment of free movement takes precedence over national priorities with regard to the delivery of criminal
justice.
Fundamental rights as limits to mutual trust: the case of the European Arrest Warrant
The construction of the AFSJ has intensified and justified an inter-state cooperation. This means that a national decision
will be enforced beyond the territory of the issuing Member State by authorities of the other EU Member States. The
method chosen to secure this automaticity has been the application of the principle of mutual recognition in the fields of
judicial cooperation in criminal matters.
Membership of the EU presumes the full respect of fundamental rights by all Member States, which creates mutual
trust. The best example of mutual recognition in these terms is the system of the Framework Decision on the European
Arrest Warrant. The legislative choice of this system reflects the view that cooperation can take place on the basis of a high
level of mutual trust in the criminal justice systems of Member States, premised upon the presumption that fundamental
rights are in principle respected fully across the EU.
In a consistent line of case law the Court of Justice has adopted a broad approach to mutual recognition, stressing
the need to achieve the effectiveness of the Framework Decision by ensuring that in principle mutual recognition takes
place in a speedy and simplified manner. The entry into force of the Treaty of Lisbon has added a further dimension to the
question the extent to which fundamental rights should be taken into account and form ground of refusal in a system of
mutual recognition based on mutual trust. The first case in the context was the Radu-case. The focus on the effective
operation of mutual recognition was repeated in the Melloni-case.
Fundamental rights as a source of mutual trust: harmonisation (the case of procedural rights)
Member State’s vision of the application of the principle of mutual recognition did not include a strong focus on the need
for the EU to accompany mutual recognition by a series of parallel measures to harmonise national legislation on criminal
procedure. The Commission’s proposal for a Framework Decision on procedural rights was not adopted by Member States.
This changed with the entry into force of the Lisbon Treaty, which accepts that mutual recognition must be accompanied
by a degree of harmonisation of criminal procedural law. Article 82(2)(b) TFEU confers upon the EU competence to adopt
minimum rules on the rights of individuals in criminal procedures. On the basis of this article, a number of measures have
been adopted (like a Directive on the right to access to a lawyer).
