Constitutional identity as a tool to improve defence rights in European criminal law
| Author | Cristina Sáenz Pérez |
| DOI | 10.1177/2032284418818762 |
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| Subject Matter | Articles |
Article
Constitutional identity as a tool
to improve defence rights in
European criminal law
Cristina S´
aenz P´
erez
University of Leicester, UK
Abstract
Since the early years of the European Arrest Warrant (EAW), fundamental rights concerns have
been at the centre of the development of judicial cooperation in criminal matters that has taken
place in the European Union (EU). The attempts to ensure compliance with minimum standards
across the EU after Lisbon did not solve the other pressing issue in this area, namely the existence
of different fundamental rights safeguards at the national level. Melloni tried to settle this dispute by
limiting the protection of fundamental rights to those harmonized by EU law, but recent case law
has questioned this approach. This article explores the possibility of applying Article 4(2) Treaty on
European Union to protect a degree of legal diversity that contributes to improving the funda-
mental rights framework applicable to judicial cooperation measures. The goal is to analyse the
possibility of implementing a limited constitutional identity exception that enables Member States
to protect rights that are part of their constitutional identity. For this purpose, the recent case law
of the Court of Justice of the European Union (CJEU) in the Taricco saga will be examined and
compared with the way in which domestic courts have implemented national identity exceptions.
Keywords
Fundamental rights, E uropean Arrest Warran t, defence rights, const itutional identity, ju dicial
cooperation
Introduction
The protection of fundamental rights within the Area of Freedom, Security and Justice (AFSJ) has
been a controversial issue since Member States started cooperating in justice and home affairs
(hereinafter ‘JHAs’). A lot has been written about the push towards securitization, the lack of
adequate fundamental rights protections and the non-compliance of some Member States with
Corresponding author:
Cristina S´
aenz P´
erez, Leicester Law School, University Road, Leicester LE1 7RH, UK.
E-mail: csp12@le.ac.uk
New Journal of European Criminal Law
2018, Vol. 9(4) 446–463
ªThe Author(s) 2018
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DOI: 10.1177/2032284418818762
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European Court of Human Rights (ECHR) standards.
1
With the goal of tackling some of these
issues, the Lisbon treaty incorporated the Charter as a binding instrument
2
and included the
possibility of adopting minimum standards for the protection of defence rights.
3
Despite these improvements, the post-Lisbon scenario has shown that the fundamental rights
framework applicable to judicial cooperation in criminal matters is still far from perfect. One of the
main problems was exposed in Melloni that showed the different levels of fundamental rights
protections available across the European Union (EU).
4
This case demonstrated that the minimum
standards under EU law fall short of the constitutional safeguards upheld by most Member States.
EU fundamental rights protections are based on minimum requirements that usually reflect the
case law of the ECHR, especially in relation to fair trial guarantees. Limiting the protection of
fundamental rights to these minimum guarantees and ordering the disapplication of higher con-
stitutional protections nationally has provoked a judicial conflict between courts and a significant
lowering of fundamental rights standards across the EU. More precisely, Melloni implies that
Member States that comply with minimum standards and offer limited or no additional safeguards
can define the fundamental rights applicable across the EU, while the rest are forced to disapply
constitutional provisions that improve defence rights.
5
In turn, this article will explore thepossibility of applying Article 4(2) Treaty on European Union
(TEU) to improve the protection of defence rights in the field of judicial cooperation in criminal
matters. The goal isto create a fundamental rights framework that goes beyondminimum standards
and transcends the prioritization of security goals that characterizes the development of judicial
cooperation in JHAs. Overall, the article will assess whether certain fundamental rights standards
availablenationally can be preservedunder Article 4(2)TEU and whether they canbe used to improve
the protectionof defence rights within the AFSJ. For this purpose, this article willbriefly analyse the
existing fundamental rights problems in the field of judicial cooperation in criminal matters and
the different responses given by the CJEU in ‘Fundamental rights protections in the AFSJ’ section.
The ‘Improvingfundamental rights standardsthrough constitutionalidentity exceptions’ sectionwill
examine the potential of applying Article 4(2) TEU to protect fundamental rights that are part of
Member States’constitutional identity. Then,‘Solange and national differentiation within theAFSJ’
and ‘The Taricco saga as a new beginning’ sections willexplore the use of this constitutionalidentity
safeguard by national courts as well as the recent caselaw of the CJEU in this matter.
Fundamental rights protections in the AFSJ
The early years of judicial cooperation in criminal matters saw the European Arrest Warrant
(EAW) as its protagonist and fundamental rights as the main concern. Mutual recogn ition in
criminal matters acted as a principle that ensured the free circulation of judicial decisions in the
AFSJ following the model of the internal market. This principle is based on mutual trust that is
1. On the shortcomings of cooperation in Justice and Home Affairs in the early years: S. Alegre and M. Leaf, ‘Mutual
Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant’,
European Law Journal 10 (2004), p. 200; E. Guild, Constitutional Challenges to the European Arrest Warrant
(Eindhoven, The Netherlands: Wolf Legal Publishers, 2007).
3. Article 82(2)b Treaty on the Functioning of the European Union (TFEU).
5. Op. Cit.
S´
aenz P´
erez 447
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