What about fundamental rights? Security and fundamental rights in the midst of a rule of law breakdown
| Author | Cristina Saenz Perez |
| DOI | http://doi.org/10.1177/20322844221140871 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 526–545
© The Author(s) 2022
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DOI: 10.1177/20322844221140871
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What about fundamental
rights? Security and
fundamental rights in the midst
of a rule of law breakdown
Cristina Saenz Perez
School of Law, University of Leeds, UK
Abstract
This article considers the balance between security and fundamental rights that characterises
EU criminal law and examines how processes of rule of law backsliding have re-shaped it.
Traditionally, EU criminal law has been characterised by its securitisation, which crystallised
in the prioritisation of the principle of mutual trust over concerns for the rights of de-
fendants. However, processes of rule of law breakdown at Member State level have chal-
lenged this balance and demonstrated the flawed foundations of mutual trust. This paper
explores how the CJEU is addressing these contradictions through case law that, none-
theless, continues to prioritise security over the right to a fair trial, whilst Member State
courts challenge these interpretations and develop decentralised interpretations of the right
to a fair trial. The goal is to evaluate whether judicial dialogue provides an adequate
framework to counter the securitisation of EU criminal law and protect the right to a fair trial
in the midst of a process of rule of law breakdown.
Keywords
European arrest warrant, criminal law, human rights, rule of law, fair trial
Corresponding author:
Cristina Saenz Perez, School of Law, University of Leeds, Liberty Building, Moorland Rd, Leeds LS2 9JT, UK.
Email: c.saenzperez@leeds.ac.uk
Introduction
The rule of law breakdown experienced by some Member States has been at the centre of the EU
debate for some time now.
1
This breakdown has been articulated through reforms that include, inter
alia, the dismantling of the checks and balances that guarantee judicial independence, the limitation
of press freedoms, and restrictions on the rights of minorities.
2
The inability of political instruments
and the limited success of infringement proceedings in redressing these breaches
3
have exposed pre-
existing contradictions in the definition of the rule of law and inadequacies in its enforcement within
the EU’s constitutional framework. However, the literature has only rarely considered the impact
that these ineffective instruments have on the defence rights of the individual, mostly through
a case-specific analysis.
4
This article contributes to this growing body of literature examining the
impact of processes of rule of law backsliding, by focusing how these processes affect the individual
in an area that has Member States and their interests at the centre, i.e. EU criminal law.
Within EU criminal law, judicial cooperation is a prominent field set up to tackle cross-border
and fight impunity within a borderless area.
5
The preeminent role of Member States within this Area
that has courts at the centre and limited fundamental rights counterbalances, has questioned the
balance between security and fundamental rights.
6
Traditionally, this balance prioritised security
objectives pursued through a quasi-absolute notion of mutual trust, by assuming that Member States
share equivalent rule of law and fundamental rights standards that enable them to cooperate with
limited safeguards.
7
However, the evidence that these assumptions are sometimes flawed has
1. On the latest developments on this crisis, see: P.B ´
ard, B. Grabowska-Moroz & V.Zolt ´
an Kazai, Rule of Law Backsliding
in the European Union Lessons from the Past, Recommendationsfor the Future (Reconnect Working Paper, July 2021).
Available at https://reconnect-europe.eu/blog/rule-of-law-backsliding-in-the-european-union-lessons-from-the-past-
recommendations-for-the-future/ last accessed 12 July 2022; A. Gora and P. de Wilde, ‘The essence of democratic
backsliding in the European Union: deliberation and rule of law’(2022) 29 Journal of European Public Policy 342; O.
Polanski, ‘Poland - Another episode of “rule of law backsliding”- Judgment P 7/20 and a threat to the integrity of the EU
legal order’(2022) 1 Public Law 153; T. Theuns, ‘The Need for an EU Expulsion Mechanism: Democratic Backsliding
and the Failure of Article 7’(2022) Res Publica 1.
2. C. Emmons and T.Pavone, ‘The rhetoric of inaction: failing to fail forward in the EU’s rule of law crisis’(2021) Journal of
European Public Policy 1611, 1612.
3. D. Kochenov and L. Pech, ‘Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality’(2015) 11
EuConst 512; B. Bugariˇ
c, ‘On Article 7 TEU and the Hungarian turn to authoritarism’, in M. Closa and D. Kochenov,
Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2017).
4. See, e.g., P. Popelier, G. Gentile & E. van Zimmeren, ‘Bridging the gap between facts and norms: mutual trust, the
European Arrest Warrant and the rule of law in an interdisciplinary context’(2022) European Law Journal 1; T.
Konstadinides, ‘Judicial independence and the Rule of Law in the context of non-execution of a European Arrest Warrant:
LM’(2019) 56 Common Market Law Review 543; M. Boese, ‘The European arrest warrant and the independence of
public prosecutors: OG & PI, PF, JR &YC’(2020) 57 Common Market Law Review 1259.
5. European Council of Tampere, Presidency Conclusions, 15 and 16 October 1999, paras 43-45.
6. On the balance between security and fundamental rights in the AFSJ, see: E. Herlin-Karnell, ‘The domination of security
and the promise of justice: on justification and proportionality in Europe’s‘Area of Freedom, Security and Justice’(2017)
8 Transnational Legal Theory 79; A. Ripoll Servent, Institutional and Policy Change in the European Parliament
(Palgrave Macmillan 2015), Ch 4; S. Lavenex and W. Wagner,‘Which European Public Order? Sources of Imbalance in
the European Area of Freedom, Security and Justice’(2007) 16 European Security 225.
7. V. Mitsilegas, ‘The symbiotic relationship between mutual trust and fundamental rights in Europe’s area of criminal
justice’(2015) 6 New Journal of European Criminal Law 457, 458; A. Efrat, ‘Assessing mutual trust among EU members:
evidence from the European Arrest Warrant’(2019) 26 Journal of European Public Policy 656, 657.
Saenz Perez 527
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