Abstract
One of the objectives of the European Union is to offer its citizens an Area of Freedom, Security and Justice with respect for fundamental rights and the legal traditions of the Member States. In this respect, the principle of mutual recognition in criminal matters plays an essential role because it facilitates cooperation between judicial authorities involved in criminal proceedings while respecting the differences between legal systems. The principle directly binds judicial authorities in the EU in order to ensure the free movement of judicial decisions, such as arrest warrants or convictions, by contrast to traditional mutual legal assistance binding governments on the basis of reciprocity.
This book is the result of a research project co-financed by the European Commission (Call JUST/2014/ACTION GRANTS) and taking place in five EU Member States (Italy, Poland, Romania, Sweden and the Netherlands). The project focuses on three instruments that implement the principle of mutual recognition in criminal matters:
a) the European Arrest Warrant (EAW),
b) the Framework Decision on Transfer of Prisoners (FD 2008/909) and
c) the Framework Decision on judgments and probation decisions (FD 2008/947).
Mutual recognition in the EAW, FD 2008/909, and FD 2008/947 facilitates cooperation between Member States´ authorities in their dealings with transnational crime in the AFSJ by allowing for: (i) a simplified system of surrender of sentenced or suspected persons with a view to criminal prosecution or the execution of a custodial sentence; (ii) the recognition of a sentenced person’s judgment and the enforcement of the concomitant sentence; and (iii) the provision of suitable probation measures and alternative sanctions for sentenced persons who do not reside in the sentencing Member State.
These instruments have in common, besides mutual recognition, that they can have the effect of (almost) automatically transferring individuals from one country to another. This research limits its scope to the effects of these instruments on persons who have been subject to a decision on their conviction. The transfer can only be refused in specific situations where one of the exhaustively listed ground for non-execution applies.
In most cases, mutual recognition of decisions in criminal matters has coercive effects for the convicted person. Therefore, mutual recognition must take due account of the rights of this person and should not have the effect of undermining these rights. The necessity to ensure an adequate level of fundamental rights protection is essential in a polity governed by the rule of law and must be the cornerstone of an Area of Freedom, Security and Justice. The protection of the individuals’ fundamental rights must be guaranteed at both the EU and the Member States levels. Nevertheless, in the European Union, the control of individuals fundamental rights in the context of mutual recognition is limited by the mutual trust that judicial authorities ought to have in their foreign counterparts. Hence mutual recognition and mutual trust are two interdependent principles. The first is possible because it is presumed that the second exists. As a consequence of this trust, the instruments subject of the present book do not provide for a general ground to refuse the transfer of a convicted person based on a violation of that person’s fundamental rights.
In the internal market, it has been contended that the principle of mutual recognition implies a certain amount of trust between competent authorities in the different legal systems. The same applies in the EU judicial area where rights and freedom of individuals are particularly at stake: “mutual trust is the bedrock upon which EU justice policy should be built.” One of the crucial requirements for mutual trust is the respect of the rule of law, and in particular, of citizens’ fundamental rights throughout the EU. As ruled by the CJEU in its Opinion 2/13 on the Draft Agreement concerning the Accession of the EU to the ECHR: “it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.” Consequently, Member States “may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.” In particular, all the Member States are bound by the Charter of Fundamental Rights (CFR) and are party to the European Convention of Human Rights (ECHR). Moreover, the EU legal system offers several legal mechanisms – such as the doctrine of (in)direct effect or direct and indirect judicial remedies – aiming at guaranteeing an effective judicial protection of the individual’s rights.
This being said, differences in the protection of fundamental rights in criminal proceedings between legal systems remain important. Differences can exist in the level of protection, but more worrisome are the differences caused by the failure of a Member State to adequately safeguards individuals’ rights. Mutual trust, and consequently judicial cooperation and mutual recognition, is undermined if a EU Member State does not ensure a level playing field for the protection of these rights at all stages of criminal proceedings. When it comes to the issue of transfer of convicted persons in particular, one cannot hide the existence of major differences between countries with regard to the conditions of detention in certain facilities. Such differences can considerably affect prisoners in operation of inter-state cooperation implying their transfer between states, but also undermine the Union policy on judicial cooperation in criminal matters as a whole. Even if the EU strives to enhance the mutual trust between Member States, in particular, through the adoption of directives on procedural rights, practice shows that this trust is also weakened in operations of mutual recognition implying the transfer of persons in the AFSJ especially because of the disastrous conditions of detention in certain Member States.
Indeed, in the light of the Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen (Aranyosi and Căldăraru) it has been shown that the presumption of mutual trust between Member States can be rebutted if detention conditions amount to torture or degrading treatment in violation of article 3 ECHR and 4 CFR. Consequently, national authorities cannot accept as such requests to recognize and enforce judicial decisions made by their foreign counterparts if this would entail a violation of this fundamental right. To what extent precisely judicial authorities bound by mutual recognition should refrain to surrender a convicted person remains however unclear. The CJEU indeed does not and cannot (otherwise it would violate the principle of separation of powers) ‘create’ an additional grounds for non-execution of the mutual recognition requests to transfer a convicted person. Nonetheless, it cannot be excluded that, de facto, a judicial authority could put an end to a proceedings of transfer. The CJEU also acknowledges this. The EU will inevitably have to take account of these developments. In order to guide the future EU legislation in particular, it is essential to research how the Member States have received this case law of the CJEU and how they implement it. That is one of the purpose of the present book.
In addition, and from a more predictive viewpoint, although there is no case law on the matter yet, the same question may extend to other fundamental rights than the prohibition of torture and degrading treatment. The case law of the European Court of Human Rights (ECrtHR) is here relevant. In the recent Avotins v. Latvia judgment the General Chamber of the ECrtHR has ruled that when implementing mutual recognition a Member States must be able to check whether the protection of the rights guaranteed by the ECHR by its EU counterpart is not manifestly deficient. The wording of this case law seems in strong contrast with the test of the CJEU in its Opinion 2/13 and Aranyosi and Căldăraru joined cases that allows for a rebuttal of mutual trust only in exceptional circumstances, that up until now, are solely characterized by the respect of article 4 CFR and 3 ECHR, and more generally, in absolute rights linked to the protection of human dignity. The research reported in this book offers a view on how Member States approach this apparent contradiction in their international obligations. On the one hand, Member States are bound by EU law, but on the other hand they are also bound to respect the ECHR and the case law of the ECrtHR.
One can contend that mutual trust, as a precondition of mutual recognition not only justifies but also mitigates the implementation of the latter. If a Member State is not satisfied that the fundamental rights of a prisoner have been or will be fully respected in operation of transfer commanded by EU instruments implementing mutual recognition, then the trust between these Member States is undermined. One of the fundamental questions posed here is the extent to which the operability of mutual recognition can be affected by a lack of trust between judicial authorities. Again, this question extends beyond the material scope of this research. Therefore, the findings of the latter are in general essential for the future of mutual recognition in the field of criminal law.
In particular and in addition to the rights protected by article 3 ECHR and 4 CFR, two fundamental rights have been identified as relevant in this context. The research discusses whether the current Union policy protecting the fundamental rights of citizens in the context of mutual recognition in criminal matters, including its implementation and enforcement in the Member States, actually address the concerns of individuals in an Area of Freedom, Security and Justice founded on the Rule of Law and the respect of fundamental rights. There the research focuses on the right to a fair trial as implemented in the procedural directives. Finally, the right to private and family life may obviously pose problems in terms of trust in the context of transfer of convicted persons that is why it has been added to the project.
As has been said, the research concentrates on post-trial situations and, therefore, on mutual recognition of judgments of conviction, so it will look into the fundamental right’s violations that:
- May have occurred in the issuing state during the proceedings that ended with the judgment of conviction and that may have an impact on the decision to recognize this judgment by the judicial authority of the executing state (past violations). In other words, the question posed here is whether a past violation of a fundamental right of the person subject of mutual recognition can limit the obligation of the executing state to mutually recognize. In particular, the right to have a fair trial and prohibition of degrading treatment and torture may be at issue;
- May occur in the executing state during the proceedings leading to the recognition of a judgment of conviction (present violations). In particular, the research will address the rights protected in Directives 2010/64, 2012/13 and 2013/48. The question posed here, is whether a violation of the Directives can limit the obligation to mutually recognize;
- May occur in the future in the state where the judgment of conviction will be carried out (future violations). In particular, prohibition of degrading treatment and torture, the right to a fair trial and possibly the right to family life will be at issue. The question posed here is whether a possible violation of fundamental right that an individual may encounter in the country where the judgment of conviction will be carried out can limit the obligation to mutually recognize.
This book is the result of a research project co-financed by the European Commission (Call JUST/2014/ACTION GRANTS) and taking place in five EU Member States (Italy, Poland, Romania, Sweden and the Netherlands). The project focuses on three instruments that implement the principle of mutual recognition in criminal matters:
a) the European Arrest Warrant (EAW),
b) the Framework Decision on Transfer of Prisoners (FD 2008/909) and
c) the Framework Decision on judgments and probation decisions (FD 2008/947).
Mutual recognition in the EAW, FD 2008/909, and FD 2008/947 facilitates cooperation between Member States´ authorities in their dealings with transnational crime in the AFSJ by allowing for: (i) a simplified system of surrender of sentenced or suspected persons with a view to criminal prosecution or the execution of a custodial sentence; (ii) the recognition of a sentenced person’s judgment and the enforcement of the concomitant sentence; and (iii) the provision of suitable probation measures and alternative sanctions for sentenced persons who do not reside in the sentencing Member State.
These instruments have in common, besides mutual recognition, that they can have the effect of (almost) automatically transferring individuals from one country to another. This research limits its scope to the effects of these instruments on persons who have been subject to a decision on their conviction. The transfer can only be refused in specific situations where one of the exhaustively listed ground for non-execution applies.
In most cases, mutual recognition of decisions in criminal matters has coercive effects for the convicted person. Therefore, mutual recognition must take due account of the rights of this person and should not have the effect of undermining these rights. The necessity to ensure an adequate level of fundamental rights protection is essential in a polity governed by the rule of law and must be the cornerstone of an Area of Freedom, Security and Justice. The protection of the individuals’ fundamental rights must be guaranteed at both the EU and the Member States levels. Nevertheless, in the European Union, the control of individuals fundamental rights in the context of mutual recognition is limited by the mutual trust that judicial authorities ought to have in their foreign counterparts. Hence mutual recognition and mutual trust are two interdependent principles. The first is possible because it is presumed that the second exists. As a consequence of this trust, the instruments subject of the present book do not provide for a general ground to refuse the transfer of a convicted person based on a violation of that person’s fundamental rights.
In the internal market, it has been contended that the principle of mutual recognition implies a certain amount of trust between competent authorities in the different legal systems. The same applies in the EU judicial area where rights and freedom of individuals are particularly at stake: “mutual trust is the bedrock upon which EU justice policy should be built.” One of the crucial requirements for mutual trust is the respect of the rule of law, and in particular, of citizens’ fundamental rights throughout the EU. As ruled by the CJEU in its Opinion 2/13 on the Draft Agreement concerning the Accession of the EU to the ECHR: “it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law.” Consequently, Member States “may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.” In particular, all the Member States are bound by the Charter of Fundamental Rights (CFR) and are party to the European Convention of Human Rights (ECHR). Moreover, the EU legal system offers several legal mechanisms – such as the doctrine of (in)direct effect or direct and indirect judicial remedies – aiming at guaranteeing an effective judicial protection of the individual’s rights.
This being said, differences in the protection of fundamental rights in criminal proceedings between legal systems remain important. Differences can exist in the level of protection, but more worrisome are the differences caused by the failure of a Member State to adequately safeguards individuals’ rights. Mutual trust, and consequently judicial cooperation and mutual recognition, is undermined if a EU Member State does not ensure a level playing field for the protection of these rights at all stages of criminal proceedings. When it comes to the issue of transfer of convicted persons in particular, one cannot hide the existence of major differences between countries with regard to the conditions of detention in certain facilities. Such differences can considerably affect prisoners in operation of inter-state cooperation implying their transfer between states, but also undermine the Union policy on judicial cooperation in criminal matters as a whole. Even if the EU strives to enhance the mutual trust between Member States, in particular, through the adoption of directives on procedural rights, practice shows that this trust is also weakened in operations of mutual recognition implying the transfer of persons in the AFSJ especially because of the disastrous conditions of detention in certain Member States.
Indeed, in the light of the Joined Cases C-404/15 and C-659/15 PPU Pál Aranyosi and Robert Căldăraru v Generalstaatsanwaltschaft Bremen (Aranyosi and Căldăraru) it has been shown that the presumption of mutual trust between Member States can be rebutted if detention conditions amount to torture or degrading treatment in violation of article 3 ECHR and 4 CFR. Consequently, national authorities cannot accept as such requests to recognize and enforce judicial decisions made by their foreign counterparts if this would entail a violation of this fundamental right. To what extent precisely judicial authorities bound by mutual recognition should refrain to surrender a convicted person remains however unclear. The CJEU indeed does not and cannot (otherwise it would violate the principle of separation of powers) ‘create’ an additional grounds for non-execution of the mutual recognition requests to transfer a convicted person. Nonetheless, it cannot be excluded that, de facto, a judicial authority could put an end to a proceedings of transfer. The CJEU also acknowledges this. The EU will inevitably have to take account of these developments. In order to guide the future EU legislation in particular, it is essential to research how the Member States have received this case law of the CJEU and how they implement it. That is one of the purpose of the present book.
In addition, and from a more predictive viewpoint, although there is no case law on the matter yet, the same question may extend to other fundamental rights than the prohibition of torture and degrading treatment. The case law of the European Court of Human Rights (ECrtHR) is here relevant. In the recent Avotins v. Latvia judgment the General Chamber of the ECrtHR has ruled that when implementing mutual recognition a Member States must be able to check whether the protection of the rights guaranteed by the ECHR by its EU counterpart is not manifestly deficient. The wording of this case law seems in strong contrast with the test of the CJEU in its Opinion 2/13 and Aranyosi and Căldăraru joined cases that allows for a rebuttal of mutual trust only in exceptional circumstances, that up until now, are solely characterized by the respect of article 4 CFR and 3 ECHR, and more generally, in absolute rights linked to the protection of human dignity. The research reported in this book offers a view on how Member States approach this apparent contradiction in their international obligations. On the one hand, Member States are bound by EU law, but on the other hand they are also bound to respect the ECHR and the case law of the ECrtHR.
One can contend that mutual trust, as a precondition of mutual recognition not only justifies but also mitigates the implementation of the latter. If a Member State is not satisfied that the fundamental rights of a prisoner have been or will be fully respected in operation of transfer commanded by EU instruments implementing mutual recognition, then the trust between these Member States is undermined. One of the fundamental questions posed here is the extent to which the operability of mutual recognition can be affected by a lack of trust between judicial authorities. Again, this question extends beyond the material scope of this research. Therefore, the findings of the latter are in general essential for the future of mutual recognition in the field of criminal law.
In particular and in addition to the rights protected by article 3 ECHR and 4 CFR, two fundamental rights have been identified as relevant in this context. The research discusses whether the current Union policy protecting the fundamental rights of citizens in the context of mutual recognition in criminal matters, including its implementation and enforcement in the Member States, actually address the concerns of individuals in an Area of Freedom, Security and Justice founded on the Rule of Law and the respect of fundamental rights. There the research focuses on the right to a fair trial as implemented in the procedural directives. Finally, the right to private and family life may obviously pose problems in terms of trust in the context of transfer of convicted persons that is why it has been added to the project.
As has been said, the research concentrates on post-trial situations and, therefore, on mutual recognition of judgments of conviction, so it will look into the fundamental right’s violations that:
- May have occurred in the issuing state during the proceedings that ended with the judgment of conviction and that may have an impact on the decision to recognize this judgment by the judicial authority of the executing state (past violations). In other words, the question posed here is whether a past violation of a fundamental right of the person subject of mutual recognition can limit the obligation of the executing state to mutually recognize. In particular, the right to have a fair trial and prohibition of degrading treatment and torture may be at issue;
- May occur in the executing state during the proceedings leading to the recognition of a judgment of conviction (present violations). In particular, the research will address the rights protected in Directives 2010/64, 2012/13 and 2013/48. The question posed here, is whether a violation of the Directives can limit the obligation to mutually recognize;
- May occur in the future in the state where the judgment of conviction will be carried out (future violations). In particular, prohibition of degrading treatment and torture, the right to a fair trial and possibly the right to family life will be at issue. The question posed here is whether a possible violation of fundamental right that an individual may encounter in the country where the judgment of conviction will be carried out can limit the obligation to mutually recognize.
Original language | English |
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Place of Publication | Oisterwijk |
Publisher | Wolf Legal Publishers |
Number of pages | 464 |
Publication status | Published - 2018 |