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24 Apr 2018

Saving EU Criminal Justice

Proposal for EU-wide supervision of the rule of law and fundamental rights

Petra Bárd

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According to the principle of mutual recognition in EU criminal justice, judicial decisions taken in one member state should automatically be accepted and enforced across the Union. Mutual recognition presupposes mutual trust, suggesting that all member states share with the EU the same foundational values, including the rule of law, respect for human rights and that judicial decisions are the outcome of fair and independent processes. The EU’s legislative bodies have adopted a series of laws in the criminal justice area on the basis of mutual trust without leeway to opt out if doubts arise concerning the issuing member state’s respect for values common to the EU and its member states according to Art. 2 of the Treaty on European Union. Yet it has turned out that mutual trust was premature and unjustified: certain member states notoriously violate the dictates and most basic tenets of the rule of law, engage in systemic human rights violations and jeopardise judicial independence. Those executing states that adhere to EU values find themselves between a rock and a hard place: they either follow mutual recognition-based laws and thereby become responsible for the proliferation of rule of law problems and human rights abuses across the Union, or they disrespect EU secondary laws. This paper shows how the rigid insistence on mutual trust by the EU’s legislative institutions puts into jeopardy the operation of mutual recognition-based instruments, and also the whole body of EU law and values underlying EU integration. The paper argues that the values the EU shares with the member states and mutual recognition can and should mutually reinforce each other, and in that vein offers recommendations to overcome the challenges described.

This publication has been carried out within the framework of the ENGAGE Fellowship Programme, with the support of the Open Society Initiative for Europe (OSIFE). It is a tailor-made Programme that connects academic, civil society and think tank actors from Central and Eastern European and the Western Balkans with EU-level policy debates. It consists of a one-year programme providing a set of trainings, study visits, public events and a policy brief writing exercise. The ENGAGE Fellowship takes a rule of law approach to the policy domains of rights, security and economics.

Petra Bárd is a CEPS ENGAGE Fellowship Holder; Associate Professor, Eötvös Loránd University, Budapest; Visiting Faculty, Central European University (CEU), Budapest; and Visiting Professor, Goethe University, Frankfurt.

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