The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe's Area of Criminal Justice
| Date | 01 December 2015 |
| DOI | 10.1177/203228441500600410 |
| Published date | 01 December 2015 |
| Subject Matter | Session 3: Mutual Trust in the AFSJ: What Lessons for the Criminal Law Field? |
New Journal of Eu ropean Crimina l Law, Vol. 6, Issue 4, 2015 457
THE SYMBIOTIC RELATIONSHIP BETWEEN
MUTUAL TRUST AND FUNDAMENTAL
RIGHTS IN EUROPE’S AREA OF
CRIMINALJUSTICE*
V M**
ABSTRACT
e entr y into force of the Treaty of Lisbon has brought question s of the compatibility of
aspects of EU criminal l aw – and in particular the application of the principle of mutual
recognition in criminal matters – w ith fundamental rights. e con stitutionalisation of
the EU Charter of Fundamental Rights has added urgency to these questions. At the
heart of the debate lies the question of the relationship between mutual trust and the
protection of fundamental rights in Europe’s area of criminal justice. is article will
examine the evolving and symbiotic relation ship between the protection of fundamental
rights and mutual trust before and a er Lisbon. It will examine four di erent types of
relationship between fundamental rights and mutual trust: fundamental rights as the
outcome of trust (by examining the evolution of ne bis in idem from a principle to a
fundamental right); fundamental rights a s a limit to trust (by focusing on fundamental
rights as grounds for ref usal to recognise and execute judicia l decisions, and in particular
European Arrest Warrants); fundamental rights as the source of trust (by focusing on
legislating for human rights at EU level via the adoption of minimum standards on
procedural rights in criminal proceedings); and fundamental r ights as a source of trust
via the development of uniform, autonomous concepts. e article will conclude by
reiterating the importance of ensuring e ective and on the ground protection of
fundamental rights as a cornerstone of establishing a system of mutual recognition
based on earned, rather than p resumed, trust.
* is contribution is to be considered an article, with reference to the traditional NJECL division
between Ar ticles and Opinion.
** Professor of Europea n Crimina l Law, Director of the Cri minal Justic e Centre, Head of the
Department of L aw, Queen Mary University, London.
Valsamis Mitsilegas
458 Intersentia
Keywords: autonomous concepts; European Arrest Warrant; EU Criminal Law;
fundamental r ights; mutual recognition; mutual trust; ne bis i n idem; procedural
rights
1. INTRODUCTION
e entr y into force of the Treaty of Lisbon has brought questions of the compatibility
of aspects of EU criminal law – and in par ticular the application of the principle of
mutual recognition in criminal matters – w ith fundamenta l rights. e
constitutionalisat ion of the EU Charter of Fundamental Rights has adde d urgency to
these questions. At the hea rt of the debate lies the question of the relationsh ip between
mutual trust a nd the protection of funda mental rights in Europe’s area of criminal
justice. Mutual tr ust has been evoked by EU institut ions as playing a key role in
European integration in c riminal matters, in the absence of a high degree of
har monis ation of nation al cr imin al jus tice s ystem s. Rat her t han es tabli shin g unif orm
or harmonised criminal law, European integration in the eld is primari ly based on a
system enabling inter-state cooperation v ia the seamless interaction of national
crimina l justice systems on the basis of presumed mutua l trust. However, this system
is exposed to criticisms that it sacri ces the position of the a ected indiv iduals and
the protection of their fu ndamental rights on the altar of enha ncing law enforcement
cooperation. is article will ex amine the evolvi ng and symbiotic relationship
between the protection of fu ndamental rights a nd mutual trust before and a er
Lisbon. It will exam ine four di erent types of relationship between funda mental
rights and mutual trust: funda mental rights as the outcome of trust (by examining
the evolution of ne bis in idem from a principle to a fu ndamental right); fundamental
rights as a lim it to trust (by focusing on fundamenta l rights as grounds for refusal to
recognise and execute judici al decisions, and in par ticular Europea n Arrest Warrants);
fundamental r ights as the source of trust (by focusing on leg islating for human rights
at EU level via the adoption of mini mum standa rds on procedural rights in crimi nal
proceedings); and fundamenta l rights as a source of trust via the development of
uniform, autonomous concepts. e article wi ll conclude by reiterating the importa nce
of ensuring e e ctive and on the ground protection of fundamental rights as a
cornerstone of establishing a system of mutual recognition based on earned, rather
than presumed, tr ust.
2. FUNDAMENTAL RIGHTS AS THE OUTCOME OF
MUTUAL TRUST: THE CASE OF NE BIS IN IDEM
e determination of the parameters of the principle of ne bis in idem re ects the
balance between state demands for delivering e ective crimi nal justice on the one
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