Rebuttal of Mutual Trust and Mutual Recognition in Criminal Matters: Is ‘Exceptional’ Enough?

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Table of Contents: I. Introduction. – II. The conditionality of mutual trust in EU criminal law. – II.1. From presumption to conditionality. – II.2. The fundamental right’s condition for mutual trust in criminal matters. – II.3. Condition without control? – III. “Trust is good, control is better”: the judicial refutability of mutual trust. – IV. Avotiņš v. Aranyosi: clash of titans? – V. Conclusions.

Abstract: The CJEU has recently found that mutual trust in the European Union is one of the principles relating to the constitutional structure of the Union. The principle is of fundamental importance in the construction of an Area of Freedom, Security and Justice (AFSJ) that includes judicial cooperation in criminal matters based on mutual recognition of judicial decisions. This contribution tries to clarify what the meaning and scope of mutual trust in criminal matters is. It discusses the following questions: What are the conditions for mutual trust to exist? What are the consequences of a lack of trust on judicial cooperation? It also puts the principle into the broader perspective of the European Convention on Human Rights system.

Keywords: mutual trust – mutual recognition – fundamental rights – area of freedom, security and justice – European arrest warrant – equivalent protection.

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European Papers, Vol. 1, 2016, No 3, pp. 943-963
ISSN
2499-8249 - doi: 10.15166/2499-8249/112

* Assistant Professor, Utrecht University, t.p.marguery@uu.nl.

 

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