Suchergebnisse

Cover -- Title Page -- Foreword -- Acknowledgements -- Contents -- Table of Cases -- Table of Legislation -- Introduction -- Research Questions -- Findings and Arguments -- Scope -- Choice of Instruments -- Structure -- 1. Mutual Recognition: From Passive to Active Recognition -- Introduction -- Overview of the Area of Freedom, Security and Justice -- Origins of Mutual Recognition -- Transfer of Mutual Recognition to the Area of Freedom, Security and Justice -- Typology and Operation of Mutual Recognition -- Development of Mutual Recognition -- Models of Mutual Recognition -- From a Passive to an Active Model of Mutual Recognition -- Seeking Equivalence and a Role for Proportionality? -- Conclusion -- 2. Mutual Trust: From Blind to Gained Trust -- Introduction -- Mutual Trust in the Framework Decision on the European Arrest Warrant -- Mutual Trust in the Dublin III Regulation -- Evolution of Trust -- Blind Trust -- The FDEAW -- Dublin System -- Qualified System of Trust -- Trust Based on Individual Assessment? -- Age of Distrust? -- Brexit and Distrust -- Rule of Law Crisis and Mutual Trust -- ECtHR Threshold: Flagrant Denial of Justice -- Criticism and Commentary -- Grounds for Pragmatic Earned Trust -- Conclusion -- 3. Deconstructing Proportionality -- Introduction -- Early Philosophical Foundations -- Emergence of a Legal Doctrine -- Structure of the Proportionality-based Analysis -- Legitimate Objective -- Suitability and Necessity -- Challenges and Limits -- Proportionality in EU Law -- Conclusion -- 4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack -- Introduction -- Protection of Victims in Criminal Proceedings Case Law -- European Arrest Warrant Case Law -- Kozłowski -- I.B. -- Leyman -- Wolzenburg -- Lopes Da Silva -- Jeremy F -- Radu -- Melloni -- Aranyosi and Căldăraru -- LM and the Essence of the Rights -- Remarks.

This article examines the evolving relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice. The ECJ has long prioritized the effectiveness of instruments based on mutual trust through an unimpeded system of mutual recognition. Arguments based on a violation of fundamental rights were taken to contradict the presumption of compliance, refute mutual trust, and hinder automatic mutual recognition. The ECJ has now accepted, both in criminal and asylum law, that the presumption of compliance is not conclusive and mutual trust is not blind. The article observes an emergent, but carefully controlled dynamic of rights-based assessment through case-by-case analysis, illustrating three phases of mutual trust, but argues that this dynamic is slow, unclear and inadequate. It suggests that national authorities should take a proactive role, promoting real and constructive relationships of trust, allowing an individual assessment of rights violations via rights-based review. The latter is based on a proper understanding of trust, as an evolving concept based on evidence. Respect for rights, terminological clarity, enhanced judicial communication, and acknowledgment of shared values are the way forward.

"This book explores the relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice (AFSJ) of the European Union and asks whether there is any role for proportionality. Mutual trust among Member States has long been presumed by the Court in a manner that mutual recognition was prioritised in regard to, but to the detriment of, the protection of fundamental rights. After thoroughly reviewing this relationship, this book offers a comprehensive framework of proportionality and explores its impact on the protection of fundamental rights in a mutual trust environment. It applies a theoretical and a normative framework of proportionality to two case studies (EU criminal and asylum law) by reference to several fundamental rights, enabling a carefully constructed analysis with useful parallels. The book argues that such analysis, based on proportionality, is not always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores its impact on the protection of fundamental rights vis--̉vis mutual trust."--