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Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality?

Fundamental Rights and Mutual Recognition in the Area of Freedom, Security and Justice: A Role for Proportionality?

Author: Ermioni Xanthopoulou
Publisher: Hart Publishing
ISBN: 9781509922253
Published In: April 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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This book explores the relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice (AFSJ) of the European Union and asks whether there is any role for proportionality. Mutual trust among Member States has for long been presumed by the Court in a manner that mutual recognition was prioritised vis-a-vis and to the detriment of the protection of fundamental rights. After thoroughly reviewing this relationship, the book offers a comprehensive framework of proportionality and explores its impact to the protection of fundamental rights in a mutual trust environment. It provides a theoretical and a normative framework of proportionality which then applies to two case-studies by reference to several fundamental rights. EU criminal and asylum law serve as the case studies of this book which enable a carefully constructed analysis with useful parallels. It argues that such analysis, based on proportionality, is not actually always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores the impact of it on the protection of fundamental rights vis-a-vis mutual trust.

1. Mutual Recognition: From Passive to Active Recognition

Introduction

Overview of the Area of Freedom, Security and Justice

Origins of Mutual Recognition

Transfer of Mutual Recognition to the Area of Freedom, Security and Justice

Typology and Operation of Mutual Recognition

Development of Mutual Recognition

Models of Mutual Recognition

From a Passive to an Active Model of Mutual Recognition

Seeking Equivalence and a Role for Proportionality?

Conclusion

2. Mutual Trust: From Blind to Gained Trust

Introduction

Mutual Trust in the Framework Decision on the European Arrest Warrant

Mutual Trust in the Dublin III Regulation

Evolution of Trust

Blind Trust

The FDEAW

Dublin System

Qualified System of Trust

Trust Based on Individual Assessment?

Age of Distrust?

Brexit and Distrust

Rule of Law Crisis and Mutual Trust

ECtHR Threshold: Flagrant Denial of Justice

Criticism and Commentary

Grounds for Pragmatic Earned Trust

Conclusion

3. Deconstructing Proportionality

Introduction

Early Philosophical Foundations

Emergence of a Legal Doctrine

Structure of the Proportionality-based Analysis

Legitimate Objective

Suitability and Necessity

Challenges and Limits

Proportionality in EU Law

Conclusion

4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack

Introduction

Protection of Victims in Criminal Proceedings Case Law

European Arrest Warrant Case Law

Kozlowski

I.B.

Leyman

Wolzenburg

Lopes Da Silva

Jeremy F

Radu

Melloni

Aranyosi and Caldararu

LM and the Essence of the Rights

Remarks

Dublin System Case Law

Conclusion

5. Constructing Proportionality for the Area of Freedom, Security and Justice

Introduction

Deconstructing EU Fundamental Rights

Fundamental Rights in EU Constitutionalism

The Charter and its Scope of Application

The Place of Fundamental Rights in the AFSJ

Constructing Proportionality for the AFSJ

Criteria on the Relevance of Proportionality Per Se

Article 52(1) of the Charter and the Essence of the Rights

European Investigation Order and Proportionality

Context of Application: Transfers of Individuals Based on Mutual Recognition

Generic Balancing Parameters

Variable Intensity

Seriousness of the Value Under Restriction

Vulnerability of Individuals

Degree of Harmonisation

Conclusion

6. Case Study I: European Arrest Warrant Transfers

Introduction

EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition

Security and the Constructed European Public Order

Constitutional Framework of EU Criminal Justice

Surrender Procedures and Fundamental Rights Breaches

Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW

Disproportionate Requests and Proportionality

The Legality Principle and the Opportunity Principle in Prosecution

Proportionality-based Analysis Informed by the Rights in Question

The Principle of Ne Bis in Idem

The Right to be Informed and Defence Rights

Right to Appeal

Principle of Legality in Criminal Law

Proportionality in Light of Aranyosi: Mission Impossible

Conclusion: The Impact of Proportionality-based Analysis on Surrenders

7. Case Study II: Dublin Transfers

Introduction

Public Discourse and EU Asylum Law

The Common European Asylum System

The Institutional and Legal Evolution of the Current Framework on CEAS

Dublin III Regulation

Dublin Shortcomings

Border and Migration Control as Dominant Narrative

Refugee (Governance) Crisis

Informing and Applying a Proportionality-based Analysis in the Context of the Dublin III Regulation

Proportionality-based Analysis Informed by the Rights in Question

Criteria of Balancing

Impact

the Limits of the Principle of Proportionality

No Place for Proportionality where Absolute Rights are Breached

Conclusion

Reflecting and Looking Ahead: Summation of Arguments, the Way Forward and Conclusion

Summation of Arguments

The General Reach of the Argument and its Limits

Variable Impact of Proportionality-based Analysis

The Way Forward for Mutual Trust and Recognition

EU Criminal Justice

CEAS

The Need for a Consistent Theory of Fundamental Rights for EU Law

Conclusion

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