On a Collision Course! Mutual Recognition, Mutual Trust and the Protection of Fundamental Rights in the Recent Case-law of the Court of Justice

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Table of Contents: I. Introduction. – II. Mutual recognition and mutual trust: unattainable stars in the sky? – III. Set on a collision course: the limits of mutual recognition and mutual trust. – IV. Meteor approaching! Fundamental rights and the European arrest warrant. – V. Set on a collision course: from N.S. to the recent case-law on fundamental rights and the execution of a European arrest warrant. – V.1. Overcoming mutual trust in exceptional situations: N.S. – V.2. Collision ahead! Mutual recognition, detention conditions and inhuman and degrading treatments. – VI. Towards a post-collision order? Practical implications of the revised balance between mutual recognition, mutual trust and fundamental rights protection. – VI.1. A new ground for postponing (and, as a last resort, abandoning) execution. – VI.2. Systemic deficiencies, individual violations? – VI.3. Are certain rights more equal than others? The scope of application of the new ground for postponing/abandoning execution. – VI.4. Objective, reliable, specific and properly updated information: demonstrating the serious risk of a violation of a fundamental right. – VII. Strengthening fundamental rights protection in the EU: the structural implications of the post-collision order. – VII.1. Mutual recognition, mutual trust and the empowerment of national judicial authorities: a new paradigm? – VII.2. Mutual trust and the standard of protection of fundamental rights.

Abstract: This article focuses on the balance between mutual recognition in criminal matters, mutual trust and the protection of fundamental rights, in the light of the recent case-law of the Court of Justice. Mutual trust implies a presumption that the Member States adequately protect fundamental rights. However, this presumption is rebuttable. Mutual trust is not blind and mutual recognition is not automatic. Besides the grounds for refusal of a request for judicial cooperation codified in EU secondary law, the Court identifies a new general limit to mutual recognition and mutual trust. These principles are barred in exceptional situations, in the event a systemic flaw leads to a serious risk of a manifest violation of the Charter. The article contends that even individual serious infringements can amount to precluding the obligation to cooperate incumbent upon the Member States. This approach marks a twofold shift of paradigm. Firstly, it strengthens the European Union’s role as a fundamental rights promoter. Secondly, it empowers national authorities, that are entitled to verify whether other Member States properly respect their obligation to protect the rights enshrined in the Charter. Rather than focusing on theoretical containment of distrust, the EU strengthens mutual trust by the means of a more effective protection of fundamental rights.

Keywords: mutual recognition – mutual trust – European arrest warrant – fundamental rights – refusal of execution – systemic deficiencies.

European Papers, Vol. 1, 2016, No 3, pp. 965-996
2499-8249 - doi: 10.15166/2499-8249/113

* Researcher in EU Law, University of Torino, stefano.montaldo@unito.it.



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