Saving EU Criminal Justice: Proposal for EU-wide supervision of the rule of law and fundamental rights. CEPS Paper in Liberty and Security in Europe No. 2018-01, April 2018

Bárd, Petra (2018) Saving EU Criminal Justice: Proposal for EU-wide supervision of the rule of law and fundamental rights. CEPS Paper in Liberty and Security in Europe No. 2018-01, April 2018. [Policy Paper]

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Abstract

According to the principle of mutual recognition in EU criminal justice, judicial decisions taken in one member state should automatically be accepted and enforced across the Union. Mutual recognition presupposes mutual trust, suggesting that all member states share with the EU the same foundational values, including the rule of law, respect for human rights and that judicial decisions are the outcome of fair and independent processes. The EU’s legislative bodies have adopted a series of laws in the criminal justice area on the basis of mutual trust without leeway to opt out if doubts arise concerning the issuing member state’s respect for values common to the EU and its member states according to Art. 2 of the Treaty on European Union. Yet it has turned out that mutual trust was premature and unjustified: certain member states notoriously violate the dictates and most basic tenets of the rule of law, engage in systemic human rights violations and jeopardise judicial independence. Those executing states that adhere to EU values find themselves between a rock and a hard place: they either follow mutual recognition-based laws and thereby become responsible for the proliferation of rule of law problems and human rights abuses across the Union, or they disrespect EU secondary laws. This paper shows how the rigid insistence on mutual trust by the EU’s legislative institutions puts into jeopardy the operation of mutual recognition-based instruments, and also the whole body of EU law and values underlying EU integration. The paper argues that the values the EU shares with the member states and mutual recognition can and should mutually reinforce each other, and in that vein offers recommendations to overcome the challenges described.

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