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European Constitutional Law and Fundamental Rights > 10 - Fundamental Rights, Mutual Trust and European Criminal Law > Flashcards

10 - Fundamental Rights, Mutual Trust and European Criminal Law Flashcards

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1
Q

What does the field of EU criminal law remain mired by?

A

Tensions btwn EU and MS competences

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2
Q

What does this lecture explore? (3)

A

1/ instruments dvped at EU level to push for greater integration btwn MS criminal laws

2/ limits to this integration

3/ tension btwn cross-border cooperation in criminal matters and protection of FR

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3
Q

What are some of the instruments dvped at EU level to push for greater integration btwn MS criminal laws? (2)

A

1/ mutual recognition of decisions

2/ approximation of laws

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4
Q

What are some limits to integration of MS criminal laws? (2)

A

1/ ‘emergency-brake’ procedure

2/ opt-outs

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5
Q

Which are the 2 main provisions on the basis of which MS can adopt EU legislation in the field of criminal law?

A

Articles 82 and 83 TFEU (harmonisation of procedural and substantive aspects of criminal law, respectively)

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6
Q

Why was harmonising all MS criminal law systems not an option?

A

Criminal law touches upon a core point of sovereignty

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7
Q

What was dvped as an alternative to complete harmonisation of criminal law?

A

Cooperative system grounded on the pcple of mutual recognition of MS’ criminal systems and rules

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8
Q

What is the basic idea of mutual recognition in criminal law? (2)

A

1/ for judicial cooperation among MS to be possible, mutual recognition is necessary

2/ this requires MS to mutually recognise their judicial decisions at several stages of the criminal justice process

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9
Q

What is the starting point with respect to mutual recognition/trust in criminal law? (2)

A

1/ MS wish to enforce their prosecution decisions taken under national law beyond their borders and bring criminals back to them

2/ EAW permits this

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10
Q

Why is EAW system different from extradition systems under international law? (3)

A

1/ extradition under IL is usually a quite arduous process

2/ executing State has lot of discretion to scrutinise the prosecuting decision of issuing State

3/ this is not possible under EU law as EAW system is founded on automaticity of execution of prosecution decision from issuing MS

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11
Q

What is not possible under the EAW system and why? (2)

A

1/ executing MS cannot scrutinise issuing MS’ arrest warrant and must recognise it

2/ underlying rationale is mutual trust

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12
Q

What is mutual trust seen as in EU law?

A

Indispensable condition of mutual recognition (‘sine qua non’)

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13
Q

What is problematic with the principle of mutual trust in criminal law? (2)

A

1/ mutual trust btwn MS does not always exist in practice

2/ esp. the case with respect to application & implementation of FR

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14
Q

Why does mutual trust not always exist in practice? (2)

A

1/ different approach and application of FR in MS

2/ current rule of law crisis

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15
Q

What is a big question of EU law today?

A

Should FR considerations allow MS to refuse automaticity of pcple of mutual recognition?

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16
Q

How are framework decisions similar to directives?

A

They lay out objectives that MS transpose and implement in national systems, leaving some discretion to MS

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17
Q

How are framework decisions different from directives? (3)

A

1/ no direct effect

2/ CJEU jurisdiction is optional

3/ EC cannot enforce FDs via infringement proceedings

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18
Q

What are basic pcples of the FD on the EAW? (3)

A

1/ general idea of double criminality check

2/ cooperation within limited timeframe on the basis of a form annexed to the FD

3/ very limited grounds for refusal of execution, mainly procedural

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19
Q

What does double criminality check entail? (2)

A

1/ executing MS only has duty to surrender criminal if he is accused of an offence that is part of EU criminal law system

2/ there however exists an exception in Art. 2(2) FD

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20
Q

What does Article 2(2) FD codify? (4)

A

1/ exception to double criminality check

2/ includes a list of 32 offences on the basis of which it is not necessary to carry out the double criminality check

3/ when these offences are concerned, the executing MS must execute the EAW

4/ as such, this exception illustrates the operation of the pcple of mutual recognition

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21
Q

What does the limited timeframe for cooperation laid down in the EAW FD entail?

A

Limited possibilities for executing MS to take extensive scrutinising decisions or to question issuing MS’ requests

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22
Q

What, in particular, is not included as a ground allowing for the refusal to execute an EAW under the FD?

A

Non-compliance with FR

23
Q

What was legal difficulty that led to Melloni judgment? (2)

A

1/ FR standard with respect to right to a fair trial was higher in Spain than in Italy

2/ this made recognition of the Italian system and extradition of Mr. Melloni difficult

24
Q

What are the 3 steps of the CJEU’s reasoning in Melloni?

A

1/ looked at EAW FD, default rule of mutual recognition & exceptions

2/ looked at CFR, assessed compatibility of Art. 4a(1) FD with CFR (esp. Arts. 47 and 48(2))

3/ looked at Art. 53 CFR, assessed possibility to refuse execution of EAW bc level of protection in national constitutional law is higher than in another MS/EU law => not possible

25
Q

Detailed explanation of first step in Melloni? (4)

A

1/ default rule of FD is mutual recognition of EAWs

2/ Art. 4a(1) codifies an exception for decisions taken in absentia

3/ exception of Art. 4a(1) applies only if the person was unaware that the trial took place

4/ Mr. Melloni sent lawyers to the Italian court so he was aware of the trial => exception does not apply

26
Q

Detailed explanation of second step in Melloni? (3)

A

1/ question whether Art. 4a(1) FD is compatible with the CFR, esp. Arts. 47 and 48(2)

2/ right to a fair trial is not absolute and can be waived by the accused at his own free will, as long as he was informed of the date and place of trial

3/ Art/ 4a(1) FD and the level of protection of the right to a fair trial it codifies are in line with CFR

27
Q

Detailed explanation of third step in Melloni? (2)

A

1/ question about interpretation of Art. 53 CFR which protects the levels of FR protection laid down in MS’ constitutional provisions

2/ supremacy of EU law: Art. 53 cannot be interpreted as allowing MS to refuse the execution of an EAW if this goes against the level of protection of FR granted by their constitution

28
Q

From which point of view did the CJEU act in Melloni? (2)

A

1/ from a constitutional point of view

2/ placed level of protection of FR as derived from CFR on apex of EU constitutional order

29
Q

How was the Melloni judgment interpreted?

A

As CJEU giving juge discretion to EU legislator

30
Q

What are counter-arguments to the ‘maximalist’ approach adopted by the CJEU in Melloni? (3)

A

1/ in practice, EU law has not taken such a maximalist approach to mutual recognition pcple

2/ after Lisbon, harmonisation measures for example explicitly allowed MS to scrutinise FR rights of issuing MS

3/ Articles 82 and 83 TFEU were inserted after Lisbon and have been used to attenuate maximalist position regarding mutual recognition

31
Q

Which measures have for example been adopted under Article 82 TFEU so as to attenuate maximalist approach to mutual recognition? (2)

A

1/ Directive on European Investigation Order

2/ Directives harmonising several procedural rights

32
Q

What has the use of Article 82 TFEU led to? (3)

A

1/ the adoption of self-standing EU HR in the realm of criminal procedure

2/ this displays a fundamental paradigm shift in EU criminal law

3/ instead of systemic automaticity of mutual recognition, we now witness an emphasis on the rights of individuals affected by the mutual recognition system

33
Q

What pbs currently exist within the EU despite the small paradigm shift in the realm of criminal law? (2)

A

1/ different levels of protection in FR standards btwn MS

2/ accusations that some MS do not comply with FR at all, even at a minimal level (cf rule of law crisis)

34
Q

What was main question at stake in Aranyosi?

A

Could a MS refuse to execute an EAW on the ground that the criminals would face inhuman and degrading treatment in their home MS?

35
Q

What did CJEU introduce in the Aranyosi case?

A

A 2-step approach to assess whether executing MS may refuse to execute EAW

36
Q

What does the 2-step approach in Aranyosi consist of?

A

1/ if evidence that there is a risk of IDT, judicial authority of executing MS must assess existence of this risk by taking into account the standard of protection of FR as guaranteed in the CFR

2/ then, this judicial authority must examine whether there are ‘substantial grounds to believe that the individual will be exposed to that risk’

37
Q

What is another striking point of the Aranyosi ruling?

A

The Court held that the execution of the EAW can be delayed but never annulled

38
Q

What is new for EU criminal law with the Aranyosi case?

A

CJEU introduces a test by which it is necessary to look at the individual situation of the criminal, shifting from the maximalist approach to mutual recognition

39
Q

What are the 3 steps of the Article 7 TEU procedure?

A

1/ 4/5 Council members can declare there is a ‘clear risk of a serious breach’ of EU values

2/ unanimity of European Council can decide there is a ‘serious and persistent breach’ of EU values

3/ QMV in Council can lead to suspension of certain rights of MS

40
Q

What is main contribution of LM case? (2)

A

1/ CJEU held that Recital 10 of FD on EAW can only be applied if the 1st and 2nd steps of the Article 7 TEU procedure are taken

2/ as such, judicial authority of executing MS must carry out 2 steps of Aranyosi test before it may refuse execution of EAW

41
Q

Why is the LM case interesting here? (2)

A

1/ It shows the CJEU is only willing to derogate from the mutual recognition system to a certain extent,

2/ maintaining pcples of mutual recognition and trust even in situations where there are rule of law issues in a MS

42
Q

How can mutual recognition within the field of EU criminal law be approached? (2)

A

1/ integration without harmonisation

2/ leaves the MS’ criminal systems intact

43
Q

What have the Aranyosi and LM cases set?

A

Limits to mutual recognition

44
Q

What is the default rule of the EAW FD? (3)

A

1/ Article 1(2)

2/ MS shall execute EAW

3/ basis: pcple of mutual recognition

45
Q

Which articles of the EAW FD are relevant to determine its scope? (3)

A

1/ Article 2(1) - absolute threshold provision

2/ Article 2(2) - prohibition to check double criminality

3/ Article 2(4) - possibility to condition surrender to existence of double criminality

46
Q

Requirements of Article 2(1) EAW FD? (3)

A

1/ checking of double criminality necessary

2/ for acts punishable by a custodial sentence/detention order of max 1 year

3/ where sentence/detention order already made, for sentence of 4 months at least

47
Q

Requirements of Article 2(2) EAW FD? (3)

A

1/ prohibition to check double criminality

2/ if offence figures among the listed offences

3/ 3 years sentence max

48
Q

Requirements Article 2(4) EAW FD? (3)

A

1/ covers all additional offences not covered by Article 2(2)

2/ checking of double criminality allowed

3/ if there is double criminality, individual will have to be surrendered

49
Q

What are exceptions to the rule of mutual recognition within the EAW FD? (5)

A

1/ Article 3 - mandatory non-execution

2/ Article 4 - optional non-execution

3/ Article 4a - decisions rendered in absentia

4/ Article 5 - execution EAW subject to certain guarantees given by issuing MS

5/ Article 1(3) - respect FR

50
Q

What are the 3 cases of mandatory non-execution of EAWs?

A

1/ amnesty

2/ ne bis in idem

3/ too young

51
Q

Elements related to the obligation to respect FR when executing EAW? (2)

A

1/ Recital 10 EAW FD on the Article 7 TEU procedure

2/ Aranyosi and LM cases - limits to mutual recognition

52
Q

Which paragraph of the Melloni case is key? (4)

A

1/ para 60

2/ national bodies remain free to apply national standards of protection of FR when implementing EU law

BUT

3/ level of protection provided for by CFR must not be compromised

4/ primacy, unity and effectiveness of EU law also must not be compromised

53
Q

Main conclusion in Melloni regarding Article 53 CFR?

A

Article 53 CFR does not grant MS a carte blanche to apply their own constitutional provisions where these provisions provide for a higher level of protection

European Constitutional Law and Fundamental Rights (10 decks)

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