Review of European and Comparative Law, 2023, Vol. 54, No. 3

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https://hdl.handle.net/20.500.12153/5944

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Now showing 1 - 5 of 11
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    EAW: Next Steps, Will Pandora’s Box Be Opened?
    (Wydawnictwo KUL, 2023) Glerum, Vincent; Kijlstra, Hans
    The authors advocate operational improvement of the European Arrest Warrant system. When applying the judi­cial cooperation instruments concerning criminal matters, more attention should be devoted to the requirements of proportion­ality, effective judicial protection, and coherence. The power to issue an EAW should be more circumscribed whereas executing authorities should be allowed more flexibility in the decision making process as far as the execution of an EAW is concerned. The authors conclude by sketching amendments to the legal and practical framework and the efforts required to implement them as well as by addressing the issue of political feasibility.
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    Erosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings
    (Wydawnictwo KUL, 2023) Sakowicz, Andrzej
    An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.
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    A Bottom-up Look at Mutual Trust and the Legal Practice of the Aranyosi Test
    (Wydawnictwo KUL, 2023) Peristeridou, Christina
    This contribution offers an insight into the legal prac­tice of the Aranyosi test during the EAW proceedings in seven Member States, an outcome of the research conducted during the ImprovEAW Project. Only the executing judicial authori­ties of some Member States do trigger the test. Member States are roughly differentiated between those having facilities with usually bad or usually good detention conditions, promoting antagonistic relationships instead of equal partnership. The lack of streamlining of the communication when supplementary information is requested, the lack of common standards and approach towards guarantees lead to further misunderstand­ings and frustration. The findings of this research have revealed the importance of departing from a pure legal understanding of mutual trust and follow a more empirical, experiential or bot­tom-up concept. Mutual trust is not only a legal concept, but it underpins the legal culture of the cooperation and collegial attitudes of authorities towards one another. This expression of mutual trust remains quite undiscovered: how is miscom­munication affecting mutual trust? Do judicial authorities of legal systems express collegiality to one another? How do cul­tural aspects and preconceived ideas regarding the quality of other legal systems influence mutual trust? Accordingly, some suggestions have been made to improve the cooperation and the establishment of rapport when supplementary information is requested. Finally, I advocate for a more neutral view towards the Aranyosi test. As opposed to considering it as a supervisory mechanism, I have explored the idea of approaching it as a risk management tool: it tackles risks created by mutual trust. Such approach helps both sides to take responsibility to avert ad hoc risks, instead of experiencing Aranyosi as a testing moment. Such approach centres the real problem, i.e. the risks created by mutual trust for individuals and it can stimulate more proactive policy-making in this regard.
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    Translating and Interpreting the Letter of Rights
    (Wydawnictwo KUL, 2023) Klip, André
    This article focuses on the implementation of Directive 2012/13 on the Right to Information with reference to foreigners arrested in the Member State of the EU. In particular, the Author analyses whether foreigners provided with a Letter of Rights receive the same information despite their handicap of not understanding the language. Special attention is given to how the Netherlands and Poland deal with the Letter of Rights for foreigners. The picture that emerges concerning foreigners is that providing them with a Letter of Rights in their language is seriously handicapped in almost all aspects: the timing (availability), the linguistic quality, the accessibility and simplicity. This situation creates severe risks concerning the right to a fair trial for foreigners. They may not invoke rights because they do not know them. They may not come to their own trial because they did not understand.
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    Detention Pending Execution of the European Arrest Warrant – Dutch and Polish Experience. Some Reflection from the Human Rights Perspective
    (Wydawnictwo KUL, 2023) Glerum, Vincent; Wąsek-Wiaderek, Małgorzata
    This article focuses on detention pending surrender, i.e. detention of the requested person in the executing Mem­ber State on the basis of the European Arrest Warrant (EAW). It defines the scope of application of Article 5 of the Euro­pean Convention on Human Rights to such detention and anal­yses the case-law of the Court of Justice of the European Union on time limits of keeping the requested person in detention in the executing MS as well as on the notion of “the execut­ing judicial authority” entitled to decide on detention pending surrender. Both issues are explored with reference to national law and practice of the Netherlands and Poland. The article pro­vides the answer to the question whether national provisions which limit the duration of detention pending surrender prop­erly reflect the normative content of the framework decision on the EAW. The answer to this question is given with due regard to the standard of protection of the requested person stemming from Article 5 § 1 ECHR and Article 6 of the Charter of Funda­mental Rights. Furthermore, the analyses focus on Dutch and Polish provisions concerning the authority entitled to decide on detention pending surrender and their compliance with the CJEU’s jurisprudence on the notion of “the executing ju­dicial authority.” Recognising that detention is the basic meas­ure for ensuring the effectiveness of surrender, we try to define the limits of its use in the EAW procedure, stemming from the requirements of protection of human rights.