The evolving notion of mutual recognition in the CJEU’s case law on detention
| Published date | 01 December 2018 |
| DOI | 10.1177/1023263X18822787 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
Article
The evolving notion of mutual
recognition in the CJEU’s case
law on detention
Pedro Caeiro*, S ´
onia Fidalgo* and Joa
˜o Prata Rodrigues**
Abstract
This article analyses the case law of the Court of Justice of the European Union (CJEU) on
detention and the possible evolution of the understanding of mutual recognition stemming
therefrom. In the Lanigan,JZ, and Ognyanov decisions, the CJEU assimilated mutual recognition with
the effectiveness of cooperation, which should be understood as maximum compliance with the
issuing state’s interests. Arguably, this approach is detrimental to other important values, such as,
for example, the rights arising from excessively long detention and a rational and meaningful
approach to the enforcement of imprisonment. On the other hand, the Aranyosi and Ca
˘lda
˘raru
judgment has detached mutual recognition from the exclusive protection of the issuing state and
has turned it into a neutral governance principle. If mutual trust is not a given and can be assessed
on a case-by-case basis through common objective parameters, the decisions deserving recogni-
tion may be uttered either by the issuing or the executing authority.
Keywords
European criminal law, mutual recognition, detention, transfer of prisoners, Court of Justice of
the EU
1. Introduction
This article analyses the case law of the Court of Justice of the European Union (CJEU) on
detention and the possible evolution of the understanding of mutual recognition stemming there-
from. From a notion which was mainly intended to provide ‘effectiveness’ to the interests of the
issuing state, mutual recognition might possibly be turning into a neutral principle of
* University of Coimbra, Portugal
** PLMJ Advogados, Portugal
Corresponding author:
Pedro Caeiro, Faculty of Law, University of Coimbra, P´
atio da Universidade, Coimbra 3004-543 Portugal.
E-mail: pcaeiro@fd.uc.pt
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(6) 689–703
ªThe Author(s) 2019
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DOI: 10.1177/1023263X18822787
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