Is the two-step test set out in LM and L and P English Supreme Court’s best option in post-Brexit Britain for EAW requests made by States with structural deficiencies?
| Author | Angelo Stirone,Giovanna Mumolo |
| DOI | http://doi.org/10.1177/20322844221138048 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Analysis&Opinion |
Analysis&Opinion
New Journal of European Criminal Law
2022, Vol. 13(4) 391–397
© The Author(s) 2022
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DOI: 10.1177/20322844221138048
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Is the two-step test set out in
LM and L and P English
Supreme Court’s best option in
post-Brexit Britain for EAW
requests made by States with
structural deficiencies?
Angelo Stironeand Giovanna Mumolo
Studio Legale Gamberini, Bologna, Italy
Abstract
This article briefly introduces the European arrest warrant (‘EAW’) system, analysing the context in
which it develops and how this procedure interacts with both the intricate post-Brexit universe and
the current instability of the Polish judiciary. Paragraph 2 assesses the relevant case law of the
European Court of Justice (‘CJEU’) in cases of EAW requested by States with gene ralised defi-
ciencies and asserts that the legal approach developed in LM and L and P proves correct in the
abstract. Though it argues that the safeguarding mechanisms set out in the EAW Framework
Decision can be paralysed by instruments that are ontologically political in nature, it thus proposes
a new legal approach that consists of a three-step test which would effectively guarantee the
protection of fundamental rights. The article concludes by arguing that if English Courts were to
follow this new approach, departing from LM and L and P, they would effectively implement the
protection of fundamental rights in EAW procedures.
Keywords
European arrest warrant, European Court of Justice, Court of Justice of the European Union,
Britain, Brexit, extradition, Trade and Cooperation Agreement
Corresponding author:
Angelo Stirone, Studio Legale Gamberini, Piazza Calderini 1, Bologna 40137, Italy.
Email: angelo.stirone@legalgamb.it
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