Suchergebnisse

Abstract
The principle of mutual trust between Member States is key to the functioning of European Union (EU) law. Rooted in sincere cooperation and equality of the Union's States, that principle is premised on compliance with shared values, interests, and rules. This fosters close cooperation in many areas, such as law enforcement, as exemplified by the European Arrest Warrant Framework Decision (EAW FD). Outside the Union, the presumption is that the principle of mutual trust does not apply. This seems confirmed by the case law on the extradition of EU citizens, with the EU Court of Justice (ECJ) prioritizing intra-EU cooperation over forced transfer of Union nationals to the requesting third countries. As the EU has developed a sophisticated network of relationships with its partners, and neighbours especially, the question arises as to when, if at all, third countries can be trusted, and when that trust can be challenged. By using the benchmark of EU membership as the standard of legal proximity, this article analyses the EU's relationship with some of its neighbours in cases of extradition. The article creates an analytical framework to tackle unanswered questions around mutual trust and cooperation in criminal matters, and to read into the future of the legal relationship between the EU and some third countries.

The adage is that the European Arrest Warrant (EAW) is built on the principle of mutual trust: the presumption that Member States comply with fundamental rights save in exceptional circumstances. However, the very existence of the EAW rests on the proper interpretation and application of fundamental rights standards, and on sincere cooperation between judicial authorities.With that in mind, the present article gives a systemic analysis of the EAW. After outlining the key features of its functioning, the paper discusses the system of exceptions to surrender: mandatory and optional grounds for refusal in the EAW Framework Decision (FD), the fundamental rights exception, and cases of invalidity. As the EAW is based on automaticity, the exceptions define the traits of its identity. The article's conclusions reveal the importance of sincere cooperation to strengthen mutual trust, with judicial independence as an essential precondition. The article's comprehensive assessment offers an original contribution to the debate about judicial independence in EU law, the operation of the EAW and its role in the wider context of the Union as a legal order.

Se discute el surgimiento de un sistema de justicia penal en múltiples niveles en la UE y el papel de los conflictos constitucionales resultantes de ello. Inspirándose en la contribución de Paolo Carrozza sobre el papel perdurable de Hans Kelsen, el documento analiza la ampliación de las competencias de la UE en Derecho penal para perseguir la eficacia de las políticas europeas.Recibido: 11 mayo 2019Aceptado: 21 junio 2019Publicación en línea: 31 julio 2019

In recent years, detention conditions in the EU have come in the spotlight as an issue of extreme relevance. Concerns about appalling standards of living in places of deprivation of liberty have emerged transversally in the area of freedom, security and justice (AFSJ). The risk that poor detention conditions result in inhumane or degrading treatment – prohibited by Article 4 of the EU Charter of Fundamental Rights (CFREU) – has served to limit the operation of secondary EU law. This has occurred in the framework of forced movement of persons as between Member States, and has mainly called into question the level of protection ensured in the State where the person will be transferred. This may hold true for both asylum law and mutual recognition in criminal matters. While the broader debate on detention conditions has hitherto focused on Article 4, the impact on the right to liberty under Article 6 CFREU has been underexplored. This paper submits that detention conditions must be studied from the perspective of the right to liberty, and makes the case for approximation of detention conditions at EU law level.

This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.