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The ground for optional refusal of Article 4a FD 2002/584/JHA was intended to strengthen the rights of defendants and make the execution of European Arrest Warrants after in absentia convictions easier. In practice, however, problems at the level of the EU legislator, at the level of national legislators and at the level of judicial authorities seem to stand in the way of achieving those goals. A common thread of the problems with applying Article 4a is a lack of awareness of the case-law of the European Court of Justice. Based on case studies from six EU Member States, this article makes an in-depth analysis of these problems and suggests concrete measures on how to overcome them.

National sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.

This article starts from the premise that social rights should be taken seriously in the context of the European Arrest Warrant (EAW). Historically neglected, social rights have slowly gained recognition as legal entitlements. The article focuses on the protection of social rights – understood here as the rights to an adequate standard of living, healthcare and education – in regard to one aspect of the EAW: resisting its execution due to a real risk of a breach of social rights in detention in the issuing Member State. The social rights–based argument for resisting an EAW is premised on the Court of Justice of the European Union’s jurisprudence on ‘exceptional circumstances’ in which mutual trust can be rebutted, in particular Aranyosi and LM. The article identifies three ways for protecting social rights in the context of resisting an EAW. First, elements of social rights can be protected through resisting an EAW on the basis of a real risk of a breach of the prohibition of inhuman and degrading treatment. Second, social rights could be protected by resisting an EAW on the grounds of those non-absolute civil rights that indirectly protect elements of social rights. Third, the option of resisting an EAW by relying directly on social rights is also examined. Taking a social rights perspective expands the type of cases in which an individual can resist surrender due to a risk of facing poor detention conditions; this includes certain situations where the potential breach does not reach the high threshold of the prohibition of inhuman and degrading treatment. However, the article concludes that the rigid framework for balancing mutual trust and fundamental rights established by Aranyosi and LM ultimately creates a ceiling for the protection of social rights and prevents them from being fully respected and protected in the context of resisting an EAW.

Dissertação de mestrado em Direito da União Europeia, Na presente dissertação analisa-se a execução do Mandado de Detenção Europeu, bem como as exceções à sua execução que consubstanciam uma limitação aos princípios do reconhecimento e confiança mútuos em que se funda. Dá-se conta da inovação que este instrumento representa na cooperação judiciária em matéria penal e na realização do Espaço de Liberdade, Segurança e Justiça da União Europeia. A par, procuramos, por outro lado, refletir sobre algumas dificuldades que foram tomando lugar em face do desafio que se tem afigurado íngreme no que toca a assegurar o equilíbrio necessário entre o referido mecanismo de cooperação assente no reconhecimento mútuo e a necessária restrição deste princípio em busca de um efetivo respeito pelos direitos fundamentais, os quais não deverão ser imolados em prol da intervenção penal., On this master’s dissertation we talk about the instrument of the European Arrest Warrant and the exceptions to its execution which contain a limitation to the principles of mutual recognition and trust on which it is founded. We show the innovation that this instrument has represented in judicial cooperation in criminal matters in the space created within the European Union, based on the values of freedom, security and justice. On the other hand, we seek to reflect on the difficulties that have been brought up in the face of the challenge, that has proven very complex, in ensuring the necessary balance between cooperation based on mutual recognition and its necessary restriction to achieve respect for fundamental rights, which should not be immolated in favour of criminal intervention.

This article deals with the transposition of European Union (EU) criminal policy to national justice systems, taking, as an example, the surrender of prosecuted persons under the European Arrest Warrant (EAW) procedure. In particular, attention is focused on the question about the limits of the application of mutual recognition in the event of executing the EAW that is also linked to the increasing role of punishment, as a measure for rehabilitation and reintegration of the offender into society. The author argues that national citizenship should be treated very carefully by judicial authorities in the EU Member States which are deciding on the surrender of the prosecuted person under the EAW procedure. This care should apply whether surrender is for the purposes of criminal prosecution, the execution of custodial sentences or in the case of the transfer of sentenced persons to their State of nationality under Council Framework Decision 2008/909/JHA. With this aim, the first section explains the possible functions of punishment in contemporary penology; the second section is devoted to the Court of Justice of the EU rulings which are crucial for the further developments of EU criminal policy; and the third section refers to the Polish experience in surrendering own nationals for the purposes of prosecution in the EAW issuing Member State.

This case note examines the Court of Justice of the European Union (CJEU)’s decision in OG (C-508/18) and PI (C-82/19 PPU) concerning the interpretation of the notion of ‘issuing judicial authority’ within the meaning of Article 6(1) Framework Decision 2002/584/JHA. It assesses whether the German Public Prosecutor’s Office can be considered to be sufficiently independent to issue European Arrest Warrants. In this context, the CJEU’s previous case law on Article 6(1) will be taken into consideration and briefly outlined. The case note, then, summarises the Opinion of the Advocate General and the Court’s line of reasoning and closes with a commentary on the decision.

The EU model of international judicial cooperation in criminal matters, based on a high level of presumed mutual trust among Member States and on the principle of mutual recognition resulting therefrom, purports to go beyond traditional models of cooperation by enabling simplicity and speed on a ‘no questions asked’ approach. The European Arrest Warrant is emblematic in this respect. Nonetheless, the operation of this tool has not been a straightforward or uncomplicated task, in particular from the point of view of the interplay between mutual recognition and fundamental rights. This article analyses the evolution of such interaction, and how fundamental rights can act as either limits or drivers of mutual recognition. It aims to show how individual rights and guarantees have limited automatic recognition and sheer effectiveness, and, conversely, how the harmonisation of defence rights at the EU level can provide a basis for enhancing mutual trust and thus facilitating mutual recognition in criminal matters. In conclusion, it will be submitted that EU law can achieve effective judicial cooperation in criminal matters by moving from ‘blind’ to earned trust in Europe’s area of criminal justice., O modelo europeu de cooperação judiciária internacional em matéria penal, baseado em um elevado nível de confiança mútua presumida entre os Estados-Membros e no consequente princípio do reconhecimento mútuo, pretende ir além dos modelos tradicionais de cooperação, permitindo simplicidade e rapidez em uma perspectiva de “não se fazem perguntas”. O mandado de detenção europeu é emblemático dessa abordagem. No entanto, o funcionamento desse mecanismo não tem sido uma tarefa simples ou descomplicada, especialmente em relação à interação entre o reconhecimento mútuo e os direitos fundamentais. Este artigo analisa a evolução de tal interação e como os direitos fundamentais podem atuar como limites ou facilitadores do reconhecimento mútuo. Pretende-se demonstrar como os direitos e garantias individuais limitam o reconhecimento automático e a pura eficácia e, inversamente, como a harmonização dos direitos de defesa na UE pode fornecer uma base adequada para reforçar a confiança mútua e facilitar assim o reconhecimento mútuo em matéria penal. Em conclusão, será sustentado que a legislação da UE pode alcançar uma cooperação judiciária efetiva em matéria penal, passando de confiança “cega” para confiança conquistada no âmbito da justiça penal europeia.

In 1999, mutual recognition was declared to be the cornerstone of judicial cooperation not only, but also in criminal matters within the European Union (EU). Often this method seems to be regarded as a result of the close European integration and thus an invention of the EU. This article tries to show that even in traditional judicial assistance cases a similar trend could be witnessed and that mutual recognition is also applied – to a more or less intensive degree – in other regions and also in other areas of the law. In the author’s view, mutual recognition is a dynamic concept; its potential degree of realization depends on a number of contextual preconditions. As a result of the comparative view, he maintains that an ‘ordre public-proviso’ is a necessary ‘outlet’ and not at all outdated, especially in the context of judicial cooperation in criminal matters in the EU.

This dissertation includes a comparative study of the nature of mutual recognition in European law within the framework of the European arrest warrant, among others. One of the conclusions is that mutual recognition does not mean a judge should blindly implement a ruling made by another Member State. After all, people have rights; especially when extradition is requested for minor offenses or in the event of poor prison conditions in the issuing Member State. If we hope to improve human and civil rights in Europe, judges should intervene when these rights are in danger of being violated.

The application of mutual recognition to judicial cooperation in criminal matters within the EU has created significant challenges for the right to liberty. While the European arrest warrant was initially the prinicipal subject in the debate, discussions on the impact of EU criminal law on the right to liberty have now significantly broadened in scope. The present chapter reflects this development and addresses the role of the right to liberty in three scenarios: EU measures triggering cases of continued detention through mutual recognition; EU measures safeguarding the right to liberty; and EU measures facilitating alternatives to detention. The chapter argues that, while progress has undoubtedly been made, much still needs to be done to adequately protect the liberty of persons in criminal proceedings and judicial cooperation procedures.

La recente riforma della disciplina di recepimento del mandato di arresto europeo ha superato le precedenti discrasie con la decisione quadro 2002/584/GAI, delineando così un nuovo assetto dei limiti all’esecuzione del mandato nell’ordinamento italiano. Il presente contributo analizza tali limiti, riservando particolare attenzione alla prima prassi applicativa. In particolare, l’articolo mette in luce l’avvio di una nuova fase nella partecipazione dell’Italia al meccanismo di cooperazione giudiziaria in esame, caratterizzata dalla piena accettazione a livello legislativo dei principi di mutuo riconoscimento e fiducia reciproca. Tuttavia, l’analisi evidenzia altresì alcuni aspetti critici, concernenti l’approccio sia del legislatore nella redazione di alcune disposizioni della legge di recepimento, sia del giudice di legittimità nella loro applicazione. The recent reform of the Italian law implementing the European Arrest Warrant has overcome previous discrepancies with Framework Decision 2002/584/JHA, thus reshaping the limits to the execution of the EAW in the Italian legal order. This contribution analyses such limits, with specific reference to the domestic judicial practice developed in the wake of the reform. In particular, the article contends that the reform marks a new phase of the Italian participation in such judicial cooperation instrument, characterised by full acceptance of the principles of mutual recognition and mutual trust. However, the analysis points at some persisting criticisms, concerning both the new wording of some provisions and the Italian Supreme Court’s approach to their interpretation.

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

The aim of the present essay is to analyze the possibility and eventual necessity of a proportionality test to be accomplished by the executor state, in the scope of the European arrest warrant, as a manner to contain the use of it in cases of less serious crimes. Therefore, we will analyze, initially, the principle of mutual recognition and its basic precept, which is the idea of mutual trust between the Member States, to examine the context of the construction of the European space of freedom, security and justice, as well as the pillars of the creation of the arrest warrant. That being said, it will be possible to diagnose the problem that we are now discussing, which is, the excessive utilization of the instrument to less serious crimes, as well as try to find out possible solutions, among which, the possibility of a control by the Executor State., Objetiva-se, com o presente trabalho, analisar a possibilidade e eventual necessidade de aplicação de um teste de proporcionalidade a ser realizado pelo Estado de execução, no âmbito do mandado de detenção europeu, como medida de contenção à utilização deste instrumento em casos de criminalidade não considerada grave. Para tanto, serão analisados, inicialmente, o princípio do reconhecimento mútuo e o seu preceito básico, qual seja, a ideia da confiança mútua entre os Estados-Membros da União Europeia, a fim de examinar o contexto da construção do espaço europeu de liberdade, segurança e justiça, assim como os pilares da criação do mandado de detenção. Feito isso, será possível diagnosticar o problema que ora se discute, qual seja, o da sua excessiva utilização para a chamada criminalidade menos grave, assim como averiguar suas possíveis soluções, dentre as quais, a possibilidade de controle por parte do Estado de execução.

All criminal codes describe criminal offences that incriminate the actions that the Constitutional order seeks to deter or punish. The legal precepts that punish those acts are not always the same as each country will do so in coherence with the obsessions or family demons that their national history has cultivated. This paper focuses on the understanding of the crimes of rebellion and treason in different Member States and how such differences cannot justify the refusal of execution of mutual recognition legal instruments. The question is nowadays under debate in the Courts of Brussels and Schleswig-Holstein in relation to the putsch of the Catalan government.

The principle of mutual recognition is considered ‘the cornerstone of judicial cooperation’ in the European Union (hereafter EU). It requires Member States to recognise judicial decisions of other Member States, thus enabling a swift administration of justice. Within the field of criminal law, the Court of Justice of the European Union (hereafter CJEU) links this principle explicitly to the prevention of impunity, most clearly in the Popławski decision (following previous hints in Spajic or Petruhhin). It invokes this principle to oblige a Member State to execute a European arrest warrant (hereafter EAW) issued against one of its residents when the executing State cannot undertake to enforce the sentence itself due to, for instance, its domestic rules on limitation periods. In doing so, the Court overlooks the fact that those domestic rules may serve other fundamental interests and principles recognised by the EU and the CJEU itself, such as social rehabilitation and legal certainty. Moreover, a more balanced approach to (non-)recognition could also contribute to a swift administration of justice, namely as an incentive to the issuing State to avoid undue delays in the issuing of an EAW. Many States believe that, once a certain amount of time has elapsed since the conviction, the enforcement of a criminal sanction will become unfair or even counterproductive. The length of this period is proportionate to the seriousness of the conviction. As EU-broad harmonisation on the subject is unlikely in the short-run, mutual recognition should work both ways if the requested person has significant ties to the executing State.

This article closely analyses mutual recognition as a justification for EU legislative activity in the field of domestic criminal procedure. By looking at the structure, wording and purpose of the Treaties, the article first discusses the proper interpretation of the mutual recognition criterion in Article 82(2) TFEU. It argues for a narrow construction of Article 82(2) TFEU, suggesting that the expression ‘enabling mutual recognition’ is capable of substantially confining EU action on criminal procedure. The article challenges the justification for having EU competence in domestic criminal procedure on the basis that it enables mutual recognition. It advances the proposition that it is very difficult to defend on a conceptual and empirical basis that harmonisation has a positive effect on the operation on mutual recognition.

In the groundbreaking decision Aranyosi and Căldăraru, the Court of Justice of the European Union (CJEU) recognised that in exceptional circumstances, the risk of a possible breach of the right not to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgment (and in the subsequent decision in LM, dealing with the right to a fair trial), the Court has devised a two-tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court has left significant discretion to executing authorities in conducting their assessment of risk, thus raising questions as to how the two-tier test would be implemented at the national level. To address some of these questions, this article examines the practice of the executing authority for the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued between June 2016 and June 2020 which implement the tests designed by the CJEU in Aranyosi and LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity and scrutinises the relevance of any information attentively. This attitude indicates a readiness to engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.

The litigation of the European arrest warrant sheds light on the reconciliation between respect for fundamental rights and the effectiveness of the European criminal cooperation instrument by the Court of Justice of the European Union. The articulation of these contradictory imperatives, which are nevertheless characteristic of European criminal cooperation, reveals resistance to the emergence of a European criminal area. After having carried out an initial work of reconciling the interests involved, the Court will have to overcome these contradictions in order to put this litigation at the service of the European criminal integration process. In a context of a crisis of values, this litigation, sometimes a tool of resistance and sometimes a resilient material for the construction of a criminal Europe, gives the judge a decisive role in the conduct of European criminal policy. Indeed, by responding to sovereignist impulses through the principles of mutual recognition and mutual trust, it contributes to the achievement of the objective of approximating national criminal legislation imposed by the Treaties. The judge also contributes to the strengthening of the protection of fundamental rights by the European Union and crystallizes the foundations of European criminal harmonisation., Le contentieux du mandat d’arrêt européen offre un éclairage sur la conciliation entre le respect des droits fondamentaux et l’effectivité de l’outil de coopération pénale européenne par la Cour de justice de l’Union européenne. L’articulation de ces impératifs contradictoires, néanmoins caractéristiques de la coopération pénale européenne, révèle les résistances à l’émergence d’un espace pénal européen. Après avoir opéré un premier travail de conciliation des intérêts en présence, la Cour devra dépasser ces contradictions pour mettre ce contentieux au service du processus d’intégration pénale européenne. Dans un contexte de crise des valeurs, ce contentieux, tantôt outil de résistance tantôt matériau résilient à la construction d’une Europe pénale, confère au juge un rôle déterminant dans la conduite de la politique pénale européenne. En effet, en répondant aux velléités souverainistes au moyen des principes de reconnaissance mutuelle et de confiance mutuelle, il contribue à la réalisation de l’objectif de rapprochement des législations pénales nationales imposé par les Traités. Le juge participe également au renforcement de la protection des droits fondamentaux par l’Union européenne et cristallise les prémices d’une harmonisation pénale européenne.

Since the inception of the modern paradigm of international cooperation in the 18th century, mobility of people and the capacity to commit crimes from a distance have increased exponentially. Extradition is a key instrument for addressing those phenomena. However, several obstacles to effective cooperation endure. The question this study seeks to answer is whether those obstacles should be removed and, if so, how and to what extent. To that end, the study looks into other areas of the law concerned with transnational issues, and concludes by proposing a model of increased cooperation based on mutual understanding and respect among States.

This editorial provides a bird’s eye view of the current relevance of international judicial cooperation in criminal matters, namely in what concerns the issues raised by the growing protection of individual rights, as well as its reconfiguration in politically integrated areas, with a particular emphasis on the European Union. It then proceeds with a short presentation of the articles contained in this volume., Este editorial descreve, a traços largos, a relevância actual da cooperação judiciária em matéria penal, nomeadamente no que diz respeito à sua relação com o incremento da protecção dos direitos e garantias individuais e à sua reconfiguração em espaços politicamente integrados, com particular ênfase na União Europeia. Seguidamente, procede-se a uma apresentação sumária dos artigos contidos neste volume.