Mutual Recognition and Fundamental Rights Protection in an EU Area of Justice: The Other Side of Distrust

The CJEU rulings in the cases of Aranyosi and LM have been welcomed by many for their potential to restore the balance between on the one hand effective cross-border cooperation (such as through the European arrest warrant mechanism) and on the other hand proper safeguarding of fundamental rights. But other voices have been heard too, arguing for instance that the concept of rebuttable trust eliminates true mutual recognition and in fact establishes a gradual return to classic cooperation systems, thereby endangering efficient law enforcement across Europe. In a response to these concerns, this paper nevertheless takes the position that the positive bearing of the CJEU’s new avenue carries much further than the strengthening of fundamental rights protection in a cross-border context. It will be argued that from an overarching perspective, the concept of rebuttable trust in the EU criminal justice context in fact illustrates that the mutual recognition system has grown to maturity.

Mutual trust in times of rule of law crisis

The aim of the paper is to analyse how the idea of mutual trust can function in times of rule of law crisis. So far, as stated in the LM case, the national judicial authority can question the premiss that the criminal courts of the other Member States meet the requirements of effective judicial protection only in exceptional cases. In order to do that it has to conduct a two-step test allowing to identify a real risk of breach of the right to a fair trial. Recent situation in Poland, where the judiciary becomes more and more dependent on the governing majority, raises a question if that approach is optimum. It will be argued that it may be accepted, however the crucial issue is the relation between a general and specific risk assessment. The more serious and numerous are systemic problems regarding independence, the less important become the specific aspects of a criminal case. At a certain level the latter simply cannot compensate for the general deficiencies of the judicial system.

The European Public Prosecutor’s Office: Institutionalised Distrust Promoting EU-Wide Trust?

Regulation 2017/1939 sets up the European Public Prosecutor’s Office (EPPO) on the basis of enhanced cooperation. This new EU body, organised at a central and decentralised level, should enhance the protection of the EU budget through criminal law. While this is a shared competence (Art. 325 TFEU), the EU Commission pushed for the creation of EPPO, dissatisfied with national enforcement efforts. EPPO thus emerges from a feeling of distrust toward the Member States. Yet to achieve its goal, EPPO will need to rely on existing national authorities (eg police, customs, judges) and domestic law. European delegated prosecutors will also be part of the national public prosecutor’s office, while being hierarchically subordinated to the central office. Loyal cooperation and mutual trust (eg in sharing information) will thus be crucial. This paper aims to exam vectors of trust and distrust in EPPO’s structure and the rules on its functioning to make proposals for its operational success.

Digital evidence: quantum leap of mutual trust in times of distrust

A large number of criminal offences, not only cybercrime, is currently committed in a way that leaves digital traces making access to it indispensable. Digital evidence is often held abroad. The shortcomings of the current legal framework cross-border cooperation inspired the EU Commission to propose a new Regulation, which is currently debated at the EU Parliament. Based on mutual recognition, the new European Production Order would allow law enforcement in one Member State to request Internet service providers in another one to provide requested data in principle without involvement of the authorities of the latter state. While proposed at times of increasing distrust between Member States, this new system is a legal revolution at various levels, in particular redefining the very concept of mutual recognition and requiring a much higher level of trust. This contribution examines the paradigm shift caused by that instrument and its consequences.

Enforcing Sentences across the EU: A Double Standard on Mutual Trust?

In Aranyosi, the CJEU ruled that a judicial authority in the executing member state may refuse to enforce a European Arrest Warrant if there is a real risk of inhuman and degrading treatments in the prisons of the issuing state. This judgement has been welcomed as a move away from the ‘deification of mutual trust’ dominating earlier case law. Surprisingly, the same finding has not yet been extended to the interpretation of EU legislative instruments on mutual recognition of final sentencing decisions (including prison terms). Indications from recent case law, by contrast, show a rigid approach to interpreting the obligation of mutual recognition in this area. In particular, the Court has left little room for humanitarian and penological concerns while dealing with the cross-border enforcement of sentences. This paper unravels the rationale behind this approach, by highlighting the peculiar way in which mutual trust has been framed in this specific sub-field of judicial cooperation.