10 - Fundamental Rights, Mutual Trust and European Criminal Law Flashcards
What does the field of EU criminal law remain mired by?
Tensions btwn EU and MS competences
What does this lecture explore? (3)
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
What are some of the instruments dvped at EU level to push for greater integration btwn MS criminal laws? (2)
1/ mutual recognition of decisions
2/ approximation of laws
What are some limits to integration of MS criminal laws? (2)
1/ ‘emergency-brake’ procedure
2/ opt-outs
Which are the 2 main provisions on the basis of which MS can adopt EU legislation in the field of criminal law?
Articles 82 and 83 TFEU (harmonisation of procedural and substantive aspects of criminal law, respectively)
Why was harmonising all MS criminal law systems not an option?
Criminal law touches upon a core point of sovereignty
What was dvped as an alternative to complete harmonisation of criminal law?
Cooperative system grounded on the pcple of mutual recognition of MS’ criminal systems and rules
What is the basic idea of mutual recognition in criminal law? (2)
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
What is the starting point with respect to mutual recognition/trust in criminal law? (2)
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
Why is EAW system different from extradition systems under international law? (3)
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
What is not possible under the EAW system and why? (2)
1/ executing MS cannot scrutinise issuing MS’ arrest warrant and must recognise it
2/ underlying rationale is mutual trust
What is mutual trust seen as in EU law?
Indispensable condition of mutual recognition (‘sine qua non’)
What is problematic with the principle of mutual trust in criminal law? (2)
1/ mutual trust btwn MS does not always exist in practice
2/ esp. the case with respect to application & implementation of FR
Why does mutual trust not always exist in practice? (2)
1/ different approach and application of FR in MS
2/ current rule of law crisis
What is a big question of EU law today?
Should FR considerations allow MS to refuse automaticity of pcple of mutual recognition?
How are framework decisions similar to directives?
They lay out objectives that MS transpose and implement in national systems, leaving some discretion to MS
How are framework decisions different from directives? (3)
1/ no direct effect
2/ CJEU jurisdiction is optional
3/ EC cannot enforce FDs via infringement proceedings
What are basic pcples of the FD on the EAW? (3)
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
What does double criminality check entail? (2)
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
What does Article 2(2) FD codify? (4)
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
What does the limited timeframe for cooperation laid down in the EAW FD entail?
Limited possibilities for executing MS to take extensive scrutinising decisions or to question issuing MS’ requests
What, in particular, is not included as a ground allowing for the refusal to execute an EAW under the FD?
Non-compliance with FR
What was legal difficulty that led to Melloni judgment? (2)
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
What are the 3 steps of the CJEU’s reasoning in Melloni?
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
Detailed explanation of first step in Melloni? (4)
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
Detailed explanation of second step in Melloni? (3)
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
Detailed explanation of third step in Melloni? (2)
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
From which point of view did the CJEU act in Melloni? (2)
1/ from a constitutional point of view
2/ placed level of protection of FR as derived from CFR on apex of EU constitutional order
How was the Melloni judgment interpreted?
As CJEU giving juge discretion to EU legislator
What are counter-arguments to the ‘maximalist’ approach adopted by the CJEU in Melloni? (3)
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
Which measures have for example been adopted under Article 82 TFEU so as to attenuate maximalist approach to mutual recognition? (2)
1/ Directive on European Investigation Order
2/ Directives harmonising several procedural rights
What has the use of Article 82 TFEU led to? (3)
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
What pbs currently exist within the EU despite the small paradigm shift in the realm of criminal law? (2)
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)
What was main question at stake in Aranyosi?
Could a MS refuse to execute an EAW on the ground that the criminals would face inhuman and degrading treatment in their home MS?
What did CJEU introduce in the Aranyosi case?
A 2-step approach to assess whether executing MS may refuse to execute EAW
What does the 2-step approach in Aranyosi consist of?
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’
What is another striking point of the Aranyosi ruling?
The Court held that the execution of the EAW can be delayed but never annulled
What is new for EU criminal law with the Aranyosi case?
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
What are the 3 steps of the Article 7 TEU procedure?
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
What is main contribution of LM case? (2)
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
Why is the LM case interesting here? (2)
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
How can mutual recognition within the field of EU criminal law be approached? (2)
1/ integration without harmonisation
2/ leaves the MS’ criminal systems intact
What have the Aranyosi and LM cases set?
Limits to mutual recognition
What is the default rule of the EAW FD? (3)
1/ Article 1(2)
2/ MS shall execute EAW
3/ basis: pcple of mutual recognition
Which articles of the EAW FD are relevant to determine its scope? (3)
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
Requirements of Article 2(1) EAW FD? (3)
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
Requirements of Article 2(2) EAW FD? (3)
1/ prohibition to check double criminality
2/ if offence figures among the listed offences
3/ 3 years sentence max
Requirements Article 2(4) EAW FD? (3)
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
What are exceptions to the rule of mutual recognition within the EAW FD? (5)
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
What are the 3 cases of mandatory non-execution of EAWs?
1/ amnesty
2/ ne bis in idem
3/ too young
Elements related to the obligation to respect FR when executing EAW? (2)
1/ Recital 10 EAW FD on the Article 7 TEU procedure
2/ Aranyosi and LM cases - limits to mutual recognition
Which paragraph of the Melloni case is key? (4)
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
Main conclusion in Melloni regarding Article 53 CFR?
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
