Intersections among EU judicial cooperation instruments and the quest for an advanced and consistent European judicial space: The case of the transfer and surrender of convicts in the EU
| Author | Stefano Montaldo |
| DOI | http://doi.org/10.1177/20322844221119744 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Article |
Article
New Journal of European Criminal Law
2022, Vol. 13(3) 252–269
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/20322844221119744
journals.sagepub.com/home/nje
Intersections among EU
judicial cooperation
instruments and the quest for
an advanced and consistent
European judicial space: The
case of the transfer and
surrender of convicts in the EU
Stefano Montaldo
University of Turin, Torino, Italy
Abstract
The article addresses the intersections among the three EU instruments regulating cross-border
surrender and transfer of convicts in the Union, namely, Framework Decisions 2002/584/JHA on
the European Arrest Warrant, 2008/909/JHA on the transfer of prisoners and 2008/947/JHA on the
supervision of probation measures and alternative sanctions abroad. The analysis identified three
main categories of intersections and discusses several critical examples: normative interplays,
teleological connections and interplays deriving from the need to secure the protection of fun-
damental rights. The article supports the view that, while the development of judicial cooperation in
criminal matters has extensively relied on an ad hoc approach to mutual recognition, the analysis of
the interplays among different EU measures enhances the pathway towards an increasingly forward-
looking truly EU judicial space. To this purpose, the analysis advocates for further research from this
largely neglected perspective, beyond the case of the surrender and transfer of convicts.
Keywords
Surrender, European arrest warrant, transfer of prisoners, framework decision 2008/947/JH A,
intersections
Corresponding author:
Stefano Montaldo, University of Turin, Lungo Dora Siena 100¸ Torino, 10124, Italy.
Email: stefano.montaldo@unito.it
Introduction
As the European Arrest Warrant Framework Decision (EAW FD) turns twenty,
1
the anniversary of
the first EU act devoted to the implementation of the principle of mutual recognition in judicial
cooperation in criminal matters offers an opportunity to take stock and assess the road taken thus far.
Over the years, the remarkable success of this Framework Decision has been extensively debated.
2
Undoubtedly, it is still today one of the most prominent drivers of horizontal cooperation between
national judicial authorities and an effective instrument in the toolkit of the Area of Freedom
Security and Justice.
The advances of the implementation and daily enforcement of the EAW mechanism are
threefold. Firstly, the achievements and loopholes of EAWFD have constituted the footp rint for the
development of EU secondary law in judicial cooperation in criminal matters. Secondly, from
a quantitative viewpoint, the European Arrest Warrant has traditionally ranked first out of the most
extensively used judicial cooperation instruments.
3
Even though this primacy is now disputed with
the European Investigation Order, the gradual incorporation of the EAW into daily judicial practice
has initiated many domestic authorities and professionals to the new legal language and mindset of
the mutual trust paradigm. Thirdly, the extensive practice has led to increasing litigation and –
eventually –to a considerable body of national and CJEU case law. Besides its importance within
the EAW system, the interpretative guidance from several domestic supreme courts and from the
Court of Justice has enhanced the understanding of EU judicial cooperation as such and has paved
the way for cross-cut spillovers to other relevant sources of secondary law.
Crucially, the light of the EAW success story still generates shadows deserving close attention:
the protection of fundamental rights and the reach of the Aranyosi and C ˘
ald˘
araru test being
particularly topical examples.
4
However, other challenges arising from the EAW FD and from its
broader context have been largely underestimated thus far. Over the years, the increasing complexity
of the EU normative scenario has led to a web of pre- and post-Lisbon legislation extending the
paradigm of mutual recognition to an increasingly varied array of judicial decisions. This normative
trajectory reflects the original Commission’s ambition to establish a comprehensive set of in-
struments allowing for the cross-border enforcement of the most relevant judicial decisions, from
the pre-trial stage to the phase of enforcing a final sentence. Since every judicial decision has its own
specific features and effects, these acts have been crafted on a decision-by-decision basis, as if they
constituted self-standing and autonomous regimes, with very limited –where not absent –formal
connections. However, the practice demonstrates that the monolithic nature of relevant EU sec-
ondary law is a façade veiling deep reciprocal intersections. The latter involve several aspects of the
content and substance of the acts at issue, including their personal and objective scope of ap-
plication, their rationale, the risk of overlaps or normative and practical gaps, and even the national
judicial authorities’option for one instrument instead of another.
1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States.
2. See for instance, ex multis, L. Marin, ‘Effective and Legitimate? Learning from the Lessons of 10 Years of Practice with
the European Arrest Warrant’,New Journal of European Criminal Law 5 (2014) p. 326.
3. For an overview of relevant statistics, see for instance W. van Ballegooij, ‘European Arrest Warrant. European
Implementation Assessment’, Study for the European Parliamentary Research Service PE 642.839 of June 2020,
available at https://www.europarl.europa.eu/thinktank/en/document/EPRS_STU(2020)642839
ald˘
araru.
Montaldo 253
To continue reading
Request your trial