Week 5 - Rights and Cooperation in European Criminal Procedure

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EU Criminal Procedure

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EU Criminal Procedure

Procedural rights + Cooperation in Criminal Mattrs

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Mutual Recognition

  • operational principle for inter-MS coopeation

  • presumes mutual confidence; that each state has a base level of fundamental rights, regardless of legal diversity

  • presumed equivalence between rules and legal protection of fundamental rights

    • mutual trust enables mutual recognition

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Mutual Trust

  • dispensing with the formalities that come with the traditional inter-state cooperation model → to a system of automatic compliance

    • differences should not stand in the way of cooperation (in traditional model, states could impose formalities)

    • not allowed to scrutinise legal basis of other states → just trust them

  • also makes it so harmonization doesnt go too far → differences are kept

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origin of mutual trust + controversy

EC single market freedoms

  • achieve effective implementation without legal diversity being a legal impediment in borderless community

  • equivalent quality of goods assumed


  • transfer of this principle from area of market freedom/internal market to CL sphere brings problems (“bad analogy”)

      1. under market freedoms human rights aspects dont have to be assumed → now that you transfer mutual trust to a completely different sphere where HR have to be taken into consideration, they aren't really under this principle of mutual trust (degree of confidence is very different in CL than internal market)

      1. automaticity in inter-MS cooperation is premised in acceptance of high level of integration and presumption of full respect FR rights among MS → MT is taken for granted in the CL sphere/AFSJ to the detriment of FRs and EU/universal values

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Mutual Recognition legal basis post-Lisbon

82(1) TFEUmutual recognition is the basis for CL judicial cooperation

  • measures per OLP

    • a) lay down EU rules/procedures to recognise judicial decisions

    • b) prevent and settle conflicts of jurisdiction between Member States

    • c) support the training of the judiciary and judicial staff

    • d) facilitate cooperation between judicial or equivalent authorities of the MS w/r/t proceedings in criminal matters and enforcement of decisions

Art 82(2) TFEUprocedural CL making competence

  • directives per OLP (adopt approx. measures to set min. standards)

    • Min. rules to “to facilitate mutual recognition of judgments/judicial decisions/police/judicial cooperation in criminal matters having a cross-border dimension”

    • BUT specific limitation “shall take into account differences between legal traditions” → clarification that min rules should take into account legal difference

  • a) mutual admissibility of evidence

  • b) the rights of individuals in criminal procedure;

  • c) the rights of victims of crime

  • d) any other specific aspects of criminal procedure which the Council has identified in advance by a

    decision (SLP: Cn unanimity + EP consent)

  • → safeguard = MS may maintain/introduce higher legal of protection for individuals (further accommodates legal diversity, but only if result sin higher standards of HR protection)

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Procedural Rights (history)

One aspect of EU criminal procedure ( think 82(2))

  • Defence Rights + Victim rights


  • AFSJ → focus laid primary with security, at the cost of freedom and justice

    • no measures to compensate for spill-over effects of securitization measures

      • "rights deficit/due process deficit”

  • CFR aspirational in 2000-2009 (not primary law yet so not binding")

  • Shortly before Lisbon, focus on protective dimension too (single area where FR should also be protected) → desire to strengthen current Art 67 TFEU (“respect for FR and diversity of national legal systems”)

  • Early MR instruments

    • EAW and surrender procedures between MS, execution in EU of orders freezing proeprty/evidence, application of MuRec to financial penalties, application of MuRec to judgements in criminal matters imposing custodial sentences or deprevation of liberty etc

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Procedural Rights: Defence


  • Council resolution 2009 → roadmap for strengthening procedural rights of suspects or accused persons in criminal proceedings

  • CFR became binding source/primary law (Art 6(1) TEU) + obligatory accession to ECHR (Art 6(2) TEU)

  • Art 82(2)(b) TFEU → Mutual Recognition directives = emerging codification of defense rights

    • here we thus see the shift in focus post-Lisbon, to include fundamental rights

      • e.g. directives on the right to interpretation/translation crim proceedings, access to a lawyer, strengthening presumption of innocence etc

  • However → since 2016 impetus for directives strengthening procedural defense rights kind of stopped

    • so we see gaps w/r/t human rights protection, particularly in the areas of

      • detention

      • imprisonment conditions

      • → could violate Art 4 CFR

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Procedural Rights: Victims

→ European Protection Order (2011)

  • pre-Lisbon, start of emerging victims code, but legislative production kind of stopped until post-lisbon

  • Resolution of the Council 10/06/2011 → Roadmap for strengthening the rights and protection of victims (in response to increase of cross-border crimes, leading to concern for protection victims in criminal proceedings)

Art 82(1) & 82(2)(c) → MR directives since 2011

  • European Protection Order

  • establishing min standards on the rights, support, and protection of crime victims

    • some directives on human trafficking, sexual abuse, children, terrorism

Now, EU min rules concerning rights of victims

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EU min rules concerning rights of victims

  1. Compensation → from MS where crime was committed or from the offender

  2. Protection → EPO Directive (recognition of protective measures in another MS)

    1. exhaustive list of restrictions/prohibitions that can be imposed on 'person causing danger’ to protect victim

    2. little practice since 2011 → could be because lack of awareness victims to invoke this right

  3. Appropriate information and victim support services

    1. (Directive establishing min standards on rights/support/protection victims of crime 2012) → recognition and treatment of victims in professional, sensitive manner etc.

  4. Participation: as per MS process, but right to be heard (day in court) and to review non-prosecution

    1. focus is on ensuring min rights → so now, able to provide evidence in some capacity and address the court

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Victims vs Defense rights (coherence EU procedural policy)

Overall: legislative development helped

→ Competence to legislate in criminal procedure measures and adopt harmonization measures that establish min standards (art 82(2))

  • Roadmaps procedural rights victims & defence

    • What is being done by establishing min standards does not go far ENOUGH with making sure states are complying with fundamental rights

    • Goal is not protection of fundamental rights to itself, it is kind of a means to achieve the end of effective cooperation & mutual recognition

Victims vs Defendants

  • Victims directives, right of defendants are referred to

    • Victims rights; delays in proceedings, more paperwork, more people; recognizing a victim

      • whose victim are they? Does that mean the presumption of innocence goes out the window?

      • How do we accommodate victims interests with fair trial rights?

    • Defense directives, no mention of victims

      • Not really an issue, would make no sense -> defense rights do not conflict here → but victims rights CAN conflict with defense rights and the presumption of innocence

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second part of EU criminal procedure (think Art 82(1))

  1. European Arrest Warrant

  2. European Investigation Order

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EAW (Framework Directive on the European Arrest Warrant)

History and Definition

  • Cn FD on EAW and surrender procedures between MS

    • intergovernmental measure under P3

    • first concrete measure in the field of CL implementing MR (AFSJ)

  • Def = judicial decision issued by a MS with a view to the arrest & surrender by another MS of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order (Art 1(1) FD)

Art 2 = Scope

  • can be issued for acts punishable by issuing MS law by custodial sentence/detention order for min/max 12 months, or where sentence passed, for min. 4 months

    • Art 2(4) = conditional surrender → other offences, condition is that e/MS has criminalised this offence (subject to double criminality (DC) in e/MS)

    • Art 2(2) = 32 types of crimes, if punishable in i/MS by min/max 3years, WITHOUT DC

      • exhaustive list, but can be expanded under SLP

Art 6 = Judicial Authority

  • judicial authority of issuing/executing MS competent to issue/execute EAW based on law of that MS (CJEU clarified that is must be a judicial authority (JA))

Art 3 = Mandatory non-execution

  • JA e/MS shall refuse to execute if

      1. amnesty in e/MS

      1. NBII

      1. age of person conflicts per e/MS law

Art 4 = Optional non-execution

  • JA e/MS may refuse to execute if

      1. art 2(4) offence, n.i. tax offences, not an offence in e/MS (so no double crim)

      1. ongoing prosecution in e/MS for same act

      1. diversion (decision not to prosecute/halt proceedings)

      1. statutory limitation

      1. NBII non-MS

      1. crime in e/MS territory or extraterritorial crimes, when e/MS does not allow their prosecution

Art 5 = Conditional Execution

  • e/MS can set conditions for i/MS

    • e.g. life imprisonment conditional on review after 20y or nationals/residents e/MS conditional in return to e/MS to serve sentence issued by i/MS

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EAW: rule of law + fundamental rights issues

  • incompatibility with HR is not a ground for refusal

    • blind trust/mutual trust? MR mechanisms based on presumed, but rebuttable, compliance with FRs and EU core values

    • EAW FD no effect on modifying obligation to respect fundamental rights (Art 6 TEU and Art 1(3) FD EAW)

  • CJEU case law developed 2 step test for non-execution under Art 1(3)

    • Aranyosi → LM, and, L and P

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EIO (directive on the European Investigation Order)


  • Adopted post-lisbon Art. 82(1)(a) TFEU → replaced Cn FD concerning European Arrest Warrant

  • single regime for obtaining evidence: evidence gathering e/MS, incl evidence e/MS already in possession of e/MS


  • Art 1(1) EIO = a judicial decision issued/validated by a MS issuing authority to have specific investigatory measures carried out in another MS to obtain evidence

    • where issuing authority is investigating judge, prosecutor, or other competence authority

Art 3 = scope

  • any investigative measure except setting up JIT

Art 4 = types of proceedings

  • criminal

Art 6 = Conditions for issuing and transmitting EIO

  • Necessity & proportionality

  • Measure applicable in similar domestic cases

  • Consultation between i/MS and e/MS

Art 10(2) = Investigative measures

  • always have to be available in e/MS

    • e.g. obtaining evidence already in possession, hearing of witnesses/experts/victims/suspect, any non-coercive measures

    • or if less intrusive (Art 10(3))

CH IV-V = special provisions investigative measures

  • Art 22-23 = transfer of persons; Art 24-25 = video phone/conference…Art 30-31 = interception telecommunications

Art 1(2) cf. Art 9 = recognition and execution based on principle of mutual recognition without any further formality being required

Art 11 = grounds for non-recognition/execution

  • immunity/privilege; essential NS interests; NBII; lacking double crim if required; incompatible with e/MS duties Art 6 TEU etc

  • limits = tax offences, duty of consultation

Art 14 = legal remedies

  • equivalent to those available in similar domestic cases, must be applicable

  • substantive reasons challengeable only in i/MS, subject to e/MS duty to guarantee FRs

    • initial reasons by i/MS can only be challenged there→ e/MS cannot inquire (duty to guarantee rights always falls with e/MS) so fund rights concerns, THEN can be brought before e/MS

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EIO issues with fundamental rights

  • Execution incompatible with e/MS under Art 6 TEU or CFR → different with EAW (incompatibility is an explicit ground for refusal)

  • EIO no effect of modifying obligations to respect fund rights and principles, including defence rights → similar to EAW Art 1(3)

  • Rebuttable presumption other MS complies with EU law and FRs → substantial grounds to believe execution would result in breach = refusal to execute

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Aranyosi and Căldăraru

2 Step Test for non-execution under Art 1(3) EAW → HR can be a ground for refusal if…

  1. General Overview: determining systemic or generalized deficit that could give rise to real or risk or breach of fundamental rights, based on objective, reliable, and credible information

  2. Individualised Assessment: (clearly link general state based overview to specific rights individual): e/MS has to seek supplemental information i/MS → judicial dialogue, cooperative mechanism (so still working in this mutual trust environment)

Main question addressed in the case: Are fundamental rights an explicit ground for refusal to extradite?

  • Prisons in Romania and Hungary not up to standards, so Germany did not want to extradite (2 arrest warrants, against Hungarian and Romanian national)

    • Issuing states Hungary & Romania

    • Executing state Germany

→ No such EXPLICIT ground for mandatory or optional ground for refusing saying we will not extradite because potential breach fundamental rights (but, Art 1(3))

  • Are fundamental rights a limit to mutual trust?

    • Art 1(3) EAW

    • Safeguard fundamental rights applicable to whole of FD

    • Read in conjunction with recital 10 (“high level of confidence…”)

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Rule of law and fair trial rights

  • Ireland

Question remaining after Aranyoshi: what rights are protected? Only absolute rights?

  • Rule of law concerns themselves can itself also be a ground for refusal (e.g. lack of judicial independence)

  • Again, 2 step test

      1. General assessment: Deficiencies rule of law?

      2. Individualised assessment: Do these general deficiencies in the rule of law result in substantial grounds to believe … that in this specific case, FRs may be infringed upon?

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L & P

i/MS Poland, e/MS Netherlands

Question: these deficiencies are so egregious, cant we just skip the second step?

  • NL: cannot expect us to go ask for info when we don’t even recognize that this system has a proper rule of law

  • Court: doesn’t matter, have to go through individualized assessment → Need that dialogue so state can give assurances

    • Court scared that Dutch authorities refusing to go through second step (on the basis that the Polish judiciary is not in line with rule of law) would lead to another question

      • Suspension of the whole of the framework decision?

      • MS committing such breaches, they can request that Council determine this in a decision, and if the Council does determine this serious and persistent breach of Art 6, then FD stops being valid for this MS

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Second step requirement

  • Honed down upon by court in LM, L&P, and now also in Cases C-562/21 PPU and C-563/21 PPU

    • Amsterdam district court had issue with independence judiciary Polan

      • In this particular jurisdiction Poland, panel of judges appointed by Polish Council of Judiciary (primarily) chosen by parliament and government

      • NL said poland no longer impartial because SYSTEMIC violation

Question: can we skip second step?

  • Court: no you have to go through second step → And you have to show that specific appointment of THIS panel will affect the fair trial rights of the specific INDIVIDUAL

  • Court furthermore: defendant was supposed to demonstrate that it affected personal rights; required defendant to be the one to prove fair trial rights to be violated

= Heavy burden on defendant

= Art 1,2,3 fundamental rights

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Q4 Seminar: Is there a way to find non-confrontational means of non-execution of a EAW in this case?

Issue 1 = Is failure to correctly transpose a ground for refusal? (Definitions of crime in MS)

  1. is this within the scope of the EAW FD?

    1. Art 2(1) list, or Art 2(4) if list of non-DC crimes is non applicable

      1. 2(1) has to be punishable by min/max period 12 months

      2. in this case = penalty>12m, FD is applicable under 2(1)

  2. Are mandatory grounds for refusal applicable in this case?

    1. Art 3 mandatory grounds?

      1. no mandatory grounds in this case

    2. Art 4 optional grounds?

      1. 4(1) not an offence in e/MS? → well actually in this case the offence is defined by i/MS under "xenophobia and racism” legislation which would fall under 2(1), and so no double criminality is required

      2. → so, also have to check whether it is an offence where DC cannot be grounds for refusal

  3. in this case, failure to correctly transpose is NOT ground of refusal

Issue 2 = Are fair trial rights grounds for refusal in this case (and try to be non-confrontational)

  1. Is this within the scope? We established that Art 2(1) and Art 2(2) are applicable

  2. Applicable law grounds for refusal based on FRs = Art 1(3) = no explicit grounds for refusal, so turn to relevant case law

    1. Aranyoshi, + LM and L&P for fair trial rights as grounds for refusal = 2 STEP TEST

      1. Systematic or generalised deficiencies? => yes

      2. Individualized grounds to believe Mr. T himself would suffer a violation based on these systematic deficiencies if surrendered? => yes

        1. authorities saying he “should suffer” → LM case para 61 says public statements are a great indication of fair trial rights being breached

        2. maybe defendant can provide info

        3. *note that this second step is ALWAYS difficult to fulfill => Not very strong grounds

Other grounds for refusal? Arts 3-5 EAW FD

  1. Art 4(7)(b) = offence was committed outside territory of i/MS, and e/MS would not have allowed prosecution if that crime had been committed outside its territory

=> much stronger, non-confrontational grounds to refuse surrender

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Steps to take for EAW

  1. Art 2(1) = scope of FD?

  2. Art 2(2) = double criminality (if not, then try Art 2(4))?

  3. Art 3-5 = grounds for refusal?

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