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Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure

  • Jacob Öberg

Abstract

EU law – Mutual recognition as a justification for EU competence – EU competence in domestic criminal procedure – Test and intensity of judicial review of EU criminal law legislation – Relationship between mutual trust and mutual recognition – Federalism and division of powers between the member states and the EU – Mutual recognition as a constraint to EU action – Presumption of Innocence Directive – Victims’ Rights Directive – Exercise of EU competence in domestic criminal procedure – Justifications for EU action in criminal procedure – Evidence-based legislation in the field of criminal procedure – Mutual trust as a legal and sociological concept – National courts’ compliance with EU law – European arrest warrant

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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Associate Professor/Postdoctoral Fellow in Law, Lund University. This article is the outcome of a discussion with many academic colleagues throughout the last two years. Earlier versions of the article were presented in Utrecht and Lund, where I received valuable comments, advice and constructive criticisms from Jannemieke Ouwerkerk, Leandro Mancano, Samuli Miettinen, Adriano Martufi, Julian Nowag, Daria Davitti, Eleni Karageorgiou, Christoffer Wong, Annegret Engel and Marja-Liisa Öberg. The editors of the European Constitutional Law Review and the two anonymous reviewers deserve a special acknowledgment, as their comments and proposals really helped in improving the final form of the article.

Footnotes

References

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1 Barkow, R, ‘Federalism and Criminal Law: What the Feds Can Learn from the States’, 109 Michigan Law Review (2011) p. 519 with further references to literature in the US on ‘federalism’ and criminal law.

2 Commission, White Paper to the European Council, Completing the Internal Market (Milan, 28-29 June 1985), COM (85) 310 final, paras. 11, 29, 53-56.

3 Lavenex, S and Wallace, W, ‘Justice and Home Affairs – Towards a European Public Order’, in Wallace, Het al. (eds.), Policy-Making in the European Union (Oxford University Press 2005). This explanation has, however, been contested: Fletcher, Met al., EU Criminal Law and Justice (Edward Elgar Publishing 2008) p. 2327.

4 Council, ‘Presidency Conclusions, Tampere European Council, 15-16 October 1999’, point 33.

5 Commission, ‘Communication from the Commission to the Council and the European Parliament, Mutual Recognition of Final Decisions in Criminal Matters’, COM (2000) 495 final, p. 2.

6 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States [2002] OJ L 190/1.

7 Mitsilegas, V, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU43 Common Market Law Review (2006) p. 1277.

8 See ECJ 3 May 2007, Case C-303/05, Advocaten Voor de Wereld [2007] ECR I-03633. This principle has been confirmed in subsequent post-Lisbon case law, most prominently in ECJ 26 February 2013, Case C-399/11, Melloni, EU:C: 2013:107 and ECJ 18 December 2014, Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, EU:C:2014:2454. This line of case law has been tempered by the Court’s recent ruling in ECJ 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, EU:C:2016:198, which imposes certain limits on the principle of mutual trust.

9 Evidence of deplorable detention conditions has been considered by the Court of Justice as an exceptional circumstance where the principle of mutual trust can be rebutted: Aranyosi and Căldăraru, supra n. 8 and ECJ 21 December 2011, Joined Cases C-411 & 493/10, NS [2011] ECR I-13905.

10 See French Constitutional Council, Decision of 9 April 1992 No. 92- 308 DC (Maastricht I); German Constitutional Court, Judgment of 30 June 2009 2 BvE 2/08, para. 113 (Lisbon); Spanish Constitutional Court, Decision of 1 July 1992 Case No. 1263/92 (Maastricht); Polish Constitutional Court, 27 April 2005, Decision P 1/05 (European Arrest Warrant).

11 See e.g. Alegre, S. and Leaf, M., ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant’, 10 European Law Journal (2004) p. 200; Peers, S., ‘Mutual Recognition and Criminal Law in the European Union: Has the Council Got it Wrong?’, 41 Common Market Law Review (2004) p. 5.

12 Commission, Proposal for a council framework Decision on certain procedural rights in criminal proceedings throughout the European Union COM (2004) 328 final, recitals 7, 12, 13 and paras. 19-30.

13 House of Lords European Union Committee, Procedural Rights in Criminal Proceedings, 1st Report of Session 2004-05, HL Paper 28, p. 14-17; House of Lords European Union Committee, Breaking the Deadlock: What Future for EU Procedural Rights? 2nd Report of Session 2006-07, HL Paper 20.

14 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, [2010] OJ L 280/1; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L 142/1; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L 315/57; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L 65/1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L 294/1; Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L 297/1;Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L 132/1.

15 This can be contrasted with the procedural approximation of national rules regulating the function, conditions and procedures for the operation of the mutual recognition principle: see Art. 82(1) TFEU. The latter provision can be argued to contain a narrower competence of national criminal procedure. A typical example of such harmonisation which could take place by means of Art. 82(1) TFEU would be future amendment of the grounds for refusing the recognition of mutual recognition instruments. Currently, measures such as the Framework Decision on the European Arrest Warrant (supra n. 6) for example provide for harmonised conditions for refusing arrest warrants in relation to in absentia trials (Art. 4a, Framework Decision on the European Arrest Warrant). See Peers, S, ‘EU Criminal Law and the Treaty of Lisbon’, 33 European Law Review (2008) p. 507 at p. 511-513; Marguery, T., ‘European Union Fundamental Rights and Member States Action in EU Criminal Law’, 20 Maastricht Journal of European and Comparative Law (2013) p. 281 at p. 289.

16 See House of Lords European Union Committee, The European Union’s Policy on Criminal Procedure, 30th Report of Session 2010–12, HL Paper 288, paras. 14-17.

17 As enumerated: (a) mutual admissibility of evidence between member states; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision.

18 There is also a requirement in the provision that EU rules in this field must have a ‘cross-border dimension’, an obligation on the EU legislator to take into account legal divergences as well as an emergency brake in Art. 83(3) TFEU, which can be employed by a member state if it considers that an EU criminal procedural law directive infringes on ‘fundamental aspects’ of its national ‘criminal justice system’. It is, however, beyond the remit of this contribution to comprehensively examine these limits to EU action.

19 The latter part of the sentence indicates a quite extensive competence, as the EU legislator only would need to prove that legislation facilitates ‘judicial cooperation’. However, given that the key controversies pertain to mutual recognition instruments such as the European arrest warrant and the fact that the EU legislator regularly justifies EU harmonisation measures on the basis that it would enable mutual recognition, this contribution is confined to examining the ‘mutual recognition’ criterion: CONV 426/02, ‘Final report of Working Group X “Freedom, Security and Justice”’, p. 10-11.

20 See supra n. 4.

21 See Mitsilegas, supra n. 7, p. 1307-1309; Ouwerkerk, J., ‘Editorial: EU Competence in the Area of Procedural Criminal Law: Functional vs. Self-standing Approximation of Procedural Rights and Their Progressive Effect on the Charter’s Scope of Application’, 27 European Journal of Crime, Criminal Law and Criminal Justice (2019) p. 89; Öberg, J., ‘Subsidiarity and EU Procedural Criminal Law’, 5 European Criminal Law Review (2015) p. 19.

22 See Ouwerkerk, JThe Potential of Mutual Recognition as a Limit to the Exercise of EU Criminalisation Powers’, 7 European Criminal Law Review (2017) p. 5 for support of this proposition.

23 Arts. 67(3), 67(4) provide support for the centrality of mutual recognition in the system of judicial cooperation post-Lisbon.

24 See CONV 426/02, supra n. 19, p. 10-12; COM (2000) 495 final, supra n. 5, p. 4.

25 See Black’s Law Dictionary (West Publishing 1990) p. 546 at p. 1029-1030 for the definition of ‘necessary’ and ‘necessity’. This reading of Art. 82(2) TFEU is coherent with several other language versions of the Treaties including: the Swedish, employing the term ‘Om det är nödvändigt’, the Danish, using the expression ‘I den udstrækning det er nødvendigt’, the Spanish, employing the term ‘En la medida en que sea necesario’, the Italian, employing the wording ‘Laddove necessario’, the French, employing the term ‘Dans la mesure où cela est nécessaire’ and the Estonian, using the wording ‘Määral, mil see on vajalik’.

26 See Art. 82(2) TFEU.

27 CONV 426/02, supra n. 19, p. 8-11, 13.

28 CONV 727/03, ‘Draft sections of Part Three with comments’, p. 31.

29 CONV 426/02, supra n. 19, p. 8-11.

30 CONV 727/03, supra n. 28, p. 31-32; CONV 821/03, ‘Reactions to draft text CONV 802/03 – Analysis’, p. 88-89.

31 CONV 727/03, supra n. 28, p. 32.

32 CONV 821/03, supra n. 30, p. 88-89.

33 See Arts. 82(3) and 83(3) TFEU.

34 Art. 76 TFEU

35 See supra n. 1 for reference to this literature and also Wendel, M, ‘Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM’, 15 EuConst (2019) p. 17 for discussion of the relationship between federalism and mutual trust.

36 See Öberg, J., ‘The Legal Basis for EU Criminal Law Legislation – A Question of Federalism?’, 43 European Law Review (2018) p. 366 for a discussion of how a particular vision of federalism may influence the choice of legal basis for EU criminalisation measures.

37 Kumm, M., ‘Constitutionalizing Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union’, 12 European Law Journal (2006) p. 505 provides for a general account of this argument.

38 CONV 426/02, supra n. 19, p. 9-11; CONV 69/02, ‘Justice and Home Affairs – Progress report and general problems’, p. 9, 13.

39 Art. 296 TFEU.

40 ECJ 12 July 2005, Joined Cases C-154/04 and 155/04, Alliance for Natural Health and Others [2005] ECR I-06451, paras. 133-134.

41 See M. Shapiro, ‘The Giving Reasons Requirement’, University of Chicago Legal Forum (1992) p. 179 at p. 182, 198, 215.

42 ECJ 7 September 2006, Case C-310/04, Spain v Council [2006] ECR I-07285, paras. 122-123 for a similar standard from the Court suggesting the need to state ‘basic facts’ and consider all ‘relevant circumstances’ when proposing EU legislation.

43 See above section ‘The core argument – a limited reading of EU competence in domestic criminal procedure’ for an elaboration of this interpretation.

44 See Lööf, R., ‘Shooting from the Hip – Proposed Minimum Rights in Criminal Proceedings’, 12 European Law Journal (2006) p. 421 at p. 424-430 for a similar point.

45 See Commission, ‘Commission Staff Working Paper – Impact Assessment, Accompanying the document, Communication from the Commission to the European Parliament, the Council, the European economic and social Committee and the Committee of the Regions, Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, Proposal for a Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters’, SEC (2011) 580 final, p. 5-6, 18-20.

46 See above section ‘The core argument – a limited reading of EU competence in domestic criminal procedure’ for this point.

47 See supra n. 7 and n. 11 for references to literature making this point in detail.

48 See supra n. 45 for the Commission’s substantive reasoning on mutual trust and victims’ rights.

49 House of Lords European Union Committee, The European Union’s Policy on Criminal Procedure, EU Sub-Committee E (Justice and Institutions), EU Criminal Procedure Policy, 30th Report of Session 2010–12, HL Paper 228, Steve Peers – ‘Oral Evidence’, p. 140-141.

50 Mitsilegas, supra n. 7, p. 1307.

51 Mitsilegas, V., ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’, 31 Yearbook of European Law (2012) p. 319 at p. 363-371.

52 House of Lords Report on Procedural Rights in Criminal Proceedings, supra n. 13, p. 14-17.

53 ECJ 11 June 1991, Case C-300/89, Commission v Council (Titanium Dioxide) [1991] ECR I-02867, paras. 22-25 is a lucid illustration of the Court’s expansive reading of Art. 114 TFEU.

54 See e.g. ECJ 4 May 2016, Case C-547/14, Philip Morris Brands and Others, EU:C: 2016:325, paras. 107–125, 127–136: ECJ 14 December 2004, Case C-210/03, Swedish Match [2004] ECR I-11893, paras. 35-40.

55 ECJ 5 October 2000, Case C-376/98, Germany v European Parliament and Council (Tobacco Advertising) [2000] ECR I-8419, paras. 83-84, 106-107.

56 Davies, G., ‘Democracy and Legitimacy in the Shadow of Purposive Competence’, 21 European Law Journal (2015) p. 2 at p. 7, 17-18; Öberg, J., ‘The Rise of the Procedural Paradigm – Judicial Review of EU Legislation in Vertical Competence Disputes’, 13 EuConst (2017) p. 248.

57 Lavenex, S, ‘Mutual recognition and the monopoly of force: limits of the single market analogy’, 14 Journal of European Public Policy (2007) p. 762 makes this point compellingly.

58 Spain v Council, supra n. 42, paras. 122-123; ECJ 18 July 2013, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and Others v Kadi EU:C:2013:518, paras. 119, 124, 130 illustrate such a standard.

59 See above section ‘The core argument – a limited reading of EU competence in domestic criminal procedure’ for the interpretation of mutual recognition as a constraint to the EU action.

60 Tobacco Advertising, supra n. 55, paras. 83-84, 98-99, 106-107.

61 Commission and Others v Kadi, supra n. 58, paras. 119-120.

62 Presumption of Innocence Directive, supra n. 14, Arts. 8 and 9.

63 Vermeulen, G., ‘Where Do We Currently Stand with Harmonisation in Europe?’, in Klip, A. and van der Wilt, H. (eds.), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of Science 2002) p. 7173.

64 NS, supra n. 9, paras. 78-94; Aranyosi and Căldăraru, supra n. 8, paras. 80-89, 96, 103; ECJ 25 July 2018, Case C-216/18 PPU, Minister for Justice and Equality (‘LM’), EU:C:2018:586, paras. 59-67, 68, 73.

65 See, however, SEC (2011) 580, supra n. 45, Annex 11 for such quantitative indicators.

66 Quantitative indicators are defined as evidence of quantities or amounts that rely on objective estimates, whilst qualitative indicators include subjective predictions on a subject or topic: ‘Impact Assessment Guidelines’, 15 January 2009, SEC (2009) 92, p. 37-40.

67 Interviews and country questionnaires were for example used in the report T. Wahl et al., Criminal Procedural Laws across the European Union – A Comparative Analysis of Selected Main Differences and the Impact They Have over the Development of EU Legislation, Annex I, Country Report (August 2018) p. 62-63, 73-74, 120-136 for substantiating divergences on procedural criminal law issues.

68 Commission, ‘Commission Staff Working Document, Impact Assessment, Accompanying the document Proposal for measures on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceeding’, SWD (2013) 478 final, point 3.2 includes a list of such studies and reports.

69 For an overview of case law and country reports, see the general report Criminal Procedural Laws across the European Union, supra n. 67.

70 SWD (2013) 478, supra n. 68, Annex IX.

71 See below subsection ‘Applying the mutual recognition criterion – case studies of the Presumption of Innocence Directive’ for a more meticulous analysis of this case law.

72 ECJ 12 July 2001, Case C-189/01, Jippes and Others [2001] ECR I-5689, para. 83.

73 CONV 69/02, supra n. 38, p. 8-9.

74 Aranyosi and Căldăraru, supra n. 8, paras. 89, 93-94; LM, supra n. 64, paras. 60-61.

75 ECJ 11 July 1985, Case 42/84, Remia BV and Others v Commission [1985] ECR 2545, paras. 34-36; Craig, P., EU Administrative Law (Oxford University Press 2012) p. 437438, 592-593.

76 Tobacco Advertising, supra n. 55, para. 86.

77 Although such obstacles to the functioning of the internal market were considered sufficient to legislate under Art. 114 TFEU according to the Court in Titanium Dioxide, supra n. 53.

78 See Aranyosi and Căldăraru, supra n. 8, paras. 89, 93-94; LM, supra n. 64, paras. 60-61, for the expression ‘real’ risk.

79 Commission and Others v Kadi, supra n. 58, paras. 151-162 illustrates the application of such an evidence standard.

80 SWD (2013) 478, supra n. 68, p. 4-5, 18-20, 30; Presumption of Innocence Directive, supra n. 14, recitals 2-5, 10. For a similar ‘mutual trust’ justification the recitals to the Rights of Translation are is illustrative: Right of Translation Directive, supra n. 14, recitals 1-9.

81 The Commission referred to evidence by Lord Justice Thomas to the UK parliament’s Scott Baker inquiry, ‘A Review of the United Kingdom’s Extradition Arrangements’, presented to the Home Secretary on 30 September 2012, to support the presence of judicial unease about divergent standards.

82 SWD (2013) 478, supra n. 68, p. 12-19 and Annex IV (listing cases where member states have been found to violate the Convention).

83 See above section ‘The core argument – a limited reading of EU competence in domestic criminal procedure’ for this point.

84 See supra n. 82.

85 JUSTICE, ‘European Arrest Warrants – ensuring an effective defence’ (2012).

86 G. Vernimmen-Van Tiggelen and L. Surano, ‘Analysis of the Future of Mutual Recognition in Criminal Matters in the European Union’, Call for tenders JLS/D3/2007/03 European Commission – 20 November 2008, p. 10-11, 22-23.

87 This observation is supported by evidence given by JUSTICE to an online survey conducted by the Centre For Strategy and Evaluation Services (CSES) in connection to their report, ‘Study of financial and other impacts for an Impact Assessment of a Measure Covering the Right to be Presumed Innocent for Suspected or Accused Persons in Criminal Proceedings’ referred to in the impact assessment, SWD (2013) 478, supra n. 68, p. 33-34.

88 On account of factors such as the capacity of the justice systems, the right to a fair trial, the level of independence of the judiciary: see P. Albers et al, ‘Final Report – Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters’ – March 2011, p. 330.

89 See SWD (2013) 478, supra n. 68, p. 18.

90 House of Commons, ‘Reasoned Opinion of the House of Commons concerning a Draft Directive on the Strengthening of Certain Aspects of the Presumption of Innocence and the Right to be Present at Trial in Criminal Proceedings, p. 3-4.

91 19 January 2010, R (Gary Mann) v City of Westminster Magistrates’ Court & Another [2010] EWHC 48 (Admin); ECtHR 1 February 2011, No. 360/10, Garry Norman MANN v Portugal and the United Kingdom; 9 September 2011, Sofia City Court v Dimintrinka Atanasova-Kalaidzheiva [2011] EWHC 2335 (Admin); 16 May 2011, Oberlandsgericht München, Klaas Carel Faber; 30 May 2012, Supreme Court of the United Kingdom, Assange (Appellant) v The Swedish Prosecution Authority (Respondent) [2011] UKSC 22 on appeal from [2012] EWHC (Admin) 2849.

92 ECJ 28 June 2012, Case C-192/12, Melvin West, EU:C:2012:404; ECJ 30 May 2013, Case C-168/13 PPU, Jeremy F, EU:C: 2013:358; ECJ 1 December 2008, Case C-388/08, Leymann and Pustovarov [2008] ECR I-08993.

93 Advocaten Voor de Wereld, supra n. 8.

94 Melloni, supra n. 8.

95 See Fair Trials Internationals’ report of the judgment, Fair Trials International, Report –The European Arrest Warrant Seven Years On – the Case for Reform (May 2011), ⟨www.fairtrials.org/sites/default/files/FTI%20Report%20EAW%20May%202011.pdf⟩, last accessed 25 February 2020.

96 See Framework Decision on European Arrest Warrant, supra n. 6, Art. 4.1(a).

97 See Council documents 12955/14; 13304/14; 13538/14; 15837/14; 11112/15; 13471/15 for examples of such contestation.

98 Besselink, L.F.M., ‘The Parameters of Constitutional Conflict after Melloni’, 39 European Law Review (2014) p. 531; Torres- Pérez, A, ‘Melloni in Three Acts: From Dialogue to Monologue’, 10 EuConst (2014) p. 308 at p. 317-18 for comprehensive analysis and criticism of the judgment and the Court’s stance on the protection of fundamental rights.

99 In the particular case, the Spanish Constitution as interpreted by the Spanish Constitutional Court provided for an unconditional opportunity for a convicted party to challenge a decision of surrender followed by a conviction in absentia to safeguard his rights of defence.

100 Melloni, supra n. 8, paras. 55-63.

101 See supra n. 97 for evidence of this dispute. As one example, it seems that certain member states (when the Directive was prepared) allowed accused persons to waive their right to be present at their trial, whilst in other states the presence of the defendant appears to be mandatory in practice for more serious offences. Another example is that a mandatory guarantee to a retrial in the case of in absentia offences did not exist in certain member states when the Directive was drafted: see SWD (2013) 478, supra n. 68, p. 25-27, 69-70, Annex V.

102 It should, however, be noted that Melloni is a rather exceptional instance of a national court contemplating refusing to execute a mutual recognition instrument by deviating from the general approach of national courts to loyally enforce the mutual recognition principle: see below section ‘Challenging the mutual recognition justification for exercising EU competence in domestic criminal procedure’.

103 The German Report in Criminal procedural laws across the European Union, supra n. 67, p. 58-59 points out some of those divergences with reference to presumption of innocence.

104 Ouwerkerk, supra n. 21, uses this expression.

105 See supra n. 80 for evidence of this argument in EU procedural criminal law directives.

106 Lööf, supra n. 44, p. 426-428, advances a similar criticism of EU competence in criminal procedure.

107 Interestingly, it seems that the Court of Justice’s developments of ‘autonomous concepts’ has helped to develop more trust among member states: see Mitsilegas, V., ‘Managing Legal Diversity in Europe’s Area of Criminal Justice: The Role of Autonomous Concepts’, in Colson, R. and Field, S. (eds.), EU Criminal Justice and the Challenges of Legal Diversity. Towards A Socio-Legal Approach to EU Criminal Policy (Cambridge University Press 2016) p. 138145, 153-156, 158.

108 Wischmeyer, T, ‘Generating trust through law? Judicial cooperation in the European Union and the “principle of mutual trust”’, 17 German Law Journal (2016) p. 339 at p. 353, 356; ECJ 11 February 2003, Joined Cases C-187/01 and C-385/01, Gözütok and Brügge, [2003] ECR I-01345, Opinion of AG Ruiz-Jarabo Colomer, paras. 122-124.

109 European Network of Councils for the Judiciary, ‘Mutual Confidence 2009-2010- Report and Recommendations’ (2010), ⟨www.encj.eu/images/stories/pdf/mutualconfidence/mc2009-2010en.pdf⟩, visited 25 February 2020; Commission, ‘Building Trust in EU-Wide Justice: A New Dimension to European Judicial Training’, COM (2011) 551 final.

110 It is now firmly embedded in Art. 70 TFEU.

111 See SWD (2013) 478, supra n. 68, p. 9, 16-19 for an example of this broad understanding of mutual trust.

112 See Lavenex, supra n. 57, p. 765-776; Albers et al., supra n. 88, p. 319, 330 for a comparison of the views of defence lawyers and national judges on the concept of mutual trust.

113 See e.g. Scholz, J.T. and Pinney, N., ‘Duty, Fear, and Tax Compliance: The Heuristic Basis of Citizenship Behavior’, 39 American Journal of Political Science (1995) p. 490; Scholz, J.T, ‘Enforcement Policy and Corporate Misconduct: The Changing Perspective of Deterrence Theory’, 60 Law and Contemporary Problems (1998) p. 254 at p. 255-265; Paternoster, R, ‘How Much Do We Really Know about Criminal Deterrence?’, 100 Journal of Criminal Law and Criminology (2010) p. 765 at p. 818-823.

114 Dugard, J and Van den Wyngaert, C, ‘Reconciling Extradition with Human Rights’, 92 American Journal of International Law (1998) p. 187; Mitsilegas, supra n. 7, p. 1281-1282.

115 Wischmeyer, supra n. 108, p. 362-363; Lavenex, supra n. 57, p. 764-772, for this observation.

116 SWD (2013) 478, supra n. 68, p. 10-11, 13-29; Commission, ‘Commission Staff Working Document – Proposal for a Council Framework Decision on the right to interpretation and translation in criminal proceedings Accompanying the Proposal for a Framework Decision on the right to interpretation and to translation in criminal proceedings, Impact Assessment, SEC (2009) 915, p. 9-16; SEC (2011) 580, supra n. 45, p. 6-20.

117 Ibid.

118 Xanthoupolou, E, ‘Mutual Trust and Rights in the Criminal and Asylum Law: Three Phases of Evolution and the Uncharted Territory Beyond Blind Trust’, 55 Common Market Law Review (2018) p. 489 at p. 497-98, 505-507; Luhmann, N, Law as A Social System (Oxford University Press 2004) p. 180199.

119 See ECJ 16 February 2017, Case C-578/16 PPU, CK and Others v Republika Slovenija, EU:C:2017:127, paras. 80-89 for an example of the Court of Justice underlining ‘knowledge’ as central for the building of ‘mutual trust’ within the scope of EU asylum law.

120 See Giddens, A, The Consequences of Modernity (Polity Press 1990); Luhmann, N, ‘Familiarity, Confidence, Trust: Problems and Alternatives’, in Gambetta, D (ed.), Trust: Making and Breaking Cooperative Relations (Electronic edition, University of Oxford 2000) ch. 6 for a discussion of ‘rational’ trust.

121 Giddens, supra n. 120, p. 26-27, 34-35.

122 Ibid.

123 Wischmeyer, supra n. 108, p. 340-350.

124 Hardin, R, Trust and Trustworthiness (Russell Sage Foundation 2002) ch. 1: Tyler, T.R, ‘Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want from the Law and Legal Institutions?’, 19 Behavioural Science and Law (2001) p. 215 makes this point from a more general perspective.

125 Xanthoupolou, supra n. 118, p. 490-92, 499-505.

126 See for a selection of relevant contributions: Nollkaemper, A, ‘The Role of National Courts in Inducing Compliance with International and European Law – A Comparison’, in Cremona, M (ed.), Compliance and Enforcement of EU Law (Oxford University Press 2012); L. Conant, ‘Compliance and What EU Member States Make of It’, in Cremona, ibid; Beach, D, ‘Why Governments Comply: An Integrative Compliance Model that Bridges the Gap between Instrumental and Normative Models of Compliance’, 12 Journal of European Public Policy (2005) p. 113.

127 Romeu, R, ‘Law and Politics in the Application of EC Law: Spanish Courts and the ECJ1986–2000’, 43 Common Market Law Review (2006) p. 395; Conant, supra n. 126, p. 10-11.

128 Unless exceptions are allowed in the relevant mutual recognition instrument.

129 ECJ 29 January 2013, Case C-396/11 Radu, EU:C:2013:39, paras. 33-35 Melloni, supra n. 8, paras. 36-38.

130 Gözütok and Brügge, supra n. 108, Opinion of AG Ruiz-Jarabo Colomer, para. 124.

131 Melloni, supra n. 8, paras. 58-65.

132 Craig, P and De Búrca, G, EU Law – Text, Cases, and Materials (Oxford University Press 2015) p. 279314 offers an extensive analysis of this question. They suggest that whilst national courts generally accept supremacy, there are several limits imposed on the acceptance of the principle by national constitutional courts.

133 The sample was taken from a review of approximately 30 judgments from Irish, German and Swedish courts on the European arrest warrant. The German sample has been extracted from the general report Criminal Procedural Law across the European Union, supra n. 67.

134 The judgments, NJA 2009, s. 350; NJA 2005, s. 897; NJA 2007, s. 168; RÅ 2010, ref 45; HFD 2013, ref 42; NJA 2017, s. 300; NJA 2010, N 36; NJA 2011, N 34; NJA 2007, N 15, from the Swedish Supreme Court and Supreme Administrative Court offer support for this proposition. Swedish courts’ record of loyally executing arrest warrants is coherent with other empirical studies illustrating that Nordic states generally conform to their EU obligations: Sverdrup, U, ‘Compliance and Conflict Management in the European Union: Nordic Exceptionalism’, 27 Scandinavian Political Studies (2004) p. 23. See also Minister for Justice and Equality v O´Connor [2018] IESC 47; Minister for Justice v Brennan [2007] 3 IR 732; Balmer v Minister for Justice and Equality [2016] IESC 25; Minister for Justice and Equality v Buckley [2015] IESC 87; Minister for Justice and Equality v Shannon [2012] IEHC 91; Minister for Justice v McArdle [2015] IESC 56; Minister for Justice Equality & Law Reform v Stapleton [2007] IESC 30 for judgments of Irish courts in support of the statement.

135 Whilst German courts stand out as being more prone to refuse to execute a European arrest warrant, on the basis of the German Federal Constitutional Court’s strong decision of 15 December 2015, order no. 2735/14, it still seems that the leading principle in the case law is mutual trust: see e.g. BVerfG, Beschluss vom 06. September 2016 - 2 BvR 890/16 LG; LG Hamburg, Beschluss vom 21 November 2012, BGH 1 StR 310/12, HRRS 2013, Nr. 314; OLG Köln, Beschluss vom 21.05.2012, 2 SsRs 2/12= NZV 2012, 45; OLG Karlsruhe, Beschluss vom 31 January 2017-1 Ws 235/16. Intriguingly, there seems to be a certain correlation between the more suspicious views of German courts to the Framework Decision on the European arrest warrant and the German courts’ ambiguous compliance with the Court of Justice’s case law: Conant, supra n. 126, p. 23-26.

136 See Minister for Justice v Brennan, supra n. 134; Balmer v Minister for Justice and Equality, supra n. 134, para. 44, and Swedish judgments: NJA 2007, s. 168 and NJA 2017, s. 975 (Swedish Supreme Court) for support for this approach. A judgment by the German Federal Constitutional Court, BvR 890/16, supra n. 135, suggests that the core content of the principle of human dignity must be infringed before a European arrest warrant’s execution will be suspended.

137 LM, supra n. 64.

138 This test is most likely drawn from the European Court of Human Rights’ case law: see ECtHR 7 July 1989, No. 14038/88, Soering v United Kingdom, paras. 89-91; ECtHR 21 January 2011, No. 30696/09, M.S.S. v Belgium and Greece.

139 See Marguery, supra n. 15; Janssens, C, The Principle of Mutual Recognition in EU Law (Oxford University Press 2013) p. 141144.

140 Janssens, supra n. 139, p. 190-191, 212; Van Tiggelen and Surano, supra n. 86, p. 9.

141 Colson, R, ‘Domesticating the European Arrest Warrant: European Criminal Law between Fragmentation and Acculturation’, in Colson, R and Field, S (eds.), EU Criminal Justice and the Challenges of Legal Diversity. Towards A Socio-Legal Approach to EU Criminal Policy (Cambridge University Press 2016) p. 213218 suggests that, despite divergent practices in the implementation of the European arrest warrant, there seems to be ‘a remarkable rapprochement’ that can be observed as the transfer of suspects and convicts is streamlined and facilitated between all European jurisdictions.

142 See above section ‘The core argument – a limited reading of EU competence in domestic criminal procedure’.

143 See above section ‘Test for substantiating compliance with the mutual recognition criterion’ for a discussion of this test.

144 See above section ‘Challenging the mutual recognition justification for exercising EU competence in domestic criminal procedure’.

145 See Mitsilegas, V, ‘The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe’s Area of Criminal Justice’, 6 New Journal of European Criminal Law (2015) p. 457 at p. 475-477.

146 Not only data on time delays and implementation deficits; see Commission, ‘Report from the Commission to the European Parliament and the Council On the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’, COM (2011) 175 final.

147 See above section ‘Test for substantiating compliance with the mutual recognition criterion’ for a discussion of judicial review of legislation adopted under Art. 82(2) TFEU.

148 See Mitsilegas, supra n. 7, p. 1308-1309.

149 See e.g. Commission, ‘Report from the Commission to the European Parliament and the Council on the implementation of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings’, COM (2018) 857 final; European Parliament (EPRS), ‘The Victims’ Rights Directive 2012/29/EU- European Implementation Assessment- Ex-Post Evaluation Unit- Study, 2017; COM (2011) 175, supra n. 146.

150 Weatherill, S, ‘Competence Creep and Competence Control’, 23 Yearbook of European Law (2004) p. 1.

151 Opinion 2/13, supra n. 8, paras. 155-176; von Bogdandy, A, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’, 37 Common Market Law Review (2000) p. 1307.

152 Spaventa, E, ‘Should we “harmonize” fundamental rights in the EU? Some reflections about minimum standards and fundamental rights protection in the EU composite constitutional system’, 55 Common Market Law Review (2018) p. 997 at p. 1000-1002.

153 Art. 67(1) TFEU; Art. 82(2) TFEU.

154 Vogel, J, ‘Why is the harmonisation of penal law necessary? A comment’, in Klip, A and van der Wilt, H (eds), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of Science 2002) p. 5564.

155 Consider, for example, the seminal ruling in Cowan (ECJ 2 February 1989, Case 186/87 Cowan v Trésor public [1989] ECR 195), where the Court held that the French rules on victim compensation were not in line with the rules on free movement services. Another clear example where individual rights should be harmonised on their transnational character (and also has been harmonised to a certain degree) is in relation to European arrest warrant proceedings and other proceedings pertaining to mutual recognition instruments.

156 Joerges, C and Neyer, J, ‘From Intergovernmental Bargaining to Deliberative Processes: The Constitutionalisation of Comitology’, 3 European Law Journal (1997) p. 273 at p. 294-295; Somek, A, ‘The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement’, 16 European Law Journal (2010) p. 315 at p. 323-325, 329, provides for a general account of this argument.

157 The question of the extent to which it is appropriate to limit EU competence in this way is, however, debatable: see Öberg, supra n. 21, p. 22-28; Peers, supra n. 15, p. 514-515; Ouwerkerk, supra n. 21, p. 92-94.

* Associate Professor/Postdoctoral Fellow in Law, Lund University. This article is the outcome of a discussion with many academic colleagues throughout the last two years. Earlier versions of the article were presented in Utrecht and Lund, where I received valuable comments, advice and constructive criticisms from Jannemieke Ouwerkerk, Leandro Mancano, Samuli Miettinen, Adriano Martufi, Julian Nowag, Daria Davitti, Eleni Karageorgiou, Christoffer Wong, Annegret Engel and Marja-Liisa Öberg. The editors of the European Constitutional Law Review and the two anonymous reviewers deserve a special acknowledgment, as their comments and proposals really helped in improving the final form of the article.

Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure

  • Jacob Öberg

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