“…And Justice for All?” The right to an independent tribunal after the ruling of the Court of Justice in LM
| Published date | 01 December 2019 |
| DOI | 10.1177/2032284419877099 |
| Author | Marco Antonio Simonelli |
| Date | 01 December 2019 |
| Subject Matter | Articles |
Article
‘‘ ...And Justice for All?’’ The
right to an independent tribunal
after the ruling of the Court
of Justice in LM
Marco Antonio Simonelli
University of Barcelona, Spain
Abstract
The article assesses the extent of protection of the right to an independent tribunal in the
European Arrest Warrant mechanism. It focuses on the ruling of the European Court of Justice
(ECJ) in Minister for Justice and Equality v. LM (C-216/18 PPU) and its first national applications. Its
main claim is that, by imposing on national judges to carry out an individual assessment of the
requested person’s situation, the ‘LM test’ has rendered nugatory the right to an independent
judge. As the first national applications are indeed showing, a violation of this right, considered as
such, is not sufficient to halt the surrender. However, the High Court for England and Wales,
according protection to the right to an independent tribunal at least in marginal situations, that is,
in presence of a political interest in the prosecution or punishment, managed to faithfully
interpreted the ECJ’s judgment.
Keywords
EAW, LM, Article 47 CFR, Judicial Independence, AFSJ, Mutual Trust
Introduction
In the dramatic final speech of the 1979 movie ‘ ...And Justice for All’, a young Al Pacino
conveyed the idea that procedural constraints should not preclude the delivery of Justice. This
is exactly what happens, mutatis mutandis, in the European Arrest Warrant mechanism (‘EAW’)
where procedural obligations – stemming from the principle of mutual recognition – might impede
the executing judge from according full protection to fundamental rights. In the execution of an
EAW, indeed, two opposing ‘centrifugal powers’ are in action: the protection of the requested
person’s fundamental rights on the one hand, and the State’s interest to the smooth execution of the
Corresponding author:
Marco Antonio Simonelli, Faculty of Law, University of Barcelona, Avinguda Diagonal 684, Barcelona 08034, Spain.
E-mail: simonellimarcoantonio@gmail.com
New Journal of European Criminal Law
2019, Vol. 10(4) 329–341
ªThe Author(s) 2019
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DOI: 10.1177/2032284419877099
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