Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice: A Role for Proportionality? 9781509922253, 9781509922284, 9781509922277

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FUNDAMENTAL RIGHTS AND MUTUAL TRUST IN THE AREA OF FREEDOM, SECURITY AND JUSTICE 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 long been presumed by the Court in a manner that mutual recognition was prioritised in regard to, but to the detriment of, the protection of fundamental rights. After thoroughly reviewing this relationship, this book offers a comprehensive framework of proportionality and explores its impact on the protection of fundamental rights in a mutual trust environment. It applies a theoretical and a normative framework of proportionality to two case studies (EU criminal and asylum law) by reference to several fundamental rights, enabling a carefully constructed analysis with useful parallels. The book argues that such analysis, based on proportionality, is not always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores its impact on the protection of fundamental rights vis-à-vis mutual trust. Volume 98 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: The European Union under Transnational Law: A Pluralist Appraisal Matej Avbelj Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law Benedita Menezes Queiroz Social Legitimacy in the Internal Market: A Dialogue of Mutual Responsiveness Jotte Mulder The EU Better Regulation Agenda: A Critical Assessment Edited by Sacha Garben and Inge Govaere Administrative Regulation Beyond the Non-Delegation Doctrine: A Study on EU Agencies Marta Simoncini The Interface Between EU and International Law: Contemporary Reflections Edited by Inge Govaere and Sacha Garben The Rise and Decline of Fundamental Rights in EU Citizenship Adrienne Yong The Court of Justice and European Criminal Law: Leading Cases in a Contextual Analysis Edited by Valsamis Mitsilegas, Alberto di Martino and Leandro Mancano The EU as a Global Regulator for Environmental Protection: A Legitimacy Perspective Ioanna Hadjiyianni Citizenship, Crime and Community in the European Union Stephen Coutts Critical Reflections on Constitutional Democracy in the European Union Edited by Sacha Garben and Inge Govaere Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations Graham Butler The Juridification of Individual Sanctions and the Politics of EU Law Eva Nanopoulos Sixty Years of European Integration and Global Power Shifts: Perceptions, Interactions and Lessons Edited by Julien Chaisse For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.bloomsburyprofessional.com/uk/ series/modern-studies-in-european-law

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

Ermioni Xanthopoulou

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © Ermioni Xanthopoulou, 2020 Ermioni Xanthopoulou has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Xanthopoulou, Ermioni, author. Title: Fundamental rights and mutual trust in the area of freedom, security and justice : a role for proportionality? / Ermioni Xanthopoulou. Description: Oxford ; New York : Hart, 2020.  |  Based on author’s thesis (doctoral – King’s College London, 2017) issued under title: Proportionality and mutual trust in the Area of Freedom, Security and Justice.  |  Includes bibliographical references and index. Identifiers: LCCN 2019056676 (print)  |  LCCN 2019056677 (ebook)  |  ISBN 9781509922253 (hardback)  |  ISBN 9781509922260 (Epub) Subjects: LCSH: Law enforcement—European Union countries.  |  Freedom of movement— European Union countries.  |  Asylum, Right of—European Union countries. Classification: LCC KJE5977 .X36 2020 (print)  |  LCC KJE5977 (ebook)  |  DDC 342.408/5—dc23 LC record available at https://lccn.loc.gov/2019056676 LC ebook record available at https://lccn.loc.gov/2019056677 ISBN: HB: 978-1-50992-225-3 ePDF: 978-1-50992-227-7 ePub: 978-1-50992-226-0 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD The European ‘Area of Freedom, Security and Justice’ has become a focal point of EU integration studies in recent years. A key issue in the legal debate on the boundaries of Area of Freedom, Security and Justice law has been the need to strike a balance between security dominated measures and that of procedural safeguards. For example, ever since the adoption of the European Arrest Warrant, there has been a discussion on the need to introduce a proportionality test in order to limit the use of arrest warrants for sufficiently serious crimes of a cross border nature. Eventually this debate resulted in an inclusion of a specific proportionality test to the handbook on the operation of the arrest warrant. Yet very few scholars have looked at the actual meaning and implications of a proportionality test or placed it in a wider context of EU fundamental rights protection. Moreover, and related to this, there is a need for scholarly engagement with the key issues in Area of Freedom, Security and Justice law such as the limits to trust and mutual recognition and the impact of proportionality reasoning in exactly such a context. ‘Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice. A Role for Proportionality?’ does exactly this and offers an excellent and much needed contribution to the field. It is the first comprehensive book specifically dedicated to the function and impact of proportionality in the Area of Freedom, Security and Justice. Dr Ermioni Xanthopoulou covers not only the important debate on mutual recognition and limits to trust in Area of Freedom, Security and Justice law, but also more recent developments on the question of rebuttal of trust and what is meant by exceptional circumstances. While chapter one and two set out the core questions for understanding trust and proportionality reasoning in the Area of Freedom, Security and Justice, chapter three and four take a step back and ask more fundamental questions about the theory of proportionality and how it is understood and applied in legal contexts. The remaining chapters thereafter explore the meaning of proportionality in the specific field of fundamental rights protection. The book explores the double-edged sword of proportionality, ie, that it can be used both to limit and extend rights. Furthermore, the book looks at the links between proportionality reasoning and limits to trust by turning to two case studies: the European Arrest Warrant and the Dublin regulation III in the area of criminal law and asylum law respectively. The final chapter of the book provides a very valuable outlook of the prospects for fundamental rights protection in the Area of Freedom, Security and Justice.

vi  Foreword Ermioni Xanthopoulou does not limit herself to a traditional conclusion in the book but instead she invites the reader to reflect and look ahead. Most importantly, she emphasizes the impact of a proportionality-based analysis is influenced by several idiosyncratic elements of the policy areas as well as their priorities, urgencies and emergencies. It is only by understanding these differences and similarities between, eg, criminal law and asylum law within the Area of Freedom, Security and Justice that proportionality can have a real impact as it boils down to a discussion on the nature and position of fundamental rights in EU law. Written in a clear and entertaining manner, the book is a must read for anyone interested in the future of Area of Freedom, Security and Justice law. E Herlin-Karnell, Gothenburg

ACKNOWLEDGEMENTS This book represents the fruits of my doctoral and post-doctoral research, which was conducted respectively at King’s College London (KCL), where I completed my PhD, and then at Brunel University London in the context of my second lectureship. First and foremost, I am deeply grateful to these two institutions for offering a vibrant research environment where I could research, and write. I could not have completed this manuscript without the patient and kind support of Sasha Jawed and Sinead Moloney of Hart Publishing. Thank you to you two and thanks Hart Publishing for believing in this project! Many thanks should certainly go to my KCL supervisors, Cian Murphy, Takis Tridimas and Alex Turk, as well as my PhD viva examiners, Adam Łazowski and Maria Bergstrom, who have offered invaluable and constructive feedback on the thesis that constitutes the backbone of this book. Moreover, I am particularly thankful to my LLM supervisor, Theodore Konstadinides, and Alexandra Xanthaki, my Brunel research mentor, for offering honest mentorship and useful advice. Special thanks should also go to former Hertfordshire research mentor Virginie Barral for her advice on my book proposal. I am also grateful to many other peers, colleagues and academic friends with whom I have had the pleasure of working and/or who have been sources of encouragement and intellectual stimulation. My gratitude goes to my former KCL, LSE, Hertfordshire and current Brunel colleagues, as well as to people with whom I have had a chance to discuss my work at conferences, seminars, w ­ orkshops or coffee, or who have offered their support and encouragement in their own way. Special thanks to Valsamis Mitsilegas, Anne Weyembergh, Massimo Fichera, Jannemieke Ouwerkerk, Ester Herlin-Karnell, Dora Kostakopoulou, Elaine Fahey, Egle Dagilyte, Tawhida Ahmed, Lina Papadopoulou, Javaid Rehman, Eleni Polymenopoulou, Floris de Witte, Arad Reisberg, Bimbo Olowofoyeku, Esin Kucuk, Samantha Velutti, Anastasia Karatzia, Auke Willems, Irene Wieczorek, Niovi Vavoula, Leandro Mancano, Noreen O’Meara, Martin Husovec, Camille Pommel, Barbara Henry, Laura Lo Coco, Adrienne Yong, Paz Irarrazabal, Guillermo Jimenez, Alberto Coddou, Caroline Rusterholz, Ioanna Hadjiyanni, Nikolas Voulgaris, Napoleon Xanthoulis, Dimitris Patsikas, Amanda Spalding, Ferya Tas-Cifci, Melanie Collard, Stellios Andreadakis, Pamela Nika, Eduardo Alvares-Armas, Francesco De Pascalis, Josh Bowsher, Hayleigh Bosher, Gerard Conway, Paula Westenberger, Izobel Renzulli, Eleni Kaprou and Kathrin Hamenstaedt, with all of whom I had the chance to discuss my work. I am also deeply thankful to my students for our nice discussions on matters related to this book.

viii

Acknowledgements

I would also like to thank my close friends and family members who supported me throughout this journey, for their encouragement and emotional support through their safe and stable companionship. I owe my book to Maria Kotani and Ilias Xanthopoulos, my beloved parents, who have always been there for me. Finally, I am thankful from the bottom of my heart to my best friend, partner and husband, Arsalan Javed, for committedly supporting me with his love and encouragement, tirelessly discussing new ideas and sharing common ideals! Ermioni Xanthopoulou London, 23 September 2019

CONTENTS Foreword ........................................................................................................................v Acknowledgements ..................................................................................................... vii Table of Cases ............................................................................................................ xiii Table of Legislation................................................................................................... xvii Introduction .....................................................................................................................1 Research Questions..................................................................................................4 Findings and Arguments ........................................................................................5 Scope ..........................................................................................................................6 Choice of Instruments .............................................................................................6 Structure ....................................................................................................................7 1. Mutual Recognition: From Passive to Active Recognition .................................9 Introduction..............................................................................................................9 Overview of the Area of Freedom, Security and Justice .....................................9 Origins of Mutual Recognition ............................................................................12 Transfer of Mutual Recognition to the Area of Freedom, Security and Justice...........................................................................................................15 Typology and Operation of Mutual Recognition ..............................................18 Development of Mutual Recognition ..................................................................19 Models of Mutual Recognition ........................................................................20 From a Passive to an Active Model of Mutual Recognition .........................22 Seeking Equivalence and a Role for Proportionality?...................................24 Conclusion ..............................................................................................................25 2. Mutual Trust: From Blind to Gained Trust ........................................................26 Introduction............................................................................................................26 Mutual Trust in the Framework Decision on the European Arrest Warrant ...............................................................................................27 Mutual Trust in the Dublin III Regulation.....................................................28 Evolution of Trust ..................................................................................................29 Blind Trust ..........................................................................................................30 The FDEAW ...................................................................................................30 Dublin System................................................................................................32 Qualified System of Trust .................................................................................32 Trust Based on Individual Assessment? .....................................................34 Age of Distrust? ......................................................................................................36 Brexit and Distrust ............................................................................................36

x Contents Rule of Law Crisis and Mutual Trust ..............................................................39 ECtHR Threshold: Flagrant Denial of Justice............................................40 Criticism and Commentary .........................................................................42 Grounds for Pragmatic Earned Trust ..................................................................43 Conclusion ..............................................................................................................44 3. Deconstructing Proportionality ...........................................................................46 Introduction............................................................................................................46 Early Philosophical Foundations .........................................................................47 Emergence of a Legal Doctrine ............................................................................48 Structure of the Proportionality-based Analysis ...............................................52 Legitimate Objective .........................................................................................52 Suitability and Necessity ...................................................................................54 Challenges and Limits ...........................................................................................55 Proportionality in EU Law ...................................................................................58 Conclusion ..............................................................................................................61 4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack ..........62 Introduction............................................................................................................62 Protection of Victims in Criminal Proceedings Case Law ...............................63 European Arrest Warrant Case Law ....................................................................64 Kozłowski; I.B. .................................................................................................65 Leyman; Wolzenburg.......................................................................................66 Lopes Da Silva..................................................................................................67 Jeremy F............................................................................................................67 Radu .................................................................................................................68 Melloni .............................................................................................................70 Aranyosi and Căldăraru..................................................................................71 LM and the Essence of the Rights ...................................................................72 Remarks ..............................................................................................................73 Dublin System Case Law.......................................................................................74 Conclusion ..............................................................................................................77 5. Constructing Proportionality for the Area of Freedom, Security and Justice ...............................................................................................................78 Introduction............................................................................................................78 Deconstructing EU Fundamental Rights............................................................78 Fundamental Rights in EU Constitutionalism ..............................................79 The Charter and its Scope of Application.......................................................80 The Place of Fundamental Rights in the AFSJ ...............................................84 Constructing Proportionality for the AFSJ ........................................................85 Criteria on the Relevance of Proportionality Per Se .....................................85 Article 52(1) of the Charter and the Essence of the Rights..........................89

Contents  xi European Investigation Order and Proportionality��������������������������������������90 Context of Application: Transfers of Individuals Based on Mutual Recognition����������������������������������������������������������������������������������������������������91 Generic Balancing Parameters�������������������������������������������������������������������������93 Variable Intensity���������������������������������������������������������������������������������������������������95 Seriousness of the Value Under Restriction���������������������������������������������������96 Vulnerability of Individuals������������������������������������������������������������������������������97 Degree of Harmonisation���������������������������������������������������������������������������������99 Conclusion������������������������������������������������������������������������������������������������������������101 6. Case Study I: European Arrest Warrant Transfers�������������������������������������������102 Introduction���������������������������������������������������������������������������������������������������������102 EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition������������������������������������������������������������������������������������104 Security and the Constructed European Public Order�������������������������������104 Constitutional Framework of EU Criminal Justice�������������������������������������106 Surrender Procedures and Fundamental Rights Breaches�����������������������������109 Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW�����������������������������������������������������������������������������������115 Disproportionate Requests and Proportionality�����������������������������������������115 The Legality Principle and the Opportunity Principle in Prosecution�����������������������������������������������������������������������������������������116 Proportionality-based Analysis Informed by the Rights in Question������120 The Principle of Ne Bis in Idem�����������������������������������������������������������������121 The Right to be Informed and Defence Rights����������������������������������������123 Right to Appeal��������������������������������������������������������������������������������������������132 Principle of Legality in Criminal Law������������������������������������������������������138 Proportionality in Light of Aranyosi: Mission Impossible�������������������������143 Conclusion: The Impact of Proportionality-based Analysis on Surrenders���������������������������������������������������������������������������������������������������146 7. Case Study II: Dublin Transfers�������������������������������������������������������������������������149 Introduction���������������������������������������������������������������������������������������������������������149 Public Discourse and EU Asylum Law�������������������������������������������������������������151 The Common European Asylum System����������������������������������������������������������152 The Institutional and Legal Evolution of the Current Framework on CEAS�������������������������������������������������������������������������������������������������������153 Dublin III Regulation��������������������������������������������������������������������������������������156 Dublin Shortcomings��������������������������������������������������������������������������������������160 Border and Migration Control as Dominant Narrative�������������������������160 Refugee (Governance) Crisis���������������������������������������������������������������������162 Informing and Applying a Proportionality-based Analysis in the Context of the Dublin III Regulation��������������������������������������������164

xii Contents Proportionality-based Analysis Informed by the Rights in Question����������������������������������������������������������������������������������������������165 Criteria of Balancing�����������������������������������������������������������������������������������173 Impact; the Limits of the Principle of Proportionality�������������������������������180 No Place for Proportionality where Absolute Rights are Breached������181 Conclusion������������������������������������������������������������������������������������������������������������184 Reflecting and Looking Ahead: Summation of Arguments, the Way Forward and Conclusion���������������������������������������������������������������������185 Summation of Arguments����������������������������������������������������������������������������������185 The General Reach of the Argument and its Limits����������������������������������������187 Variable Impact of Proportionality-based Analysis����������������������������������������188 The Way Forward for Mutual Trust and Recognition�������������������������������������190 EU Criminal Justice�����������������������������������������������������������������������������������������191 CEAS�����������������������������������������������������������������������������������������������������������������192 The Need for a Consistent Theory of Fundamental Rights for EU Law�������194 Conclusion������������������������������������������������������������������������������������������������������������197 Bibliography���������������������������������������������������������������������������������������������������������������199 Index��������������������������������������������������������������������������������������������������������������������������217

TABLE OF CASES Court of Justice of the European Union Case C-6/64 Costa v E.N.E.L. ECLI:EU:C:1964:66���������������������������������������� 133, 137 Case 11-70 Internationale Handeslgesellschaft ECLI:EU:C:1970:114�������� 59, 79–81 Case 4-73 J. Nold, Kohlen- Und Baustoffgroßhandlung v Ruhrkohle Aktiengesellschaft (Nold v Commission) ECLI:EU:C:1975:114��������������������������59 Case 2/74 Reyners v Belgian State ECLI:EU:C:1974:68������������������������������������� 13, 24 Case 8/74 Procureur du Roi v Benoit and Gustave Dassonville ECLI:EU:C:1974:82�������������������������������������������������������������������������������������������������14 Case C-106/77 Simmenthal ECLI:EU:C:1978:49�����������������������������������������������������133 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) ECLI:EU:C:1979:42������������������������������������������13–15, 21, 58, 62 Case 44/79 Hauer ECLI:EU:C:1979:290���������������������������������������������������������������������59 Case 249/83 Parti Ecologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166�����������������������������������������������������������������������������������������������79 Case 14/86 Pretore Di Salo ECLI:EU:C:1987:275����������������������������������������������������139 Case-80/86 Kolpinghuis Nijmegen [1987] ECR 3969����������������������������������������������139 Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (ERT) ECLI:EU:C:1991:254�����������������������������������������������������������������������������������������������81 Case C-84/94 United Kingdom v Council ECLI:EU:C:1996:431����������������������������180 Case C-233/94 Germany v European Parliament and Council ECLI:EU:C:1997:231���������������������������������������������������������������������������������������������180 Case C-85/96 María Martínez Sala v Freistaat Bayern ECLI:EU:C:1998:217�������66 Case C-157/96 National Farmers’ Union and Others ECLI:EU:C:2002:604��������180 Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco ECLI:EU:C:2002:741������������������������������������������������������������������������������180 Case C-105/03 Criminal proceedings against Maria Pupino ECLI:EU:C:2005:386�������������������������������������������������������������������������������������� 63, 141 Case C-176/03 Commission v Council (Environmental Crimes) ECLI:EU:C:2005:542���������������������������������������������������������������������������������������������107 Case C-209/03, The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills ECLI:EU:C:2005:169�����������������������������������������������������������������������������������������������66 Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad ECLI:EU:C:2007:261��������������28, 65, 103, 110, 139

xiv Table of Cases Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission ECLI:EU:C:2008:461�����������������������������������������������������������������������������������������������79 Case C-440/05 Commission v Council (Ship-Source Pollution) ECLI:EU:C:2007:625���������������������������������������������������������������������������������������������107 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep ECLI:EU:C:2008630������������������������������������������������������������������������66 Case C-404/07 Győrgy Katz v István Roland Sós ECLI:EU:C:2008:553�����������������64 Case C-66/08 Szymon Kozłowski ECLI:EU:C:2008:437�������������������������������������������65 Case C-123/08 Dominic Wolzenburg ECLI:EU:C:2009:616�������������������������������������65 Case C-296/08 Ignacio Pedro Santesteban Goicoechea ECLI:EU:C:2008:457�������������������������������������������������������������������������������������� 65, 139 Case C-388/08 PPU Artur Leymann and Aleksei Pustovarov ECLI:EU:C:2008:669���������������������������������������������������������������������������������������� 28, 65 Case T-85/09 Yassin Abdullah Kadi v Commission ECLI:EU:T:2010:418��������������94 Case C-261/09 Gaetano Mantello ECLI:EU:C:2010:683�������������������������� 28, 30, 103, 112, 121, 123 Case C-306/09 ECLI:EU:C:2010:626������������������������������������������������������������������� 65–66 Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865��������������������������������������������������������19–20, 29, 31–32, 74, 76, 82–83, 92, 102, 129 Case C-584/10 Commission v Kadi (Kadi II) ECLI:EU:C:2013:518���������������� 94–95 Case C-4/11 Bundesrepublik Deutschland v Kaveh Puid ECLI:EU:C:2013:740�������������������������������������������������������������������������������������� 76, 160 Case C-42/11 João Pedro Lopes Da Silva Jorge ECLI:EU:C:2012:517������������ 65, 124 Case C-245/11 K v Bundesasylamt ECLI:EU:C:2012:685��������������������������������� 75–76 Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:39��������������16, 28, 65, 92, 103 Case C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107��������������������������������������������������������������������������16, 53, 70, 133 Case C-528/11 Zuheyr Frayeh Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet ECLI:EU:C:2013:342����������������������������������������������� 75, 160 Case C-648/11 The Queen, on the application of MA and Others v Secretary of State for the Home Department ECLI:EU:C:2013:367����������������75 Case C-192/12 Melvin West ECLI:EU:C:2012:404��������������������������������������������������132 Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813������������������������������������������������������������������16, 29, 75, 159, 177 Case C-168/13 Jeremy F. v Premier Ministre ECLI:EU:C:2013:358������������������ 31, 67 Case C-63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie ECLI:EU:C:2016:409�������������������������������������������������������������������� 76, 177 Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Căldăraru ECLI:EU:C:2016:198��������������������������������5, 16, 19–20, 29, 71, 73, 103, 164 Case C-578/16 PPU C.K. and Others v Republika Slovenija ECLI:EU:C:2017:127���������������������������������������������������������������������������������������� 29, 35

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Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586���������������������������������������������������5, 16, 19–20, 26, 72, 89, 102 Case C-220/18 PPU Generalstaatsanwaltschaft v ML ECLI:EU:C:2018:589�������������������������������������������������������������������������������������������5, 16 Case C-327-18 Minister for Justice and Equality v RO ECLI:EU:C:2018:733���������������������������������������������������������������������������������������� 37–38 Opinion 2/13 of the Court of 14 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:245�������������83 European Court of Human Rights Application no 2614/65 Ringeisen v Austria ECtHR 16 July 1971������������������������170 Application No 5310/71 Ireland v United Kingdom ECtHR, 18 January 1978����169 Application No 5493/72 Handyside v UK ECtHR 7 December 1976�������������������100 Application No 6232/73 König v Germany ECtHR 28 June 1978�������������������������171 Application No 8562/79 Feldbrugge v Netherlands ECtHR 29 May 1986������������171 Application No 9783/82 Kamasinski v Austria ECtHR 19 December 1989����������������������������������������������������������������������������������������� 129–30 Application No 10426/83 Pudas v Sweden ECtHR 27 October 1987, Opinion of AG Colomer ������������������������������������������������������171 Application No 10802/84 Pfeiper and Planki v Austria ECtHR 25 February 1992���������������������������������������������������������������������������������������41 Application No 11309/84 Mats Jacobsson v Sweden ECtHR 28 June 1990����������171 Application No 12350/86 Krenzow v Austria ECtHR 21 September 1993����������131 Application No 12945/87 Hadzianastassiou v Greece ECtHR 16 December 1992������������������������������������������������������������������������������������������������131 Application No 14038/88 Soering v UK ECtHR 7 July 1989 (Plenary)���������� 40, 87, 129–30 Application No 14307/88 Kokkinakis v Greece ECtHR 25 May 1993�������������������142 Application No 14570/89 Procola v Luxemburg ECtHR 28 September 1995��������41 Application No 17440/90 Welch v UK ECtHR 9 February 1995������������������ 140, 142 Application No 18896/91 Ribitsch v Austria ECtHR 4 December 1995���������������169 Application No 20166/92 SW v United Kingdom ECtHR 22 November 1995����142 Application No 21987/93 Aksoy v Turkey ECtHR 18 December 1996�����������������169 Application No 22414/93 Chahal v UK ECtHR 15 November 1996����������������������87 Application No 23178/94 Aydin v Turkey ECtHR 25 September 1997����������������169 Application Nos 23184/94, 23185/94 Selçuk & Asher v Turkey ECtHR 24 April 1998��������������������������������������������������������������������������������������������169 Application No 25803/94 Selmouni v France ECtHR 28 July 1999�����������������������169 Application No 29392/95 Z v United Kingdom ECtHR 10 May 2001�������������������169 Application No 27931/96 Krombach v France ECtHR 13 February 2001������������133 Application No 33394/96 Price v United Kingdom ECtHR 10 July 2001�������������169 Application No 39652/98 Maaouia v France ECtHR 5 October 2000������������������170 Application No 59334/00 Chitayev v Russia ECtHR 18 January 2007�����������������169

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Application No 61406/00 Gurepka v Ukraine ECtHR 6 September 2006������������133 Application No 74025/01 Hirst v UK (No 2) ECtHR 6 October 2005������������� 52, 59 Application No 38411/02 Garabayev v Russia ECtHR 7 June 2007����������������������179 Application No 28578/03 Szabo v Sweden ECtHR 27 June 2006��������������������������143 Application No 7337/05 Ladent v Poland ECtHR 11 April 2011��������������������������145 Application No 22978/05 Gäfgen v Germany ECtHR 1 June 2010�����������������������169 Application No 11956/07 Stephens v Malta ECtHR 21 April 2009�����������������������140 Application No 27765/09 Hirsi Jamaa and Others v Italy ECtHR 23 February 2012�������������������������������������������������������������������������������������152 Application No 30696/09 M.S.S. v Belgium and Greece ECtHR 21 January 2011������������������������������������������ 32, 163–64, 178, 182–83, 190 Application No 12343/10 Dzhaksybergenov v Ukraine ECtHR 10 February 2011������������������������������������������������������������������������������ 40, 129 Application No 12343/10 Dzhaksybergenov v Ukraine ECtHR 10 February 2011������������������������������������������������������������������������������ 40, 129 Application No 21884/15 Chowdury and Others v Greece ECtHR 30 March 2017�����������������������������������������������������������������������������������������171 Domestic Case Law United Kingdom A and Others v Home Secretary [2005] 2 AC 68������������������������������������������������������173 Assange v The Swedish Prosecution Authority [2012] UKSC 22��������������������� 74, 118 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532���������������51 R v Jones (Royston) [2011] EWCA Crim 107�����������������������������������������������������������133 R v Seddon (Neil) [2009] EWCA Crim 483��������������������������������������������������������������133 Sandru v Government of Romania [2009] EWHC 2879 (Admin)�����������92, 116–17 Krolik v Regional Court in Czestochowa, Poland [2012] EWHC 2357, [2013] 1 WLR 490�������������������������������������������������������������������������������������������������113 Germany German Federal Constitutional Court [1974] Solange I (BVerfGE 37, 271)���������81 German Federal Constitutional Court [1986] Solange II (BverfGE 73, 339)��������81 German Federal Constitutional Court [1993] Solange III (2 BvL 1/97)��������� 29, 81 Ireland Irish High Court, The Minister for Justice and Equality v Celmer [2018] IEHC 119���������������������������������������������������������������������������������������������� 39, 72 Romania Brasov Court of Appeal of Romania, Decision No 30/F/N/24 March 2008, 2 August 2010��������������������������������������������������������������������������������������������������������114

TABLE OF LEGISLATION International Law Convention Relating to the Status of Refugees (1951)�������������������������������������������153 Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949)������������������������������������������������� 26, 159 European Convention on Extradition (1957)����������������������������������������������������������110 European Convention on Human Rights (Council of Europe, Rome, 1950)�������������������������������������� 26, 28–29, 31, 35, 40–41, 49–52, 59, 68–69, 80, 83–84, 86–89, 93, 96, 99, 100, 103, 109, 116, 118, 121, 124, 127–30, 132–34, 140, 142–43, 145, 152, 154, 158–59, 164, 166, 168–72, 176–77, 179, 182–83, 188, 190, 194 European Convention on the Suppression of Terrorism (1977)���������������������������110 Protocol No 7 to the ECHR, 22 November 1984������������������������������������������� 170, 172 Universal Declaration of Human Rights 1948�������������������������������������������������� 86, 152 EU Law Charter of Fundamental Rights of the European Union [2012] OJ C326/391����������������������������������������������������������������������������������2, 11, 50, 103, 149 Consolidated Version of the Treaty on the European Union [2008] OJ C115/13����������������������������������������������������������������������������������������10, 23, 109, 154 Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47������������������������1, 10, 21, 58, 106, 155 Declaration 18 in relation to the delimitation of competences [2007] OJ C306��������������������������������������������������������������������������������������������������������10 Protocol (no 25) on the exercise of shared competence [2007] OJ C306/158������������������������������������������������������������������������������������������������10 Protocol No 1 on the role of national parliaments in the European Union [2010] OJ C83/203������������������������������������������������������������������������������������������������109 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts [1997] OJ C340��������������������������������������������� 11, 105, 156 Treaty of Lisbon [2007] OJ C306/01���������������������������������9–10, 18, 23, 108, 154, 182

xviii

Table of Legislation

EU Secondary Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders OJ L239�������������������������������������������������������������������������������������������� 110, 122 Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union OJ C78��������������������������110 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44�����������������������������������������������������������������������������������������������������66 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status OJ L326�����������������������������������������������������������156 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1����������������������������������������������� 128, 130 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted of 20.12.2011, OJ L337���������������� 98, 156, 193 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order [2011] OJ L338/2���������������������������������������������������������������������������������������������� 16, 26 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1������������������������������������������������������������������������������������������ 128, 130 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right to access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1������������������������������������������������ 128–29 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European investigation order in criminal matters (EIO)������������������������������������������������������������������������� 90–91, 93 Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1����������������������������������������������������������129

Table of Legislation xix Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1����������������������129 Directive 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297/1���������������������������������������������������129 European Parliament and Council Directive 2006/123/EC of 12 December 2006 on services on the internal market [2006] OJ L376/36���������������������������������������������������������������������������������������������������14 Framework Decision of 13 June 2002 on combating terrorism OJ L164�������������110 Framework Decision of 13 June 2002 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1�������������������������������������� 3–4, 6–8, 16, 18–22, 24, 26–28, 30–34, 38–39, 43, 45, 50, 61, 64, 66–71, 83, 87–88, 90–91, 97–100, 102–04, 109–15, 117–19, 121–26, 129–30, 132–39, 141, 143–50, 164–65, 169, 176, 179, 184–85, 187–91 Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJL 294/20������������������������ 16, 26 Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national OJ L50 (Dublin II)���������� 32, 76, 82, 149–50, 157, 159, 166, 168, 174, 178, 182–83, 189, 193 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast) [2013] OJ L180/31 (Dublin III)���������������� 4, 6–8, 18–19, 26–30, 34–35, 38, 50, 61–62, 64, 74–77, 83, 88, 90–94, 97–99, 149–53, 156–61, 163–64, 166, 169–74, 176–77, 180–81, 183–85, 187–89, 193–94 Regulation (EU) 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged

xx Table of Legislation in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) 1077/2011 establishing a European agency for the operational management of large-scale IT systems in the area of freedom, security and justice (Recast) [2013] OJ L180/1–30��������������������������������������������������������������������������������������������157

Introduction The Area of Freedom, Security and Justice (AFSJ)1 aims to secure the enjoyment of freedom within a borderless European space both by Europeans and non-­Europeans who sought access to European territory.2 Quick and efficient cooperation among authorities of the Member States was necessitated in several policy areas. For this reason, additional unnecessary checks were abolished, which reveals a high level of trust. Member States trust each other to offer a sufficient level of fundamental rights protection, which then allows the mutual recognition of decisions made by national authorities (judicial or not). The existence of mutual trust could be seen as the cornerstone of this area, without which its operation becomes dysfunctional. It should be noted that mutual trust and mutual recognition are two separate concepts and principles of EU law that are, however, interlinked. Mutual trust is the prerequisite of mutual recognition. The latter is the end result. Mutual recognition is only realised due to a presumption of compliance with fundamental rights that gives rise to mutual trust. The doctoral and post-doctoral research that led to the writing of the book first observed the imbalance of interests in the context of mutual trust. This was evidenced by the interpretation by the Court of Justice of the European Union (hereinafter ‘the Court’ or CJEU) of instruments that result in the mutual recognition of decisions issued by the authorities of Member States. Mutual trust among Member States regarding the protection of fundamental rights was often noticed to be demanded by the Court rather than properly constructed or even thoroughly checked. Trust was blind and recognition was absolute for some time before they were both qualified by the Court’s more recent interpretation. This initial misunderstanding of mutual trust stemming from a compelled presumption of compliance with rights’ obligations has been to the detriment of the protection of fundamental rights.3 Despite jurisprudential developments that shifted this

1 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47, title V. 2 European Council, ‘Presidency Conclusions’ (Tampere Presidency Conclusions) (1999) Tampere 15 and 16 October 1999 OJ C332 E, paras 1–9. 3 For an account of mutual trust see Ermioni Xanthopoulou, ‘Mutual Trust and Rights in EU ­Criminal and Asylum Law: Three Phases of Evolution and the Uncharted Territory Beyond Blind Trust’ (2018) 55(2) CML Rev 489; Rosaria Sicurella, ‘Fostering a European Criminal Law Culture: In Trust We Trust’ (2018) 9(3) New Journal of European Criminal Law 308; Petra Bárd and Wouter van ­Ballegooij, ‘Judicial Independence as a Precondition for Mutual Trust? The CJEU in Minister for Justice and Equality v. LM’ (2018) 9(3) New Journal of European Criminal Law 353; Mattias Wendel, ‘Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom,

2  Introduction imbalance, the equilibrium is not fully restored. It is here that this book contributes, by thoroughly discussing the principles of mutual trust, mutual recognition, the protection of fundamental rights and the impact of the principle of proportionality to the protection of fundamental rights. Proportionality is a principle of constitutional law with regard to the limitation of rights in numerous national and international jurisdictions. According to the principle of proportionality, everything should be in proportion and nothing should be in excess. Given the general sense of imbalance in mutual recognition instruments, the value of proportionality offers an attractive hypothesis. The principle seeks balance and rejects excessive choices, as it defines a balanced legal choice when two interests compete with each other. As a matter of EU law, the principle is enshrined in Article 52(1) of the Charter of Fundamental Rights of the European Union (the Charter).4 The imbalance between security and migration control interests and the protection of fundamental rights in this context renders the exploration of the potential of a proportionality-based analysis essential and topical. However, the study of this principle in the AFSJ has not yet attracted the attention it deserves, creating a gap which calls for this research. This book sits aside existing literature5 on EU constitutional and AFSJ law, but makes an original contribution – that is, offering a framework of a proportionality-based analysis for the AFSJ, as well as original ideas on mutual trust and the protection of fundamental rights in this context.6 S­ ecurity and Justice after LM’ (2019) 15 European Constitutional Law Review 17; Adam Łazowski, ‘The Sky Is Not the Limit: Mutual Trust and Mutual Recognition après Aranyosi and Caldararu’ (2018) 14 Croatian ­Yearbook of European Law and Policy 1; Helmut Satzger, ‘Mutual Recognition in Times of Crisis – Mutual Recognition in Crisis? An Analysis of the New Jurisprudence on the European Arrest Warrant’ (2018) 8 European Criminal Law Review 317; Auke Willems, ‘The Court of Justice of the European Union’s Mutual Trust Journey in EU Criminal Law: From a Presumption to (Room for) Rebuttal’ (2019) 20 German Law Journal 468; Cecilia Rizcallah, ‘The Challenges to Trust‐Based Governance in the European Union: Assessing the Use of Mutual Trust as a Driver of EU Integration’ (2019) 25(1) European Law Journal37; Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319. 4 Charter of Fundamental Rights of the European Union (the Charter) [2012] OJ C326/391. 5 Massimo Fichera and Ester Herlin-Karnell, ‘The Margin of Appreciation Test and Balancing in the Area of Freedom Security and Justice: A Proportionate Answer for a Europe of Rights?’ (2013) 19(4) European Public Law 759, 759; Ermioni Xanthopoulou, ‘The Quest for Proportionality for the E ­ uropean Arrest Warrant: Fundamental Rights Protection in a Mutual Recognition Environment’ (2015) 6(1) New Journal of European Criminal Law 32; Sarah Haggenmüller, ‘The Principle of Proportionality and the European Arrest Warrant’ (2013) 3 Oñati Socio-Legal Series 95; Joachim Vogel and John ­Spencer, ‘Proportionality and the European Arrest Warrant’ (2010) Crim LR 474; Tomasz Ostropolski, ‘The Principle of Proportionality under the European Arrest Warrant – with an Excursus on Poland’ (2014) 5(2) New Journal of European Criminal Law 167; Dan Helenius, ‘Mutual Recognition in Criminal Matters and the Principle of Proportionality: Effective Proportionality or Proportionate Effectiveness?’ (2014) 5(3) New Journal of European Criminal Law 349; Ester 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(1) Transnational Legal Theory 79. 6 Herlin-Karnell’s recent, fascinating book The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification is in fact an original and comprehensive take on several constitutional principles that govern the AFSJ. See Ester Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (Hart Publishing 2019).

Introduction  3 Moreover, there is not yet an independent monograph on proportionality covering the AFSJ as a whole rather than EU criminal law only. This is because the discussion on proportionality became topical after the problem of the disproportionate use of the Framework Decision on the European Arrest Warrant (FDEAW) was raised,7 which triggered the research for this project, alongside the overall imbalance of the area. However, the monograph expands on mutual trust instruments of the AFSJ as a whole. The exploration of proportionality, at a wider constitutional level, beyond the remit of EU criminal law, was deemed more fascinating than simply exploring the impact of the principle merely in the narrow context of the FDEAW. The problematic nexus between rights violations and mutual trust is identified beyond the narrow context of the FDEAW. Further factors contribute to the originality of the monograph. Most of the existing monographs either study the wider constitutional framework of EU criminal law only, or more generally the AFSJ, with reference to a range of constitutional principles, including the principle of proportionality, but with the result that the latter’s account has remained underexplored to a significant extent. Therefore, and more broadly, the book will sit neatly with existing literature adding an original perspective to EU AFSJ law scholarship.8 Most scholarship offers an insight into questions of constitutional importance in relation to EU criminal law. However, they usually focus on EU criminal law only, whereas this

7 European Commission, ‘Report from the Commission to the European Parliament and the ­Council of 11 April 2011 on the Implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States’ (2011) 8; European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The Issue of Proportionality – Meeting of experts (2009) 4. 8 Ester Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart Publishing 2012) Herlin-Karnell’s book considers the principle of effectiveness in EU criminal law at a constitutional level and through the case study of EU financial crime. This is another relevant contribution, considering the constitutional dimension of EU criminal justice. Herlin-Karnell explores the balance between effective EU action and adequate protection of individual rights. The principle of proportionality is particularly explored in the context of financial crime. Although this monograph considers EU criminal law from a constitutional perspective, as the present book does, the differences between the two are clear, as the research questions and the scope of the research are different. I discuss two different case studies, one on the FDEAW and another on the Dublin system, and I adopt a more holistic, rights-oriented approach. Also see Valsamis Mitsilegas, EU Criminal Law after Lisbon; Rights, Trust and the Transformation of Justice (Hart Publishing 2016). Mitsilegas’ fascinating monograph focuses on constitutional aspects of the AFSJ law, as does the present book. In one of the chapters, mutual recognition, mutual trust, and proportionality are especially considered, in cases where a European arrest warrant (EAW) is issued for trivial offences. However, Mitsilegas’ monograph focuses essentially on the impact of the entry into force of the Lisbon Treaty on EU criminal law, while the present book focuses on a totally different question and pursues a different aim. Mitsilegas’ analysis embraces several aspects of the constitutional arena of EU criminal law whereas in this book I am only focusing on one aspect of it, whilst employing a perspective which stretches beyond the remit of EU criminal law. In particular, this book considers the impact of proportionality as a human rights concept within transfers of individuals, in general, within the AFSJ. Moreover, the book does not see proportionality primarily as a limit to mutual recognition, as Mitsilegas’s monograph does, but as a safeguard against excessive breaches of human rights, which could eventually pose limits to mutual recognition.

4  Introduction book focuses on constitutional concepts such as mutual trust, mutual recognition, proportionality and fundamental rights, as encountered in the whole AFSJ and with reference to two case studies from two distinct policy sub-areas – which are EU criminal and asylum law. Therefore, this book offers, on the one hand, a holistic perspective, and, at the same time, it submits a narrower hypothesis, as shaped by the exploration of the framework and the impact of proportionality to the protection of rights. Proportionality could have different roles in the AFSJ, ie proportionality of penalties, proportionality of restrictions on rights, proportionality of exercising competences and ultima ratio in criminalisation. The book focuses on only one function of the principle, that of proportionality, being the guardian of fundamental human rights from disproportionate restrictions. The rest of the functions, although acknowledged, are beyond the remit of this book, thus allowing for a thorough and focused analysis. The book considers the impact of a proportionality-based analysis on the protection of fundamental rights in the context of AFSJ instruments that rely on mutual trust. To formulate a normative framework of analysis, the book discusses the application of the principle by the Court, theorises the principle and then offers an account for the AFSJ, which is then applied and tested in two case studies. In the special context of the FDEAW, such an analysis would establish whether any interference with the fundamental rights of defendants or suspects is justified, when considering the surrender of the individual. Correspondingly, in the context of the Dublin III Regulation, a proportionality-based analysis would determine whether an interference with the fundamental rights of asylum seekers is justified when considering the transfer of an asylum seeker under the Dublin system. The result of this analysis would – in theory – inform a decision of a national authority on whether a Member State is eventually allowed to transfer the individual concerned to the country specified by the law. The book hence offers a contribution to the scholarship on the AFSJ from the angle of constitutional principles that govern the area and especially from the perspective of the protection of fundamental rights.

Research Questions The first questions I pose concern the operation and development of mutual recognition and mutual trust. I ask how they are formed and used and then ask how they should be understood and developed. Then, I move on to consider whether and how proportionality could make a difference. In this respect, I ask whether any proportionality-based analysis is generally employed in this context by the Court or by the judicial authorities. The next question I pose is how exactly a ­proportionality-based analysis should be understood in this area, and how it should be employed, where necessary. This question is addressed at a theoretical level, and then discussed from the perspective of the AFSJ. Then, I ask what

Findings and Arguments  5 ­ roportionality would mean for the two case studies and how it could be applied p there. The final question I pose concerns the impact of the principle of proportionality. So, I ask whether it could actually enhance the protection of fundamental rights of i­ndividuals in the context of mutual recognition instruments. Therefore, the book is organised based on these core questions. This is absolutely timely given the Court’s recent turn in Aranyosi9 in March 2016 and in LM10 and ML in July 2018,11 which confirm and clarify that the presumption of compliance ‘with fundamental rights’ is rebuttable.

Findings and Arguments First, it is submitted that the development of mutual trust in a direction that does not rely on a conclusive presumption of compliance is welcome as trust is not dogmatic but is constantly informed by assumptions and arguments. This should also be reflected in our understanding of mutual recognition, which should be an active one. Authorities must be other-regarding in the sense that they should be really engaging with other states’ rules when they can no longer presume compliance. In this respect, I examine the input of proportionality. I argue that a proportionality-based analysis is not generally used by the Court in the examined context of the book but I also argue that there is a slow dynamic of emergence of a proportionality-based analysis, which is enabled by the Court timidly rebutting the traditionally rigid presumption of trust. Second, I argue that a proportionalitybased analysis would establish whether fundamental rights breaches, associated with a transfer of an individual, in the framework of mutual trust, are disproportionate to suspend a transfer. Third, the book argues that the principle of proportionality could have a significant impact on the protection of fundamental rights in the context of mutual trust instruments, but only in light of a proper and consistent definition. The impact of a proportionality-based analysis is significantly affected by the general constitutional limits regarding the structure of the principle of proportionality. Since a proportionality-based analysis is neutral and open to various theories, the results of balancing are subject to the selected theory of rights embedded in the test. The general limit of the principle’s impact on restoring the equilibrium in the context of mutual trust in the AFSJ becomes even more problematic in areas of law where fundamental problems might exist. The impact of the principle of proportionality could be significantly altered by the specific circumstances of the particular case studies where it could be applied. For example, at a particular level, 9 Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Caldararu ECLI:EU:C:2016:198. 10 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586. The case is also known as Celmer. 11 Case C-220/18 PPU Generalstaatsanwaltschaft v ML ECLI:EU:C:2018:589.

6  Introduction the impact of a proportionality-based analysis is especially highlighted in the case of the FDEAW. The application of the principle to interferences with relative rights would contribute to the qualification of mutual recognition and eventually to the protection of fundamental rights from disproportionate restrictions. On the other hand, the same cannot be argued for the Dublin III Regulation of the Common European Asylum System (CEAS).

Scope It is only the function of the principle of proportionality relevant to fundamental rights limitations that is studied. In this way, the principle of proportionality would eventually have a restrictive effect on the EU policy goals of quick cooperation. This should be contrasted with the traditional use of the principle of proportionality in the internal market, where the proportionality of the national measures restricting free movement rights has to be proven. There, in the internal market, proportionality has essentially acted as the guardian of EU free movement rights, having a restrictive effect on national public interests, including sometimes the protection of fundamental human rights. So, the functions of the principle with regard to the delimitation of the EU competences and the exercise of criminalisation fall outside the scope of the study. Furthermore, the book does not study clashes between fundamental rights, but only cases where rights are restricted by public interests. Moreover, the two case studies on the FDEAW and the Dublin III Regulation of the CEAS constitute examples of the application of a proportionality-based analysis. The central argument could in theory be generalised and applied to other instruments of mutual recognition of the AFSJ. However, this should take place in a reserved and careful way. The legal environment of other instruments could seriously affect the impact, intensity and conduct of a proportionality-based analysis. Therefore, although the two case studies in the book constitute examples of mutual recognition instruments, the application of the argument is only conducted in these two contexts. As a result, the arguments put forward are pertinent to this particular context of application, and any further application of these arguments to other case studies could carefully take place as a separate exercise. With this in mind, the argument could be helpful beyond the confines of these case studies.

Choice of Instruments Furthermore, a methodological question would concern the reason why these instruments were chosen as case studies, as opposed to other mutual trust instruments. These two measures were chosen for a number of reasons, enabling to the maximum extent a commentary on the application of the theoretical argument.

Structure  7 First, the FDEAW is praised as a successful instrument of cooperation and the Dublin III Regulation of the CEAS is criticised as not being particularly successful. On the one hand, the FDEAW had to be chosen as the first and exemplary measure of mutual recognition and the Dublin III Regulation as one facing many fundamental problems and raising scepticism. The case studies had to represent both contexts of positive and negative mutual recognition.12 Thus, the FDEAW is an example of positive mutual recognition, where Member States recognise each other’s decisions, based on which they have to surrender an individual. On the other hand, the Dublin III Regulation is based on negative mutual recognition, which means that Member States recognise the responsibility of other Member States to examine an application and thus escape from the obligation to take charge of an applicant. Based on this, they have to transfer an individual. The FDEAW and Dublin III also represent different fields of law, the one being criminal and the other asylum law, and thus the idea can be tested in two different areas. Although cooperation in civil matters could also have been chosen, this would limit the extent of analysis with regard to the application of the theoretical argument and the rights in question. An additional case study could therefore limit the depth of analysis given the constraints of a monograph. Moreover, although cooperation in civil matters could have been chosen as an alternative, I chose to engage with the FDEAW and the Dublin III Regulation because they both pose particularly sensitive q ­ uestions about fundamental rights of individuals who find themselves in vulnerable positions. Furthermore, they are both sensitive to national sovereignty, and they are both infamous for their concern with the protection of fundamental rights. Finally, both laws entail the physical transfer of individuals and the relationship between the cooperating Member States.13 This common element could further help reflection and comparability. In summation, I chose these case studies to reveal the general applicability but also the limits of a proportionality-based analysis.

Structure The first chapter of the book sets out the foundational concepts of the research problem. It exhibits the existing problems with regard to the imbalance existing in the AFSJ as manifested by the operation of mutual recognition in it and the need 12 On the latter distinction see Elspeth Guild, ‘Seeking Asylum; Storm Clouds Between International Commitments and EU Legislative Measures’ (2004) 29(2) European Law Review (2004), 198,-218, at 206. 13 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III) [2013] OJ L180/31, Section VI on ‘Transfers’, arts 29–33; Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (FDEAW) [2002] OJ L190/1, ch 2 on the ‘Surrender procedure’ arts 9–25.

8  Introduction to boost the protection of fundamental rights. The second chapter explores the principle of mutual trust, which is linked to mutual recognition, yet distinct. The third chapter theorises proportionality. It studies a proportionality-based analysis from a theoretical and institutional viewpoint in general constitutional terms. It also employs a specific EU perspective to construct a framework of analysis for the AFSJ, and particularly for the context of mutual trust. Thereafter, the book tests the framework of analysis by applying it to the two case studies. Firstly, a proportionality-based analysis is discussed in the context of the FDEAW, and secondly with regard to the Dublin III Regulation, which further inform the account of a proportionality-based analysis. The discussion is accompanied by an insight into the specific rights interfered with by the particular procedures. Finally, the last chapter offers some reflections on the interdependent relationship between mutual trust, fundamental rights and proportionality by revisiting these three pillars of the book in light of the findings relating to the research questions. It lastly offers suggestions for the way forward for EU criminal justice and the CEAS.

1 Mutual Recognition: From Passive to Active Recognition Introduction The principle of mutual recognition was endorsed by the European Council early on as the cornerstone of judicial cooperation both in criminal and civil matters.1 With the entry into force of the Treaty of Lisbon, the principle was recognised by the constitutional Treaties in several places.2 The principle constitutes one of the pillars of the book, underpinning the discussion throughout the study. It is for this reason that it is the first stop of this book’s exploration. The overarching objective of the chapter is to discuss the emergence, conceptualisation, operation, evolution and challenges facing the transfer of mutual recognition to the Area of Freedom, Security and Justice (AFSJ). The chapter first offers an overview of the AFSJ3 and then considers the origins of mutual recognition in the internal market. Secondly, after exploring the origins of the principle, the chapter moves on to the transfer of the principle to the AFSJ, the policy area in focus, and discusses the challenges accompanying the paradigm shift. Lastly, the chapter observes how the principle has operated and submits that the operation of mutual recognition was predominantly driven by the goal of security, often to the detriment of freedom and justice.

Overview of the Area of Freedom, Security and Justice The principles of mutual trust and mutual recognition are basic principles of cooperation among Member States in the AFSJ. Before delving into the meaning of these principles, it is necessary to grasp the content of the policy area which they support and comprehend its interests. It is for this reason that the chapter starts with offering an overview of the AFSJ.

1 Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, para 33. 2 TFEU, arts 67, 70, 81 and 82. 3 Whereas the specific constitutional and institutional framework and evolution of the Judicial Cooperation in Criminal Matters (JCCM) and the Common European Asylum System (CEAS) are examined more specifically later in the book and with respect to the two case studies.

10  Mutual Recognition: From Passive to Active Recognition As expected, the coherence of the AFSJ was questioned,4 as different interests shape each specific policy area that is contained in the AFSJ. Most importantly, with the entry into force of the Treaty of Lisbon,5 the AFSJ6 became a central policy area, as articulated in Article 3(2) TEU.7 Members States share their competence to legislate on relevant matters with the EU.8 This inclusion of the AFSJ among other central policy areas was considered a ‘conceptual promotion’ to a central plank of EU law.9 The AFSJ covers a wide variety of issues, from common policies on border checks, asylum and immigration, judicial cooperation in criminal matters and police cooperation to judicial cooperation in civil matters.10 It is therefore unsurprising that such a variety of issues encompassed by one single policy area raised questions about coherence.11 The evolution of the area was largely shaped by the European Council,12 which adopted three five-year political programmes. These programmes provided the roadmaps for the AFSJ. According to the first programme, the project of the AFSJ aimed to secure the enjoyment of freedom, the cornerstone of the EU architecture, within the European space both by European citizens and by ‘those whose circumstances lead them justifiably to seek access to our territory’.13 The need to develop common border controls alongside a common asylum and immigration policy,14 while also respecting international human rights obligations and providing humanitarian support in the spirit of solidarity,15 was particularly highlighted by the programme. The development of ‘an open and secure’ space without internal borders would be incomplete without references to justice.16 It was therefore noted early on that a ‘genuine area of justice’ should be established, where judicial decisions and orders are recognised, where people can have access to justice, and where forum shopping is prevented.17 It should be expected that the Union will address the threats to freedom posed by serious crimes and judicial and police resources should be jointly mobilised to secure freedom from threats.18 4 Neil Walker, ‘In Search of the Area of Freedom, Security and Justice: A Constitutional Odyssey’ in Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP 2004) ch 1. 5 Treaty of Lisbon [2007] OJ C306/01. 6 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47, title V. 7 Consolidated Version of the Treaty on the European Union (TEU) [2008] OJ C115/13. 8 TFEU, arts 2(2), 4(2); Protocol (no 25) on the exercise of shared competence [2007] OJ C306/158; Declaration 18 in relation to the delimitation of competences [2007] OJ C306, 17/12/2007 P. 0256–0257. 9 Maria Fletcher and William C Gilmore, EU Criminal Law and Justice (Edward Elgar Publishing 2010) 38. 10 TFEU, art 67. 11 Walker, ‘In Search of the Area of Freedom, Security and Justice’ ch 1. 12 TFEU, art 68. 13 European Council, ‘Presidency Conclusions’ (Tampere Presidency Conclusions) (1999) Tampere 15 and 16 October 1999 OJ C332 E, paras 1–9. 14 ibid, para 3. 15 ibid, para 4. 16 ibid, para 5. 17 ibid. 18 ibid, para 6.

Overview of the Area of Freedom, Security and Justice  11 Following the entry into force of the Treaty of Amsterdam,19 European politicians detached judicial cooperation in criminal matters from the long-established intergovernmental cooperation in criminal matters, which was then considered ­particularly ambitious.20 The second political programme, signed in Hague in 2004, was regarded less ambitious and coherent than its predecessor. It was more focused on criminal justice cooperation and on the security aspects of the AFSJ.21 The third political programme, the Stockholm programme for the period 2009– 14, arguably took the needs and interests of citizens more into consideration than the previous programmes. It was more balanced, consistent and pragmatic than the previous programmes;22 but commentators still rightly highlight the security emphasis of the programme.23 It is argued that this emphasis on security is not in accordance with the objective of creating a ‘true area of freedom, security and justice’ and that the programme was also too general and open ended.24 This emphasis on security and migration control constitutes one of the reasons that motivated this research as they manifest both in the operation of mutual recognition and its prerequisite, the principle of mutual trust. What has been obvious during the years following Lisbon and Stockholm is that the provisions of the Lisbon Treaty in this area were difficult to implement.25 This could be observed in particular26 with regard to the enhancement of the democratic credentials for this area27 and the elevation of the Charter of Fundamental Rights of the European Union to the same constitutional level as the Treaties.28 With the entry into force of the Lisbon Treaty, most of the aspects of the AFSJ could be legislated under the ordinary legislative procedure and the European Parliament acquired the status of a legislator.29 Secondly, jurisdictional limitations were

19 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the ­European Communities and certain related acts [1997] OJ C340, art 1(5). 20 Maria Fletcher, ‘EU Criminal Justice: Beyond Lisbon’ in Christina Eckes and Theodore ­Konstadinides (eds), Crime Within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011) 13. 21 European Council, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ (The Hague Programme) [2005] OJ C53/1. 22 Fletcher, ‘EU Criminal Justice’ 13. 23 Bunyan argued that the action plan issued on the basis of the programme brings ‘a bit more freedom and justice and a lot more security’. See, Tony Bunyan, ‘Commission: Action Plan on the Stockholm Programme. A Bit More Freedom and Justice and A Lot More Security’ (2010) Statewatch Analysis, No 11/10, www.Statewatch.Org/Analyses/No-95-Stockholm-Action-Plan.Pdf. 24 Ester Herlin-Karnell, ‘Is the Citizen Driving the EU’s Criminal Law Agenda?’ in Michael Dougan, Eleanor Spaventa and Nic Shuibhne (eds), Empowerment and Disempowerment of the European Citizen (Hart Publishing 2012) 216–20. 25 Sergio Carrera and Elspeth Guild, ‘The European Council’s Guidelines for the Area of Freedom, Security and Justice 2020; Subverting the “Lisbonisation” of Justice and Home Affairs?’ (2014) CEPS Essays 4. 26 ibid, 7–9. 27 TFEU, arts 69, 70. 28 TEU, art 6(1). 29 TFEU, arts 289, 293; with the exception of arts 80(3) on family law, 82(2) on approximation of substantive criminal law and 86 on the establishment of a European public prosecutor. For an analysis

12  Mutual Recognition: From Passive to Active Recognition removed with the exception of temporary restrictions.30 The Charter gained a status equal to the other constitutional Treaties.31 Since, at the end of June 2014, we reached the end of the period covered by the Stockholm programme, the European Council adopted new guidelines in order to shape the future of the area for the period 2015–20.32 This latest programme is shaped on the basis of previous struggles. It reportedly attempts to subvert them, which could again displace the individual from the centre of the policy area.33 In light of the strategic agenda for the EU for 2019–24 that was issued by the European Council, border and migration control, as well as fighting crime, are indeed top priorities for the next five years.34 Transnational cooperation will thus remain a necessary means to achieve the goal of ‘protecting citizens and freedoms’. Mutual recognition of judgments and rules will also continue to be the cornerstone of cooperation, which brings us to the next section and the main focus of this chapter.

Origins of Mutual Recognition Transnational cooperation of the AFSJ relies on the principle of mutual recognition, the focus of the chapter. The principle of mutual recognition constitutes one of the central themes and concepts of the book. It relies on Member States’ trust and concerns rules, decisions and products inter alia. In principle, under a model of mutual recognition, Member States cooperate with each other by recognising each other’s rules without many checks and guarantees.35 Member States’ jurisdictions accept that ‘while another state may not deal with a certain matter in the same or even a similar way as one’s own state, the results will be such that they are accepted as equivalent to decisions by one’s own state’.36 Originally employed in the context of the free movement law, the principle of mutual recognition was

see Steve Peers, ‘Mission Accomplished? EU Justice and Home Affairs Law After the Lisbon Treaty’ (2011) 48 CMLR 667. 30 Peers, ‘Mission Accomplished’ 681–85; Alicia Hinarejos, Judicial Control in the European Union: Reforming Jurisdiction in the Intergovernmental Pillars (OUP 2009) 100–21. 31 TEU, art 6(1). 32 European Council, ‘Strategic Guidelines for Legislative and Operational Planning for the Coming Years within the EU’s Area of Freedom, Security and Justice (AFSJ)’ Conclusions, 26/27 June 2014, EUCO 79/14, Brussels, 27 June 2014. 33 Carrera and Guild, ‘The European Council’s Guidelines for the Area of Freedom, Security and Justice 2020’ 2; Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319. 34 European Council, A New Strategic Agenda for the EU: 2019–2024 (20 June 2019) www.consilium. europa.eu/en/eu-strategic-agenda-2019-2024/. 35 Markus Möstl, ‘Preconditions and Limits of Mutual Recognition’ (2010) 47 CML Rev 405, 406. 36 European Commission, ‘Communication from the Commission to the Council and the European Parliament; Mutual Recognition of Final Decisions in Criminal Matters’ (2000) Brussels, 26.7.2000 COM (2000) 495 Final.

Origins of Mutual Recognition  13 later transferred to the AFSJ,37 following the suggestion of the UK during its EU Presidency in 1998.38 The principle of mutual recognition was originally employed in the context of the internal market. It constitutes a method of governing the internal market as an alternative to positive integration.39 Broadly speaking, one could identify three competing models for the realisation of market access.40 The first model is the ‘decentralised’ one, based on ‘host-state’ control, in the sense that the products or workers should comply with rules set by the host state in order to have access to its market, while respecting the principle of non-discrimination.41 The second model, ‘the competitive one’, is based on ‘home-state’ control. This model relies on compliance only with rules of the producing state, while discouraging public intervention by the host state, where the product, worker or service enters, which effectively creates competition among rules.42 Thirdly, there is a ‘centralised model’, which operates based on harmonisation.43 Traditionally, the principle of mutual recognition is linked to the second ‘competitive model’ based on home-state control.44 According to the latter, a good or a service or a worker from one EU Member State should be allowed to enter another Member State without additional checks imposed by the host Member State.45 This minimalistic approach is based on a high level of trust that the rules applying to the home Member State are good enough or similar to those applying to the host Member State and therefore equivalent to the regulatory framework that has to be followed. As a result, unnecessary regulatory barriers should be removed and a host Member State should in principle not impose further requirements beyond those already set by a home Member State. The principle is a judicial construction,46 well known by Cassis de Dijon, although first applied in respect of diplomas and professional qualifications between Member States.47 It was the seminal judgment of the CJEU in Cassis de Dijon that

37 Adrienne Héritier, ‘Mutual Recognition: Comparing Policy Areas’ (2007) 14(5) Journal of ­European Public Policy 800. 38 See document submitted by the UK Delegation to the (then) K4 Committee, Doc 7090/99, Brussels 29 March 1999, paras 7 and 8. 39 Kenneth A Armstrong, ‘Mutual Recognition’ in Catherine Barnard and Joanne Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart Publishing 2002) 228; Jacques ­Pelkmans, ‘Mutual Recognition in Goods and Services: An Economic Perspective’ in Fiorella Kostoris Padoa Schioppa (ed), The Principle of Mutual Recognition in the European Integration Process (Palgrave Macmillan 2005) 87. 40 Miguel Poiares Maduro, We, the Court: The European Court of Justice and the European Economic Constitution (Hart Publishing 1998) ch 4. 41 ibid, 143–49. 42 ibid, 126–42. 43 ibid, 143–49. 44 ibid, 126. 45 Pelkmans, ‘Mutual Recognition in Goods and Services’, 87. 46 Joseph Weiler, ‘Mutual Recognition, Functional Equivalence and Harmonisation in the E ­ volution of the European Common Market and the WTO’ in Fiorella Kostoris Padoa Schioppa (ed), The ­Principle of Mutual Recognition in the European Integration Process (Palgrave Macmillan 2005) 43. 47 Case 2/74 Reyners v Belgian State ECLI:EU:C:1974:68.

14  Mutual Recognition: From Passive to Active Recognition transposed the principle to the law on free movement of goods.48 In this case, while German law required that fruit liqueurs’ portion of alcohol should be at least 25 per cent, the French liqueur originating from Dijon contained 20 per cent at most, and as a result the German authorities refused to allow Cassis access to the German market. However, the Court held that, when a product is lawfully produced and marketed in a Member State, there is no reason for it not to access the host Member State’s market.49 This judgment was innovative as it departed from the previous Dassonville test, which had not prohibited national regulatory barriers as long as they were equally applicable to national and foreign products.50 Furthermore, the Court in Cassis de Dijon confirmed that ‘mandatory ­requirements’ could constitute grounds of exceptions justifying the derogation from the Treaty rules on free movement of goods.51 However, according to this ruling different regulatory standards cannot constitute sufficient reason to justify blocking products from accessing a national market.52 Therefore, here, it was not the application of different standards as such that was problematic but the fact that those standards were effectively restricting trade.53 The rule of home-state control is now a general principle of free movement law, namely the principle of mutual recognition.54 It is argued that the concept of mutual recognition has ‘great legal elegance’.55 It requires Member States to be tolerant and receptive to various products56 or qualifications. It represents the concept of ‘different but equal’.57 It focuses on commonalities instead of differences, as long as a sufficient level of trust exists, setting aside unnecessary divisions. This model is also minimalistic as states do not have to invest in additional checks on foreign imports; and, as a result, it is less expensive than the host-state and the central models, which require corresponding compliance with other sets of rules or additional legislation at a central level.58 48 For a recent appraisal, see Jukka Snell, ‘Cassis at 40’ (2019) 4 European Law Review 445. 49 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis De Dijon) ECLI:EU:C:1979:42, para 14. 50 Case 8/74 Procureur Du Roi v Benoit and Gustave Dassonville ECLI:EU:C:1974:82. 51 Cassis De Dijon, paras 8–15. 52 ibid, para 14. 53 ibid. 54 European Parliament and Council Directive 2006/123/EC of 12 December 2006 on Services in the internal market [2006] OJ L376/36; Pedro Caro De Sousa, ‘Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?’ (2012) 13(8) German Law Journal 979. 55 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (3rd edn, CUP 2014) 764. 56 Kalypso Nicolaidis and Gregory Shaffer, ‘Managed Mutual Recognition Regimes: Governance Without Global Government’ (2005) 68 Law and Contemporary Problems 263, 317; Gareth Davies, ‘Is Mutual Recognition an Alternative to Harmonisation: Lessons on Trade and Tolerance of Diversity from the EU’ in Lorand Bartels and Federico Ortino (eds), Regional Trade Agreements and the WTO Legal System (OUP 2006) 265–80. 57 Chalmers, Davies and Monti, European Union Law 764. 58 Pelkmans, ‘Mutual Recognition in Goods and Services’ 93, 94, 96.

Transfer of Mutual Recognition to the Area of Freedom, Security and Justice  15 Nevertheless, the principle of mutual recognition could arguably lead to a regulatory race to the bottom, endangering non-economic standards.59 The competition among rules and among regulators60 could impact on the quality standards of local regulations, as states with lower regulatory but still sufficient standards would attract the establishment of businesses.61 Member States concerned for their local production and economy could lower the quality threshold for their domestic producers, resulting in a race to the bottom.62 Similar to the principle of supremacy, which challenges sovereignty from a vertical perspective (supranational–national dimension), the principle of mutual recognition constitutes an indirect challenge to sovereignty from a horizontal perspective (the inter-state dimension).63 Mutual recognition is a significant legal achievement for the Member States of the EU as they allow market access to goods, workers and citizens, meaning that they manage to trust each other enough to do so. Even more than in the internal market, it is an enormous step for the Member States to remove these barriers to the creation of an area of freedom, security and justice in fields so sensitive to the individual autonomy and to national statehood.

Transfer of Mutual Recognition to the Area of Freedom, Security and Justice The principle of mutual recognition seemed an appropriate way to improve the free movement of decisions issued by investigative, prosecutorial and judicial authorities facing a rise in transnational crime. Interestingly, it was the United Kingdom that suggested the extension of the principle of mutual recognition to the AFSJ. It was suggested that ‘a possible approach, comparable to that used to unblock the single market, would be to move away from the attempts to achieve detailed harmonization’ and allow Member States’ authorities to recognise each other’s decisions.64 So, the European Union designed its policy following Tampere

59 Wolfgang Kerber and Roger Van Den Bergh, ‘Mutual Recognition Revisited: Misunderstandings, Inconsistencies and a Suggested Reinterpretation’ (2008) 61 Kyklos 447, 457; H-C von Heydebrand u.d. Lasa, ‘Free Movement of Foodstuffs, Consumer Protection and Food Standards in the European Community: Has the Court Got It Wrong?’ (1991) 16 European Law Review 391; Karen J Alter and Sophie Meunier-Aitsahalia, ‘Judicial Politics in the European Community: European Integration and the Path Breaking Cassis De Dijon Decision’ (1994) 26 Comparative Political Studies 535. 60 Jeanne-May Sun and Jacques Pelkmans, ‘Regulatory Competition in the Single Market’ (1995) 33(1) Journal of Common Market Studies 67. 61 Kerber and Bergh, ‘Mutual Recognition Revisited’ 455. 62 Chalmers, Davies and Monti, European Union Law 765. 63 Massimo Fichera, The Implementation of the European Arrest Warrant in the European Union: Law, Policy and Practice (Intersentia 2011) 52. 64 Council doc 10600/98, 27 July 1998 and Council doc 7090/99, 29 March 1999.

16  Mutual Recognition: From Passive to Active Recognition based on the extension of the principle of mutual recognition to the AFSJ.65 It was there agreed that [e]nhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities.66

Subsequently, the principle of mutual recognition constituted the basis for several instruments in the AFSJ.67 Despite several challenges to these instruments by Member States, the increasing number of exceptions to the automaticity of mutual recognition68 and the poor implementation records of Member States, the Court approved the principle of mutual recognition as an interpretative tool.69 The Court’s validation of mutual recognition in such sensitive areas is better understood when considering the exceptional chances where the law allows Member States to question mutual trust in light of fundamental rights violations.70 Correspondingly, Article 67(3) of the Treaty on the Functioning of the European Union (TFEU) calls mutual recognition the main means of integration in this area whereas the article specifies that approximation shall be used only when it is necessary according to the same provision.71 In addition, in order to promote an effective system of mutual recognition, minimum harmonising rules might be required, similar to those found in the internal market.72

65 Tampere Presidency Conclusions, paras 33–37. 66 ibid, para 33. 67 To name but a few, Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20; Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender ­procedures between Member States (FDEAW) [2002] OJ L190/1; Directive 2011/99/EU of the ­European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2. 68 Valsamis Mitsilegas, ‘The Third Wave of Third Pillar Law. Which Direction for EU Criminal Justice?’ (2009) 34(4) European Law Review 523. 69 Fletcher, ‘EU Criminal Justice’ 33. 70 See later the case law on the two case studies and particularly Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:39; Case C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107; Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813 and Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Caldararu ECLI:EU:C:2016:198; Case C-216/18 PPU M ­ inister for Justice and Equality v LM ECLI:EU:C:2018:586; Case C-220/18 PPU Generalstaatsanwaltschaft v ML ECLI:EU:C:2018:589. 71 Valsamis Mitsilegas, EU Criminal Law (Modern Studies in European Law, 1st edn, Hart Publishing 2009) 156. 72 TFEU, art 82(2); Valsamis Mitsilegas, ‘Trust-Building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Interinstitutional Balance’ in Sergio Carrera and Thierry Balzacq (eds), Security Versus Freedom? A Challenge for Europe’s Future (Ashgate 2006) 279–90.

Transfer of Mutual Recognition to the Area of Freedom, Security and Justice  17 The transfer of mutual recognition to the AFSJ, though, did not take place without criticism.73 The operation of the principle leads to an element of extraterritoriality,74 in the sense that the judicial authorities of Member States have to recognise judgments of other legal systems with the minimum of additional checks. This requires that they trust these systems to a great extent.75 However, this might lead to a ‘journey into the unknown’,76 which in criminal matters is significantly more dangerous than in the internal market.77 In this respect, it has persistently been questioned whether the degree of mutual trust is adequate to give effect to mutual recognition.78 It has also been argued that the institutional conditions that enabled the development of mutual recognition in the internal market are not the same as those in the AFSJ. The principle could not have worked in the internal market if the policy area was not significantly harmonised.79 As differences among Member States in the protection of fundamental rights in the field of criminal justice80 could be observed, it has been questioned whether international human rights instruments can cover the gaps of protection.81 It would be ‘naïve’ to believe that the Member States’ participation in the Council of Europe on its own affirms the existence of mutual trust.82 Although criminal judgments cross borders without control, fundamental rights remain bound to the legal order of each Member State. They are not harmonised to such an extent that the transfer of mutual recognition could be absolutely unproblematic.83 Not surprisingly, it has been argued that legal approximation is necessitated, either as an alternative or as a complement to mutual recognition, with regard to a common approach to defendants’ rights and due process rights.84 For this

73 Susie Alegre and Marisa Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step too Far too Soon? Case Study – The European Arrest Warrant’ (2004) 10(2) European Law Journal 200; Steve Peers, ‘Mutual Recognition and Criminal Law in the European Union. Has the Council Got It Wrong? (2004) 41 CML Rev 5. 74 Nicolaidis and Shaffer, ‘Managed Mutual Recognition Regimes’ 267. 75 Armstrong, ‘Mutual Recognition’ 231. 76 Mitsilegas, EU Criminal Law 119. 77 ibid, 119. 78 Sandra Lavenex, ‘Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy’ (2007) 14(5) Journal of European Public Policy 762, 771. 79 Cian Murphy, ‘The European Evidence Warrant: Mutual Recognition and Mutual (Dis)Trust?’ in Christina Eckes and Theodore Konstadinides (eds), Crime Within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011) 226. 80 Sarah Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Hart Publishing 2007) 3. 81 Murphy, ‘The European Evidence Warrant’ 237, 238. 82 Theodore Konstadinides, ‘The Perils of “Europeanisation” of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees’ in Christina Eckes and Theodore Konstadinides (eds), Crime Within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011). 83 Espelth Guild, ‘Crime and the EU’s Constitutional Future in an Area of Freedom, Security and Justice’ (2004) 10 European Law Journal 218. 84 Sandra Lavenex and Wolfgang Wagner, ‘Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice’ (2007) 16 European Security 225.

18  Mutual Recognition: From Passive to Active Recognition reason, resorting to mutual recognition in this area of law was viewed suspiciously by those who feared further EU integration and saw mutual recognition as the Trojan horse for harmonisation.85 Moreover, the area of the internal market is qualitatively different from the area of criminal justice in terms of the subject of their regulation, their objectives and their principles.86 Internal market law has mostly a market and an economic character, aimed at achieving free movement of goods, persons and services in a single market, in order to realise free trade. On a different note, criminal law is traditionally a field of public law since it regulates the relations between people and the state, and the judicial decisions of criminal courts may have the effect of restricting individual liberty, an ultimate means of social control.87 Pertinently, the bone of contention, especially prior to the Treaty of Lisbon, has been the lack of legitimacy and competence of the European Union to become involved in such matters, which are so sensitive to national sovereignty and individual autonomy.88

Typology and Operation of Mutual Recognition Despite the criticism, mutual recognition has been used as the basis of several instruments, as was mentioned above, and has been approved by the Court. This section discusses the typology of the principle and the limits placed on it by the public interest in protecting fundamental rights under the two case studies of the book. In the context of the Dublin III Regulation of the CEAS, mutual recognition is reversed as compared to its operation in the context of the FDEAW.89 In the latter, the Member States have to recognise each other’s judgments and act upon an EAW, whereas under the Dublin III Regulation of the CEAS, a Member State recognises the other’s obligation to act as the single responsible state. The first, recognising Member State is then ‘freed’ of any obligation to act. It follows that the limits to mutual recognition operating in the context of the FDEAW are imposed on the obligation of the executing authority to act by virtue of an overarching obligation to respect fundamental rights. On the other hand, the limits on mutual recognition operating in the context of the Dublin III

85 See Valsamis Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CML Rev; Mitsilegas, ‘Trust-Building Measures in the European Judicial Area in Criminal Matters. 86 Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ 1280. 87 Maria Kaiafa-Gbandi, To Poiniko Dikaio stin Europaiki Enossi (Criminal Law in the European Union), (Sakkoulas 2003) 328. 88 Valsamis Mitsilegas, EU Criminal Law 115. 89 Guild distinguishes between positive and negative mutual recognition in her article ‘Seeking Asylum; Storm Clouds between International Commitments and EU Legislative Measures’ (2004) 29(2) European Law Review 198, 206.

Development of Mutual Recognition  19 Regulation of the CEAS are imposed on their freedom from an obligation to act by virtue again of their obligation to respect fundamental rights. In both cases, these limits to mutual recognition based on breaches of fundamental rights obligations result in halting the transfer of the individual involved. In particular, a qualification of mutual recognition in cases of fundamental rights breaches would mean that in the first case, under the FDEAW, a Member State’s discretion to act is increased by its refusing to cooperate with the issuing authority. Conversely, under the Dublin III Regulation of the CEAS, a Member State’s discretion is decreased and replaced by its obligation to act so as not to be liable for fundamental rights violations. With the transposition of the principle of mutual recognition to the AFSJ, the protection of fundamental rights is often in conflict with the goals of quick cooperation, efficiency, public security and border control. Mutual recognition is understood and applied in a more nascent and absolute way than in the internal market. As will shown later, the principle of proportionality is also not yet as established as in the rest of EU law, where it is intertwined with restrictions on mutual recognition. Having explored the origins and the transfer of mutual recognition, the next section examines the development of mutual recognition in the AFSJ.

Development of Mutual Recognition The pattern of developing mutual recognition has not differed in the various areas of EU law where it has functioned so far.90 Yet, attempts to transfer the principle to new areas of EU law have followed the same pattern, but failed to avoid making similar mistakes in the governance of the principle.91 Mutual recognition in the AFSJ does not constitute an exception to this impasse.92 In addition, the operation of the ­principle in the AFSJ has followed a more conservative pattern than in other areas.93 Mutual recognition has for a long time operated in an absolute way in transfers of persons94 in the AFSJ vis-à-vis allegations of breaches of fundamental rights. This is

90 For an overview, see Christine Janssens, The Principle of Mutual Recognition in EU Law (OUP 2014) ch 2; Susanne Schmidt, Mutual Recognition as a New Mode of Governance (Routledge 2008). 91 ibid. 92 Point made by Massimo Fichera at the Conference of the Council for European Studies held in Philadelphia, USA on 16 April 2016 during the panel titled ‘Do We Trust in “Mutual Trust”? Current Challenges to Mutual Recognition in the Area of Freedom, Security and Justice as a Benchmark for Europe’s Resilience’. 93 This is exhibited by the fact that it took a very long time for an exception to the absolute operation of the principle to be introduced as is shown in the second chapter in relation to mutual trust. See Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department, [2011] ECLI:EU:C:2011:865; Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Caldararu ECLI:EU:C:2016:198; Case C-216/18 PPU, Minister for Justice and Equality v LM, ECLI:EU:C:2018:586. 94 Positive or negative mutual recognition borrowing from Guild’s terminology.

20  Mutual Recognition: From Passive to Active Recognition due to the interpretation of mutual trust in a way that the presumption of compliance with EU law has very rarely been rebuttable. The latter means that Member States essentially have a duty to trust to enable the mutual recognition of decisions and subsequently a smooth transnational cooperation in areas such as criminal and asylum matters. This has, however, led to an imbalance between the protection of fundamental rights and security-oriented interests, to the detriment of the first.95 Both case studies of the book illustrate that an automatic way of recognising judgments and decisions of cooperating states was approved by the Court for a long time. Mutuality would amount to a lack of engagement with the substantial premise of trust in cases of breaches of fundamental rights.96 Although positive and effective at first sight,97 the state of absolute mutual recognition ­stemming from ‘blind’ trust98 has endangered the protection of fundamental rights. This has now changed and the Court no longer treats mutual recognition as an unqualified system.99

Models of Mutual Recognition In particular, in the context of the AFSJ, we can notice a long phase of ‘pure mutual recognition’, borrowing a term from Nicolaidis and Schmidt when analysing the principle in the context of the internal market.100 By using this term, the authors identify a strict model of mutual recognition, where Member States simply accept

95 This constitutes the problem, which triggered the study and shaped the research question on whether the principle of proportionality could amplify the noted imbalance. The problem is particularly exposed at the introductory chapter in light of jurisprudential and literature review. 96 First, an exception was established by the Court in N.S. and M.E. and incorporated in the recast Regulation. See Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865. Moreover, it should be noted that both art 1(3) and recital 12 of the Preamble of the FDEAW explicitly refer to Member States’ obligation to protect fundamental rights, in the context of a request to surrender. It is now established that this provision should be read as allowing the executing authority, under very strict circumstances, to refuse the execution of an EAW too. See Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Caldararu ECLI:EU:C:2016:198; Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586. 97 Anne Weyembergh, Inés Armada and Chloé Brière, Critical Assessment of the Existing E ­ uropean Arrest Warrant Framework Decision. European Added Value Assessment: The EU Arrest Warrant ­(Brussels, European Union 2014) I-3. 98 The term is used by the literature in this area. See Henning Bang Fuglsang Madsen Sørensen, ‘Mutual Trust – Blind Trust or General Trust with Exceptions? The CJEU Hears Key Cases on the ­European Arrest Warrant’ (EU Law Analysis Blogpost, Thursday, 18 February 2016) http://­eulawanalysis. blogspot.co.uk/2016/02/mutual-trust-blind-trust-or-general.html; Valsamis Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ (2014) 2(2) Comparative Migration Studies 181, 198; Janssens, The Principle of Mutual Recognition in EU Law) 91. 99 The progress of the case law of the CJEU is analysed in the second chapter while focusing on the principle of mutual trust, the precondition of mutual recognition, and its relationship with fundamental rights. 100 Kalypso Nicolaidis and Susanne Schmidt, ‘Mutual Recognition “On Trial”: The Long Road to Services Liberalisation’ (2007) 14(5) Journal of European Public Policy 717.

Development of Mutual Recognition  21 forms and decisions without actively engaging with the object of recognition. Moreover, the original application of mutual recognition to the context of the FDEAW is what has been described by Armstrong as passive.101 Passive mutual recognition accounts for the mere execution of ‘symbolic forms’, such as judicial decisions, certificates or qualifications, which are not examined in depth in order to ascertain their functional equivalence. This has generally been the case for the two case studies, as demonstrated in the first chapter. However, it was recognised early on that generally associating the principle of mutual recognition with an absolute home-state model, where the host state has to accept every decision of the home state, is misleading.102 This relies on a misapprehension of the principle that justifies its wrong application elsewhere. In Cassis de Dijon, the landmark ruling that introduced the principle of mutual recognition,103 the Court introduced mandatory requirements in furtherance of the regulatory freedom of the host states, already provided to a certain extent by the derogations of Article 36 of the TFEU.104 In light of this, mutual recognition, in the context of the internal market, does not impose a blind obligation on the host Member State. It actually bridges host-state and home-state control ‘under conditions of regulatory pluralism’ by delimitating Member States’ regulatory powers to test the quality of the product or service.105 Therefore, mutual recognition not only is not synonymous with home-state control, but, on the contrary, is a method of policing host-state control.106 Not only is this not a passive function, but it can actually be said to be an active one. An active model of mutual recognition reflects on an in-depth examination of equivalences between the home-state rule and the hoststate one. A qualified – and not absolute or mechanical – way of understanding and applying the principle of mutual recognition is therefore well established in the context of the internal market. Furthermore, even the early literature on the internal market distinguished between different forms of operation of mutual recognition. Pelkmans distinguished between regulatory and judicial mutual recognition, and Tractman between equivalence and strict mutual recognition, while Nicolaidis and Schmidt distinguished between pure and managed.107 All these classifications identified absolute and qualified models of mutual recognition. Armstrong, particularly, 101 The application of the principle of mutual recognition in the internal market is further ­distinguished in passive and active. See Armstrong, ‘Mutual Recognition’, 241–42. 102 Maduro, We, the Court 126–27. 103 Armstrong, ‘Mutual Recognition’ 233; Kerber and Van Den Bergh, ‘Mutual Recognition Revisited’ 449. 104 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47; Armstrong, ‘Mutual Recognition’ 234. 105 Armstrong, ‘Mutual Recognition’ 231. 106 ibid, 233–35. 107 See Jacques Pelkmans, ‘Mutual Recognition in Goods. On Promises and Disillusions’ (2007) 14(5) Journal of European Public Policy 699; Joel P Trachtman, ‘Embedding Mutual Recognition at the WTO’ (2007) 14(5) Journal of European Public Policy 780; Nicolaidis and Schmidt, ‘Mutual Recognition “On Trial”’.

22  Mutual Recognition: From Passive to Active Recognition views the principle of mutual recognition as a regulatory process norm.108 Member States ‘study’ the regulatory history of the product or service or worker in order to pinpoint and consider the extent to which the different regulatory controls are equivalent.109 Ultimately, this process could lead to balance through i­nteraction between different systems.110 This approach amounts to a ‘regulatory reform’ for Member States since they should not only take into account their national ­viewpoint, but, by being ‘other-regarding’, should investigate the workers’ or ­products’ regulatory history.111 This can lead to a better quality of legislation,112 leading to a regulatory learning.113

From a Passive to an Active Model of Mutual Recognition Whether mutual recognition in the AFSJ between judicial authorities of Member States must be absolute, or conceptualised with limitations, was rightly considered to be a question of constitutional importance by President Lenaerts and Gutierrez-Fons.114 Taking into consideration that mandatory requirements were developed by the Court, in furtherance of the derogations of Article 36 of the TFEU, it is not clear why the grounds for refusal to cooperate in the AFSJ were read as exhaustive, although it should be acknowledged that two different policy fields come with different considerations and care should be taken in drawing parallels. Any justifications merely based on speedy judicial cooperation, or on the organisation of the relations of Member States to allocate responsibility for handling asylum applications, fail to convince on their own. The European Commission, scholars and Advocates General expressed the view early on that mutual recognition in EU criminal justice, and particularly in the paradigmatic context of the FDEAW, must not be treated as absolute, but must comply with Article 1(3) of the FDEAW.115 108 Armstrong, ‘Mutual Recognition’ 231. 109 ibid. 110 ibid. 111 Pelkmans, ‘Mutual Recognition in Goods and Services’ 92. 112 ibid 94. 113 Armstrong, ‘Mutual Recognition’ 244. 114 Koen Lenaerts and José A Gutiérrez-Fons, ‘The European Court of Justice and Fundamental Rights in the Field of Criminal Law’ in Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar 2016) 19. 115 European Commission, ‘Report from the Commission to the European Parliament and the ­Council of 11 April 2011 on the Implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States’ (2011) 7; Fenella Billing, ‘The Parallel Between Non-removal of Asylum-seekers and Non-execution of a ­European Arrest Warrant on Human Rights Grounds: The CJEU Case of NS v Secretary of State for the Home Department’ (2012) 2 European Criminal Law Review 77, 84; Alex Tinsley, ‘The Reference in Case C-396/11 Radu: When does the Protection of Fundamental Rights Require non-Execution of a European Arrest Warrant?’ (2012) 2 European Criminal Law Review 338; Opinion in Case C-42/11 Lopes Da Silva Jorge ECLI:EU:C:2012:151, para 28; Opinion in Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:648, para 73.

Development of Mutual Recognition  23 As fundamental rights now enjoy a central position in EU law,116 their ­protection should be treated as such in actual and not merely declaratory terms,117 which is now rightly recognised by the Court and reflected in the evolution of mutual recognition and mutual trust.118 Moreover, the AFSJ pertains to much more ­sensitive issues than the internal market,119 where mutual recognition ­operates in a qualified manner, as demonstrated above. People in the AFSJ are often physically and involuntarily transferred, as compared to workers and students, who make such decisions for their own growth.120 Although mutual recognition is no longer seen as an absolute norm and has been refined in light of the development of mutual trust, its precondition, a discussion on how our understanding of mutual recognition should move forward, is still pertinent.121 This is because the principle is still evolving as it is based on mutual trust among Member States, which as a concept of social construct is elusive and constantly informed by an inconclusive presumption that is somehow tamed by the Court. It was rightly argued that the operation of mutual recognition must therefore allow room for a ‘horizontal Solange’ test.122 It is naïve to believe that Member States will act in a way in which they will always respect fundamental rights. Therefore, it is necessary to conceive mutual recognition based on this realistic understanding and develop a more sophisticated system of derogations than the existing one with regard to fundamental rights infringements. Bergstrom highlighted ‘the need for methodological awareness, particularly as regards the proper way of balancing mutual recognition and fundamental rights’.123 Multiple phases 116 The Charter acquired the status of primary law following the Treaty of Lisbon as it is enshrined in art 6 of the Consolidated Version of the Treaty on the European Union (TEU) [2008] OJ C115/13. The ‘primary importance’ of fundamental rights in the CJEU case law is recognised by the presidents of the CJEU and European Court of Human Rights (ECtHR) in their ‘Joint Communication from Presidents Costa and Skouris’ 27 January 2011, http://curia.europa.eu/jcms/upload/docs/application/pdf/201102/cedh_cjue_english.pdf; Gráinne de Búrca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ (2013) 20(2) Maastricht Journal of European and Comparative Law 168. 117 This is not a ground-breaking suggestion as it has also been expressed in many places: inter alia see Opinion in Radu, para 51; Jason Coppel and Aidan O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 12(2) Legal Studies 227. 118 Valsamis Mitsilegas, ‘The European Model of Judicial Cooperation in Criminal Matters: Towards Effectiveness Based on Earned Trust’ (2019) 5(2) Revista Brasileira de Direito Processual Penal 565. 119 Peers, ‘Mutual Recognition and Criminal Law in the European Union’ 5. 120 Guild, ‘Crime and the EU’s Constitutional Future’; Lavenex and Wagner, ‘Which European Public Order?’; Valsamis Mitsilegas, Jorg Monar and Wyn Rees, The European Union and Internal Security; Guardian of the People? (Basingstoke: Palgrave Macmillan, 2003). 121 In this respect, Snell argues that the impact of Cassis should not be ‘overplayed’. The ruling did not establish an unqualified system of home-state control. See Snell, ‘Cassis at 40’. 122 Iris Canor, ‘My Brother’s Keeper? Horizontal Solange: An Ever Closer Distrust Among the Peoples of Europe’ (2013) 50 CML Rev 669. 123 Maria Bergstrom, ‘Mutual Recognition in Criminal Justice: Towards Order and Method?’ in Do We Trust in ‘Mutual Trust’? Current Challenges to Mutual Recognition in the Area of Freedom, Security and Justice as a Benchmark for Europe’s Resilience (April, 2016) 23rd International Conference of ­Europeanists: Resilient Europe? Council for European Studies at Columbia University, Philadelphia 14–16 April 2016, https://councilforeuropeanstudies.org/files/conferences/2016_conference_program_final.pdf.

24  Mutual Recognition: From Passive to Active Recognition of cooperation between the respective parties could exist. These could range from unconditional acceptance to refusal to cooperate because the level of trust is not adequate in view of specific exceptional circumstances. However, many other options could be formulated in between these two extremes, based on a transjudicial dialogue. This could entail offering guarantees based on a higher level of protection of fundamental rights. Therefore, the Court’s recent turn in Aranyosi and as confirmed in LM and ML is only welcome as it encourages judicial authorities to communicate with each other. Yet, the current test is far from perfect but if cooperation in this area is based on judicial mutual recognition, the judicial authorities are rightly empowered to communicate with each other. The role that proportionality could have will be discussed later, a discussion which is of great value at this jurisprudential stage.

Seeking Equivalence and a Role for Proportionality? A proportionality-based analysis is one step in this direction as it urges judicial authorities to investigate such parameters. A proportionality-based analysis would determine whether a restriction on a right associated with a transfer is disproportionate enough to prevent the transfer. This would trigger a quest for equivalences, which could accompany a sophisticated model of mutual recognition in light of the so-called regulatory learning.124 This is even more necessary in this area than in the internal market, in light of the centrality of fundamental rights for EU law and the sensitive character of that law here. According to this suggestion, the authorities of the Member States could commit to an active engagement to learn each other’s rules and standards of protection. More particularly, equivalence could be sought between the different laws of the Member States involved when the executing authority, in the context of the FDEAW for example, is adamant about preserving the higher level of protection of the specific right, which is restricted by the proceedings of extradition. Additional guarantees and checks should be in place, particularly where the protection of fundamental rights is of a higher standard in an executing EAW state. According to Article 24 of the FDEAW, two cooperating states could agree on conditions with regard to the surrender of a person. Judicial authorities enjoy adequate discretion to act upon a ‘problematic’ EAW. In such a case, the issuing authority could agree to provide for an additional appeal which could satisfy the law of the executing authority. This idea of qualified, active, mutual recognition, with one Member State being able to set additional requirements for equivalence, is already applied to some other areas of EU law, such as the recognition of professional qualifications.125 124 Armstrong, ‘Mutual Recognition’. 125 Case 2/74 Reyners v Belgian State ECLI:EU:C:1974:68; Armstrong, ‘Mutual Recognition’ 234, 241, 242.

Conclusion  25 Mitsilegas also considers the impact that harmonisation of national criminal procedural law on individual rights has on the evolution of earned and real mutual trust.126 Indeed, strengthening common ground via harmony is a method of building trust through actual rather than imposed terms. Given that an AFSJ is a required and desirable area of EU integration, as a sine qua non element of the EU project beyond an internal market, the EU citizen is no longer a worker or a consumer of services. As such, harmony in criminal procedural rights is only welcome if it is put forward by the EU legislator, if it does not lead downwards,127 and if it concurrently allows a margin of differentiation where needed.

Conclusion The chapter discussed the conception of mutual recognition and its transfer to the AFSJ. It then observed the typology and operation of the principle in this field in light of the driving forces that influenced its development in the context of the two case studies of the book. The chapter offers a typology of mutual recognition tailored to the AFSJ and as compared to the internal market, which is necessary for the understanding of the operation of measures based on mutual recognition. The chapter considers how the principle can be qualified by the protection of fundamental rights by drawing useful parallels with the operation of the principle in the internal market, where the principle has been more developed than in the AFSJ. The chapter welcomes the active and evolving model of mutual recognition that has gradually developed in lieu of the long-established ‘all or nothing’ approach. The analysis on mutual recognition could be, to a certain extent, transferable to different instruments, with careful consideration of the specific features of every case study. However, the dissimilarities between the two case studies lead to different arguments regarding the impact of such an analysis. Mutual recognition is the end result that allows free movement of decisions of Member States’ authorities in the AFSJ regarding several policy sub-areas. Mutual recognition is only possible because of a presumed high degree of mutual trust among these authorities. The existence of mutual trust, albeit not conclusive, is not often rebuttable and the delimitation of when it is and when it should be rebuttable has been at the centre of academic debates and of ongoing case law developments. Mutual trust is now recognised as a principle of European law whose scope is still evolving. This is considered in the next chapter.

126 Valsamis Mitsilegas, ‘Mutual Recognition, Mutual Trust and Fundamental Rights After Lisbon’ in Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar 2016) 152–54, 162–66. 127 In analogy to the term ‘race to the bottom’ referring to lowering environmental or labour standards to attract more businesses because of regulatory competition in the internal market.

2 Mutual Trust: From Blind to Gained Trust Introduction Mutual trust constitutes the basis for several mutual recognition instruments of the AFSJ.1 Mutual trust is founded on a presumption of compliance with rules on the protection of fundamental rights which are commonly accepted by Member States, offering a common denominator that renders different approaches ­equivalent. Pertinently, the Court defined trust as requiring ‘each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law’.2 As such, mutual trust is the basis, the precondition, the prerequisite of mutual recognition, which was examined in the previous chapter. For example, under the FDEAW, the judicial authorities of one Member State trust the judicial authorities of another Member State that issued an EAW.3 In the context of the Dublin III Regulation,4 one Member State is identified as responsible, while the rest trust that the treatment of asylum seekers satisfies their common obligations to respect fundamental rights. The presumption here operates in light of Member States’ participation in the European Convention on Human Rights (ECHR) and in the Geneva Convention.5 1 See, for example, Council Framework Decision 2009/829/JHA of 23 October 2009 on the ­application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [2009] OJ L294/20; Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1 (as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, [2009,] OJ L81/24); Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order [2011] OJ L338/2. 2 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586, para 36. 3 FDEAW, arts 1(1), 9(1), 10. Judicial cooperating authorities function within strict time limits and without many formalities, which is the result of their mutually trusting each other. See arts 1(2), 15(1), 17. 4 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III) [2013] OJ L180/31. 5 Convention (IV) relative to the protection of civilian persons in time of war (Geneva, 12 August 1949); Dublin III, Preamble, Recital 3.

Introduction   27 Following the analysis of mutual recognition in the previous chapter, this c­ hapter offers an account of mutual trust and analyses the development of the principle through the case law on the FDEAW and the Dublin III Regulation. It evaluates how the notion of trust has evolved from the perspective of protecting fundamental rights through three distinct phases. The chapter submits that the principle has gradually developed from an absolute principle to a refined one. The evolution has been slow and will always be ongoing as the nature of trust is dynamic. The chapter first considers what mutual trust means in the two case studies of the book, then critically observes the evolution of mutual trust in the case law of the CJEU. It then revisits the limits of the principle before finally discussing how recent developments have shaken the grounds of trust.

Mutual Trust in the Framework Decision on the European Arrest Warrant An EAW is a judicial decision issued by one Member State and transmitted to another, with a view to requesting the arrest and surrender of a person for the purpose of their prosecution, or the execution of a sentence or a detention order.6 The cooperation among national authorities is merely judicial and does not require the approval and political supervision of a ministry of justice of a cooperating state. This reflects a high level of mutual trust among the judicial authorities of Member States, for now circumventing the obligation to perform a political check on the extradition. The previous regimen was based on the ‘request principle’ as any requests to extradite an individual were addressed to national ministries, which enjoyed a wide discretion to deny or accept a request. The previous system of extradition reflected the importance of national sovereignty in the intergovernmental dialogue taking place for the purpose of extradition and contrasts with the current system of arrest and surrender, which replaced the latter.7 A judicial authority of a Member State that receives an EAW (the executing authority)8 is under an obligation to arrest and surrender a requested person with the minimum of formalities9 and within a strict and short time limit.10 Judicial authorities complete a form and operate within a limited time frame and to strict deadlines.11 Speed and eradication of checks were introduced because there is faith

6 FDEAW, arts 1(1), 9(1), 10. 7 Julia Sievers, ‘Too Different to Trust? First Experiences with the Application of the European Arrest Warrant’ in Elspeth Guild and Florian Geyer (eds), Security Versus Justice? Police and Judicial Cooperation in the European Union (Ashgate Publishing 2008) 109. 8 FDEAW, art 6(2). 9 ibid, art 1(2), ‘On the basis of the principle of mutual recognition’. 10 ibid, arts 15(1), 17. 11 ibid, arts 15, 17, 22, 23. See Particularly art 17(1), ‘A European arrest warrant shall be dealt with and executed as a matter of urgency’.

28  Mutual Trust: From Blind to Gained Trust that all Member States have a high level of trust between each other – that they all comply with their international human rights obligations, stemming from the ECHR.12 Another indication of mutual trust here is that the requirement of double criminality of the act was abolished. The principle of double criminality requires that the act must be a criminal offence in both Member States.13 Mutual trust is also manifested in Member States’ strict obligation to act upon an EAW and the fact that they may only derogate based on optional or mandatory grounds for refusal, which are listed in the FDEAW.14 Although several provisions of the instrument provide for specific rights of the requested person,15 an explicit recognition of a blanket ground for refusal for fundamental rights breaches has not been recognised by the Court. The Court has insisted that Member States are ‘in principle obliged’ to implement an EAW16 and that this strict obligation is only qualified by the explicit exceptions and guarantees that the law provides in Articles 3, 4, 4a and 5 of the FDEAW.17 The only exception is provided in Aranyosi, where the Court recognised a ground for postponing the surrender, and was then expanded in LM and ML. However, exceptions are carefully controlled and authorities are still obliged to trust.

Mutual Trust in the Dublin III Regulation In parallel, the operation of the Dublin III Regulation is also based on a presumably high level of confidence that Member States of the European Union respect fundamental rights. Only one Member State is responsible for examining an application18 and the rest may refuse to examine an application resubmitted to them. In the event of the absence of the standard criteria for the determination of the responsible Member State, and in the event of an irregular entrance to the European Union, responsibility is with the Member State of first entrance of the applicant.19 The latter rule was adopted based on mutual confidence that all Member States comply with their obligation to respect fundamental rights created by international human rights law and EU law.

12 ibid, Preamble, recital 10. 13 For a challenge to this legal choice see Case C-303/05 Advocaten Voor De Wereld Vzw v Leden Van De Ministerraad ECLI:EU:C:2007:261. 14 FDEAW, arts 3, 4, 4a and 5; Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:39, paras 35, 36; Case C-388/08 PPU Artur Leymann and Aleksei Pustovarov ECLI:C:EU:2008:669, para 51; Case C-261/09 Gaetano Mantello ECLI:EU:C:2010:683, para 37. 15 FDEAW, art 11 on the rights of the requested person; art 12 on detention; art 13 on consent; art 14 on hearing. 16 Radu, para 35. 17 ibid, paras 36, 37. 18 Dublin III, art 3(1). 19 Dublin III, art 13(1).

Evolution of Trust   29 Here, the Court recognised some limitations to the presumption of mutual trust, in the context of the Dublin system, under very strict and extreme circumstances.20 At the moment, the only case for preventing Dublin transfers is in light of a violation of Article 3 of the ECHR or Article 4 of the Charter. An applicant for asylum can only challenge a state’s decision to transfer them when it is believed that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. So, there is a presumption of compliance with other procedural rules, and national authorities thus trust each other enough not to allow scope for questioning each other’s compliance with other aspects of the law.

Evolution of Trust Much ink had already been spilt on the evolution of mutual trust regarding its relationship with fundamental rights before the ground-breaking judgment in Aranyosi.21 After the latter judgment,22 the matter has also received attention in the research literature,23 which is further complemented by even more recent commentary that followed the most recent judgments of LM and ML.24 20 Joined Cases C-411 and 493/10, N.S. and M.E. and Others v Secretary of State for the Home Department EU:C:2011:865; Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813; Case C-578/16 PPU C.K. and Others v Republika Slovenija ECLI:EU:C:2017:127. 21 For significant contributions see, inter alia, Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319, 319; Lars Bay Larsen, ‘Some Reflections on Mutual Recognition in the Area of Freedom, Security and Justice’ in Pascal Cardonnel, Allan Rosas and Nils Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Hart Publishing 2012). 22 Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Caldararu ECLI:EU:C:2016:198. 23 Ermioni Xanthopoulou, ‘Mutual Trust and Rights in EU Criminal and Asylum Law: Three Phases of Evolution and the Uncharted Territory Beyond Blind Trust’ (2018) 55(2) CML Rev 489; Adam Łazowski, ‘The Sky Is Not the Limit: Mutual Trust and Mutual Recognition après Aranyosi and ­Caldararu’ (2018) 14 Croatian Yearbook of European Law and Policy 1; Auke Willems, ‘The Court of Justice of the European Union’s Mutual Trust Journey in EU Criminal Law: From a Presumption to (Room for) Rebuttal’ (2019) 20 German Law Journal 468; Rosaria Sicurella, ‘Fostering a European Criminal Law Culture: In Trust We Trust’ (2018) 9(3) New Journal of European Criminal Law 308; Koen Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet not Blind) Trust’ (2017) 54 CML Rev 805–40; Georgios Anagnostaras, ‘Mutual Confidence is not Blind Trust! Fundamental Rights Protection and the Execution of the European Arrest Warrant: Aranyosi and Caldararu’ (2016) 53 CML Rev 1675; Mathias Hong, ‘Human Dignity, Identity Review of the European Arrest Warrant and the Court of Justice as a Listener in the Dialogue of Courts: Solange-III and Aranyosi’ (2016) 12 European Constitutional Law Review 549. 24 Theodore Konstadinides, ‘Judicial Independence and the Rule of Law in the Context of NonExecution of a European Arrest Warrant: LM’ (2019) 56 CML Rev 743; Petra Bárd and Wouter van Ballegooij, ‘Judicial Independence as a Precondition for Mutual Trust? The CJEU in Minister for Justice and Equality v. LM’ (2018) 9(3) New Journal of European Criminal Law 353; Mattias Wendel, ‘Mutual Trust, Essence and Federalism – Between Consolidating and Fragmenting the Area of Freedom, Security and Justice after LM’ (2019) 15 European Constitutional Law Review 17; Cecilia Rizcallah, ‘The Challenges to Trust‐Based Governance in the European Union: Assessing the Use of Mutual Trust as a Driver of EU Integration’ (2019) 25(1) European Law Journal 37.

30  Mutual Trust: From Blind to Gained Trust Three phases of judicial evolution can be generally identified, considering the case law of the Court in relation both to FDEAW and the Dublin III Regulation. Although these phases do not follow the same timeline, one can notice similar qualitative elements of interpretation regarding mutual trust that are endemic in the operation of trust regarding both instruments. The first phase refers to what is described by the commentary as ‘blind trust’. This is a long phase which ended with the judgments in Aranyosi and N.S. and Others. The second phase therefore started with these judgments, which acknowledged that limits to mutual trust could be recognised under certain conditions and the presumption of compliance is not conclusive. The third phase of case law, which is debatable, is moving towards an individual assessment, where trust is challenged in specific cases, but not necessarily because of systemic deficiencies. This embryonic phase, which is demarcated by C.K. and Others, has arguably not started yet for the FDEAW. Although the test in Aranyosi as well as in the subsequent case of LM necessitates an individual assessment, the test has not departed from the generic requirement to prove systemic deficiencies. In the latter test, an individual assessment is only accumulative to the first stage of the test regarding systemic deficiencies. This section demonstrates the shift from one phase to the other.

Blind Trust The FDEAW The Court’s reasoning in this first and long-standing phase of case law extensively focused on the efficacy of the surrender system, as far as the FDEAW is concerned. So, securing a presumption of compliance with rights obligations was deemed necessary to secure the effectiveness of the system. Member States were strictly obliged to act upon an EAW and only derogate based on the grounds for refusal as listed in the FDEAW.25 As a result, a rigid regime was formed where the protection of mutual recognition per se was often prioritised against the protection of fundamental rights. For this reason, the existence of mutual trust was not challenged. In particular, in Radu, the Court affirmed that respect for fundamental rights did not require that an executing authority may refuse to execute an EAW in the event of fundamental rights breaches.26 According to this judgment, the premise of mutual trust could not be questioned. Likewise, the Court in Melloni again protected the principle of mutual trust as it prioritised the efficacy of the measure against the protection of fundamental rights. The

25 These grounds were either optional or mandatory. See, FDEAW, arts 3, 4, 4a and 5; Radu, paras 35 and 36; Leymann, para 51; Mantello, para 37. 26 Radu, para 39. For a commentary, see Ermioni Xanthopoulou, ‘The Quest for Proportionality for the European Arrest Warrant: Fundamental Rights Protection in a Mutual Recognition Environment’ (2015) 6(1) New Journal of European Criminal Law 32, 38–45.

Evolution of Trust   31 Court again, similar to Radu, argued that allowing an executing authority to make the surrender of the person convicted in absentia conditional upon a subsequent review of the judgment leading to an EAW would undermine the efficacy of the judicial cooperation.27 It should be noted though that Advocate General Sharpston in her Opinion in Radu took the chance to re-examine the presumption of compliance in the context of the proceedings of the EAW28 in an attempt reminiscent of the Court’s understanding of mutual trust in N.S. and M.E.29 She commented that the interpretation taken by the Court was a narrow one and was not compliant either with the wording of the measure or with the case law.30 In fact, she argued that fundamental rights obligations ‘permeated’ the whole measure. There is a reference to them in Article 1(3) of the FDEAW and Article 6 of the TEU. Referring also to the Opinion of Advocate General Villalon in I.B., who said that the protection of fundamental rights ‘is the precondition which gives legitimacy to the existence and development of this area’,31 Advocate General Sharpston added that judicial authorities of an executing Member State are clearly obliged to consider fundamental rights as set out in the law.32 Advocate General Sharpston’s contribution to development of trust is significant and innovative. This is because it was hitherto considered that Member States should respect fundamental rights since they are all signatories to the ECHR. Therefore, they must trust each other enough to recognise each other’s decisions.33 Advocate General Sharpston particularly noted that Member States of the European Union do not always comply with fundamental rights, although the level of protection of fundamental rights is relatively high and they all assume the legal obligation to ensure this. In particular, she stated that ‘while the record of the Member States in complying with their human rights obligations may be commendable, it is also not pristine’.34 It is not certain that Member States will respect fundamental rights but it can certainly be assumed that fundamental rights will be respected because of the generally high level of the protection of fundamental rights. The presumption should be rebuttable, with the claimant of a breach having the burden of proof using only ‘the clearest possible evidence’.35 The reasoning in this Opinion has definitely been influential in the development of the mutual trust in the case law of the CJEU despite the fact that the judgment in Radu did not follow her Opinion.

27 Radu, para 63. 28 ibid, para 41. 29 N.S. and M.E., para 81. 30 Opinion in Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:648, paras 69, 70. 31 ibid, 70, 71. 32 ibid, para 73. 33 FDEAW, Preamble, recital 10; Opinion in Radu, para 38; Case C-168/13 PPU Jeremy F. v Premier Ministre ECLI:EU:C:2013:358, paras 49, 50. 34 Opinion in Radu, para 41. 35 ibid.

32  Mutual Trust: From Blind to Gained Trust

Dublin System The protection of fundamental rights for a long time also suffered in the field of the Dublin system as the CJEU was timid and slow to allow limits to the principle of mutual trust here too. Although this first phase regarding the Dublin system is not chronologically the same as that concerning the FDEAW, and the policy areas in questions are significantly different, some careful analogies can be made. It was contended early on that the law was shaped on the basis of a border control narrative and it took a long time for it to acknowledge the humanitarian side of the debate.36 Similar to the area of the FDEAW, the Court generally emphasised the state-centric objectives shaping the Dublin system and, debatably, ignored the protection of fundamental rights. The prevalence of the state-centric purpose during this first phase can be noticed both in law and in case law. Degrading and inhuman treatment breaching the absolute right not to be subjected to such treatment was not an isolated phenomenon and made an unquestionably convincing case to move beyond blind trust.37 Consequently, several challenges were made before national and European courts to prevent transfers to Greece in view of worrying conditions that reduced the confidence that adequate human rights protection could be presumed.38

Qualified System of Trust The second phase started earlier in the context of the Dublin system than in the context of the FDEAW. The new phase was demarcated by the judgment of the Court in N.S. and Others but remained quite narrowly prescribed. Subsequently, the CJEU adopted the ruling of the European Court of Human Rights (ECtHR) in M.S.S. v Belgium and Greece39 in its N.S. and M.E. judgment. There, it stated that the presumption that asylum seekers will be treated in a way that complies with fundamental rights must be treated as rebuttable.40

36 Violeta Moreno-Lax, ‘Life After Lisbon: EU Asylum Policy as a Factor of Migration Control’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law; After Lisbon and ­Stockholm (Hart Publishing 2013) 149. 37 Eva Nanopoulos, ‘Trust Issues and the European Common Asylum System; Finding the Right Balance (Case Comment)’ (2013) 72(2) Cambridge Law Journal 276, 276. 38 Claudio Matera, ‘The Common European Asylum System and its Shortcomings in Protecting Human Rights: Can the Notion of Human Security (Help to) Fill the Gaps?’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection In Times of Emergencies (Asser Institute, CLEER, 2014) 12, 13; Joanna Lenart, ‘“Fortress Europe”: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012) 28(75) Utrecht Journal of International and European Law 4, 4–19. 39 Application No 30696/09 M.S.S. v Belgium and Greece ECtHR 21 January 2011, paras 347–50. For a comment see Violeta Moreno-Lax, ‘Dismantling the Dublin System: M.S.S. v Belgium and Greece’ (2012) 14(1) European Journal of Migration and Law 1–31. 40 N.S. and M.E., para 104.

Evolution of Trust   33 The judgment in N.S. and Others was pivotal in the evolution of the concept of mutual trust as a principle that relies on a non-conclusive presumption.41 Of course, having opened a potential Pandora’s box, the Court also ensured that it remained in control of the test and the limits on mutual trust. Abdullahi, therefore, served the purpose of setting boundaries to the limits to trust, prompting Member States to trust each other, as this is their obligation.42 Abdullahi together with N.S. and Others set the tone of this phase of case law, where the Court clearly delineates the discretion of authorities regarding the scope of review. Similar to Abdullahi, a timid tone of controlled derogations from the obligation to trust was set in Aranyosi, where the Court established a ground for postponement of the surrender. In this case, the referring Court asked the CJEU whether Article 1(3) of the FDEAW could be read in a way that the executing authority could or should refuse a surrender in light of fundamental rights violations and, particularly, violation of Article 4 of the Charter. The Court held that when executing judicial authorities have evidence that there is a risk of inhuman or degrading treatment in the issuing Member State, they are bound to assess the possible existence of that risk. To this end, they rely to a large extent on ‘objective, reliable, precise and duly updated elements’.43 However, the Court clarified that the fact that such a risk generally exists in the issuing Member State is not sufficient on its own to allow the executing authority to refuse a surrender based on an EAW.44 The authorities must additionally establish that the person in question will specifically be exposed to this risk because of the conditions of their detention.45 If the executing authority is convinced of the existence of this specific risk for the particular person after applying the twofold test, it has to postpone, but not abandon, the EAW and make a decision on detention after informing Eurojust.46 Aranyosi reveals the spirit of this phase of case law, which is still currently ­pertinent to the FDEAW although extended to cases other than those in which a breach of Article 4 is involved. There is a clear dual dynamic in this phase of case law. On the one hand, the Court introduced limits to mutual trust, and, on the other hand, it ensured that the limit is firmly defined and ordered. The judgment must be praised for reconciling rights with mutual trust; at the same time, it remains bound to the idea of trust to which this judgment constitutes only an 41 Joanna Buckley, ‘Case Comment: NS v Secretary of State For The Home Department (C-411/10) (2012) 2 European Human Rights Law Review 205–10; Maarten Den Heijer, ‘Case Comment: Joined Cases C-411 and C-493/10, NS v Secretary of State For The Home Department and Me v Refugee Applications Commissioner’ (2012) 49(5) CML Rev 1735. 42 Abdullahi, para 53. The Court held that an applicant may only challenge a Member State’s d ­ ecision by claiming systemic deficiencies in the asylum procedure, and in the reception conditions which provide substantial grounds for believing that the applicant would face a real risk of being subjected to inhuman or degrading treatment. 43 Aranyosi, para 88. 44 ibid, para 91. 45 ibid, paras 92–94. 46 ibid, paras 98 and 100–02.

34  Mutual Trust: From Blind to Gained Trust exception, only then to confirm the rule by prioritising trust as a general rule. In this respect, the judgment introduced a high threshold for a dual test to be satisfied. An additional part was added to the test referring to ‘systemic deficiencies’ of reception conditions or asylum procedures that had been introduced by N.S. and Others. Aranyosi requires a double test to be satisfied. First, a real risk has to be established that the requested person would be subjected to inhuman or degrading treatment, in violation of Article 4 of the Charter, similar to N.S. and Others. However, the second layer of the test intensifies the review, as compared to N.S. and Others. Apart from having to identify systemic deficiencies to establish the risk, the executing authorities must determine that such a risk exists in the particular case examined. They have to conduct an assessment in concreto. Aranyosi has introduced the necessity for actual compliance with the obligation to respect rights as the basis of trust. So, it could be argued that although Aranyosi does not depart from an understanding of mutual trust as a legal obligation, it paves the way for a more pragmatic and earned trust. Aranyosi has indeed paved the way for the next phase of case law regarding the FDEAW. The ruling and the reasoning of Aranyosi were reiterated in LM and ML and extended in LM by analogy to cases regarding the right to a fair trial. There, the CJEU rules that the executing authority must refrain from giving effect to an EAW if a two-stage test is again satisfied. First, the authority must find that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial. The breach of the essence of the fundamental right to a fair trial is considered on account of systemic or generalised deficiencies concerning the judiciary of that Member State which could affect judicial independence in that state. Second, the executing judicial authority must determine that there are substantial grounds for believing that the requested person will run into that risk. This is a step forward from Aranyosi and alters the precedent of Radu, which had grappled with the right to a fair trial. It is a novel approach as until this point, an objection to a surrender was only allowed when a real risk of a violation of the absolute guarantee under Article 4 of the Charter was argued under Aranyosi.

Trust Based on Individual Assessment? A third phase could be identified in the case law of the CJEU, in the context of asylum law, which calls for a more extensive rights review while departing from the narrow scope of Abdullahi and the ‘systemic deficiencies’ test of N.S. and Others. Trust, here, is earned on the basis of an in concreto analysis when the presumption of respect for fundamental rights is contested. Individual circumstances are carefully considered with the individuals’ human dignity being placed at the centre of the judicial scrutiny. In particular, the Court in Ghezelbash decided contra Abdullahi. The Court ruled that Article 4 of the Dublin III Regulation confers a right on the applicant to be informed on how a Member State is determined as the responsible one. The ruling was upheld in the subsequent case of Karim, where the Court reiterated that

Evolution of Trust   35 Article 27(1) of the Dublin III Regulation grants the applicant an effective remedy against a transfer decision, which may concern the examination of the application of that Regulation.47 Therefore, the judgment departed from the narrow interpretation of the Dublin III Regulation in Abdullahi, that an asylum seeker could only challenge their transfer where it is feared that they would be subjected to inhuman or degrading treatment. Additionally, another seminal judgment regarding the relationship between mutual trust and fundamental rights, in the context of asylum law, is C.K. and Others,48 where the Court moved away from the systemic deficiencies requirement. The question here was whether the assessment of circumstances under Article 3(2) of the Dublin III Regulation is sufficient to satisfy the requirements of Article 4 and Article 19(2) of the Charter where no systemic flaws create a risk of inhuman and degrading treatment. The CJEU ruled that according to the ECtHR,49 the suffering which stems from naturally occurring illness may be covered by Article 3 ECHR wherever it is, or there is a risk that it will be, aggravated by treatment as a result of detention conditions, expulsion or other measures which can be attributed to national authorities. The Court held that even where there are no systemic flaws in the asylum procedure and the reception conditions in a Member State, a transfer in itself can entail a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter. This is especially the case where an asylum seeker suffers from a serious mental or physical condition and their transfer might lead to a significant worsening of their health. In this respect, the national authorities must take into consideration objective factors. For example, they must factor in medical evidence and reports, which prove the particular seriousness of a person’s condition and the serious and irremediable impact that a transfer may entail for that person. These authorities would have to form a certain picture concerning the effect of the transfer on the health status of the person who is to be transferred. They can eliminate any doubts on the deteriorating impact of the transfer to the health status of the transfer by ensuring that the applicant is accompanied, by the medical staff, to prevent any worsening of their health.50 If concerns regarding the health status of the applicant still exist, a Member State should suspend the transfer for as long as the applicant’s health condition does not allow them to be moved without any danger. The requesting Member State may also choose to examine the request itself under the ‘discretionary clause’ that can be found in Article 17(1) Dublin III Regulation.51 47 Case C-155/15 George Karim v Migrationsverket ECLI:EU:C:2016:410. See further on remedies within the Dublin system: Case C-646/16 Jafari ECLI:EU:C:2017:586; Case C-490/16 A.S. v Slovenia ECLI:EU:C:2017:585; Case C-670/16 Mengesteab ECLI:EU:C:2017:587; Case C-201/16 Shiri ECLI:EU:C:2017:805, discussed in Daniel Thym, ‘Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction: Jafari, A.S., Mengesteab and Shiri’ (2018) 55(2) CML Rev 549. 48 Case C-578/16 PPU C.K. and Others v Republika Slovenija ECLI:EU:C:2017:127. 49 Application No 41738/10 Paposhvili v Belgium ECtHR 12 December 2016. 50 C.K. and Others, paras 80, 81, 82. 51 That provision should still be read as offering discretion to the Member State, rather than obliging them to exercise responsibility. Ibid paras 87, 88 and 89.

36  Mutual Trust: From Blind to Gained Trust The ruling in C.K. and Others allows authorities to assess individual cases based on evidence that the individual submits on a case-by-case analysis. The assessment moves beyond a discourse of preserving mutual trust while evaluating the damning effect of a transfer per se for an individual. Although the judgment only refers to inhuman or degrading treatment, it points to a way forward where a case-by-case analysis could be developed in line with the case law of the ECtHR.52 The judgment empowers the authorities to perform an individual assessment, with compassion, beyond a narrative of being obliged to trust, by ultimately prioritising the individual situation of a human being in a vulnerable position, and based on medical evidence.

Age of Distrust? Recent developments in Europe have had a noticeable effect on cooperation among Member States in the AFSJ. Presuming compliance with common rules that underpin cooperation does not come without hindrances that acknowledge the ‘elephants in the room’. The United Kingdom’s departure from the European Union and the alleged crisis of rule of law in Poland have both affected the debate regarding EAW and Dublin transfers, raising questions about the limits of mutual trust. The section below considers how these recent developments have affected or will affect Member States’ cooperation by seriously challenging the foundations of mutual trust. The chapter argues that these hindrances to cooperation stem from failing mutual trust.

Brexit and Distrust The imminent53 departure of the United Kingdom from the European Union54 is a very important development that has already affected the cooperation at the EU level among Member States in relation to both criminal and asylum matters.55 This section considers the effect of Brexit on cooperation among Member States and the principle of mutual trust. It contends that legal certainty is a prerequisite of the principle of mutual trust. It is for this reason that cooperation in asylum matters is indeed challenged as legal uncertainty is generated by the Brexit discourse.56 52 The case studies consider relevant jurisprudence of the ECtHR on the rights in question, considering the right to a fair trial and unfolding the essence of the right. 53 At the time of writing. 54 Hereafter called Brexit. 55 For a detailed analysis see, Ermioni Xanthopoulou, ‘Legal Uncertainty, Distrust and Injustice in Post-Brexit Asylum Cooperation’ in Tawhida Ahmed and Elaine Fahey (eds), On Brexit: Law, Justice and Injustices (Edward Elgar 2019). The chapter exhibits the injustice created due to the weakened link between legal certainty and mutual trust and discusses how the missing link has affected cooperation. 56 Joelle Grogan, ‘The Only Certainty is Uncertainty: Risk to Rights in the Brexit Process’ in Tawhida Ahmed and Elaine Fahey (eds), On Brexit: Law, Justice and Injustices (Edward Elgar 2019).

Age of Distrust?   37 The  section contends that the ongoing legal uncertainty has led to shaking the principle of mutual trust, a legal precondition for asylum cooperation. Of course, mutual trust has been questioned before and this has already resulted in the suspension of the Dublin system concerning cooperation with Greece.57 It seems that the story repeats itself, as the CJEU has already been asked to consider the Brexit effect on trust and cooperation.58 Although these are two different situations, there are many comparable elements concerning the core of international cooperation, namely mutual trust. Mutual trust essentially means that Member States’ authorities are confident that they can work with each other on cross-border matters that are of common interest. Mutual trust, here, is founded on a presumption of compliance with fundamental rights obligations. These offer a common denominator that renders different approaches equivalent.59 All factors that enable the generation or presumption or maintenance of mutual trust are essentially supported by legal certainty. Legal certainty is a prerequisite of mutual trust. Legal certainty entails knowledge of what law will apply that is necessary to create confidence in the other state’s rules.60 With the ongoing insecurity on the future legal framework following the United Kingdom’s departure from the European Union, some of these requisites of trust seem to be missing. Legal certainty is replaced by uncertainty and anxiety. The most recent policy paper published by the UK government refers to asylum matters only by reference to security and border control.61 The government proposal does not discuss responsibility obligations and turns a blind eye to humanitarian obligations. It conflates asylum and immigration with criminal law, the so-called ‘crimmigration’.62 This uncertainty, coupled with unwillingness to share responsibility in a spirit of solidarity,63 fuels distrust. Overall, the

57 Although we must be careful with parallels regarding two different Member States and their issues. 58 Case C-327/18 Minister for Justice and Equality v RO ECLI:EU:C:2018:733. 59 On mutual trust see Xanthopoulou, ‘Mutual Trust and Rights in EU Criminal and Asylum Law’. 60 Takis Tridimas, The General Principles of EU Law (2nd edn, OUP 2007) ch 6; Annika Suominen, ‘What Role for Legal Certainty in Criminal Law Within the Area of Freedom, Security and Justice in the EU?’ (2014) 2(1) Bergen Journal of Criminal Law and Criminal Justice 1–31. 61 Department for Exiting the European Union, ‘The Future Relationship Between the United ­Kingdom and the European Union’ (Policy Paper, 12 July 2018) www.gov.uk/government/publications/ the-future-relationship-between-the-united-kingdom-and-the-european-union, p 51. 62 Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime and Sovereign Power’ (2006) 56 American University Law Review 367. 63 As revealed by the fact that the UK declined to participate in other solidarity-based measures, such as the one concerning an emergency relocation scheme for asylum seekers in Europe, that was designed to move asylum seekers from Greece and Italy to other Member States. See Council Decision (EU) 2015/1523 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L239/146; Council Decision (EU) 2016/1754 amending Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece [2016] OJ L268/82; For commentary see Bruno De Witte and Evangelia (Lilian) Tsourdi, ‘The Court of Justice Confrontation on Relocation – The Court of Justice Endorses the Emergency Scheme for Compulsory Relocation of Asylum Seekers within the European Union: Slovak Republic and Hungary v. Council’ (2018) 55(5) CML Rev 1457.

38  Mutual Trust: From Blind to Gained Trust contingency debate on what might happen is endless – and perhaps pointless – and indicative of the uncertainty. It is precisely this sense of uncertainty that creates distrust. In fact, the cracks in mutual trust were already facilitated by the pre-Brexit legal regime where the United Kingdom had not opted in to the recast measures of the second legislative phase – with the exception of Dublin III Regulation. By not opting into these measures, the United Kingdom did not demonstrate trust in the EU legal framework but also missed the trust-building opportunity. These measures put forward common standards in relation to reception conditions and asylum procedures and increased the protection of fundamental rights of asylum seekers. Although these measures aimed at improving the CEAS, they also acted as trust-building measures. They contributed to a common sense of confidence that asylum seekers will be treated according to these common standards and safeguards (as opposed to the minimum standards) in all Member States. As the United Kingdom never opted in to these measures, the same trust-building process never took place in relation to it. There are two examples of distrust as manifested in the case law of the CJEU. First, a clarification was requested on whether the United Kingdom, a Member State that has given notice of its intention to withdraw from the European Union, remains the responsible state for the purposes of asylum applications on the basis of the Dublin III Regulation.64 The Court ruled that the United Kingdom remains responsible under the Dublin III Regulation, in a clear effort to restore trust and certainty, but the referring Court was clearly worried about how Brexit might affect the applicant.65 Another example of distrust, in the different field of EU criminal law this time, is the refusal of Irish judges to extradite several people requested by the United Kingdom under the FDEAW due to the uncertainty in relation to the law and their rights in the United Kingdom, in light of Brexit. The CJEU again ruled that Ireland must execute the EAWs in question, as long as the United Kingdom has not left66 but the submission of a preliminary question is telling of the general lack of certainty that leads to questioning of trust in the United Kingdom’s legal framework.67

64 Case C-661/17 M.A, S.A. and A.Z v International Protection Appeals Tribunal and Others ECLI:EU:C:2019:53. 65 ibid. See, particularly, the first submitted question. ‘The Court is of the opinion that when exercising any discretion under the Regulation and when considering the likely protections of the rights of persons affected, the decision maker should take into account all relevant circumstances. This would mean that the decision maker should not be prevented from taking into account the likely situation arising post-withdrawal of the UK from the EU. Thus, according to the Court, the Tribunal should have considered any risk in relation to the protection the applicants would likely receive following on from the withdrawal process’. 66 Case C-327/18 Minister for Justice and Equality v RO ECLI:EU:C:2018:733. 67 Cristina Sáenz Pérez, ‘Minister for Justice and Equality v RO: Brexit Means Nothing Has Changed … Yet’ (2019) 44 European Law Review 548.

Age of Distrust?   39

Rule of Law Crisis and Mutual Trust Another significant recent development that raises questions about the grounds of mutual trust is the rule of law crisis in Poland insofar as judicial independence has been affected. Since the operation of the FDEAW relies on cooperation among the judicial authorities of Member States, it was only expected that challenges to the judicial independence in one Member State would shake the presumption with compliance with fundamental rights in that state, the cornerstone of mutual trust. Here, it was feared that Poland breached the principle of judicial independence in light of its recent reforms of the judicial system. It was contended that these reforms granted the executive greater powers over the judiciary. In this regard, the Court was asked whether Article 1(1) of the FDEAW could be interpreted in such a way that a judicial authority executing an EAW may refuse the surrender where the breach of the right to a fair trial is feared due to reports concerning systemic breaches of the rule of law. The Court, in principle, ruled that this may happen and set out a twofold elaborate test, tailoring the Aranyosi test to the case in question. The judgment responded to a preliminary question submitted by the Irish Court requesting whether a surrender must take place considering the breaches of fundamental rights in Poland.68 The judgment in LM has implications that extend beyond mutual trust and touch upon domestic threats to the rule of law and not surprisingly it has been the focus of subsequent commentary.69 For the first time, the Court ruled that where the essence of the right to a fair trial is threatened by a lack of judicial independence, surrenders may not take place.70 Significantly, the Court accepted that mutual trust may be challenged where non-absolute rights are under threat,71 when there is a real risk of breach of the essence of the right. The judgment, following that of Aranyosi established that when there is a real risk of breach of the fundamental right to a fair trial, an executing authority ‘called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered’ must determine whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the framework decision, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State.72

68 See Irish High Court, 12 March 2018, The Minister for Justice and Equality v Celmer [2018] IEHC 119. 69 Konstadinides, ‘Judicial Independence and the Rule of Law’. 70 LM, para 59. 71 See Charter, art 4. 72 LM, para 79.

40  Mutual Trust: From Blind to Gained Trust It is very interesting that the Court chose an essence-based approach as a limit to mutual trust, thus marking a path autonomous from the ECtHR, which adopts a ‘flagrant denial of justice’ approach. It is noteworthy that the ECtHR approach had already been discussed and rejected by Advocate General Sharpston in her Opinion in Radu.

ECtHR Threshold: Flagrant Denial of Justice In particular, the ECtHR does not allow for every breach of the Convention to justify the refusal to execute an extradition order. As Advocate General Sharpston noted in her Opinion in Radu,73 the ECtHR held that ‘reference to a general problem concerning human rights observance in a particular country cannot alone serve as a basis for refusal to extradition’.74 According to the ECtHR, in Soering v United Kingdom the execution of an extradition warrant, despite a breach of Article 3 of the ECHR,75 could ‘engage the responsibility’ of a state under the Convention. This is where substantial grounds exist for believing that the person concerned, if extradited, ‘faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country’.76 The ruling also made reference to the right to a fair trial, which is the case in question in LM. The ECtHR highlighted the prominent place of the right to a fair trial in a democratic society and did not exclude the exceptional case of ‘an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country’.77 Advocate General Tanchev also adopted the approach of a ‘flagrant denial of justice’. He acknowledged the significance of judicial independence and very carefully also underlined that ‘lack of independence of the courts of the issuing Member State may, in principle, constitute a flagrant denial of justice’.78 However, he claimed that such a problem cannot on its own be a sufficient reason to believe that surrendering the individual who is suspected of being a criminal will lead to exposing them to a ‘flagrant denial of justice’.79 He stated that a flagrant denial of justice is only established when it is so serious that it destroys the fairness of the trial, which reminds us of the Opinion of Advocate General Sharpston in Radu. Advocate General Sharpston in her Opinion in Radu suggested a lower test than the one suggested by the ECtHR with regard to refusing extradition of a person who claims that their right to a fair trial has been violated. This is because ‘flagrant’ denial of the right is too nebulous a concept to be applied throughout



73 Opinion

in Radu, para 74. No 12343/10 Dzhaksybergenov v Ukraine ECtHR 10 February 2011, para 37. 75 ECHR, art 3 prohibits torture and inhuman and degrading treatment. 76 Application No 14038/88 Soering v United Kingdom ECtHR 07 July 1989, para 91. 77 ibid, para 113. 78 Opinion in LM, para 90. 79 ibid, paras 72, 80–85, 119. 74 Application

Age of Distrust?   41 the EU Member States’ judicial authorities.80 Advocate General Sharpston also rejected a test that a breach must be so fundamental that it leads to ‘a complete denial or nullification of the right to a fair trial’, as she found this test to be unduly stringent.81 She counter-suggested that the test should assess whether a deficiency in the process is so fundamental as to destroy the fairness of the process.82 The CJEU preferred to use Article 52(1) and the concept of the essence of the right to a fair trial. The essence of the right is a vague concept and the Court will probably need to shed light on what the essence of different rights is. To this end, considering the case law of the ECtHR and theory of rights would be useful by special reference to judicial independence and the right to an impartial and independent tribunal. The right to an independent and impartial tribunal established by law constitutes a special element of the fair trial right and an institutional guarantee that was established very early in the catalogues of fundamental rights, and partially shapes the right to a fair trial.83 A tribunal should be composed and operate impartially.84 The aim of the provision is to prevent external influences on justice, which might manipulate the judicial authorities and endanger their impartiality.85 The state actors that are specifically committed not to interfere with the right are the legislator and the criminal justice authorities. Here, the right to an independent and impartial tribunal, enshrined in both national constitutional resources and international conventions, serves not only as an individual right, but also as a constitutional guarantee of the institutional practice of criminal justice. Through this constitutional acquis, the smooth operation of justice is secured and undistorted by arbitrary manipulations.86 Moreover, the right to a fair trial also involves the right to judicial protection, which is enshrined in Articles 6 and 13 of the ECHR, and Article 14 of the International Covenant on Civil and Political Rights (ICCPR) in a more extensive way, Article 47 of the Charter and in many national constitutions, such as Article 19(4) German Basic law and Article 24 of the Italian Constitution. The right to judicial protection cannot be easily classified under the classical strict rights ­classification of status negatives, positivus/activus and individual or social

80 Opinion in Radu, para 82. 81 ibid, paras 82, 83. 82 This was also submitted by Lord Philips in the case of RB (Algeria) and Another v Secretary of State for the Home Department, ibid, para 83. 83 See, for example, Magna Carta (1215), arts 20, 38; Greek Constitutions of Astros (1823). 84 Louis-Edmond Pettiti, Emmanuel Decaux and Pierre-Henri Imbert, La Convention Européenne des Droits de l’Homme: Commentaire article par article (Economica 1999) 260, 261. 85 The case law of the ECtHR in this respect is voluminous. For example, the ECtHR found that Article 6(1) is violated when the same person serves both as the inquisitor and the judge in the context of the same criminal case. Violation of the right has also been established in situations where/when the same persons opine and rule on the same criminal case. See respectively, Application No 10802/84 Pfeiper and Planki v Austria ECtHR 25 February 1992; Application No 14570/89 Procola v Luxemburg ECtHR 28 September 1995. 86 Kostas Chrysogonos, Atomika Kai Koinonika Dikaiomata (Sakkoulas 2002) 410.

42  Mutual Trust: From Blind to Gained Trust rights.87 It is argued that it is of course an individual negative right as it establishes a justiciable claim against the state that the latter will not prevent the satisfaction of the right. It is also argued that it is a social right in the sense that it sets out the (non-justiciable) obligation of the state to establish an effective judicial system for its people.88 Moreover, respect for the right to judicial protection constitutes an institutional guarantee and a constitutional principle for the organisation and operation of justice. The individual assessment that the executing authorities are now called on to perform, according to LM, will need to consider the essence of the right. Not surprisingly, the Court acknowledged that judicial independence is at the core of the right to a fair trial, thus constituting the essence of the right to a fair trial.

Criticism and Commentary However, it is argued that by establishing essence-based limits to mutual trust, the Court makes it difficult for the individual to successfully lodge their claim.89 National authorities are bound to apply a very intricate twofold test both in relation to the a generic level of systemic deficiencies but also in relation to an individual level, in concreto. Individualised risk does not necessarily flow from systemic deficiencies and it is not self-evident. At the same time, it is bizarre for the executing authority to ask their counterpart colleague of the issuing authority whether the alleged breaches of the rule of law will pose an individual risk to the case in hand and whether, essentially, they will be able to remain impartial.90 Moreover, by introducing this concept of the ‘essence of the rights’ the Court essentially asks the judicial authorities of the Member States to conduct an ­individualised review that goes further than a systemic deficiencies test in the sense that it is accumulative. The latter is not abandoned but carefully controlled to avoid an overall suspension of EAW transfers to Poland similar to that of Dublin transfers to Greece following the N.S. and Others ruling. At first sight, mutual trust seems ‘weakened’ with the result of allowing further challenges to the principle of mutual trust stemming from breaches of non-absolute rights. At the same time, the test is intensified, protecting trust by raising a high threshold that is formulated around the essence of the right. It is argued that this approach in LM could ‘affect the federal structure of the area of freedom, security and justice’ and therefore could have far-reaching consequences.91 The Court relying on the concept of ‘essence of rights’ might find

87 ibid, 423. 88 ibid, 423. 89 Wendel, ‘Mutual Trust, Essence and Federalism’ 29. 90 Konstadinides argues that ‘Even if Polish courts were to provide assurances in the present case, one could argue that these were more likely to be smoke and mirrors than fact’, Atomika Kai Koinonika Dikaiomata,754. 91 Wendel, ‘Mutual Trust, Essence and Federalism’ 19.

Grounds for Pragmatic Earned Trust   43 itself on a slippery road.92 This approach arguably transforms judicial a­ uthorities into ‘watchdogs’ of their peers.93 However, one should wonder whether such ­monitoring can actually be avoided at all when cooperation relies on the ­empirical construct of mutual trust based on presumptions. As the presumption is not conclusive, it is formative and dynamic, constantly fed by the state of compliance with f­ undamental rights.

Grounds for Pragmatic Earned Trust One might wonder why the relationship between mutual trust and fundamental rights has always been that dynamic. A quest for the ‘hidden’ reasoning of the Court should consider the two fields separately as the changes have not occurred concurrently. The shift in the case law on the FDEAW, as well as the position of Aranyosi in the wider discourse on EU constitutionalism, has been thoroughly evaluated. Scholars note that the Court first focused on securing the effectiveness of a judicially led extradition system. Having established the success of the FDEAW as a functional and effective system, it then attended to the growing concerns over rights. As far as the case law on asylum law is concerned, the shift both in N.S. and Others and recently in C.K. and Others symbolises a process of maturity for the principle of mutual trust. In N.S. and Others, the Court admitted there were persistent problems regarding the asylum system and the serious fundamental rights violations that could no longer be ignored. Essentially, there was no other way but revisiting the conclusiveness of the presumption of compliance with rights that gave rise to mutual trust. Perhaps, the Court, having asserted a position of authority and autonomy of EU law, started developing a rights-oriented approach, in its own terms, without being instructed by another Court. This is particularly obvious in the case of LM where the Court employed a Charter-based concept of the ‘essence of the rights’ departing from the ECtHR case law. Aranyosi, LM, ML and C.K. and Others belong perhaps to this conscious effort of autonomously developing a rights-narrative in the case law, after having ensured the efficiency as well as the autonomy of EU law. Of course, it is contested how far we can go with accepting limitations to mutual trust, in light of fundamental rights violations, as this could eventually destroy the very premise of mutual trust.94 According to the Court, a strict threshold should be maintained that pertains only to systemic violations with reference to Article 4 of the Charter, as prescribed by Aranyosi and Caldararu in light of a narrow reading of the judgment. Such a strict threshold would be dictated by the 92 ibid. 93 ibid, 22; Iris Canor, ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust Among the Peoples of Europe”‘ (2013) 50 CML Rev 383. 94 Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice’ 362; Cathryn Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 Human Rights Law Review 287.

44  Mutual Trust: From Blind to Gained Trust value of security that is underscored by automatic mutual recognition. However, the suggestion of a strict threshold of qualifying mutual trust is flawed. Asking how much mutual trust could be limited to protect fundamental rights without contesting the very premise of mutual trust is a paradox. Aspiring to preserve a faulty premise to the detriment of another fundamental value is meaningless, and attention should be set on how to fix the first. Moreover, any discussion about the limits on mutual trust must take place in light of a clear priority in any hierarchy of implicated constitutional values. Accepting a strict threshold is wrong from a perspective of properly prioritised constitutional values. The need to protect the principle of mutual recognition by setting a strict threshold must not render the protection of fundamental rights meaningless. The centrality of the protection of fundamental rights in EU law should not be disregarded, but instead must inform the operation of mutual recognition. Therefore, a complete normative reconceptualisation of mutual trust must take into account the role of fundamental rights in the AFSJ and their position in relation to constitutional values. Mutual trust is a state of mind that Member States need if they are to cooperate, with reference to a specific situation, rather than a dogmatic principle that should be blindly followed. Mutual recognition is the outcome of mutually trusting each other. Its role in the AFSJ is to promote cooperation among Member States with different rules without having to dispense with legal diversity. As such, it is a method or a means of judicial cooperation in criminal matters or cooperation in asylum matters. Despite its importance, its position in the constitutional mosaic of the AFSJ should not be overestimated, to the detriment of the protection of fundamental rights. A proportionality-based analysis here would act as a shield protecting fundamental rights, and not mutual trust or mutual recognition, which are methodological principles and means, not objectives. This will not entail ceasing all transfers that have implications for fundamental rights. If the principle of proportionality is properly applied, and the balancing criteria are developed by the Court, transfers would be allowed as the interference is proportionate as remediable or because an equivalence has been determined. A proportionality-based analysis in a qualified mutual trust would not extinguish an already challenged mutual trust but would seek for equivalences and remedies in a continuing process of challenging, preserving and remedying evolving and active cooperation. This is based on treating mutual trust as evolving organism rather than as static norms.

Conclusion The chapter grappled with the principle of mutual trust that forms the precondition of mutual recognition and forms the framework of analysis of this book as it constitutes the basis of several instruments of the AFSJ. The chapter offered a

Conclusion   45 detailed account of the principle of mutual trust in light of the Court’s case law in two areas that have always been at the epicentre of legal attention. The chapter also discussed how important recent developments in Europe could affect the premise of mutual trust and effectively the cooperation among Member States. It was found that mutual trust has long been understood as a duty to presume compliance rather than as a social construct that needs to be evaluated. Arguments based on rights violations that would not allow such a presumption were originally dismissed by the Court as disputing a duty, shattering the premise of trust and effectively hindering cooperation. Still, with particular reference to asylum law, the presumption of compliance was rebutted early on, but, in the field of the FDEAW, the Court has been timid in recognising limits to the doctrine of mutual trust. The doctrine of mutual trust, though, is far from clear, while remaining questions exist. The chapter observes that we are still in a phase of carefully controlled derogations as far as the FDEAW is concerned, despite recent case law that allows for a greater scope of rebutting the presumption of compliance. Finally, it is submitted that both Brexit and the alleged rule of law crisis in Poland have rightly raised questions regarding the presence of mutual trust in the two respective cases for different but equally worrying reasons. In the case of the United Kingdom departing from the European Union, the ongoing lack of certainty in relation to the applicable legal framework to sensitive fields of cooperation has already led to questioning trust. In the case of Poland introducing legal reforms that have restricted judicial independence, the Court was again called on to define the limits of mutual trust in relation to the protection of the right to a fair trial. In both cases, one observes evidence of distrust that cannot be ignored. At the same time, both these developments demonstrate that mutual trust is not a dogma. It is constantly affected by developments concerning the protection of fundamental rights that lead to presumptions judicial authorities form regarding states’ compliance with rules. Therefore, the recent developments should not be seen as the ‘death’ of mutual trust but as examples of challenges to a pragmatic, dynamic trust that will need to be earned following an individual assessment. Proportionality-based analysis could be useful in this context, which brings us to the next chapter of the book.

3 Deconstructing Proportionality Introduction This book considers, among other things, the impact of a proportionality-based analysis on the protection of fundamental rights in the context of mutual recognition instruments. This particular chapter aims to offer some theoretical foundations on the principle of proportionality. The chapter seeks to conceptualise the principle of proportionality before shaping whether and how the principle should be used in order to ultimately study its impact. To this end, the principle of proportionality is first considered at a moral and philosophical level, seeking the basic meaning of the concept outside of law. The analysis then concentrates on proportionality as a principle in constitutional law. Finally, the focus is further refined in the area of EU law before moving to the next chapters, which focus on the AFSJ. There is a range of reasons why the impact of this principle on transfers of individuals with fundamental rights implications should be studied. The underlying moral idea of the principle of proportionality proclaims that everything should be in proportion and nothing should be in excess.1 The philosophical and moral foundations of this principle render it an attractive choice, given the general sense of imbalance in the AFSJ. The value of proportionality seeks balance and discourages extreme choices. This shapes the legal principle of proportionality, which is ensured through a methodological structure. It determines a balanced legal choice when two interests compete with each other.2 The analysis based on this structure, the ‘proportionality-based analysis’, offers a ‘doctrinal construction’,3 which assists the decision making. It determines whether an interference with a prima facie right is justified.4 Balancing is usually illustrated as weighing the interests of the

1 Aristotle, Ethics (JA Smith tr, Pennsylvania State University 2004) 93, 103. 2 Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2004) 2 International Journal of Constitutional Law 574, 579. 3 Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2009) 47 Columbia Journal of Transnational Law 73, 75. 4 Kai Möller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of Constitutional Law 709, 710.

Early Philosophical Foundations  47 individual against the interests of the state.5 A recent tendency of conceptualising proportionality6 and debating its value7 in an irreducible spirit8 demonstrates that much ink has been spilt at the level of constitutional theory. The first level of analysis of the chapter is constructed on a general constitutional level. The chapter then moves to the EU law level, and then, in the next chapter, to the specific context of the AFSJ. The scope of application and the typology of the test are concretely constructed in this chapter. Criteria on the variable intensity of the review are also thoroughly considered as well as the variable impact of the analysis on different case studies.

Early Philosophical Foundations The legal doctrine of proportionality, ascertained by a four-stage test, is underscored by the moral value of proportionality, which has a life beyond the law.9 The principle of proportionality is used in descriptive estimations of physical phenomena (eg Newton’s law), or as a tool to define a means–ends relationship.10 The idea is encapsulated in the dictum παν μέτρον άριστον (‘pan metron ariston’: everything in moderation). According to this ancient saying, balance should accompany every aspect of life and ‘nothing (must be) in excess’. Moderation and proactive abstinence from hyperbole and excess shape the value of proportionality. This philosophy can be traced back to the Aristotelian way of thinking, governed by symmetry, proportion and harmony. In his Ethics, the concept of moderation 5 Thomas Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96(5) Yale Law Journal 943, 945. The balancing of two fundamental rights may occur as well: see, for example, Lorenzo Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (OUP 2007). However, this is not the case that this book observes. 6 Stone Sweet and Mathews, ‘Proportionality Balancing and Global Constitutionalism’; Matthias Klatt and Moritz Meister, ‘Proportionality: A Benefit to Human Rights? Remarks on the ICON Controversy’ (2012) 10 International Journal of Constitutional Law 687. 7 James Fleming, ‘Securing Deliberative Democracy’ (2004) 72 Fordham Law Review 1435; Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 448; Webber, The Negotiable Constitution: On the Limitation of Rights (CUP 2012); Virgilio Afonso da Silva, ‘Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision’ (2011) 31 OJLS 273; Klatt and Meister, ‘Proportionality – a Benefit to Human Rights?’; Guglielmo Verdirame, ‘Rescuing Human Rights from Proportionality’ (2014) Legal Studies Research Paper Series, Paper no 2014-14; Madhav Khosla, ‘Proportionality: An Assault on Human Rights? A Reply’ (2010) 8 International Journal of Constitutional Law 298. 8 This is evidenced even in a most recent issue of the International Journal of Constitutional Law. See Luc B Tremblay, ‘An Egalitarian Defense of Proportionality-based Balancing’ (2014) 12(4) International Journal of Constitutional Law 864; Matthias Klatt, ‘An Egalitarian Defense of Proportionality-based Balancing: A Reply to Luc B Tremblay’ (2014) 12(4) International Journal of Constitutional Law 891; Luc B Tremblay, ‘An Egalitarian Defence of Proportionality-based Balancing: A Rejoinder to Matthias Klatt’ (2014) 12(4) International Journal of Constitutional Law 900. 9 George Letsas, ‘Rescuing Proportionality’ in Rowan Cruft and Massimo Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015) ch 17. 10 ibid, 4–8.

48  Deconstructing Proportionality in behaviour is connected with the ‘Truthful Man’, the ‘Great-minded Man’, and is opposed to the ‘Exaggerator’, who is considered to be the ‘worst’ man.11 In Politics, Aristotle criticises the Spartan constitution and the disproportionate aspects of their life, such as the obsessive Spartan training for war and not for peace.12 The same philosophy was also adopted by Socrates, who taught that a man ‘must know how to choose the mean and avoid the extremes on either side, as far as possible’.13 This philosophy is also traced in ancient Eastern traditions, such as in Confucianism, where again the excess is deemed similar to deficiency14 and is given a negative connotation.

Emergence of a Legal Doctrine Proportionality is a multifaceted principle pertaining to different areas of law and to different functions. It can be traced to various fields of law, including constitutional law and legal theory,15 as well as criminal law, penology and criminal procedure,16 EU constitutional law, internal market law and EU fundamental rights law.17 All functions are based on the underlying philosophical idea of rejecting extreme options and ensuring a balanced choice. However, different functions have been developed in different fields of law. In particular, in the field of constitutional law the principle of proportionality determines whether interfering with a right is justified, using a four-stage analysis, including a balancing test between the values in competition. The moral value of avoiding excess and reaching a balance is delivered into judicial reasoning by the legal doctrine of proportionality. A proportionality-based 11 Aristotle, Ethics 93, 103. 12 Aristotle, Politics (Benjamin Jowett tr, Batoche Books, Kitchener 1999). 13 Plato, Republic 10.619a. 14 Confucius, The Analects (Filiquarian Publishing, LLC 2006). 15 Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (CUP 2012); David M Beatty, The Ultimate Rule of Law (OUP 2004); Dimitrios Kyritsis, ‘Whatever Works: Proportionality as a Constitutional Doctrine’ (2014) 34(2) Oxford Journal of Legal Studies 1; Webber, The Negotiable Constitution; Kai Möller, ‘Balancing and the Structure of Constitutional Rights’ (2007) 5(3) International Journal of Constitutional Law 453; Kumm, ‘Political Liberalism and the Structure of Rights’; Robert Alexy, ‘Balancing, Constitutional Review and Representation’ (2005) 3(4) International Journal of Constitutional Law 572; Mattias Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics of Human Rights 141. 16 For substantive criminal law see Douglas Husak, ‘The Criminal Law as a Last Resort’ (2004) 24 OJLS; Jannemieke W Ouwerkerk, ‘Criminalisation as a Last Resort: A National Principle under the Pressure of Europeanisation?’ (2012) 3 New Journal of European Criminal Law 228; for penology see Andrew von Hirsch, ‘Proportionality in the Philosophy of Punishment’ (1992) 16 Crime and Justice 55; Andrew Ashworth, Principles of Criminal Law (5th edn, OUP 2006); Martin Bose, ‘The Principle of Proportionality and the Protection of Legal Interests’ (2011) 1(1) European Criminal Law Review 35; Peter Asp, ‘Two Notions of Proportionality’ in Festschrift in Honour of Raimo Lahti (Forum Iuris 2007) 207–19. 17 Wolf Sauter, ‘Proportionality in EU Law: A Balancing Act?’ (2013) TILEC Discussion Paper 13; Tridimas, The General Principles of EU Law.

Emergence of a Legal Doctrine  49 analysis constitutes a prevailing structure for rights adjudication in the world.18 Balancing, according to Alexy ‘is ubiquitous in law’19 as it is a ‘rational way in which the reason for the limitation can be put in relation to the constitutional right’.20 It arguably offers a communicative structural advantage. A balancing exercise conducted by the judge communicates to the parties that decision making is a difficult judicial task. It is acknowledged that every party has a constitutionally valued21 interest, and the use of a proportionality-based analysis demonstrates that their case is given due regard. The principle helps making a logical decision and may alleviate, in theory, one side’s feeling of losing the case. A proportionalitybased analysis helps the judge balance first and then communicate the decision to the parties in an analytical and rigorous way, as Stone Sweet and Matthews argue.22 The proportionality test provides little more than a checklist of individually necessary and collectively sufficient criteria that need to be met for behaviour by public authorities to be justified. In that sense it provides a structure for the assessment of public reasons.23 Herlin-Karnell links proportionality to justification and the right to reasonable disagreement.24 When there is a conflict, there is a disagreement regarding the reasonableness or the reasonable degree of infringement. Then, individuals have the right to seek justification. This is what courts do, by assessing whether the public authority taking the decision in question can be justified by public policy. According to Article 52(1) of the Charter, which is the relevant legal provision in the context of this study: Any limitation on the exercise of the rights and freedoms recognised by this ­Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

Moreover, at the international level, the ECHR recognises limitations to restrictions on rights and states that ‘the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’.25 For example, in the same context of the ECHR: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public 18 Stone Sweet and Mathews, ‘Proportionality Balancing and Global Constitutionalism’ 73; Beatty, The Ultimate Rule of Law 162. 19 Rober Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris 436. 20 Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002) 74. 21 ibid, 75. 22 Stone Sweet and Mathews, ‘Proportionality Balancing and Global Constitutionalism’. 23 Kumm, ‘The Idea of Socratic Contestation and the Right to Justification’ 141, 144. 24 Ester 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(1) Transnational Legal Theory 79. 25 Art 18 ECHR.

50  Deconstructing Proportionality safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.26

The legal doctrine of proportionality emerged as an unwritten, general principle of law through judicial use and is ascertained by a test. The test is triggered once a case is raised that a right is infringed by a governmental measure. When different considerations are in conflict, a proportionality test determines whether a restriction on a fundamental right is justified by being proportionate. The test is a tool for the resolution of conflicts between state interests restricting fundamental rights, or conflicts between two fundamental rights.27 The purpose of the legal doctrine is to ensure that the moral value of avoiding excess is respected and that neither hyperbole nor excess is accepted in law.28 In the context of transfers of individuals under the FDEAW and the Dublin III Regulation, the state interests for reaching quick and automatic cooperation29 usually outweigh fundamental rights considerations. The book thus examines whether, and to what extent, the doctrine of proportionality could be of help in restoring the equilibrium and contribute to bringing the interests back into proportion. Kumm argues that proportionality-based judicial review is linked with the idea of the Socratic practice of contestation in a democratic polity.30 Contestation, he argues, is the proactive and conscious questioning of governmental acts. So, the test of proportionality institutionalises a right to contest the acts of public authorities and demand justification conducted on a public basis.31 A proportionality test is a fundamental notion of judicial review during the era of new constitutionalism.32 This is translated into a legal remedy to contest public acts in front of a ‘trustee’ court.33 The principle of proportionality hence contributes34 to effective rights protection, a basic attribute of a state’s democratic legitimacy.

26 Art 9 ECHR. 27 The ‘fundamental rights’ term is used throughout the book. This term encapsulates rights enshrined in international human rights treaties (human rights) and rights enshrined in constitutional texts (constitutional rights). The term refers to basic individual entitlements of the sort that are listed in constitutional bills of rights and agreements on international human rights protection. It involves both human rights (political, social, civil) and also economic rights. For conflicts between fundamental rights see Eva Brems, Conflicts Between Fundamental Rights (Intersentia 2008); Zucca, Constitutional Dilemmas. 28 For example, this is expressed by the principle of proportionality in sentencing, where the criminal penalty should not be disproportionate to the crime committed. Art 49, Charter of Fundamental Rights of the European Union (the Charter) [2012] OJ C326/391. 29 Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319. 30 Kumm, ‘The Idea of Socratic Contestation and the Right to Justification’, 141, 144. 31 ibid. 32 Ran Hirschl, ‘The Political Economy of Constitutionalism in a Non-Secularist World’ in Tom Ginsburg (ed), Comparative Constitutional Design (CUP 2012) 179. 33 Stone Sweet and Mathews, ‘Proportionality Balancing and Global Constitutionalism’ 85. 34 ibid, 77; Beatty, The Ultimate Rule of Law 162; Nikos Alivizatos, To Syntagma kai oi Extroi tou (translation from Greek: The Constitution and Its Enemies, Polis 2012) 595–659.

Emergence of a Legal Doctrine  51 It provides a doctrinal underpinning for the expansion of the judicial authority in the wake of new constitutionalism.35 The principle is established as a main jurisprudential practice in modern courts’ work,36 with the exception of the American judiciary37 and the UK courts, where the principle of proportionality is still not a general ground for judicial review.38 It first emerged in German police law in the eighteenth century.39 It has been increasingly expanded since the Second World War, as the reach of constitutional review developed in many legal orders.40 Apart from Germany, and with the exception of the United States, a plethora of national courts embraced the principle of proportionality across Europe, Canada, South Africa, Israel and New Zealand.41 In the context of the United Kingdom, it should be acknowledged that proportionally was accepted by the House of Lords as a principle applicable in English law.42 In particular, Lord Bingham stated that ‘the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners’.43 It was more specifically suggested that the principle of proportionality is applicable to judicial review when Convention rights are at stake, and it is assessed whether legislation is compatible with the ECHR under the Human

35 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (OUP 2000); for a critical account of new constitutionalism see Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004). 36 Paul W Kahn, ‘The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell (1987) 97(1) Yale Law Journal 1, 3; C Bernal Pulido, ‘The Migration of Proportionality Across Europe’ (2013) 11 New Zealand Journal of Public and International Law 483; Sujit Choudhry (ed), The Migration of Constitutional Ideas (CUP 2006). 37 Jud Mathews and Alec Stone Sweet, ‘All Things in Proportion; American Rights Review and the Problem of Balancing’ (2011) 60 Emory Law Journal 102. 38 English courts had not yet developed the structure of the proportionality test. See Tom Hickman, ‘Proportionality; Comparative Law Lessons’ [2007] Judicial Review 41. 39 Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (CUP 2013) 24–32. 40 Barak, Proportionality, Constitutional Rights and Their Limitations 181–210; from Germany into European law, then into the law of the western and southern European states and into Turkey, then to Canada, Ireland and England, New Zealand and Australia, then to South Africa, and, after the collapse of communism, to Central and Eastern Europe, and, alongside all this, to Asia, South America and Israel. 41 On the pedigree and migration of the proportionality test see Cohen-Eliya and Porat, Proportionality and Constitutional Culture, ch 2; Moshe Cohen-Eliya and Iddo Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8(2) International Journal of Constitutional Law 263; Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383; Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (CUP 2009) ch 9; Alan Brady, Proportionality and Deference under the UK Human Rights Act (CUP 2012); Sujit Choudhry, ‘So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1’ (2006) 34 Supreme Court Law Review 50; Evelin Ellis, The Principle of Proportionality in the Laws of Europe (Hart Publishing 1999); Alexy, A Theory of Constitutional Rights. 42 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. 43 ibid, para 21.

52  Deconstructing Proportionality Rights Act 1998.44 The ECHR also adopted it,45 and the proportionality-based analysis is an established method of assessing restrictions on rights at the CJEU.46

Structure of the Proportionality-based Analysis In its complete pattern, four stages comprise the proportionality-based reasoning. Each stage stands for a different test.47 It should be noted that the CJEU does not really make a distinction between the last two parts of the test. In fact, the test occurs concurrently for the assessment of the last two stages.48 The first stage tests whether the objective of the measure is a legitimate one (legitimate objective stage); the second stage examines whether the measure is suitable in order to achieve the measure’s goal. There must be a rational connection between the policy and the achievement of the goal (rational connection or suitability stage). The third stage verifies whether the measure is the least restrictive one that could have been used, and therefore whether the restriction is necessary. It must be determined that there is a no less intrusive but equally effective measure (necessity stage). Finally, the fourth stage is the balancing one. Various terms have been used for this step: proportionality in the narrow sense or stricto sensu proportionality. The measure should pass every single test. If the measure passes the first three tests, the judge finally gets to balance all the relevant considerations.

Legitimate Objective In particular, the first step checks whether the legislative measure alleged to have breached the fundamental right of the claimant pursues a certain legitimate objective.49 What constitutes an objective per se, and when this is legitimate, are

44 ibid, para 24, Lord Steyn; See Also Paul Craig, ‘Proportionality, Rationality, Review’ (2010) New Zealand Law Review 265. 45 See for a recent example Application No. 74025/01 Hirst v UK (No. 2) ECtHR, 6 October 2005; Ian Leigh, ‘Taking Rights Proportionately: Judicial Review, the Human Rights Act and Strasbourg’ (2002) 47 Public Law 265. 46 Tor-Inge Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16(2) European Law Journal 58; Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study (Kluwer 1996). 47 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2013) ch 1, which is the source followed to formulate the structure of the test for this book. Although ‘the specific structure of the proportionality test is not always clear’ (see Kumm, ‘Constitutional Rights as Principles’ 579), there is a ‘general international understanding as to the matters which should be considered’ (see Richard Clayton and Hugh Tomlinson, The Law of Human Rights (2nd edn, OUP 2009) 323). 48 Takis Tridimas, The General Principles of EU Law (2nd edn, OUP 2006) 139. 49 Certain courts, such as the CJEU and the ECtHR, only use a three-step test, avoiding the ‘legitimate purpose’ one. See Stone Sweet and Mathews, ‘Proportionality Balancing and Global Constitutionalism’ 76.

Structure of the Proportionality-based Analysis  53 the terms needed to be defined. The objective of the measure is identified in the candidate’s interests, rationally connected to the policy that dictates the interference with the right.50 A goal totally unrelated to the relevant policy does not pass the test. Only interests of constitutional status should be accepted as goals which legitimately interfere with a right.51 Not every interest should be able to enter the next steps. Only if the state interest reflects a constitutional value will it be scrutinised in terms of suitability and necessity. Alternatively, if the judge chooses a broad definition of the allowed interest,52 there will be confusion as to what is to be weighed.53 Most interests would be considered as legitimate objectives and make it to the balancing stage without having been filtered.54 As a result, the first step of a proportionality-based analysis would be invalidated. For example, in the context of the AFSJ, the preservation of the principle of mutual recognition often trumps the protection of fundamental rights.55 This is wrong, based on the theory that only real objectives of constitutional status should be accepted at this stage. The principle of mutual recognition, which was developed in Chapter 1 and will be revisited in other chapters with reference to instruments based on the principle, refers to the obligation of Member States to recognise each other’s decisions, with limited exceptions. A strict, passive, absolute understanding of mutual recognition, creating an absolute obligation to recognise, could lead to elevating the principle of mutual recognition as a policy objective, trumping fundamental rights.56 However, the principle of mutual recognition is a ‘regulatory process norm’, with the purpose of enabling efficient interaction among different yet equivalent systems.57 The principle of mutual recognition constitutes a means through which the policy objectives are therefore achieved. It is a methodological principle employed to achieve the goals of the policy area. Since only constitutional interests, which constitute real goals, should make it to the balancing stage,58 the preservation of the operation of the principle of mutual recognition alone should not enter the next stages, let alone trump fundamental rights. Its methodological nature does not allow it to be placed on a footing equal or higher to that of fundamental rights, ie a constitutional value. Therefore, its original and genuine role in the policy area, and in EU law in general, should not be ignored when considering its relation to constitutional values, such as the protection of fundamental rights. Additionally, the same applies to the presumption of mutual trust, which is the premise of the 50 Möller, ‘Proportionality’ 711. 51 Klatt and Meister, The Constitutional Structure of Proportionality 10. 52 This is termed as ‘Definitional Generosity’. See Tsakyrakis, ‘Proportionality’ 480. 53 ibid, 470. 54 ibid, 482. 55 Case C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107, paras 62, 63; The same rhetoric is reiterated in Case C-118/13 Jeremy F. v Premier Ministre ECLI:EU:C:2013:358, para 34. 56 Melloni, paras 62, 63; Jeremy F., para 34. 57 Kenneth A Armstrong, ‘Mutual Recognition’ in Catherine Barnard and Joanne Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart Publishing 2002) 231. 58 Klatt and Meister, The Constitutional Structure of Proportionality, ch 2.

54  Deconstructing Proportionality principle of mutual recognition. Arguments treating the preservation of mutual trust as an obligation, as if it is a goal, fail to acknowledge the real nature of this premise. Mutual trust is a social construct rather than a legal obligation; it is a state of mind, which, as such, is pragmatic rather than dogmatic. With this in mind, mutual recognition is the result of trusting, with the ultimate purpose of enabling cooperation in conditions of diversity. As such, mutual recognition should not be treated as an objective, the achievement of which is balanced against the restriction of rights.

Suitability and Necessity The next stage seeks to establish whether the interference of the limitation with a given right and the legitimate goal could be at all related. According to Alexy’s theory of constitutional rights, the suitability test is a factual precondition. This means that it is assessed by pragmatic observations. Questions such as ‘is the interference with this right actually going to serve the policy pursued?’ are asked at this stage. The interference must be a suitable means to achieve the goal, otherwise the measure is rendered unsuitable and there is no point to balancing. The third stage verifies whether the measure is the least restrictive one out of the various alternatives, all of which could be equally effective. So, at the stage of necessity there are two considerations that should be taken into account. First, we should investigate whether there are other alternatives which might lead to the same result; and, in case there is another measure which requires less interference with the right, the legislative measure in question should be considered as failing the constitutional review. Defining the last stage of a proportionality-based analysis has always been the Achilles’ heel in scholarship.59 The test conducted under this step balances all the relevant legitimate, suitable and necessary considerations acting as limiting clauses which have made it to this stage against the right at issue. Reaching the stage of balancing means that a real conflict is acknowledged since the previous steps did not indicate another factual mistake in the determination of the necessity and the suitability of the limitation. The restrictive interests must not pose a disproportionate burden to the right holder (balancing stage proportionality in the strict/ narrow sense). It has to be decided here which one of the conflicting values takes priority in every case in concreto. Balancing can be broken down into three stages:60 (a) establishing the degree of non-satisfaction or of the detriment to the right is the first stage (the first ‘principle’ in accordance with Alexy’s terminology); (b) establishing the importance



59 Kyritsis, 60 Alexy,

‘Whatever Works’ 1, 6. ‘On Balancing and Subsumption’ 436, 437.

Challenges and Limits  55 of satisfying the competing policy interest is the second stage (the competing ­‘principle’); and (c) establishing whether the importance of satisfying the second ‘principle’ justifies the non-satisfaction or the detriment of the first one. So: ‘The greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other’. For example, such an analysis could assess the importance of the surrender of the individual to the issuing EAW authority vis-à-vis the detriment to the rights of the requested person. The greater the degree of detriment to the protection of their fundamental rights, the greater the importance of satisfying the security objectives should be. The degree of the detriment to the protection of fundamental rights is not always justified by the significance of the interests satisfied under the cases studies. A manifest example is the use of the EAW in cases of minor offences. There, the position of the defendant or the suspect or the convicted person is disproportionately impaired, and the competing principle – the persecution of the minor offence – is not that important to justify the physical transfer of a person to another jurisdiction.

Challenges and Limits The principle of proportionality attracted much criticism, especially when considered with reference to debates on theories of constitutional, fundamental rights.61 Critics accused the principle of proportionality of removing the moral strength of rights and thus reducing them to other conflicting interests which are not as fundamental in nature. This point of criticism is pertinent to the lack of moral argumentation within the framework of proportionality that a substantive discussion of rights would require.62 Moreover, Webber, in line with the previous comments, added that the principle only takes account of the technical weight of the case, ignoring any moral implications.63 Zucca also agreed that the principle of proportionality does not provide a framework of political morality.64 Webber, implying that the principle is alien to moral discussions, also challenged the reasoning of a proportionality-based analysis as a method of adjudication in constitutional rights and argues for a direct moral discussion.65 In particular, opponents of the principle argue that balancing miscomprehends the special moral importance of rights and their priority over other state considerations. Fleming pointed out that a proportionality-based analysis ‘reduce[s] claims of basic liberties or rights of individuals

61 Fleming, ‘Securing Deliberative Democracy’; Tsakyrakis, ‘Proportionality’ 448; Gregoire Webber, ‘Proportionality, Balancing and the Cult of Constitutional Rights Scholarship’ (2010) 23(1) Canadian Journal of Law and Jurisprudence 179; Silva, ‘Comparing the Incommensurable’. 62 Tsakyrakis, ‘Proportionality’ 448. 63 Webber, The Negotiable Constitution 90. 64 Zucca, Constitutional Dilemmas 20. 65 Webber, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’.

56  Deconstructing Proportionality to mere claims of interest’ or ‘elevate[s] mere claims of interests of government into claims of rights’.66 In this way, the principle is seen by its opponents as a structure where constitutional fundamental rights and other considerations are given equal footing. This set of arguments is not generally convincing because the arguments are all based on an assumption that the application of a proportionality-based analysis mirrors the principle of proportionality as such. This is a tautological and terminological misconception, which confuses the principle of proportionality with the proportionality-based analysis practically followed by courts to assess whether or not a restriction respects the principle of proportionality. So, the legal principle is confused with the analysis conducted to assess whether the first is respected. Clear terminological references and distinctions between the method and the principle are therefore necessary to avoid misleading assumptions.67 The above-mentioned critique is further based on a second, ambiguous and short-sighted assumption that a proportionality-based analysis can only be applied in one way, and particularly only in a predetermined wrong way. This wrong way, which is identified by the opponents, reduces the hierarchical status of rights to mere claims of interests, and therefore removes any morally higher status than the one the other interests have.68 Again, this is a futile assumption, leading, similarly to the first assumption, to a rushed conclusion about the principle as such, and precluding other possible ways of conducting a proportionality-based analysis. In response to both assumptions, a wrong application of the proportionality-based analysis, resulting in an unfair and poorly reasoned judgment, does not entail that the principle is an unattractive doctrine. The incorrect application of the principle by the courts should not be confused with the principle as such, as Möller observed:69 ‘It is not the principle of proportionality but an unattractive interpretation of the principle which makes the assumption of moral neutrality’.70 Moreover, it should be clarified that the structure of the test per se is neutral.71 It does not incorporate on its own a certain theory which reduces the status of rights and gives them equal footing with interests. Instead, it is open to various substantive theories of rights.72 These ‘can be fed’ to the neutral structure of the principle.73 Therefore, the criticism essentially targets (or should target) the substantive theory of rights, which accompanies the proportionality-based analysis rather than the principle or the proportionality-based analysis itself. 66 Fleming, ‘Securing Deliberative Democracy’ 1446. 67 The book refers to the method as ‘proportionality-based analysis’, which involves the test applied to assess the proportionality of the restriction in question or in other words whether the restriction respects the principle of proportionality. 68 Julian Rivers, ‘Proportionality and Variable Intensity Review’ (2006) 65 Cambridge Law Journal 174, 180. 69 Möller, ‘Proportionality’ 2, 7. 70 ibid, 6. 71 Paul Craig, Administrative Law (6th edn, Sweet & Maxwell 2008) 637–38. 72 Klatt and Meister, The Constitutional Structure of Proportionality 52–56. 73 Kyritsis, ‘Whatever Works’ 1, 3.

Challenges and Limits  57 Having said this, a real problem regarding the principle of proportionality is actually revealed. Since the proportionality-based analysis is neutral and open to various theories, the results of balancing cannot be predicted, which makes it a dangerous method of adjudication. The results are subject to the theories and the hierarchy of values of the adjudicator. Therefore, the true face of the principle as revealed is that a proportionality-based analysis suffers from its open nature, which changes when the adjudicator changes. Tsakyrakis states that the principle of proportionality ‘pretends to be objective, neutral and totally extraneous to any moral reasoning’.74 Although a proportionality-based analysis is neutral indeed, the moment balancing takes place and the adjudicator commits to a choice of hierarchy between rights and conflicting interests, neutrality is replaced by a very specific choice of morality.75 As has been noticed for the context of EU law, proportionalitybased analysis was characterised as a tool of market integration,76 and trying to conceive of it as a neutral method would be an illusion. This is very much observed in EU law, where the Court, though self-proclaimed neutral, obviously makes a choice inherently affected by political bias. Although it formally sets fundamental rights and fundamental freedoms on an equal footing, it renders fundamental rights as restrictions on freedoms, thus giving a principal position to the latter.77 This reveals, first, the wide degree of discretion enjoyed by the adjudicator,78 but also the lack of a justified and consistent commitment to a specific theory of rights at a supranational EU level, where it is admittedly more difficult to make such choices. Perhaps a justified and consistent commitment to a theory of rights could help in addressing this predicament. However, this point of criticism highlights the limits of the principle of proportionality, and especially in areas of law where fundamental problems might exist, and where such choices of morality are yet to be made. These limits should not be disregarded as they affect the impact that a proportionalitybased analysis could have with regard to the search for equilibrium. Therefore, instead of channelling criticism towards proportionality-based analysis, constitutional rights lawyers should focus on substantive theories of rights embedded in proportionality-based analysis. The real problem does not stem from a structured method of discourse but essentially from an under-developed theory of fundamental rights or the lack thereof. A proportionality-based analysis should therefore be accompanied by a substantive theory of rights in order to be consistently applied.79 An understanding of what rights we have, morally

74 Tsakyrakis, ‘Proportionality’ 474. 75 ibid. 76 Harbo, ‘The Function of the Proportionality Principle in EU Law’ 158, 172, 173; Tridimas, The General Principles of EU Law 193; Sauter, ‘Proportionality in EU Law’ 13. 77 As Barnard stated, this is ‘balancing in name, not in substance’, see Catherine Barnard, ‘Social Dumping or Dumping Socialism’ (2008) 67 Cambridge Law Journal 262, 264. 78 Jürgen Habermas, Between Facts and Norms (Harvard University Press 1996) 256–59. 79 Letsas, ‘Rescuing Proportionality’ 16; Kyritsis, ‘Whatever Works’ 1. The last author sees the defensibility of the principle and the theory of rights as two independent things and argues that the principle is defensible as a legal doctrine regardless of a substantive theory of rights.

58  Deconstructing Proportionality speaking, should underlie the technical structure, which balances rights against public goods.80 Therefore, in order to provide a complete account of the principle of proportionality it is crucial to accompany it with a substantive theory of rights. The best reconstruction of the principle must begin with normative assumptions about the nature of rights, made at a level of moral theory. The test on its own will not reveal what an unjustified interference with a right is, as this requires moral discourse.81 The same should apply to a framework of proportionality potentially applying in the context of EU law, when the fundamental rights of individuals are restricted by reason of security and efficiency considerations. A consistent and clear understanding of rights is fundamental for the AFSJ, where the protection of fundamental rights might be competing with security and border control interests. Without such a firm understanding, a proportionality test is a hollow exercise, which could be easily manipulated by policy goals. In brief, the book supports theories accepting the special force of rights and the fact that some rights do have a trump status. These rights are, however, not in abundance, and the rest should be amenable to balancing while preserving their priority status over other considerations, which must be of constitutional status in order to compete with constitutional fundamental rights. In particular, a weak-trump theory of rights offers certain advantages as compared to the other competitive theories of rights. Rights enjoy a trump status; they are overriding considerations. However, they are rarely absolute as they are amenable to restrictions even though they still enjoy a priority status over other considerations.82 Moreover, a distinction between the absolute and relative dimension of rights is discussed in one of the next chapters of this book, which focuses on criteria of the relevance of the principle of proportionality, which very much depends on the nature of the rights.

Proportionality in EU Law The principle of proportionality has been widely used by the CJEU, in the context of internal market law, in order to assess whether limitations to free movement, posed by derogations under Article 3683 of the TFEU, or mandatory requirements established by Cassis de Dijon,84 are justified. The mandatory requirements regarding public interests posed by Member States are balanced against the free movement rights that are manifested either through non-discrimination or

80 Möller, ‘Balancing and the Structure of Constitutional Rights’ 453. 81 Letsas, ‘Rescuing Proportionality’. 82 Klatt and Meister, The Constitutional Structure of Proportionality ch 2. 83 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47. 84 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis De Dijon) ECLI:EU:C:1979:42, paras 8–15.

Proportionality in EU Law  59 market access. A proportionality-based reasoning is, for example, employed by the Court in the context of mutual recognition of products lawfully produced in one Member State and circulated in the internal market, whose access, though, to the host state’s market is hindered due to the public interest of consumer ­protection. Here, the proportionality of the host state’s measure’s restriction on the good’s free movement has to be ascertained, as by matter of principle, a rule of mutual recognition is applied. Such an assessment has to consider the existence of alternatives.85 The principle of mutual recognition, in EU law, is therefore traditionally intertwined with the principle of proportionality in the Court’s case law. The principle of proportionality was introduced to the judicial reasoning of the CJEU as early as in Internationale Handelsgesellschaft and gained the status of a general principle of EU law.86 The Court also stated in Nold v Commission87 that constitutional traditions common to all Member States and to international human rights adjudication should inspire the determination of EU rights.88 The principle of proportionality certainly constitutes one of those traditions since it has spread to most EU Member States89 and the ECHR jurisdiction.90 Tridimas conceives the principle of proportionality as ‘the most potent weapon in the arsenal of the public law judge’.91 It is believed that it is the most important general principle in the field of EU economic law as it applies to measures in the absence of a thorough EU administrative law system.92 The principle of ‘proportionality, that is considered, protects individuals against a restriction, to an unnecessary extent, of their rights by a measure benefiting the Community’,93 but it functions in several other ways, 85 Case 11-70 Internationale Handelsgesellschaft ECLI:EU:C:1970:114, paras 6–13. The German referring court requested a preliminary reference from the CJEU on the compatibility of the EU system of exports licensing with fundamental rights as enshrined in the German Basic Law. The measure was allegedly in conflict with economic liberty. The referring court explicitly challenged the Court to engage in a proportionality-based analysis, claiming that the measure violated the principle of proportionality, which is so fundamental for German constitutional law. The Court did not accept the dispute on the licensing system because it found the limitation to be proportionate through engaging with a proportionality-based analysis with regard to the choices of the measure. 86 Xavier Groussot, General Principles of Community Law (Europa Law Publishing 2006) 18, 145; Tridimas, The General Principles of EU Law. 87 Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Ruhrkohle Aktiengesellschaft (Nold v Commission) ECLI:EU:C:1975:114. 88 Of course, the commonality of constitutional traditions with regard to fundamental rights is challenged in some areas. The different conception of the right to property across the EU’s Members States is a glaring example. See, for example, Case 44/79 Hauer ECLI:EU:C:1979:290. 89 The principle of proportionality was not traditionally found in the UK constitutional law but it is observed that the principle gradually migrated to the UK as well, albeit not always recognised. See Gráinne De Búrca, ‘Proportionality and Wednesbury Unreasonableness: The Influence of European Legal Concepts on UK Law’ (1997) 3(4) European Public Law 561; Chris Hilson, ‘The Europeanisation of English Administrative Law: Judicial Review and Convergence’ (2003) 9(1) European Public Law 125. 90 See for a recent example Hirst v UK; Arai Yutaka, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002). 91 Tridimas, The General Principles of EU Law 140. 92 Jürgen Schwarze, European Administrative Law (Sweet & Maxwell 2006) 664–65. 93 Keynote Speech of (then President) Vassilios Skouris, ‘The Role of the Principle of Subsidiarity in the Case-Law of the ECJ’ (2006) European Conference on Subsidiarity.

60  Deconstructing Proportionality ie to check the exercise of competences.94 It applies against both EU measures and Member States’ acts.95 Since this book only focuses on breaches of fundamental human rights as they occur in the context of mutual recognition instruments, the only function of proportionality that is relevant here is when proportionality acts as the guardian of fundamental rights, protecting them from severe interferences caused by mutual recognition procedures. For this reason, it is essential to set out the constitutional background of EU law, against which a proportionality-based analysis would be conducted. As far as proportionality is concerned, Article 52(1) of the Charter suggests that rights have limits. They are not absolute, and limitations are subject to the principle of proportionality. Limitations should respect the essence of those rights, in compliance with the ideal of the inviolable core content of rights, which should not be eliminated by any violation: an idea familiar in many jurisdictions. This is highlighted by the Charter, where it is stated that [n]othing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.96

The test involves a proportionality assessment on breaches of fundamental rights per se. In EU internal market law, national measures restricting fundamental freedoms have to respect the principle of proportionality, and the Court will find them incompatible with EU law if the aim of the national measure can be achieved with less restrictive measures. Moreover, in the field of substantive criminal law, the principle of proportionality sets limits on criminalisation by ensuring that it is the ultima ratio which could be considered in relation to the exercise of the EU competence to criminalise under Article 83 TFEU. Correspondingly, in penology, any penalties imposed must be proportionate to the seriousness of the act committed, as is stated in Article 49(3) of the Charter. Finally, the principle of proportionality could be used alongside the principle of subsidiarity to check the exercise of competence in general, and in the field of EU criminal law in particular. This book does not pertain to all these different functions of the principle of proportionality. In addition, it does not intend to produce a new theory of the principle of proportionality. It is only this function of the principle of proportionality, as enshrined in Article 52(1) of the Charter in relation to breaches of fundamental rights, that is considered, with particular reference to the context of mutual trust in the AFSJ. Therefore, this book does not consider at all the rest of the functions pertaining to the principle of proportionality. Rather, it provides a clear framework of analysis for two case studies of instruments based

94 Groussot, General Principles of Community Law 18, 145; Tridimas, The General Principles of EU Law. 95 Sauter, ‘Proportionality in EU Law’; Paul Craig, EU Administrative Law (OUP 2006). 96 Art 54 Charter.

Conclusion  61 on mutual trust, but only in relation to breaches of fundamental rights caused, or feared to be caused, by a transfer of an individual to a Member State. Hence, in the particular context of the FDEAW,97 a proportionality-based analysis would determine whether interfering with the fundamental rights of defendants or suspects is justified. Moreover, in the context of the Dublin III Regulation,98 a proportionality-based analysis would determine whether interfering with asylum seekers’ rights is justified so as to allow a Member State to transfer them to the country responsible. The book revisits in much more detail the principle of proportionality under the Charter in Chapter 5, where an account of proportionality is constructed specifically for the AFSJ.

Conclusion The principle of proportionality is one of the principles that the book focuses on. The impact and the meaning of proportionality are central in this book. The chapter deconstructed the principle of proportionality, from a theoretical and a legal perspective, in the contexts of constitutional and European law. Against this constitutional backdrop of protection of fundamental rights in the EU constitutional legal order, the book will now move to examine the case law of the CJEU and seek balancing in the reasoning of the Court. Following that, it will then construct a framework for the principle of proportionality in the EU AFSJ law, which will be applied later to the two case studies of the book.

97 Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (FDEAW) [2002] OJ L190/1. 98 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III) [2013] OJ L180/31.

4 The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack Introduction The first two chapters discussing the evolution of mutual trust and the operation of mutual recognition beg further questions on observing the narratives that support this evolution. Moreover, having partially1 defined proportionality at a theory level and at an EU law level, we need to look at the case law of the CJEU in the AFSJ and examine the use of proportionality there. This chapter traces the reasoning of the Court and argues that this is mainly based in a security and migration control narrative. It also submits that looking for balancing in the case law is actually like searching for a needle in a haystack. The principle of proportionality is a standard method of analysis accompanying the principle of mutual recognition in EU law.2 In contrast to the internal market, the Court, in the AFSJ, is generally not using the principle of proportionality in its structured, explicit, methodological way in its case law on transfers in the context of the Dublin III Regulation and the EAW surrender of persons, that both operate based on the principle of mutual trust. It is clear that the principle of proportionality has not gained an established position as a method of analysis in this area as it has for the rest of EU law. Proportionality is slowly emerging as a method of analysis. Moreover, two distinct categories of balancing exercise are observed, where this is identified. The first, the explicit proportionality-based analysis, corresponds to the explicit and technical employment of the stages of a proportionality-based analysis. The second way, the implicit, comprises a vague balancing exercise between the individual’s interest and the state’s interest, without a clear engagement with the test, in a structured manner. The latter resembles the balancing

1 Proportionality is only partially defined as Chapter 2 only focused on constitutional and EU law whereas it remains to be seen what proportionality means in the AFSJ. This is defined by the next chapter, which is contrasted to the present one. The present chapter seeks elements of proportionality or balancing more broadly in the case law of the CJEU. 2 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) ECLI:EU:C:1979:42, paras 8–15; Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (3rd edn, CUP 2014) 892–925.

Protection of Victims in Criminal Proceedings Case Law  63 stage of a proportionality-based analysis or stricto sensu proportionality, with the Court acknowledging the clashing of two competing interests, trying to satisfy the one but with consideration of the other. Implicit balancing might not necessarily lead to a statement on proportionality of the restriction in question.3 The explicit balancing refers to the Court openly using the principle in its established fourstage structure, or by referring to it. This section focuses on the case law of the CJEU in relation to the two case studies of the book, and also reflects on the case law of the CJEU in relation to the protection of victims,4 which reveals the Court’s attitude towards an implicit balancing.

Protection of Victims in Criminal Proceedings Case Law In certain cases, and especially in certain Opinions, an implicit analysis of competing values is taking place without any reference to the traditional proportionality steps. For example, an implicit balancing is observed in Pupino, where the Court famously established that Framework Decisions shall have indirect effect.5 In this case, the CJEU adjudicated in favour of a wide interpretation of the Framework Decision, allowing further protection to the victims’ rights in the case.6 The CJEU ruled that the national court must be able to authorise young children, who … claim to have been victims of maltreatment, to give their testimony in accordance with arrangements allowing those children to be guaranteed an appropriate level of protection, for example outside the trial and before it takes place.

Although it is not explicit, the Court conducted an abstract balancing of the different considerations, referring to the aims of the instrument. Particularly, the Court stated that

3 Balancing consists of the determination of the importance of satisfying one interest in relation to the detriment of not satisfying another. See Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002). 4 This field is being discussed as some proportionality segments could be found in the case law as compared to other areas of the AFSJ. 5 National courts are required to interpret rules of national law implementing Framework Decisions so far as possible in light of the wording and purpose of Framework Decisions. See Case C-105/03 Criminal Proceedings Against Maria Pupino ECLI:EU:C:2005:386. 6 In Pupino, the Court faced a question raised in the context of criminal proceedings against Mrs Pupino, a nursery school teacher charged with inflicting injuries on pupils aged less than five years at the time of the injury. By its question, the referring court essentially asked whether, on a proper interpretation of arts 2, 3 and 8(4) of the Framework Decision, a national court must be able to authorise young children, victims of maltreatment, to give their testimony in accordance with arrangements ensuring them an appropriate level of protection, outside the public trial and before it is held. Under Italian law and the special inquiry procedure, testimony of minor victims cannot be taken. Italian law has a limiting approach to victims’ rights, not allowing minors who are victims to provide their testimony under a special procedure at the preliminary stage of the case.

64  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack achievement of the aims pursued by the abovementioned provisions of the Framework Decision require that a national court should be able, in respect of particularly vulnerable victims, to use a special procedure, such as the ‘special inquiry’ for early gathering of evidence, if that procedure best corresponds to the situation of those victims and is necessary in order to prevent the loss of evidence, to reduce the repetition of questioning to a minimum, and to prevent the damaging consequences, for those victims, of their giving testimony at the trial.7

The phraseology used by the Court here, and the elaboration on certain ­criteria, is remarkable and reveals a balancing exercise suggested to national courts. Furthermore, in Katz the Court ruled that Articles 2 and 3 of the Framework Decision are to be interpreted as not obliging a national court to permit the victim to be heard as a witness in criminal proceedings instituted by a substitute private prosecution. However, in the absence of such an eventuality, it must be possible for the victim to be permitted to give testimony, which can be taken into account as evidence.8 The Court adopted a narrow interpretation of the provisions but simultaneously provided that it is essential for the victim to be able to provide testimony, which could be taken as evidence. It therefore reached a compromise ruling, taking into consideration both sides but without suggesting any real balancing in this case. The Court engaged in balancing competing interests in this area where the position of individuals is at stake, similar to the transfers of individuals under the FDEAW and the Dublin III Regulation of the CEAS. However, it did so in different terms. The development of detailed criteria could thus potentially be expanded in cases where a transfer of an individual is challenged because their rights are breached, or where there is a serious risk that they will be breached. Nevertheless, as Alexy puts it, a framework of a proportionality-based analysis would benefit from a clearer engagement with the stages of the test so as to ascertain that any restriction of rights is proportionate in relation to the aims.9

European Arrest Warrant Case Law As far as the case law on the FDEAW is concerned, we can generally observe a conflict between the protection of fundamental rights of defendants or suspects and states’ interest in arresting persons with the minimum of formalities by employing the system of the FDEAW to its full effectiveness. In particular, in cases regarding the interpretation of the articles providing for grounds for refusal to execute an EAW (Articles 3, 4), the individual’s interest in not being surrendered

7 Pupino, para 56 (emphasis added). 8 Case C-404/07 Győrgy Katz v István Roland Sós ECLI:EU:C:2008:553. 9 Establishing whether the importance of satisfying the second ‘principle’ justifies the non-satisfaction or the detriment of the first one constitutes the rule of balancing.

European Arrest Warrant Case Law  65 on various grounds, including breach of fundamental rights, usually competes with states’ interest in realising rapid cooperation among their judicial authorities. A number of cases deal with the right to non-discrimination under Article 18 of the TFEU.10 The Court is also grappling with the protection of the principle of legality,11 the principle of non-retroactivity,12 the principle of specialty,13 the principle of ne bis in idem, and the right to be heard.14 I argue that a lack of a proportionality-based analysis, in this context, is generally observed, especially in relation to cases where rights are infringed or there is a risk that they might be infringed. Although a proportionality-based analysis is generally identified in judgments of the CJEU, it is particularly absent from an analysis with regard to refusing the execution of an EAW in the event of fundamental rights violations.15 The Court has not generally employed this analysis based on an individual assessment; neither has it suggested this for those judicial authorities which could be better placed to conduct such an assessment for each case. The lack of a proportionality-based analysis in cases where rights have been breached, or where there is a risk that they might be breached, is linked to the absolute application of the principle of mutual recognition, which was developed in the previous section. The next section focuses on certain cases where the judicial analysis reveals the tendency to use an implicit proportionality-based analysis.

Kozłowski; I.B. For instance, the Court in Kozłowski held that it was for the executing judicial authority to make the assessment required on the basis of several balancing factors, which suggests the inclination to balance for the authority executing an EAW. In this case, the referring court requested the interpretation of the ground for refusal to execute an EAW (Article 4(6)), which is linked to the requested person’s interest of reintegrating into society when the sentence imposed on them expires. It is important to determine when there is a link with society. The case regards the application of the principles of non-discrimination and EU citizenship in the area of the EAW, where the use of proportionality as a tool of interpretation is not new but

10 Case C-66/08 Szymon Kozłowski ECLI:EU:C:2008:437; Case C-123/08 Dominic Wolzenburg ECLI:EU:C:2009:616; Case C-306/09 I.B. ECLI:EU:C:2010:626; Case C-42/11 João Pedro Lopes Da Silva Jorge ECLI:EU:C:2012:517. 11 Case C-303/05 Advocaten Voor De Wereld Vzw v Leden Van De Ministerraad ECLI:EU:C:2007:261. 12 Case C-296/08 Ignacio Pedro Santesteban Goicoechea ECLI:EU:C:2008:457. 13 Case C-388/08 PPU Artur Leymann and Aleksei Pustovarov ECLI:C:EU:2008:669. 14 Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:39. 15 With the recent exception of Aranyosi and onwards, which constitutes a landmark ruling. See paras 12 and 101, ‘À cet égard, l’autorité judiciaire d’exécution doit respecter l’exigence de proportionnalité, prévue à l’article 52, paragraphe 1, de la charte, quant à la limitation de tout droit ou de toute liberté reconnus par celle-ci. en effet, l’émission d’un mandat d’arrêt européen ne saurait justifier le maintien de la personne concernée en détention sans aucune limite temporelle’. This case is thoroughly discussed in Chapter 5 and the use of proportionality there is actually challenged.

66  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack well established.16 The Court suggested that the judicial authority should take into account criteria such as the length, the nature and the conditions of the individual’s presence in the Member State whose judicial authority has to execute an EAW. The judicial authorities also need to consider the family and economic connections that the person has with the Member State of the executing authority.17 Moreover, the Court in I.B. held that the execution of an EAW issued for the purposes of execution of a sentence imposed in absentia may be subject to the condition that the person concerned, whether a national or resident of the Member State executing a sentence imposed in absentia, may be subject to a further condition. In particular, it may be subject to the condition that the person concerned, either a national or resident of the executing Member State, should be returned to the executing state in order to serve the sentence passed against them there, following a new trial organised in their presence in the issuing Member State.18 It should be noted that the Court here acknowledged that mutual recognition, though fundamental for the operation of the EAW proceedings, is not absolute.19 The latter abstract acknowledgment with regard to the principle of mutual recognition is well reflected in the detailed recommendations offered by the Court.

Leyman; Wolzenburg What is more, the Court in Leyman held that the principle of specialty20 is subject to a number of exceptions,21 as Article 27 already provides. The Court also discussed further factors of balancing in order to determine the scope of the provision,22 so as not to endanger the efficiency of the FDEAW. Thereafter, the Court in Wolzenburg23 explicitly referred to the principle of proportionality, and the reasoning,24 as a sequel to Kozłowski, is reminiscent of the balancing occurring in the area of free movement of persons.25 The Court suggested that the principles 16 See Adrienne Yong, The Rise and Decline of Fundamental Rights in EU Citizenship (Hart Publishing 2019) on the principle of proportionality as a judicial tool. 17 Kozłowski, para 57. 18 I.B., para 61. 19 ibid, paras 50. 20 The principle of specialty requires that the person surrendered is prosecuted at the issuing state only for the offence for which the EAW was issued. See art 27(2) FDEAW. 21 Leymann and Pustovarov, paras 67, 68, 70. 22 ibid, paras 57, 58, 59. 23 Wolzenburg, paras 69, 70. 24 The refusal to surrender a resident under art 4(6) FDEAW may be subject to the condition that the person has lived in the executing state for a period of five years, as proof of the required degree of integration of the person in the society. 25 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44; Case C-85/96 María Martínez Sala v Freistaat Bayern ECLI:EU:C:1998:217; Case C-209/03, The Queen, on the Application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills ECLI:EU:C:2005:169; Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep ECLI:EU:C:2008:630; Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig ECLI:EU:C:2014:2358 where equal treatment of EU migrants and host-state nationals in terms of social benefits is balanced against welfare state interests.

European Arrest Warrant Case Law  67 of proportionality and non-discrimination are applicable in the ‘former third pillar as well’. The free movement dimension in the operation of the FDEAW effects the ‘implied extension’ of those principles in the field of judicial cooperation in criminal matters. In Wolzenburg26 the Court asserted that any different treatment of an individual provided for by a national law must be proportionate to that law’s legitimate aim, and that any restriction on the right of the EU citizen to equal treatment should not go beyond what is necessary to achieve the objective of the national measure. Therefore, here the Court explicitly used the principle of proportionality to safeguard the right of a person to free movement from any excessive restriction.

Lopes Da Silva The judgment of the CJEU in Lopes Da Silva reiterated the same assessment.27 The Court, in its relatively short judgment, verified that a Member State might limit the situations under which a person might fall within the scope of Article 4(6) of the FDEAW. Moreover, a Member State might limit the situations under which the executing judicial authorities might refuse to execute an EAW. However, a Member State cannot automatically and absolutely exclude all persons who do not hold French citizenship, even though they might stay or reside in the territory of the executing state and be able to demonstrate strong connections with it.

Jeremy F The case of Jeremy F28 serves as an example of when the Court actually referred to equivalence in the protection of fundamental rights in a mutual recognition system and engaged very generally with an implicit balancing.29 By discussing the possibility of ‘bringing an appeal with suspensive effect’30 and the limits of the right to appeal,31 the Court assessed the time limits inherent in the FDEAW and therefore the necessity of allowing or not the possibility of bringing an appeal with suspensive effect. The FDEAW, aiming to reduce delays, set certain strict time limits, which manifested the desire for mutual recognition and speed.32 Thereafter, the Court identified the interests that underpin the FDEAW. These considerations require rapid cooperation, and an individual could argue that a right to appeal, suspending the execution of the EAW, runs counter to the FDEAW objectives.33

26 Wolzenburg,

para 69. Da Silva Jorge, para 24. 28 Case C-168/13 Jeremy F. v Premier Ministre ECLI:EU:C:2013:358. 29 ibid, para 50. 30 ibid, paras 37–55. 31 ibid, paras 56–75. 32 ibid, para 60. 33 FDEAW, art 27(4). 27 Lopes

68  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack The Court restated that the purpose of the measure is to replace the complicated system of extradition with a simplified mechanism of arrest and surrender.34 This would lead to facilitating and speeding up judicial cooperation, eventually contributing to the objective set for the EU to evolve as an AFSJ.35 The Court also held that the mechanism functions in the framework of the principle of mutual recognition, and therefore Member States are, as a matter of principle, required to execute a EAW on the basis of the FDEAW.36 At a second stage, the Court assessed the ‘possibility of bringing an appeal with suspensive effect’.37 It highlighted that the absence of such an appeal in the measure does not entail that the Member States cannot provide for one, reflecting on their obligation to respect fundamental rights and legal principles,38 thus stressing the significance of the right to an effective remedy.39 The Court stated that this possibility of bringing an appeal, respecting the right in the case of a decision to execute an EAW, follows necessarily from the wording of the instrument and the term ‘final decision’ in Article 54. Therefore, at this second stage the importance of the right and the detriment to it was assessed, which corresponds to the second step of the balancing stage of a proportionality-based analysis.40 The Court eventually pointed out that as long as the application of the measure is not hindered, the Member States should not be prevented from applying their own constitutional rules with respect to the right to a fair trial. The nature of the measure as a Framework Decision in particular gives discretion to Member States to choose the manner by which they will achieve the desired results.

Radu It would be an error not to acknowledge a balancing exercise in FDEAW case law in general but the same cannot be claimed for when fundamental rights are breached, or when there is a fear they might be breached. The case of Radu concerns the right to be informed and defence rights and is a case where a proportionality-based analysis was not used, even in an implicit way. In Radu the CJEU was asked inter alia whether the executing judicial authority may refuse to execute the EAW in light of a potential breach of the right to a fair trial and defence rights (Articles 5 and 6 ECHR or Articles 6, 48 and 52 of the Charter). The question was raised in the context of a preliminary reference made by the Romanian Court of Appeal. Mr Radu was a Romanian national, subject to four EAWs issued by the 34 Jeremy F, para 34. 35 ibid, para 35. 36 ibid, para 36. 37 ibid, paras 37–55. 38 ibid, paras 37–41. 39 ibid, para 42; ECHR, art 13; Charter, art 47. 40 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris, 436–37; Alexy, A Theory of Constitutional Rights 102.

European Arrest Warrant Case Law  69 German judicial authority for the purpose of conducting criminal prosecution in respect of acts of robbery. Mr Radu, the requested person, claimed that he had ‘not been notified in respect of the charges against him, not been subpoenaed in respect of them and found himself in a situation where it was completely impossible to defend himself ’.41 As he did not consent to his surrender, he claimed that the contested EAWs were issued without his having been summoned or having had a possibility of hiring a lawyer or presenting his defence, in breach of Articles 47 and 48 of the Charter and Article 6 of the ECHR.42 The CJEU was asked by the Romanian Court of Appeal, inter alia, whether the executing judicial authority may refuse to execute a EAW where the execution of the EAW would infringe or would risk infringing the right to a fair trial and the defence rights. The question for the Court was whether, in light of the potential breaches of the right to a fair trial and the defence rights, the FDEAW should be read in such a way as to allow an executing authority to refuse to execute an EAW because it was issued against a backdrop of rights breaches, or because there was a serious danger of future rights breaches. The Court made reference to the purpose of the instrument to replace the multilateral system of extradition between the Member States with a system of surrender between the judicial authorities and noted that this system of surrender is based on the principle of mutual recognition,43 as was affirmed by recent case law.44 It further elaborated on the objective of the measure to facilitate and speed up judicial cooperation, with the purpose of contributing to the objective of creating a European space of freedom, security and justice.45 The Court stressed that the Member States are ‘in principle obliged’ to implement an EAW,46 and that this strict obligation was further qualified only by the explicit exceptions and guarantees that the law provides in Articles 3, 4, 4a and 5 of the FDEAW.47 The Court further clarified that the EAW in question was issued for the purpose of conducting a criminal prosecution and indicated that this scenario did not fall within the scope of exceptions for executing an EAW that the law provided.48 It then simply asserted that respect for the rights did not require that the executing authority may refuse to execute an EAW in the event of fundamental rights breaches.49 This is an example of reasoning that lacks a proportionality-based analysis. The case is revisited later, when the theoretical framework of a proportionality-based analysis is then applied to this case.

41 Opinion

in Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:648, para 65; Radu, paras 26, 29. para 29. 43 ibid, para 33. 44 Lopes Da Silva Jorge, para 28. 45 Radu, para 34. 46 ibid, para 35. 47 ibid, paras 36, 37. 48 ibid, para 38. 49 ibid, para 39. 42 Radu,

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

Melloni Finally, the case of Melloni50 concerns the right to review a judgment issued in absentia, where a proportionality-based analysis, albeit one implicitly inherent to the judgment, was not properly applied. The Court in Melloni was asked whether it is permissible for the executing state to make the surrender of the requested person, convicted in absentia, conditional upon subsequent retrial in the issuing state. This higher level of protection was provided by Spanish constitutional law in opposition to the FDEAW, which explicitly prohibits the executing state from refusing to cooperate under the circumstances of the case. The Court, also faced with a supremacy type of question, delivered a landmark ruling, first by reiterating EU law primacy. Secondly, it stated that the FDEAW, in light of Article 53 of the Charter, should be interpreted in such a way that the executing Member State is not allowed to make the surrender conditional upon the conviction rendered in absentia being open to review in the issuing Member State. The Court again, similar to Radu, argued that allowing the executing authority to make the surrender of the person convicted in absentia conditional upon a subsequent review of the judgment leading to an EAW would undermine the efficacy of the measure.51 The Court’s reasoning relied extensively on the preservation of mutual recognition and the efficacy of the surrender system, to the detriment of lowering the level of protection of a fair trial right. The Court in Melloni referred to the interest of establishing an AFSJ,52 a primary-law objective enshrined in the Treaties, as well as respect for the principles of mutual recognition and effectiveness,53 general principles of EU law, and simplification of the extradition system, a secondary-law objective.54 Furthermore, the Court in Melloni invoked the measure’s objectives in order to justify the limitations to the right. The judgment stated that Article 4a of the measure, including the limitation in question, should be interpreted in light of the objectives of the Framework Decision 2009/299. This measure intended to facilitate the Judicial Cooperation in Criminal Matters (JCCM) through harmonisation of the grounds for non-recognition of judgments issued in absentia.55 Therefore, the Court remotely engaged in a balancing exercise here by referring to some interests which could call for the limitation of the respective right but did not convincingly develop why they should actually limit it with reference to proportionality, leaving many questions unanswered.



50 Case

C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107. para 63. 52 ibid, paras 107, 112, 113, 115. 53 ibid, para 62. 54 ibid, para 43. 55 ibid, para 43. 51 ibid,

European Arrest Warrant Case Law  71

Aranyosi and Căldăraru In the case of Aranyosi and Căldăraru Advocate General Bot opened a window for a proportionality-based analysis in his Opinion.56 He suggested a review of the proportionality of an EAW to be conducted by an executing authority, which should be able to ask the issuing authority for any information that might help to make a decision on the proportionality of an EAW.57 In the end, the Court held that when the judicial authorities have evidence that there is a risk of inhuman or degrading treatment, they are bound to assess the possible existence of that risk, relying on ‘objective, reliable, precise and duly updated elements’.58 The establishment of the fact that such a risk exists is not sufficient to allow the executing authority to refuse the execution of an EAW.59 The authorities must also establish that the specific person will be exposed to this risk specifically because of the conditions of their detention.60 Therefore, the issuing authority must cooperate as a matter of emergency and send any information needed.61 If the executing authority is convinced of the existence of this risk for the particular person, it has to postpone, but not abandon, the EAW and make a decision on detention, after informing Eurojust.62 In particular, the CJEU held that the judicial authority must respect the requirement of proportionality laid down in Article 52(1) of the Charter, as ‘[t]he issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time’.63 It is noteworthy that the Court fostered an argument based on the individual assessment of each case, considering many criteria, including proportionality. Moreover, the judgment puts forward that judicial authorities should be proactive in seeking equivalences with regard to the treatment of the individual, which should be crucial in allowing the mutual recognition of judgments. However, there are many aspects of this judgment in relation to its approach to the principle of proportionality that deserve attention. A closer look at the specific elements of an account of proportionality that could be extracted from this case takes place in the next chapter, where the theoretical framework of a proportionality-based analysis is complemented by an AFSJ-based analysis. Also noteworthy is the fact that other Opinions of Advocates General in the context of the FDEAW case law explicitly and thoroughly use a proportionalitybased analysis. Advocate General Sharpston offered a rigorous analysis on different

56 Opinion in Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Căldăraru ECLI:EU:C:2016:198, para 160. 57 ibid, paras 167–68. 58 ibid, para 88. 59 ibid, para 91. 60 ibid, paras 92–94. 61 ibid, para 95. 62 ibid, paras, 98, 100–02. 63 ibid, paras 101–03.

72  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack considerations that could be balanced in this area when fundamental rights are breached, or where there is a danger that they will be breached.64 These criteria might allow the judicial authorities to make a more informed and balanced decision when applying the theoretical test of establishing whether the importance of satisfying the second ‘principle’ justifies the non-satisfaction or the detriment of the first one.65 These criteria, which are discussed by the Opinion and could be considered by the authorities, are the remediability of the past breach, the seriousness of the infringement, the nature of the right, or deficiency in the process. Advocate General Sharpston acknowledged that it is not useful to create hard rules as it will be for the judicial authorities to decide this on a case-by-case analysis.66

LM and the Essence of the Rights A balancing rationale has emerged in recent case law through the notion of ‘essence of the right’, which functions as a limit to mutual trust in relation to the breach of the right to a fair trial. This is significantly different from the Aranyosi test as the latter concerns the breach of Article 4 of the Charter, which is an absolute right. In LM,67 the referring court, the Irish High Court, was not satisfied that a fair trial would be provided to the individual requested by Poland due to the reported challenges to judicial independence there.68 According to the referring court the EAW should not have been executed due to ‘what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the ­judiciary’.69 The attack on judicial independence was viewed as an attack on the rule of law in the European Union as a whole and for this reason it could not be tolerated in the name of mutual trust. It was on this basis that a violation of Article 47 of the Charter was in principle accepted by the Court for the very first time as a ground for non-execution of an EAW. Interestingly, although the Court accepted the non-execution of an EAW for cases other than those where the absolute right of Article 4 is concerned, the Court used language that is different from that used by the Irish High Court. The CJEU employed a Charter-based reasoning to inform the test that should be used regarding the rebuttal of the presumption of compliance with fundamental rights. In contrast to the Advocate General, who followed the ECtHR ‘flagrant denial of justice’ approach, the CJEU borrowed the essence of fundamental rights approach.

64 Opinion in Radu, para 97. 65 Alexy, A Theory of Constitutional Rights. 66 ibid, paras 91, 93. 67 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586. 68 The EAW concerned the surrender of a Polish national who was accused of drug-related offences and was requested by the Polish judicial authorities. 69 Irish High Court, The Minister for Justice and Equality v Celmer [2018] IEHC 119, para 123.

European Arrest Warrant Case Law  73 The CJEU set a twofold test as in Aranyosi. The executing judicial authority must refrain from giving effect to a EAW if, first, there is a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State’s courts

and, second, must assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk (see, by analogy, in the context of Article 4 of the Charter, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 92 and 94).70

The Court left discretion, then, to national courts to decide whether this was the case in Poland. The Court, significantly, recognised that judicial independence is part of the essence of the fundamental right to a fair trial.71 Therefore, a breach of the right to an independent tribunal leads to a breach of the essence of the right to a fair trial.72 This reasoning goes hand in hand with the wording of Article 52(1) of the EU Charter, which provides: Any limitation on the exercise of the rights and freedoms recognized by this ­Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.

It should be noted though that the judgment does not make any specific reference to the principle of proportionality, nor does it engage with a p ­ roportionality-based reasoning as such. The judgment carefully utilises only the first sentence of Article 52(1), which conditions limitations to rights in relation to the essence of the rights and the existence of a legal basis for the limitation in question. It completely ignores the second part of the provision, which refers to a necessity and balancing test that could shed light on the evaluation of whether the essence of the right has been respected.

Remarks The lack of a developed proportionality-based analysis in judicial reasoning with reference to cases when fundamental human rights, as enshrined in the Charter, are violated or it is feared that they will be breached, is not surprising. In fact, EU institutions call on the issuing judicial authority to conduct an explicit



70 LM,

71 ibid, 72 ibid,

para 68. para 48. para 59.

74  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack proportionality test and to take into account certain criteria,73 but the same is not supported for the executing authority. The Commission suggests that the issuing authority should explain why the mechanism of the EAW is used.74 Member States also agree that the issuing authority should apply a proportionality check as well.75 Moreover, this approach is followed by the national courts.76 This suggestion is logical from the perspective of mutual recognition as it could minimise the risk of rebutting the presumption of compliance that supports mutual trust. However, a discussion on whether the executing authorities should employ a proportionalitybased analysis would imply that judicial authorities might not actually trust each other, which would directly challenge the automatic operation of mutual recognition that has been such a central driving force for the Court. Still, in light of the new era of non-blind trust – that the test of when the presumption of compliance with fundamental rights should be rebutted is being developed – it would be useful for the Court to offer a more elaborate evaluation. Having followed the letter of Article 52(1) of the Charter, it would follow that a proportionality test is what is missing here and could complement the ‘essence of the right’.

Dublin System Case Law As regards transfers of individuals under the Dublin III Regulation, the Court has rebutted the presumption of mutual trust only in extreme circumstances, where a proportionality-based analysis would not be appropriate. This exceptional challenge to mutual trust in cases of a risk of inhuman and degrading treatment, similar to Aranyosi, should not be read as including balancing, as the right which is breached is an absolute one. Moreover, this restricted choice of rebutting the presumption of mutual trust only in such extreme violations does not allow a proportionality-based analysis in other situations not as extreme as those leading to inhuman and degrading treatment, as the first is a prerequisite of the latter.77 Particularly, it is provided that [w]here it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are 73 Council of the EU, ‘Revised version of the European handbook on how to issue a European Arrest Warrant’ Brussels (2010) 14; European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures Between Member States’ (2011) 7. 74 European Commission, ‘Report’, 2. 75 Council of the EU, ‘Follow-up to the final report on the fourth round of mutual evaluations – The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States’ (2009). 76 Valsamis Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319, 327; Assange v The Swedish Prosecution Authority [2012] UKSC 22, para 90. 77 Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865, paras 75–108.

Dublin System Case Law  75 systemic flaws in the asylum procedure and in the reception conditions for a­ pplicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.78

The Court merely recognised the existence of the threshold to accept a real risk of violation of an absolute right and set conditions as to when a Member State must not transfer an asylum seeker to the state primarily responsible. However, the discussion involves some indications for balancing in other cases. Particularly, the Court points out that it would be incompatible with the spirit of the Regulation if the slightest infringements of Directives 2003/9, 2004/83 or 2005/85 were sufficient to prevent a Member State from transferring the asylum seeker to the Member State primarily responsible.79 If any infringement of Directives 2003/9, 2004/83 or 2005/85 by the Member State responsible resulted in the Member State being excluded from examining applications, that would first add another exclusionary criterion, pursuant to which even minor infringement of the above-mentioned Directives would free the Member State of its responsibility. The Advocate General concluded that such a result would nullify those obligations and ‘endanger the objective of quickly designating the Member State responsible’.80 The reasoning suggests balancing, taking into account the seriousness of the infringement. Furthermore, a possibility that a ground for challenging mutual trust could be provided based on the right to appeal and other due process rights was disappointingly precluded in Abdullahi.81 This case could have included a proportionality argument. It could have first accepted that violation of due process rights could be a basis of the review of the transfer decision, and could have assessed the violation in terms of the principle of proportionality. The principle is still identified in an implicit and not rigorous method of assessing the proportionality of the transfer.82 For example, in K v Bundesasylamt it was held that [w]ith regard, more precisely, to the obligation ‘normally’ to keep together the asylum seeker and the ‘other’ family member within the meaning of Article 15(2) of Regulation No 343/2003, this must be understood as meaning that a Member State may derogate

78 Art 2(2) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Recast) [2013] OJ L180/31 (Dublin III). 79 N.S. and M.E., Opinion, para 84. 80 ibid, para 85. 81 Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813, para 60. 82 Case C-245/11 K v Bundesasylamt ECLI:EU:C:2012:685, paras 46, 48; Case C-528/11 Zuheyr Frayeh Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet ECLI:EU:C:2013:342; Abdullahi, para 46; Case C-648/11 The Queen, on the Application of MA and Others v Secretary of State for the Home Department ECLI:EU:C:2013:367, para 55.

76  The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack from that obligation to keep the persons concerned together only if such a derogation is justified because an exceptional situation has arisen.83

The judgments in N.S. and M.E. and Puid favoured a narrow interpretation of Article 3(2) of the Dublin II Regulation.84 However, there is an indication of considering the effect of the length on the protection of fundamental rights. A Member State determining which Member State is responsible for examining the application should ensure that the process does not take an unreasonable length of time. This would worsen the whole situation. In this case, the transferring state should, if necessary, even exercise responsibility. Under the same spirit, the Court suggested that not worsening the position of the applicant in the Dublin system should be taken into account.85 A departure from the N.S. and M.E. principle of rebutting the presumption of mutual trust only when there is a risk of inhuman and degrading treatment was attempted without success in Abdullahi. In the case of Abdullahi the Court held that the only way the responsibility of Hungary could be revoked is if an asylum seeker rebutted the presumption that Hungary observed fundamental rights and thus rebutted the presumption of mutual confidence.86 In the case of Abdullahi, the Court held that the only way the responsibility of Hungary could be revoked is if an asylum seeker rebutted the presumption that Hungary observed fundamental rights and thus rebutted the presumption of mutual confidence.87 she was entitled to remain in Austria and have her application examined by the Austrian authorities. Her claim was not accepted, as the Court held that an asylum seeker can only prevent the transfer if she proves a risk of inhuman or degrading treatment, excluding any violation of procedural safeguards from constituting a ground of the appeal. However, the Court recently moved away from Abdullahi and held in Ghezelbash that an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the regulation.88

It appears that the Court in Ghezelbash decided contra Abdullahi, allowing a procedural plea on behalf of the applicant beyond the extreme ground introduced by N.S and M.E. The Court decided in line with the Opinion of Advocate General Sharpston89 delivered on 17 March 2016 and ruled that Article 4 of the Dublin III Regulation confers a right to the asylum seeker to be informed of the 83 Case C-245/11 K v Bundesasylamt, para 46. 84 N.S. and M.E., paras 98, 108; Case C-4/11 Bundesrepublik Deutschland v Kaveh Puid ECLI:EU:C:2013:740, para 35. 85 N.S. and M.E., para 98; Puid, para 35. 86 Opinion in Case C-394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:473, para 50. 87 Following N.S and M.E. 88 Case C-63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie ECLI:EU:C:2016:409. 89 Opinion in Case C-63/15 Mehrdad Ghezelbash v Staatssecretaris Van Veiligheid En Justitie ECLI:EU:C:2016:186.

Conclusion  77 criteria for determining the Member State responsible. The qualified treatment of mutual trust was upheld in the subsequent case of Karim, where the Court made reference to Ghezelbash and reiterated that Article 27(1) of the Dublin III Regulation, read in light of Recital 19 of the Preamble, grants an asylum seeker an effective remedy against a transfer decision, which may concern the examination of the application of that Regulation.90 Similar to Ghezelbash, the Court’s decision is in line with Advocate General Sharpston’s Opinion and affirms an important development in relation to the principle of mutual trust between Member States. The Court clarifies that the right to an effective remedy is not limited to systemic deficiencies in the asylum procedure or reception conditions, which amount to evidence that the applicant would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. Therefore, the judgment moves away from a narrow interpretation of the Dublin III Regulation in Abdullahi, which still treated mutual trust as presumed unless the absolute right of Article 4 of the Charter is interfered with by the systemic deficiencies in asylum procedures and reception conditions. This is a positive and welcome change with reference to the development of the principle of mutual trust in this area. It signifies a process of maturity for the principle of mutual trust in CEAS being transformed by the necessary influence of the protection of fundamental rights. Significantly a proportionality-based analysis is slowly emerging in CJEU case law, revealing the potential for embracing a more fundamental rights-oriented and less rigid regime of mutual trust and recognition in this area as well.

Conclusion The AFSJ is a central policy area involving the two specific contexts of the case studies of the book, the EU criminal justice system and the CEAS. These areas operate on the basis of mutual recognition, and their function requires that Member States trust each other enough to decrease checks and guarantees when they cooperate so as to achieve efficiency and speed for time-sensitive issues. At the same time, the AFSJ must respect fundamental rights in a post-Lisbon era, a respect for fundamental rights that constitutes one of the founding values of the EU; and the Charter has acquired the same status as a constitutional treaty. The chapter has particularly demonstrated the under-development of a proportionality-based analysis in the context of mutual recognition, which is an indication of its automatic operation. It is also highlighted that mutual recognition should encompass derogations and, most importantly, respect fundamental rights, which could be assessed in light of the principle of proportionality. This brings us to the next part of this book’s quest, namely what the principle of proportionality should account for in this context.

90 Case

C‑155/15 George Karim v Migrationsverket ECLI:EU:C:2016:410.

5 Constructing Proportionality for the Area of Freedom, Security and Justice Introduction Previously in the book, the principle of proportionality was analysed in the two contexts of constitutional law and European law. This chapter takes a more specific outlook and answers the question on what proportionality means for the AFSJ and those instruments based on the principle of mutual trust that entail the transfers of individuals. It is argued that proportionality is a significant constitutional principle in the AFSJ ‘by insisting on a reasonableness element’.1 The chapter, building on the work of the previous two chapters, demonstrates how the principle should function when fundamental rights are breached, or when there is a serious risk that they will be breached by a Member State where an individual should be transferred to another Member State, in the context of mutual trust and mutual recognition, in the AFSJ. The chapter explores the framework of fundamental rights in the European Union and then sets out when a proportionality-based analysis could be helpful and relevant. The chapter examines the scope of application of the test, and the framework is constructed specifically in relation to the two key areas of the book. Then, the chapter examines criteria that could intensify the proportionality-based analysis in this context of application, and finally the chapter discusses the impact a proportionality-based analysis is expected to have on the protection of fundamental rights, in relation to mutual recognition instruments.

Deconstructing EU Fundamental Rights Having explored the account of the principle of proportionality from a constitutional point of view, this first section observes the development of fundamental rights in light of EU constitutionalism and the use of the principle in EU law. It sets out the constitutional environment in which this principle operates – ie the EU fundamental rights law. 1 Ester 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(1) Transnational Legal Theory 79, 94.

Deconstructing EU Fundamental Rights  79

Fundamental Rights in EU Constitutionalism The path towards EU integration is not without crises, challenges and compromises, which are the result of competing tensions. However, one stable element is noticed, which is the evolving constitutionalism of the EU edifice.2 As Weiler has put it, ‘constitutionalism is the DOS or Windows of the European Community … Constitutionalism more than anything else is what differentiates the Community from other transnational systems’.3 The CJEU has always been inclusive of ­fundamental rights narrative in its case law, since the early stages of integration to more recent landmark rulings.4 The CJEU acknowledged very early on that the Treaties constitute the constitutional edifice of the European Union. The Court particularly stated: It must be emphasized in this regard that the European Economic Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.5

More recently, the Court in Kadi and Al Barakaat repeated: In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions.6

The Court also added that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is in principle excluded, notwithstanding the fact that, as is clear from the decisions referred to in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of the very foundations of the Community.7

A gradual development of European constitutionalism informed by the protection of fundamental rights is undoubtedly taking place in the EU constitutional legal order. A remaining question concerns the quality of this constitutional order, with particular reference to fundamental rights. The CJEU has always shed light on EU 2 Neda Kanellopoulou-Mpallouchou, ‘I Sinthiki tis Lisavwnas kai i Ethiniki Syntagmatiki Taksi; I Emvathynsi Enos Syntagmatikou Desmou’ (tr from Greek: Lisbon Treaty and National Constitutional Order; Advancing of a Constitutional Relationship) Paper Presented at the 15th Symposium, organised on 2 and 3 December 2010 by the Section of Legal Science of Business Management Department of Piraeus University in collaboration with the Appellate Committee of Greece and Athens Bar Association, p 3. 3 Joseph HH Weiler, The Constitution of Europe (CUP 1999) 221, 180. 4 See, for example, Case 11-70 Internationale Handeslgesellschaft ECLI:EU:C:1970:114; Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Kadi I) ECLI:EU:C:2008:461. 5 Case 249/83 Parti Ecologiste ‘Les Verts’ v European Parliament ECLI:EU:C:1986:166, para 23. 6 Kadi I. 7 ibid, para 290.

80  Constructing Proportionality for the Area of Freedom, Security and Justice constitutionalism by comparing different European legal orders and making an appropriate choice for the EU legal order.8 Fundamental rights9 now enjoy a constitutional status in EU law through their recognition in the Charter.10 They were always recognised as a foundational value of EU law.11 Fundamental rights were not initially considered as an integral part of the EU project. Subsequently, they emerged as a necessary reaction to the concern that directly effective EU trade law could come into conflict with and prevail over national fundamental rights.12 The general principles of EU law were first developed by the Court to fill in the gaps of EU fundamental rights and were inspired by national constitutional traditions and international human rights agreements such as the ECHR.13 Respect for fundamental rights now constitutes a foundational value for the European Union.14 It is no longer assumed that fundamental rights are to play no part in the European Union, and that the Union is solely concerned with the preservation of the internal market and trade.15 From the lack of an EU fundamental rights instrument, we have now moved to three sources of rights for the European Union: the Charter; the ECHR to which the European Union will accede; and the general principles of EU law, as they are informed by national constitutional traditions and the ECHR. The incorporation of the Charter into EU law and the provision of a legal basis for the accession of the Union to the ECHR16 place rights at the heart of EU law.

The Charter and its Scope of Application The Charter is a particular example of the thorny path leading to EU constitutionalism.17 The revised provision of Article 6 of the TEU is the result of a 8 Pierre Pescatore, ‘Le recours, dans la jurisprudence de la C.J.C.E. à des normes déduites de la comparaison des droits des etats membres’ [1980] Revue Internationale de Droit Comparé 337; Guy Isaac, Droit Communautaire Général (Masson 1994) 222. 9 The term fundamental rights is used throughout the book, referring to those human rights which are constitutionally protected at domestic national level and then recognised by international human rights treaties beyond the state legal order, which the state has the obligation to respect. See Javeid Rehman, International Human Rights Law (Pearson Education 2010) 3–15. 10 TEU, art 6(1). 11 Internationale Handeslgesellschaft. 12 ibid. 13 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (3rd edn, CUP 2014) ch 6, sec 3. 14 Art 2, TEU. 15 This premise is still arguable as commentators indicate the declaratory character of the Charter of Fundamental Rights of the European Union. 16 Art 6, TEU; Paul Gragl, ‘A Giant Leap for European Human Rights? The Final Agreement on the European Union’s Accession to the European Convention on Human Rights’ (2014) 51(1) CML Rev 13. 17 Gráinne De Búrca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 6 European Law Review 126, 126; Gráinne De Búrca and Jo Beatrix Aschenbrenner, ‘The Development of European Constitutionalism and the Role of the EU Charter of Fundamental Rights’ (2003) 9 Columbia Journal of European Law 355.

Deconstructing EU Fundamental Rights  81 long jurisprudential development in respect of the alarming lack of EU law provisions on fundamental rights guarantees.18 The Charter is now legally enforceable and the Union institutions, bodies, agencies and Member States are legally obliged to comply with the Charter when they implement EU law.19 Nevertheless, the scope of the application of the Charter is not absolutely clear as it is subject to what ‘implementing EU law’ means. Prior to the Charter, the case law had established that EU institutions were bound by fundamental rights as general principles of EU law. The same rule applied to national authorities when implementing EU law and when limiting free movement rights.20 In particular, EU fundamental rights would apply when Member States implemented EU law and when they acted ‘within the field’ of EU law, with the result of limiting one of the EU free movement rights.21 Implementing EU law refers to a situation where the EU confers a power onto a Member State to introduce an EU secondary law into its national legal order.22 In particular, this could be the application or execution of a Regulation,23 the transposition of a Directive, and/or the application of a Directive through an executive act.24 However, the Charter triggered some doubts regarding its scope of application, especially when read in conjunction with the Explanations relating to the Charter25 and vis-à-vis the previous case law of the CJEU. Particularly, according to Article 51(1) of the Charter, Member States are bound by the Charter ‘only when they are implementing Union law’, whereas, according to the Explanations, Member States are bound by the Charter ‘when they act within the scope of EU law’. Therefore, these are two different options on how extensively the Charter could be applied, and whether the pre-Charter meaning of ‘implementing EU law’ should be read through the lens of ‘within the scope of EU law’.26 It should be noted that Article 51(2) of the Charter provides that the instrument does not

18 Internationale Handeslgesellschaft, paras 3–4; German Federal Constitutional Court [1974] Solange I (Bverfge 37, 271); [1986] Solange II (Bverfge 73, 339); [1993] Solange III (2 Bvl 1/97). 19 Art 51(1) Charter. 20 Eleanor Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights: The Dilemma of Stricter or Broader Application of the Charter to National Measures’ (2016) Project Report, European Parliament, Brussels 9. 21 See, for example, Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others (ERT) ECLI:EU:C:1991:254. 22 Case 5/88 Wachauf ECLI:EU:C:1989:321; Case C-292/97 Karlsson and others ECLI:EU:C:2000:202; Joined Cases C-20/00 and C-64/00 Booker Aquaculture Ltd at al v Scottish Ministers, EU:EU:C:2003:397; Leonard FM Besselink, ‘The Member States, the National Constitutions and the Scope of the Charter’ (2001) 8(1) Maastricht Journal of European and Comparative Law 68. 23 Joined Cases 201/85 and 202/85 Klensch and Others ECLI:EU:C:1986:439. 24 Case C-28/05 Dokter [2006] ECR I-5431. 25 Explanations Relating to the Charter of Fundamental Rights [2007] OJ C303/02; Article 52(7). 26 Opinion in Case C-108/10 Ivana Scattolon v Ministero dell’Istruzione, dell’Università e della Ricerca ECLI:EU:C:2011:542; see also Francis G Jacobs, ‘Human Rights in the European Union: The Role of the Court of Justice’ (2001) European Law Review 331, who advocates for a reading consistent with the letter of the Charter.

82  Constructing Proportionality for the Area of Freedom, Security and Justice confer any new powers on the European Union, and thus it does not extend the field of application of EU law beyond the existing powers of the European Union. The Court has generally been considerate of the wording of Article 51 of the Charter, and consequently the scope of application of EU fundamental rights has become more narrowly refined.27 The Court established in Fransson that a remote connection with EU law was sufficient to revoke the Charter.28 However, it is argued that the application of EU fundamental rights is varied as it is subject to how strong the EU interest in question is. So, the stronger it is, the more likely it is that the Charter will apply; whereas in cases regarding a co-ordination of rules, the Charter will probably not apply to national authorities other than in exceptional cases.29 Fransson was a crucial moment for the Court to equate the term ‘implementing EU law’ with the ‘scope of application’ as it held that Article 51 of the Charter only confirmed the Court’s previous case law.30 It also used the three expressions, ‘implementation of EU law’, ‘situations governed by EU law’ and ‘within the scope of EU law’ interchangeably, thus somehow crystallising the scope of the application.31 However, this judgment should be read in conjunction with the latter, more restrictive case law, which confirms that Fransson was not established with an expansive scope of application as at first.32 Still, in the case of McB,33 the Court held that, although in cases where Member States apply EU law, national rules fall outside the scope of the Charter, the individual should not be deprived of the protection afforded by the Charter. This will be the part of EU law that should be reviewed against the Charter. In the special context of the Dublin system, the Court was asked whether national authorities acting under Article 3(2) of the Dublin II Regulation are ‘implementing EU law’. The provision allowed for a Member State not primarily responsible for examining an asylum application to exercise its discretion, assume responsibility, and accept an application by way of derogation. The Court in N.S. and M.E. held that the discretion included in the so-called ‘sovereignty clause’ of Article 3(2) of the Dublin II Regulation should be considered as ‘implementing EU law’ within the meaning of Article 51(1) of the Charter, as it constitutes an

27 Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights’ 12. 28 Case C-617/10 Åkerberg Fransson EU:C:2013:105; Filippo Fontanelli, ‘Implementation of EU Law Through Domestic Measures after Fransson: The Court of Justice Buys Time and “Non-Preclusion” Troubles Loom Large’ (2014) European Law Review 682. 29 See for a full report on the Court’s position Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights’ 14. 30 Mr Fransson allegedly provided false information to the Swedish tax authorities. He was then fined and criminal proceedings were initiated against him. He claimed that the criminal proceedings violated the principle of ne bis in idem as enshrined in art 50 of the Charter. The applicability of the Charter in Fransson depended on whether Swedish criminal proceedings were ‘implementing EU law’. 31 Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights’ 17. 32 Case C-206/13 Siragusa ECLI:EU:C:2014:126; Case C-105/14 Taricco ECLI:EU:C:2015:555; see also Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Garage Molenheide ECLI:EU:C:1997:623. 33 Case C-400/10 PPU McB ECLI:EU:C:2010:582.

Deconstructing EU Fundamental Rights  83 integral part of the CEAS.34 As asylum law is an area of EU competence, national asylum legislation should be considered as implementing Union law, and the Charter would then consequently apply. However, the Court also emphasised the need to ensure the effectiveness of the Dublin system, which renders the Charter applicable only in exceptional cases.35 Apart from the fact that the Member States are bound by the Charter only when they are implementing EU law, a distinction between rights and principles further restricts the applicability and the justiciability of the Charter. Generally, the principles can be invoked only in the event of interpretation of the EU or national, legislative and executive acts implementing these principles.36 The principles should be further implemented and are justiciable only in the interpretation of the acts when implementing them. All EU acts that infringe provisions of the Charter and contain rights are judicially reviewable, while courts can only rely on principles when institutions are implementing them, rather than when activities infringe them.37 However, distinguishing between these two situations is rather difficult.38 Therefore the Charter is now binding and of a constitutional status equal to the Treaties; but, considering the whole picture, its reach is not as impactful as it could be. In addition, the Treaty provides that the European Union will accede to the ECHR, although it is absolutely unknown when this will take place. This will be emblematic in terms of individual protection. It remains to be seen to what extent this can fill in the gaps created by the limited and territorial application of the Charter. It is clear that, wherever EU legislation is implemented in the case of the FDEAW and is directly applicable, as in the case of the Dublin III Regulation, both EU institutions and Member States are accountable for violations of fundamental rights as enshrined in the Charter. After the accession of the European Union to the ECHR, the Union will be directly responsible for human rights violations and thus complaints could be lodged directly against the European Union.39 34 Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865, paras 65–69. 35 Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights’ 19. 36 Charter, art 52(5). 37 Chalmers, Davies and Monti, European Union Law 240. 38 Francis G Jacobs, ‘The ECHR, the EU Charter of Fundamental Rights and the ECJ; The Impact of European Union Accession to the European Convention on Human Rights’ European Constitutional Law Network Conference (2005) www.ecln.net/elements/conferences/book_berlin/jacobs.pdf. 39 See, however, Opinion 2/13 of the Court of 14 December 2014: Accession by the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI:EU:C: 2014:245. This raises important issues inter alia with regard to the application of the principle of mutual recognition and the premise of mutual trust in the AFSJ. The CJEU is generally reserved to dispense with the sovereign position of being the final adjudicator. See ‘Editorial Comments: The EU’s Accession to the ECHR – A “NO” from the ECJ!’ (2015) 52(1) CML Rev 1; Sionaidh Douglas-Scott, ‘Opinion 2/13 on EU Accession to the ECHR: A Christmas Bombshell from the European Court of Justice’ (UK Constitutional Law Blog, 24 December 2014) http://ukconstitutionallaw.org; Catherine Barnard, ‘Opinion 2/13 on EU Accession to the ECHR: Looking for the Silver Lining’ (EU Law Analysis Blog, 16 February 2015) http://eulawanalysis.blogspot.co.uk/2015/02/opinion-213-on-eu-accession-to-echr. html; Steve Peers, ‘The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection’ (EU Law Analysis Blog, 18 December 2014) http://eulawanalysis.blogspot. co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html.

84  Constructing Proportionality for the Area of Freedom, Security and Justice Finally, Member States still have to respect their international obligations to respect rights as enshrined in the ECHR, and they are bound by national constitutional/human rights legislation. Shortly after the creation of the EAW, a discussion on common procedural safeguards was promoted. In a common AFSJ, common rights should exist to safeguard the position of suspects and defendants, during the police investigation and preliminary stages of prosecutions.40 These measures, some of which have already been adopted, concern the right to interpretation and translation, the right to be informed about one’s legal rights, the right to legal aid and advice, and the right for detained persons to communicate with consular authorities, employers and family. Special measures for vulnerable persons and measures for pre-trial detention are also included.41 The Charter, moreover, devotes the sixth title to rights and principles concerning ‘justice’. Under this rubric, the right to an effective remedy and to a fair trial, the principle of the presumption of innocence, the right to a defence, the principles of legality and proportionality, and the ne bis in idem principle (vested as a right at least according to the letter of the law) are articulated.42

The Place of Fundamental Rights in the AFSJ Shaping the AFSJ has added additional layers of discussion to the narrative of the EU constitutionalism, which is examined in Chapter 3. Criminal law, border controls and transfers of asylum seekers have direct implications for fundamental rights, which affect the very autonomy of the individual.43 Criminal law and criminal justice were always perceived and established at a sovereign statehood level,44 and they were structured through a principled approach.45 Those fields have slowly been elevated to a transnational sphere as an effect of the wide phenomenon of globalisation.46 EU criminal law has evolved from a dialogic formula of inter-state cooperation to a ‘eunomic’ one of common rules on procedure and substantive criminal law.47 The value of security shapes the law in this area, competing with the

40 Council Resolution of 4 December 2009 on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1. 41 ibid. 42 Arts 47–50 Charter. 43 Françoise Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9(3) Journal of International Criminal Justice 577, 579; Antoine Pécouda and Paul de ­Guchteneire, ‘International Migration, Border Controls and Human Rights: Assessing the Relevance of a Right to Mobility’ (2006) 21(1) Journal of Borderlands Studies 6. 44 Massimo Fichera, ‘Criminal Law Beyond the State: The European Model’ (2013) 19(2) European Law Journal 174, 182. 45 ibid. 46 Ioannis Manoledakis, I Nea Diethnopoiisi tou Poinikou Dikaiou kai o Kindynos Ypovathmisis tou Nomikou mas Politismou (‘The Recent Internationalization of Criminal Law and the Threat of Undermining of our Legal Culture’, tr from Greek) (Thessaloniki 2000) 14. 47 Fichera, ‘Criminal Law Beyond the State’ 174.

Constructing Proportionality for the AFSJ  85 value of the protection of fundamental rights, similar to a Sisyphean competition that has always been noticed in the internal market between a tide of liberalisation and the welfare state dynamic.48 European security is the driving force behind speedy judicial cooperation in EU criminal justice and behind the high influence of immigration control on the development of the CEAS. For this reason, fundamental rights and constitutional principles should play a central role in the development of a transnational criminal justice system.49 Equally, the evolution of the CEAS needs to be accompanied by such principles and the effective protection of fundamental rights. Although different in nature from criminal justice, asylum and immigration rules also concern the position of the individual in relation to the state and should also be governed in light of effective protection of fundamental rights, constitutional principles50 and principles of international refugee law.51 Strengthening fundamental rights is therefore necessary, and this cannot take place if we do not agree at a very fundamental level on what rights mean and how we value them in relation to other principles. Such a discussion on rights in the framework of the AFSJ aims to contribute to an evolving EU constitutionalism. This should be developed from the perspective of a fundamental rights narrative and not only from the prevailing one associated with the internal market paradigm.52 The discussion in this section considers how rights should be understood and protected. In this way, a proportionality-based analysis will be able to feed back to mutual trust and recognition.

Constructing Proportionality for the AFSJ Criteria on the Relevance of Proportionality Per Se The principle of proportionality is not always relevant, and certain criteria should be set out on whether its application is appropriate or not. The nature of the limiting

48 Sandra Lavenex and Wolfgang Wagner, ‘Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice’ (2007) 16 European Security 225, 226. 49 Ester Herlin-Karnell, ‘What Principles Drive or Should Drive European Criminal Law?’ (2010) 11 German Law Journal 1115; Maria Kaiafa-Gbandi, ‘The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law’ (2011) European Criminal Law Review 7. 50 Steve Peers, ‘Human Rights and the EU Legal Order’ in Steven Peers and Nicholas Rogers (eds), EU Immigration and Asylum Law (Martinus Nijhoff Publishers 2006) 135. 51 Violeta Moreno-Lax, ‘Of Autonomy, Autarky, Purposiveness and Fragmentation: The Relationship Between EU Asylum Law and International Humanitarian Law’ in Jean-Francois Duryea and David James Cantor (eds), Refuge from Inhumanity: Enriching Refugee Protection Standards through Recourse to Humanitarian Law (Martinus Nijhoff 2014) 295–341. 52 Dagmar Schiek, ‘Constitutionally Conditioned Markets and a Resilient EU’ 2016 CES Conference Presentation.

86  Constructing Proportionality for the Area of Freedom, Security and Justice clauses, and the nature of the right that is breached, are crucial to determine when redress to proportionality is acceptable.53 These two conditions are discussed in this section of the chapter. A preliminary account of how to understand rights is submitted later and is discussed in detail. However, the very basic distinction between absolute and relative rights is considered here as a fundamental criterion on whether to adopt a proportionality-based analysis. So, this section examines this distinction as a criterion of the analysis’ relevance. Some rights, such as Article 8(1) ECHR (right to respect for private and family life), are expressly qualified by such grounds as the rights of others. Therefore, Article 8(2) ECHR prohibits any interference by a public authority with the exercise of this right unless the interference is in accordance with the law and … necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Moreover, as Webber observes, human rights instruments phrase duties and rights in different ways.54 For example, the Universal Declaration of Human Rights refers to rights that ‘everyone has …’ and actions which are prohibited as ‘No one shall be …’.55 So, it is prohibited to hold another ‘in slavery or servitude; performing torture or cruel, inhuman or degrading treatment or punishment; arbitrarily arresting, detaining, or exiling another; finding another guilty of a retroactive …’.56 Webber notices that the rights agreed to be absolute are different from the rest in relation to the clarity of their formulation. In such articles, including absolute rights or prohibitions, it is clearer than in other articles what is to be done (or not to be done).57 A fundamental right is absolute, or has an absolute structure, or involves an absolute prohibition, if ‘no possible legal reason can ever restrict’ it.58 This reading means that exceptions are excluded and that the right in question is not subject to being overridden. Human dignity is the most important and most discussed candidate as a right with an absolute structure.59 Absolute rights are an exception to the proportionality-based analysis60 because of the structural construction of the right in question and whether it includes a limitation clause or not. When there is no clause available in the structural construction of the right, no infringement of the right can be justified. Barak

53 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2013) ch 2; Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002) 185. 54 Gregoire Webber, ‘Proportionality and Absolute Rights’, May 2016, Queen’s Law Research Paper Series 1–3. 55 ibid. 56 ibid. 57 ibid, 3. 58 Alexy, A Theory of Constitutional Rights 195. 59 ibid, 62–64. 60 Kai Möller, The Global Model of Constitutional Rights (OUP 2012) 180.

Constructing Proportionality for the AFSJ  87 argues the same as Möller, maintaining the distinction between absolute and relative rights, stressing that ‘[w]henever a right is absolute … there is no room for proportionality’.61 In fact, a small number of rights are absolute, including the rights not to be tortured, not to be subject to cruel and unusual punishment, and not to be held in slavery or servitude. Unlike other articles, such as Articles 8, 9, 10 and 11, Article 3 ECHR does not include any exceptions which constitute limitation clauses if they are prescribed by law and are necessary in a democratic society. Moreover, Article 3 ECHR is not subject to derogations in times of war or other public emergency.62 This is recognised in the case law of the ECtHR,63 where these negative orders are usually referred to as absolute rights or absolute prohibitions. On the other hand, all rights that are subject to a proportionality-based analysis have, at least to a certain degree, a relative structure.64 Relative rights can be balanced, but they retain a priority status (weak trump), according to Klatt and Meister.65 Hence, applying this criterion to the case studies of this book, it follows that where the Court or a national authority is asked whether an EAW violates the principle of legality in criminal matters (an absolute principle), proportionalitybased analysis cannot be used.66 Correspondingly, proportionality-based analysis has no place in a case where an asylum seeker is tortured by the police authorities of the responsible state or is treated in an inhuman or degrading manner, or when there is a serious risk of a violation of such a right. On the other hand, the analysis is helpful in a case where the defendant who is arrested and is to be surrendered claims that the issuing authority has violated their defence rights. Moreover, the weak-trump theory, adopted here for relative rights, incorporates the concept of rights as trumps in the proportionality-based analysis but allows only constitutional interests to be balanced against rights. Therefore, when considering the limiting clauses, only interests of constitutional value can be balanced against constitutional fundamental rights.67 In particular, the secondary law objective of speeding up extradition68 between different countries of the European Union should not be balanced against the higher constitutional right to

61 Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (CUP 2012) 166, 208. 62 ECHR, art 15: ‘In times of war or other public emergency threatening the life of the nation’. 63 See, for example, Application No 22414/93 Chahal v UK ECtHR 15 November 1996; Application No 14038/88 Soering v UK ECtHR 7 July 1989 (Plenary). 64 Robert Alexy, ‘The Absolute and the Relative Dimension of Constitutional Rights’ (2016) Oxford Journal of Legal Studies 1, 2. 65 Klatt and Meister, The Constitutional Structure of Proportionality, ch 2, 8. 66 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 193; John Rawls, A Theory of Justice (Harvard University Press 1971) 42– 44; Jeremy Waldron, ‘Fake Incommensurability: A Response to Professor Schauer’ (1994) Hastings Law Journal 816–17. 67 Alexy, A Theory of Constitutional Rights, 185; Martin Borowski, ‘Limiting Clauses: On the Continental European Tradition of Special Limiting Clauses and the General Limiting Clause of Art 52(2) Charter of Fundamental Rights of the European Union’ (2007) 1(2) Jurisprudence 213. 68 Preamble, recital 5, FDEAW.

88  Constructing Proportionality for the Area of Freedom, Security and Justice appeal against an EAW issued in absentia unless the constitutional importance of this secondary law objective is sufficiently demonstrated and justified by the judicial reasoning. A deliberate discourse of balancing as reasoning could take place, with the Court balancing the defence right with the underpinning interests of the secondary law objective, which are of constitutional status. Therefore, the balancing exercise should be carried out only when the fundamental rights in question are actually amenable to balancing and when the competing interests are of the same constitutional status. When both of these conditions are met, a proportionality-based analysis should be employed by the Court. It is worth clarifying these criteria with particular regard to the presumption of compliance with fundamental rights under the Dublin III Regulation of the CEAS. A proportionality-based analysis is not suggested for asylum seekers’ cases which are lodged in Greece69 (and potentially Bulgaria and Hungary), where the reception conditions of asylum seekers are so poor that an asylum seeker faces a real risk of being treated in a degrading and inhuman manner.70 The precondition of mutual trust is so impaired in these cases71 that refer to a right which is not amenable to derogations, and recommending a proportionality-based analysis would be in vain and irrelevant. When there are substantial grounds to believe that there are systemic flaws in the asylum system of a Member State which could lead to subjecting the asylum seeker to torture or inhuman or degrading treatment, a transfer of the asylum seeker to this Member State must not happen and no balancing whatsoever permitted. This is a case falling beyond the scope of application of a proportionality-based analysis. Similar to the Dublin system, in the context of the FDEAW, a proportionalitybased analysis should be considered when an executing authority may refuse to execute an EAW in light of fundamental rights breaches, other than degrading and inhuman treatment. The principle of proportionality should only be considered when fundamental rights that do not include absolute prohibitions are alleged to have been breached, in the context of the FDEAW. For example, such an analysis should not be employed in cases similar to Aranyosi and Căldăraru, which pertain to Article 4 of the Charter or Article 3 of the ECHR.

69 UNHCR, ‘Mediterranean Sea crossings exceed 300,000, including 200,000 to Greece’ 28 August 2015. 70 In Fact, Hungary suspended the acceptance of asylum seekers transferred back from other countries under the Dublin III Regulation for an indefinite term on 23 June 2015. See Ministry of Interior, ‘Hungary is suspending re-admission of asylum-seekers from other EU Member States’, www.kormany. hu/en/ministry-of-interior/news/hungary-is-suspending-re-admission-of-asylum-seekers-fromother-eu-member-states; UN High Commissioner for Refugees (UNHCR), UNCHR Observations on the Current Asylum System in Bulgaria, 2 January 2014, http://www.refworld.org/docid/52c598354. html. 71 The existing problems leading to the absolute loss of mutual trust in these cases are irreparable and cannot be addressed by proportionality. The ineffectiveness of the Dublin system and the collapse of mutual trust to certain Member States is generally attributed to the unfair allocation of responsibility and the different standards of fundamental rights protection across Europe.

Constructing Proportionality for the AFSJ  89

Article 52(1) of the Charter and the Essence of the Rights Having set out that a proportionality-based analysis is not always appropriate, the next section focuses on demarcating the scope of the analysis’ application. A proportionality-based analysis, as considered by the book, would be applied to interferences with fundamental rights caused by two instruments. The principle of proportionality would be used here to assess interferences with fundamental rights violations in the context of mutual recognition. So, the function of proportionality used is the one illustrated in Article 52(1) of the Charter, with regard to limitations on the exercise of rights and freedoms recognised by the Charter. Fundamental rights are not here positioned as mandatory requirements calling for a derogation from a master principle which is protected by a proportionality-based analysis, but deserve to be the central principle which is protected.72 The protection of fundamental rights should be treated in the balancing stage as a central constitutional value of EU law. It is a central value of the European Union, and the Charter has equal constitutional status with that of other Treaties.73 Therefore, any limitation must be provided for by law and must not go so far to disrespect the essence of those rights, in light of a negative reading of the provision of Article 52(1) of the Charter. This was confirmed by recent case law of the CJEU that specifically referred to the ‘essence of fundamental rights’ as a limit to the principle of mutual trust in relation to rebutting the presumption of compliance with fundamental rights.74 The concept of ‘essence of the rights’ has not often been used by the Court. In fact, there are only two cases where the Court found a breach of the essence of the rights.75 Similar to the wording of specific ECHR articles, which provide for restrictions on specific rights,76 Article 52(1) of the Charter specifies that limitations on the exercise of rights must be subject to the principle of proportionality. Restrictions on rights are allowed only if they are necessary and actually meet the objectives of general interests, which are ‘recognised of the Union or the need to protect the rights and freedoms of others’. So far, until the recent case of LM, the Court did not employ a proportionality-based analysis. The Court only relied on the first sentence of Article 52(1) of the Charter and only referred to the concept of the essence of the right without extending the scope of the test to the second sentence of Article 52(1), which concerns the proportionality test. This reluctance is not 72 De Vries notes that in Luxembourg someone has to prove that the fundamental human rights restrictions to economic freedoms are proportionate whereas in Strasbourg it has to be proved that the economic freedom’s restriction to fundamental human rights is proportionate. See Sybe A de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice’ (2013) 9 (1) Utrecht Law Review 169, 187. 73 TEU, art 6. 74 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586, para 60. 75 Case C-426/11, Alemo-Herron ECLI:EU:C:2013:521, para 34; Case C-362/14 Schrems ECLI:EU:C:2015:650, para 94. 76 See, for example, Articles 8, 9, 11 ECHR.

90  Constructing Proportionality for the Area of Freedom, Security and Justice without reason. Using the essence of the right is on its own a whole new concept for the Court to develop, autonomously from the ECtHR jurisprudential references to the test of a ‘flagrant denial of justice’. However, it is yet to be determined how and when we shall accept that the essence of the rights is exactly breached. A definition of what the essence of the right in question is would in turn inform this test. The Court did that in relation to the right to fair trial in LM by recognising judicial independence as a core element of the essence of the right. Still, a proportionality test could further help in this regard by refining when a limitation shall be accepted, especially considering how much discretion is left to national authorities. In fact, a proportionality test could complement the essence of the right test that is already introduced by the Court. The latter focuses on the right that is under restriction and sets limits to the limitation by recourse to its essence, which is inviolate. On the other hand, the proportionality test seeks to protect the right by taming the limitation itself by challenging the reasonableness of its necessity, its suitability and by conducting a balancing stricto sensu. This renders the definition of a proportionality test here even more useful as proportionality could be a useful tool for these next steps of the CJEU where the LM test is further defined in future case law and the Court responds to questions brought forward by domestic courts seeking some guidance. The principle of proportionality, under Article 52(1) of the Charter, could therefore guide the quest for the essence of the rights.

European Investigation Order and Proportionality The test that judicial authorities are called to perform when they assess an EAW77 or when they have to decide on a Dublin transfer to a responsible state78 could be informed by other instruments. In this respect, the typology of the test could be further informed by reference to recent legislation on the European Investigation Order (EIO) that specifically and explicitly refers to the principle of proportionality and conditions the national judicial authorities to consider its different stages, when making a decision.79 The law states: The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is

77 Art 15, FDEAW. 78 Arts, 21, 21 Dublin III. 79 The principle of proportionality is explicitly mentioned in Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters OJ L130/1 (EIO). This is another instrument relying on mutual trust among Member States that allows the mutual recognition of the EIOs.

Constructing Proportionality for the AFSJ  91 necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. The same assessment should be carried out in the validation procedure, where the validation of an EIO is required under this Directive. The execution of an EIO should not be refused on grounds other than those stated in this Directive. However the executing authority should be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it makes it possible to achieve similar results.

Significantly, the law enables responding judicial authorities to opt for less intrusive investigative measures if they are not convinced of the proportionality of the requested measure. The issuing authorities are also asked to consider the tenets of proportionality before issuing the order. It seems that the European legislator has now become more conscious of the proportionality requirements although it is debatable whether the role of proportionality is clearly defined in this context too.

Context of Application: Transfers of Individuals Based on Mutual Recognition The two mutual recognition instruments – though dissimilar80 – operate on similar patterns, and therefore provide for the common context of a proportionality-based analysis. Both the Dublin system and the FDEAW concern transfers of individuals between Member States on the basis of mutual trust and mutual recognition. Therefore, to a certain extent, they beg similar answers when fundamental rights of individuals are violated, or when there is a serious risk that they might be violated. Both systems of transfers are driven by security and efficiency, which dictate speed. Despite reported problems, the FDEAW is broadly a successful measure and both practitioners and judicial authorities have benefited from its use.81 At the same time, the CEAS is a necessary area of cooperation, supplemented by a system

80 The two instruments are dissimilar because the one, the FDEAW, is a measure of criminal procedure and therefore of criminal character and the second, the Dublin III Regulation, does not share the same criminal character. On the contrary, it is a measure of administrative law in most countries as it aims to organise the Member States’ relations with respect to the allocation of responsibility for determining the state which should examine applications of third-country nationals for international asylum protection. 81 Anne Weyembergh, Inés Armada and Chloé Brière, Critical Assessment of the Existing E ­ uropean Arrest Warrant Framework Decision. European Added Value Assessment The EU Arrest Warrant ­(Brussels, European Union 2014) I-3; Valsamis Mitsilegas, ‘The Area of Freedom, Security and Justice from Amsterdam to Lisbon. Challenges of Implementation, Constitutionality and Fundamental Rights, General Report’ in J Laffranque (ed), The Area of Freedom, Security and Justice, Including Information Society Issues. Reports of The Xxv Fide Congress, Vol 3 (Tallinn 2012) 21–142; Cian C Murphy, Aldo Zammit Borat and Lucy Hoyte, Prosecutor and Government Officials Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant (SECILE: Securing Europe Through Counter-­ Terrorism – Impact Legitimacy & Effectiveness 2014).

92  Constructing Proportionality for the Area of Freedom, Security and Justice of allocating responsibility among Member States, again in light of mutual trust.82 The Dublin III Regulation of the CEAS, which encapsulates the current system of allocating responsibility, suffers from serious inconsistencies.83 However, even in the fortunate case that the legislation is amended to address the fundamental flaws of the system, transfers of asylum seekers will still need to take place, for the purpose of allocating responsibility. A proportionality assessment is suggested for an occasion when an individual claims that the Member State (issuing an EAW or responsible for examining an asylum application) has already violated some of their rights,84 or when there is a serious risk of a future violation.85 The relevant authorities are called upon to balance efficiency, speed and automatic cooperation with the protection of fundamental rights. In the particular context of the Dublin III Regulation of the CEAS, a proportionality-based analysis would be conducted under the sovereignty clause.86 According to this clause, a Member State may derogate from the rules of allocating responsibility according to the Regulation. A proportionality-based analysis will inform the discretionary clause by turning the discretion of the Member State into the obligation – at least – not to transfer a person whose rights have been disproportionately breached. It will be assessed whether the transfer to a responsible Member State is manifestly disproportionate.87 Member States should be allowed to proceed from a rebuttable presumption that fundamental rights of asylum seekers will be respected. However, the obligation of the Member State to respect fundamental rights by complying with their international obligations is higher than the provision of the Dublin III Regulation of the CEAS, which frees the Member State from exercising responsibility when another Member State is responsible.88 Fundamental rights should retain their special force in balancing, in this context.

82 Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319, 333. 83 Μinos Mouzourakis, ‘“We Need to Talk about Dublin”: Responsibility under the Dublin System as a Blockage to Asylum Burden-Sharing in the European Union’ (2014) Refugee Studies Centre Oxford Department of International Development, Working Paper Series, 2014) No 105, 27. 84 For example, see Case C-396/11 Ciprian Vasile Radu ECLI:C:2013:39, para 26. 85 For example, see N.S. and M.E., para 40. Although it is not the focus of this book, in the case of an EAW, issued for the prosecution of a petty crime, a proportionality-based analysis would ensure that the right not to be unfairly criminalised is respected. See Sandru v Government of Romania [2009] EWHC 2879 (Admin); Dennis Baker, The Right Not to Be Criminalised; Demarcating Criminal Law’s Authority (Ashgate 2011). 86 Now found in art 17(1) and informed by art 3(2)(b). 87 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris 436, 437. 88 Silvia Morgades-Gill, ‘The Discretion of States in Dublin III System for Determining Responsibility for Examining Applications of Asylum; What Remains of the Sovereignty and Humanitarian Clauses after the Interpretations of the ECTHR and the CJEU?’ (2015) 27(3) International Journal of Refugee Law 433, 437.

Constructing Proportionality for the AFSJ  93 Therefore, the recognition of another Member State as the one responsible does not release other Member States from their independent and overarching obligation to ensure that fundamental rights of asylum seekers will be respected in all cases, and not only in extreme circumstances. It is incomprehensible and inconsistent that EU law provides for an explicit ground for refusal to execute an EIO89 when fundamental rights of suspects are at stake, while not treating asylum seekers, who are not criminals, with the same individual respect in relation to their fundamental rights. A proportionality-based analysis could be applied in such non-extreme cases where a non-absolute fundamental right of an applicant is breached. Such an analysis is relevant where an asylum seeker claims that their rights were actually infringed by Member States, or where there is a danger90 that they will be infringed and when the rights in question are not necessarily those enshrined under Article 4 of the Charter or Article 3 ECHR. This is better demonstrated through a fictitious case. For example, an asylum seeker first enters the European Union through Malta, where they are arrested for the act of illegal entry into the country. However, the Maltese authorities never inform them of the Dublin system and their rights, as enshrined in Article 4 of the Dublin III Regulation. They then decide to move to France, where the French authorities inform them that they (the authorities) are not responsible for examining the asylum seeker’s application. Instead, Malta is the responsible Member State, according to the law.91 The Dublin III Regulation, according to the Court, does not prescribe that France shall exercise the sovereignty clause as this is only prescribed for breaches of Article 4 of the Charter or Article 3 ECHR, and when there are systemic deficiencies of the asylum system in a Member State. Therefore, responsibility stays with Malta, and the French authorities have no obligation not to transfer them back to Malta. Instead, I argue that the national authorities have to conduct a proportionality test to consider how serious the breach of the right has been and how serious is the future risk of violation, and determine whether the person should be transferred based on such a proportionality-based analysis.

Generic Balancing Parameters A detailed consideration of criteria as applied to the two case studies is taking place in the relevant chapters of the book. Generally, authorities should consider several criteria, on a case-by-case analysis, so as to build a system of transfers of 89 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European investigation order in criminal matters (EIO), art 9(2); see Also Inés Armada, ‘The European Investigation Order and the Lack of European Standards for Gathering Evidence: Is a Fundamental Rights-based Refusal the Solution?’ (2015) 6(1) New Journal of European Criminal Law 8. 90 When such a danger exists and what the standard of proof should be is a difficult question, which will be discussed later. However, the argument at this point intends to identify the scope of application of a proportionality-based analysis. 91 Dublin III Regulation, art 13(1).

94  Constructing Proportionality for the Area of Freedom, Security and Justice asylum seekers which is efficient but also fair. Efficiency through speedy (judicial) cooperation is often the objective for which rights are limited, for the sake of preserving the operation of the principle of mutual recognition based on an obligation to trust.92 According to the law of balancing, as prescribed by Alexy, it should be determined whether the importance of satisfying the second ‘principle’ justifies the non-satisfaction or the detriment of the first one. Therefore, it should be determined whether transferring an asylum seeker to the Member State responsible is so important that the interference in question with their fundamental rights is justified. Given the special force of fundamental rights though, this should not be an easy task. Balancing could be informed by various parameters, such as the seriousness of the violation, the standard of proof, the degree of its remediability, the gravity of the offence93 and the nature and content of the right. A proportionality-based analysis should also take into account the existence of procedural guarantees. Whether procedural guarantees exist for the individual to challenge a restriction on their rights in the context of the AFSJ should be a criterion of balancing, which will inform the discussion of a restriction’s proportionality. For example, whether a restriction on the right to a fair trial, caused by the issuing EAW Member State, can be procedurally challenged by the defendant is a criterion of whether the restriction on the right in question could be justified. In theory, the same principle could apply to the CEAS under the Dublin III Regulation, when assessing whether the Member State that is not responsible under the Dublin III Regulation should transfer an asylum seeker who claims that their rights have been breached by the state responsible. The lack of procedural guarantees for the asylum seeker to effectively challenge the way they are treated in light of all their fundamental rights could constitute an indication that they should not be transferred to the Member State that will examine their application. For example, this is supported by the reasoning of the Court in Kadi,94 which demonstrates the importance of procedural guarantees for a balancing exercise conducted in the context of a conflict between fundamental rights and the public interest of security. The Kadi saga involved, inter alia, a conflict between fundamental human rights and the common foreign and security policy. The anti-terrorism

92 Adam Łazowski, ‘From EU with Trust: The Potential and Limits of the Mutual Recognition in the Third Pillar from the Polish Perspective’ in Gisèle Vernimmen-Van Tiggelen, Laura Surano and Anne Weyembergh (eds), The Future of Mutual Recognition in Criminal Matters in the European Union/L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union Européenne (Editions de l’Université de Bruxelles 2009) 419–44; Valsamis Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU (2006) 43 CML Rev 1277; Ilias Bantekas, ‘The Principle of Mutual Recognition in EU Criminal Law’ (2007) 32 European Law Review 365. 93 Jannemieke Ouwerkerk, ‘Balancing Mutual Trust and Fundamental Rights Protection in the Context of the European Arrest Warrant’ (2018) 26(2) European Journal of Crime, Criminal Law and Criminal Justice 103. 94 Kadi I, para 369; Case T-85/09 Yassin Abdullah Kadi v Commission ECLI:EU:T:2010:418, para 194; Case C-584/10 Commission v Kadi (Kadi II) ECLI:EU:C:518.

Variable Intensity  95 measures that the European Union imposed had the effect of freezing the private assets of Mr Kadi. The Court asserted that the possibility of an adequate review of the substantive legality of a Community freezing measure, is indispensable if a fair balance between the requirements of the fight against international terrorism, on the one hand, and the protection of fundamental liberties and rights, on the other, is to be ensured.95

The Court here explicitly used the structure of a proportionality-based analysis so as to determine whether the limitations of the antiterrorism measures on the litigant’s rights were proportionate. In both cases, the restriction of the right to respect for property was justified,96 with the Court stating that the right to property could be restricted as long as those restrictions corresponded to objectives of public interest and did not disproportionately interfere with the right at issue, thereby ‘impairing the very substance’ of it. However, the Court held the restrictions as overall disproportionate, and therefore unjustified, because there were no procedural safeguards enabling the persons concerned to appeal to the competent authorities. What is more, the General Court in Kadi II stated that if the level of judicial review was limited in the manner suggested by the Commission, the intervening governments, and the Council, ‘there would be no effective judicial review of the kind required by the Court of Justice in Kadi I but rather a simulacrum thereof ’.97 Therefore, the judicial reasoning in this case supports the argument that the existence of procedural guarantees for the individual affected by the measure in question should play a role in the balancing exercise. This affects the remediability of a violation, which is one of the balancing criteria that the case studies later consider.

Variable Intensity A variable intensity of judicial review is generally noticed in the case law of the CJEU.98 In particular, the origin of the measure is indicated as a factor affecting the judicial scrutiny in the review of legislative measures.99 A bias towards European integration is observed, with the CJEU being stricter with national measures interfering with free movement rights than with EU measures interfering with other

95 Kadi I, para 57. 96 Kadi I, para 355. 97 Kadi II, para 123. 98 Jürgen Schwarze, European Administrative Law (Sweet & Maxwell 2006) 664–65; Paul Craig, EU Administrative Law (2nd edn, OUP 2012) 560–615. 99 Wolf Sauter, ‘Proportionality in EU Law: A Balancing Act?’ (2013) TILEC Discussion Paper 12; Gráinne de Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13(1) Yearbook of European Law 105.

96  Constructing Proportionality for the Area of Freedom, Security and Justice fundamental rights.100 Two questions should be considered here. First, we should critically review the desirability of a differentiated judicial scrutiny in the AFSJ, wary of a danger of a political bias. Secondly, we should examine criteria that could affect the degree of judicial scrutiny in different contexts of application of a proportionality-based analysis in the AFSJ and in the context of mutual recognition measures. The paradigm of leniency, noticed in the case law of the CJEU, towards EU measures must not be transferred to the context of the AFSJ. Contrary to the paradigm of the internal market, the Court and the national authorities called upon to apply a proportionality-based analysis must exhibit the same scrutiny irrespective of the origin of the measure. The proportionality-based analysis must not be degraded to a tool for merely protecting principles, methods or presumptions of EU law, such as mutual recognition or mutual trust. Instead, it must be properly utilised as a watchdog to monitor any restriction on fundamental rights, which reflects the nature of the principle of proportionality. A proportionality-based analysis is a method of protecting fundamental rights from disproportionate interferences. This potential of the principle should be achieved via a proper application of the test.

Seriousness of the Value Under Restriction A factor affecting the strictness of the test conducted by the CJEU is the seriousness of the value under restriction.101 In the context of the internal market, the rights to free movement constitute the very fundamental contribution of the law, and thus their importance raises the standard of scrutiny.102 In the context of application that this book is interested in, it is fundamental human rights that are the value under restriction. Fundamental rights, according to a textual argument based on Article 2 of the TEU,103 hold a profound constitutional position in EU law. In her analysis, although in a different context of EU law, Schiek argues that fundamental rights ‘expressly recognised by the ECHR constitute fundamental pillars of a democratic society’.104 Indeed, in an area of a transnational criminal justice, and of a transnational asylum system based on freedom and justice, fundamental rights should also be viewed as a fundamental pillar. Therefore, any allegation that

100 Tor-Inge Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16(2) European Law Journal 158, 172, 173; Takis Tridimas, The General Principles of EU Law (2nd edn, OUP 2006) 193; Sauter, ‘Proportionality in EU Law’ 13. 101 Jan Jans, ‘Proportionality Revisited’ (2000) 27(3) Legal Issues of Economic Integration 253. 102 Tridimas, The General Principles of EU Law 193. 103 Article 2 TEU recognises rights as a founding value of the EU as the value is common to all Member States. 104 Dagmar Schiek, ‘Proportionality in Age Discrimination Cases – A Model Suitable for Socially Embedded Rights’ in Ann Numhauser-Henning and Mia Rönnmar (eds), Age Discrimination and Labour Law: Comparative and Conceptual Perspectives in the EU and Beyond (Wolters/Kluwer 2015) 31.

Variable Intensity  97 fundamental rights are interfered with by proceedings of instruments based on mutual recognition deserves to be considered as a serious restriction and to be subject to strict judicial scrutiny. In particular, the intensity of a proportionality-based review could be further affected by the seriousness of the affected right as such. Any rights interfered with by the case studies in particular, and by mutual trust or recognition instruments in general, are such that they fall within the sphere of personal autonomy in the traditional sense.105 Therefore, they require a strict application of a proportionality-based analysis. I have avoided examining different rights in the two case studies in order to ensure a certain degree of comparability. However, different rights might affect the intensity of a judicial review. As only certain rights are examined by the book, any argument that particular rights deserve more attention than others would be premature. This question remains to be answered in the future but we could argue that rights whose violation could not be remedied deserve stricter judicial scrutiny than those whose satisfaction cannot have a second chance.

Vulnerability of Individuals Furthermore, the most important factor to be considered is the different degree of vulnerability of the persons affected. Despite any similarities observed in the areas of law examined by the case studies, their fundamental distinctions and premises should always be reviewed. This should be taken into particular account when considering the individuals affected. In particular, the more vulnerable the individual appears, the stricter the application of the analysis should be. This is to ensure, as carefully as possible, that their rights are not disproportionately affected by the proceedings. In such cases, national authorities or the CJEU should exhaust all the possible ways of investigating any allegations of interference with the rights in question. Both the Dublin system and the FDEAW form part of different wider frameworks,106 with different implications for individuals. The proceedings of the FDEAW, which is a law of criminal procedure, are carried out between an issuing and an executing authority and the physical transfer of the person is termed as surrender.107 By contrast, the Dublin proceedings refer to transfers108 since the procedure is not part of any criminal proceedings. Transfers of asylum seekers comprise a subsequent part of the procedure.109

105 See the distinction between liberty rights and claim rights in Peter Jones, Rights (Palgrave Macmillan, 1994). 106 European Criminal Justice and Common European Asylum System. 107 FDEAW, art 15. 108 Dublin III, art 29. 109 Dublin III, Preamble, recitals 1, 5, 24.

98  Constructing Proportionality for the Area of Freedom, Security and Justice Under the FDEAW, persons ‘who are fleeing from justice after having been finally sentenced’ and ‘persons suspected of having committed an offence’ are the subjects of this measure,110 whereas under the Dublin III Regulation, the individuals subject to these proceedings are third-country nationals who seek international protection.111 They flee their countries, ‘forced by circumstances’, and ‘legitimately seek protection in the Union’, which, as an AFSJ, is open to people seeking international protection.112 Beneficiaries or applicants for international protection constitute the subjects of the law. The scope of this category involves third-country nationals and stateless persons who qualify113 as refugees or as persons eligible for subsidiary protection.114 Furthermore, unaccompanied minors might often be subject to the procedures.115 Different members of the same family who wish not to be separated in a foreign land are often the subject of this law.116 Individuals who are subjected to the procedures designated by the Dublin III Regulation of the CEAS are not criminals117 but face coercive proceedings, which places them in a vulnerable position. Correspondingly, suspects, and especially defendants, who are the subjects of the FDEAW, are also vulnerable because they are subjected to criminal proceedings, which constitute the ultimate means of social control enforced by the state.118 The FDEAW proceedings form a coercive procedure and are often accompanied by detention for defendants. This places them in a vulnerable position as well, considering that they are transferred to a foreign Member State, where they do not speak the language. Admittedly, both case studies refer to vulnerable groups of people whose position demands a strict or high-intensity review of proportionality. Still, at a general level of comparability, asylum seekers and refugees should be seen as more vulnerable than defendants and those suspected of cross-border criminal activity. Asylum seekers find themselves treated similarly to suspects and defendants, in a foreign land, and are subjected to coercive proceedings, without, however, having committed a crime or being suspected of having done so.

110 FDEAW, Preamble, recital 1. 111 Dublin III, Preamble, recital 1. 112 ibid, recital 2. 113 According to Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted of 20.12.2011, OJ L337, p 9. 114 Dublin III, Preamble, recital 10. 115 ibid, recital 13. 116 ibid, recital 15. 117 Albeit obvious that these people are not criminals, the law still treats them as such. See Niovi Vavoula, ‘The Recast Eurodac Regulation: Are Asylum-Seekers Treated as Suspected Criminals?’ in Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer and Vladislava Stoyanova (eds), Seeking Asylum in the European Union; Selected Protection Issues Raised by the Second Phase of the Common European Asylum System (Brill Nijhoff 2015). 118 Heike Jung, ‘L’Etat et Moi; Some Reflection on the Relationship Between Criminal Law and the State’ (1998) 6(3) European Journal of Crime, Criminal Law and Criminal Justice 208.

Variable Intensity  99 Quite the opposite: asylum seekers have come to a foreign land after being persecuted, fleeing from war conditions, surviving horrendous and almost fatal events, to ask protection from the European Union, only to face an asylum procedure based on coercion that often treats them as criminals but without them even being suspects. In fact, even their recourse to Article 6 ECHR, the right to a fair trial, is not assured. What is more, they are held in reception conditions, which are often worse than prison detention conditions for persons subjected to criminal justice, and on top of this, they are often victims of racial abuse.119 Moreover, the two case studies differ in the degree of incentive that the responsible national authorities may have in the matter of obtaining a sought individual, which further indirectly affects the vulnerability of asylum seekers. This stems from the nature of the procedures. Judicial authorities in the context of the FDEAW issue a warrant because they wish to have an individual surrendered to them. In contrast, a Member State responsible for examining the application of an asylum seeker is most often reluctant to undertake the responsibility for examining an application for international protection. This places asylum seekers in an even more vulnerable position than defendants and suspects as they are not as ‘wanted’, and this requires a stricter application of a proportionality-based analysis. Nevertheless, vulnerability cannot be determined in general terms. An assessment of vulnerability can only take place in concreto with reference to any special circumstances of a case under consideration. It makes a difference, even in the same context of the FDEAW, whether an individual is surrendered for the purpose of the execution of a penalty or for the purpose of prosecution, whether for a minor or a serious crime. Therefore, in a context of analysis so sensitive to core fundamental human rights, a proportionality-based analysis should be generally strict, given that an important constitutional value is under limitation, although it must be even stricter in the context of the Dublin III Regulation of the CEAS. Such a strict test should be conducted with reference to all stages.

Degree of Harmonisation Regarding the application of a proportionality-based analysis, at the level of the CJEU several factors might affect the intensity of the review that the Court itself could apply at a central, supranational level. The degree of harmonisation of the proceedings in question could be another factor to be taken into account by the CJEU when applying a proportionality-based analysis.120 The method and the analytical steps employed by the Court in a proportionality-based analysis should

119 Amnesty International, ‘Trapped in Greece: Refugees Stranded in Dire Conditions as Europe Drags its Heels’ (18 July 2016) https://www.amnesty.org/en/latest/news/2016/07/trapped-in-greece-48000stranded-in-dire-conditions. 120 Tridimas, The General Principles of EU Law 240, 241.

100  Constructing Proportionality for the Area of Freedom, Security and Justice particularly be informed by the different situation in question, in relation to the existence of secondary harmonising legislation, and with reference to what constitutional values are balanced. The existence of a harmonising secondary measure should make a difference to the judicial reasoning and the strictness of it as the judicial reasoning should acknowledge the harmonising measure as adopted by the lawmaker. Moreover, the balanced constitutional values should also be taken into account by the Court and inform the strictness of the judicial review. For example, in internal market situations, similar to Cassis, there is no harmonising legislation, and the Court, relying on a Treaty provision, considered the proportionality of a restriction to free movement rights. The national exceptional measure relies on a serious public interest, which is either a ground for derogation or a mandatory requirement. The achievement of this goal, which could even be the protection of human rights, has to be proportionate to a fundamental freedom of the internal market as enshrined by a Treaty provision. On the other hand, in the example of Melloni, an EU harmonising measure was in place. This restricts the judicial analysis of the Court as the lawmaker has set a certain standard of protection against which the FDEAW is to be read and applied. The application of proportionality should be mindful of the kind of legal instruments that are involved, and of the overall constitutional framework. However, a basic difference has to be considered. A proportionality-based analysis is not suggested in a market-based way. In the internal market, a national rule which could be a constitutional right, and which could restrict an EU fundamental right to free movement, should pass a proportionality test. In contrast, through the lenses of the Charter and the AFSJ, it is the measure restricting the fundamental human right that should pass the proportionality test. In particular, in a case similar to Melloni, the secondary EU measure restricting the national constitutional right should prove its proportionality. If a market-based proportionality test was to be applied here, the public interest of protecting human rights would have to be balanced against the objective of the EU criminal law in question, which is speedy judicial cooperation. The latter does not, however, constitute a right to deserve the protection of a proportionality-based analysis that fundamental rights to free movement in the internal market have enjoyed. It is, rather, a policy goal. So, I argue that in areas so sensitive to core fundamental rights, such as EU criminal and asylum law, the Court should use a proportionality-based analysis in a way that revolves around the fundamental right. This should be done in a similar way that the Court in Cassis focused on: safeguarding the fundamental freedom of internal market with proportionality. Moreover, a proportionality-based analysis could be combined with a margin of appreciation where there is no sufficient ‘European consensus’.121 In some cases, 121 See for example the ECHR jurisprudence in Application No 5493/72 Handyside v UK ECtHR 7 December 1976 and for a commentary see Dean Spielmann, ‘Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2012) CELS Working Paper Series.

Conclusion  101 the Court must defer to national courts or other authorities, allowing them a margin of appreciation to make a decision, but instructing them to apply a proportionality-based analysis.122 Given that ‘European consensus’ among EU Member States is generally assumed to be higher than that existing among the Contracting Parties of the Council of Europe, a margin of appreciation for the EU Member States would be expected to be narrower and supported by a proportionality-based assessment. In particular, the latter could be provided by the CJEU to the Member States for consideration and should affect, similar to ECtHR jurisprudence, the width of the margin of appreciation. However, the width of the margin of appreciation is also affected by other factors, such as the context in question and the interests balanced.123 In those cases where a judicial review does not need to be that strict, the Court could simply engage in an implicit balancing of values to indicate a general direction of priorities for the national authorities to respect. However, it is debatable whether a margin of appreciation could in principle be allowed to Member States with respect to fundamental rights violations of individuals who are transferred in this context. Given that it is essential to ensure a uniform status of asylum under EU law,124 the migration of a margin of appreciation to the AFSJ could be problematic.

Conclusion The chapter considered what proportionality could mean for the protection of fundamental rights in the context of mutual trust instruments in the AFSJ. The framework of analysis that this chapter offers relies on the theoretical accounts of proportionality in constitutional and EU law and builds on these to submit a pertinent framework for the book. After discussing the framework of rights protection in the EU legal order, the chapter went on to set out when proportionality is useful, what the typology of the test should be and what criteria a decision maker must take into consideration. Following this, the chapter argued that the test might not be as strict in all cases and discussed when the intensity of review must be higher. Overall, the account of proportionality offered here is an original contribution to the scholarship of AFSJ from a constitutional law perspective. The next chapters will apply this test to the two case studies to assess its impact in concreto.



122 Tridimas,

The General Principles of EU Law 239. ‘Allowing the Right Margin’. 124 TFEU, art 78. 123 Spielmann,

6 Case Study I: European Arrest Warrant Transfers Introduction This chapter constitutes the first case study of the book; it aims to apply a proportionality-based analysis and demonstrate how the analysis would impact transfers of individuals in the context of the FDEAW.1 These transfers are mainly driven by the security objectives of an interest in speed and efficiency in the judicial cooperation in criminal matters. This is enabled because Member States trust each other enough to dispense with time-consuming checks. It is now clear that the presumption of compliance with rights obligations that gives rise to mutual trust is no longer conclusive in the AFSJ. This presumption is rebuttable both in the context of the FDEAW2 as well as in the context of CEAS3 when there is a real risk of inhuman or degrading treatment or where the essence of the right to a fair trial is breached.4 The book, moving one step further, argues that a proportionality-based analysis should be inherent in the application of mutual recognition in all cases of breaches of relative fundamental rights. In particular, when non-absolute rights are infringed, or where there is a risk that they will be infringed, a proportionalitybased analysis based on Article 52(1) of the Charter could help with assessing an interference with a right, regardless of whether a specific ground for refusal is explicitly inserted into the FDEAW. The chapter suggests that a proportionalitybased analysis could be helpful with interferences with fundamental rights, and the test could be employed to determine whether an interference with a right is disproportionate due to extradition proceedings when considering a request to surrender. Moreover, the chapter explores the impact and limits of a proportionality-based analysis, with reference to constructing an equilibrium based on the protection

1 Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (FDEAW) [2002] OJ L190/1. 2 ibid. 3 Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865, para 104. 4 Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586.

Introduction  103 of fundamental rights and the effectiveness of judicial cooperation. It should be acknowledged that the application of the analysis could suffer from limitations inherent in the constitutional structure of the principle of proportionality since any moral or policy choice could be fed into the neutral structure of the proportionality-based analysis. In this sense, the principle of proportionality could create a slippery framework of adjudication. This is why it is essential for the principle to be accompanied by a theory on rights. Notwithstanding these problems, the chapter submits that a proportionality-based analysis could be particularly helpful in the FDEAW, in light of the evolving harmonisation of procedural safeguards and fair trial rights. The chapter, after setting out the framework of EU criminal justice and of the FDEAW, examines the impact of a proportionality-based analysis for executing an EAW when fundamental rights are infringed. The chapter first unravels the historical evolution of the constitutional and institutional framework of EU criminal justice with reference to an ambitious creation of a European public order. Next, it specifically focuses on the FDEAW, with particular regard to a ground for refusal to execute an EAW (or lack thereof) in light of fundamental rights violations. The chapter argues that the FDEAW must be read in a manner that a ground for refusal based on breaches of fundamental rights is inherent in the measure. It is also argued that there is no need to explicitly incorporate one, given the constitutional and overarching obligation of Member States to respect fundamental rights. A proportionality-based analysis must accompany such a ground for refusal to execute an EAW when fundamental rights are violated.5 A proportionality-based analysis would determine whether an interference with a relative right is disproportionate to justify a surrender. In light of this reading of the FDEAW, the chapter submits a rigorous account of proportionalitybased analysis and further explores the impact and limits of it. The analysis follows a structure based on those rights that are discussed by the CJEU in its case law on the FDEAW. It further considers how a proportionality-based analysis could be embedded in the judicial reasoning, and ultimately the fairness of the process. Various aspects of the right to a fair trial and the principle of legality in criminal matters are examined in relation to refusing to execute an EAW when there are interferences with these rights. These rights are chosen for two reasons. The first reason pertains to the case law of the CJEU, which only grappled with breaches of such rights,6 with the exception of Aranyosi and Căldăraru, which introduced a question in relation to Article 4 of the Charter7 or Article 3 of the ECHR. The second reason pertains to the persistent question of when an executing authority

5 Provided that these are not absolute rights. 6 See, for example, Case C-303/05 Advocaten voor de Wereld ECLI:EU:C:2007:261; Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:39, paras 35, 36; Case C-388/08 PPU Leymann and Pustovarov ECLI:EU:C:2013:39, para 51; Case C-261/09 Mantello ECLI:EU:C:2010:683, para 37; LM. 7 Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Căldăraru ECLI:EU:C:2016:198; Charter of Fundamental Rights of the European Union (the Charter) [2012] OJ C326/391.

104  Case Study I: European Arrest Warrant Transfers may refuse to execute an EAW in light of fundamental rights violations, other than degrading and inhuman treatment. The test has been further refined by the judgment in LM in relation to the right a fair trial but it still needs clarity and development. The chapter submits an argument which is not only doctrinal, but also normative, assessing relevant case law and embedding an analysis of a constitutional nature. It intends to contribute to the scholarship of EU constitutional law with regard to the development of mutual recognition, and particularly to the AFSJ and the FDEAW literature.

EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition Security and the Constructed European Public Order The European criminal law model was ‘inherently dialogic’ until the 1990s. States cooperated at an international level. International cooperation in criminal matters consisted of four main methods: mutual assistance in criminal matters, transfer of proceedings, enforcement of foreign judgments, and extradition.8 The field of EU criminal law has now emerged as an independent and unique example of ‘criminal law beyond the state’.9 The shift from a dialogic to an independent model is remarkable, and the reasons why the AFSJ was established with the aim to ensure security within the European space needs to be examined. First, the necessity for cooperation in the field of security lies in the augmentation of national security.10 This perception of security is based on the cooperation of Member States on an intergovernmental basis and maintains that security remains a national issue while stressing the need for collective cooperation.11 Moreover, understanding the value of security is associated with what is valued, what society wishes to preserve, and what it is afraid to lose.12 What every society aims to secure is different and pertains to what is valued (subjective factor) and what is threatened (objective factor).13 In the European Union, with 28 different societies with their own national cultures differing on what is valued and what is perceived as a threat, the concept of European security is composed of complex 8 David McClean, International Cooperation in Civil and Criminal Matters (OUP 2002). 9 Massimo Fichera, ‘Criminal Law Beyond the State: The European Model’ (2013) 19(2) ELJ 174, 175. 10 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (3rd edn, CUP 2014) 587. 11 Sandra Lavenex and Wolfgang Wagner, ‘Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice’ (2007) 16 European Security 225, 227. 12 Arnold Wolfers ‘“National Security” as an Ambiguous Symbol’ (1952) 67 Political Science ­Quarterly 481; Paul Roe, ‘The “Value” of Positive Security’ (2008) 34 Review of International Studies 777. 13 J Peter Burgess, ‘There is no European Security, Only European Securities’ (2009) 44(3) Cooperation and Conflict: Journal of the Nordic International Studies Association 309, 310.

EU Criminal Justice  105 constellations of different national securities,14 which might happen to overlap to a certain extent. Another view, which does not rely as much on a perception of fragmented societies across Europe, is that the EU space as such establishes a common and independent ‘European public order’.15 According to the Treaty of Amsterdam, the goal is to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.16

From this angle, the European space of freedom of movement is worthy of protection as a continuum of the internal market where people freely move. This symbolises a move from a merely economic to a political Union and derives from the citizens’ desire to move not only freely, but also securely.17 Protecting citizens against terrorism and serious forms of cross-border crime, such as drug trafficking and exploitation of irregular immigration, was one agreed goal.18 International organised crime and the increasing pressure of irregular immigration from the European Union’s eastern borders were also influential factors19 in shaping the value of European security. At the same time, the European Union, despite not being a state, increasingly developed features ascribed to the modern state,20 such as Economic and Monetary Union (EMU), and by providing identity and social rights through citizenship law.21 It is also evident that a narrative of pre-emption,22 emerging in the context of the ‘war on terror’, radically influenced the concept of European security. It is debatable whether a European public order could even exist, and thus be protected as such. The European Union not being a state is also one of the most significant problems of extending criminal law and procedure to the EU legal order.23 At the same time, this lack of a state character should not amount to a lack of accountability and reduced respect for fundamental rights and principles.

14 ibid. 15 The phrase was first mentioned by the convention drafting the constitutional agreement. 16 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts [1997] OJ C340, art 1(5). 17 Lavenex and Wagner, ‘Which European Public Order’ 226. 18 Reflection Group’s Report, Reforming the Treaty on European Union – The Legal Debate (Kluwer 1996) 484. 19 Andrew Duff, The Treaty of Amsterdam (Federal Trust 1997). 20 Peter Taylor, ‘The State as Container: Territoriality in the Modern World-System’ (1994) 18 Progress in Human Geography 151 at 151–52. 21 Patrick Twomey, ‘Constructing a Secure Space: The Area of Freedom, Security and Justice’ in David O’Keefe and Patrick Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing 1999) 353. 22 Cian C Murphy, EU Counter-Terrorism Law; Pre-Emption and the Rule of Law (Hart Publishing 2012) ch 1. 23 Fichera, ‘Criminal Law Beyond the State’ 174, 175.

106  Case Study I: European Arrest Warrant Transfers

Constitutional Framework of EU Criminal Justice The AFSJ inter alia encompasses the police and judicial cooperation in criminal matters,24 which before the Lisbon Treaty constituted the former third pillar. Criminal law is part of this agenda as ‘prevention and combating of crime’ will be a means for the Union to ensure a ‘high level of security’.25 Originally, cooperation in criminal matters was organised between Member States of the European Union, under the auspices of the Council of Europe Agreements, as public international law, and the TREVI Group.26 This group was initially established to combat terrorism and it later increased its scope of coordination in many other, vaguely defined areas such as radicalism, extremism and political violence. Member States also tried to enhance their cooperation through European Political Cooperation (EPC), but this was not so successful as none of the EPC Conventions concerning international criminal procedure have entered into force.27 At the EU level, after the entry into force of the Maastricht Treaty in 1993, and until the entry into force of the Treaty of Amsterdam in 1999, cooperation in criminal matters acquired official institutional recognition as part of the Justice and Home Affairs (JHA) pillar. Following the entry into force of the Amsterdam Treaty, the JHA matters became an integral part of the former Community pillar, excluding police and judicial cooperation in criminal matters, which continued to constitute the ex-third pillar until the entry into force of the Lisbon Treaty. Following this, the changes included the establishment of a clear legal basis, extension of the competences, changes in the decision-making procedure and in legal instruments, extension of the Court’s full jurisdiction, and the application of the traditional constitutional principles, such as direct effect and supremacy over the field.28 The competences are currently organised around mutual recognition of judgments and will include approximation of criminal laws, as is stated in the lead provision of Article 82 TFEU. Harmonisation is recognised as the pathway to adopting legislation for strengthening mutual recognition, supporting criminal procedures and producing substantive criminal law. Articles 82 and 83 TFEU are the lead provisions, conferring an express legal basis for the European Union to adopt EU criminal law, both substantively and procedurally. The provisions granting this competence to the European Union are separated into three categories, namely the competence to adopt (a) instruments relating to mutual recognition or those necessary to coordinate criminal justice, such as recognition of judgments, prevention and settlement of jurisdiction conflicts, and the support and

24 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47, title V, chapters 4 and 5. 25 TFEU, art 63(3). 26 TREVI was an intergovernmental network of national officials from ministries of justice and the interior outside the EC. 27 Steve Peers, EU Justice and Home Affairs Law (Oxford EU Law Library, 3rd edn, OUP 2011) 657. 28 ibid, 41–48.

EU Criminal Justice  107 training of judicial staff;29 (b) instruments regarding criminal procedure, in the sense of forensic criminal procedures;30 and (c) instruments relating to substantive criminal law.31 There is a significant distinction between Article 82(1), on mutual recognition of judgments, and 82(2), on approximation of criminal procedural law, as only the second paragraph is subject to the mechanism of the emergency brake.32 Furthermore, the legal basis of the second paragraph, concerning criminal procedure in the forensic sense, is accompanied by certain additional requirements. This could be a sign of Member States’ reservations in relation to harmonising criminal procedure.33 Besides criminal procedure, the European Union is competent to legislate over substantive criminal law as well, through establishing minimum rules concerning the definition of criminal offences and sanctions in areas of particularly serious crime with a cross-border dimension.34 Moreover, it is recognised that for the sake of the effective implementation of a Union policy in an area which has been subject to harmonisation already, minimum rules may be established with regard to the definition of criminal offences and sanctions in the area concerned.35 The importance of the Lisbon reform is better highlighted when considering the pre-Lisbon regime, where the relevant legal basis and competence were found in vague provisions, namely Articles 29 and 31(1)(e) TEU.36

29 TFEU, art 82(1). 30 TFEU, art 82(2). 31 TFEU, art 83. 32 TFEU, art 82(3): ‘When a member of the Council considers that a draft Directive as referred to in paragraph 2 would affect aspects of its criminal justice systems, it may request that the draft Directive be referred to the European Council. In that case, the Ordinary Legislative Procedure shall be suspended …’. 33 In the case that a dual basis of both art 82(1) and 82(2) is used by a proposal, the emergency brake procedure could be thus pulled only for the aspects of the proposal which are based on art 82(2). The rest of the proposal can thus be adopted and the measures would apply to all Member States. However, as Peers observes, this phenomenon might create confusion and legal uncertainty, as some Member States might not accept the mutual recognition measure adopted on the basis of art 82(1), when certain states have pulled the emergency brake and have not accepted the harmonisation of their criminal substantive or procedural law on the basis of arts 82(2) and 83. In this respect, Peers suggests additional grounds of refusal for the mutual recognition measure for the states who have not participated in the harmonisation measure. See Peers, EU Justice and Home Affairs Law 667–73 and particularly 668. 34 TFEU, art 83(1). 35 TFEU, art 83(2). 36 The Lisbon Treaty clarified the vague and open-ended legal basis. The legislation adopted in the context of the previous third pillar was often criticised for being adopted on rather shaky legal ground as the basis was the ‘principle of mutual recognition’ and thus the Treaty did not contain an express legal basis for the adoption of criminal procedures. See Valsamis Mitsilegas, ‘Trust-Building Measures in the European Judicial Area in Criminal Matters: Issues of Competence, Legitimacy and Interinstitutional Balance’ in Sergio Carrera and Thierry Balzacq (eds), Security Versus Freedom? A Challenge for Europe’s Future (Ashgate 2006). Moreover, before Lisbon, another element of the competence dispute was the so-called ‘battle of the pillars’, which referred to whether an EC measure on the environmental behaviour of Member States could include the application of criminal penalties as well, on which the Court had to adjudicate. See Case C-176/03 Commission v Council (Environmental Crimes) ECLI:EU:C:2005:542; Case C-440/05 Commission v Council (Ship-Source Pollution) ECLI:EU:C:2007:625.

108  Case Study I: European Arrest Warrant Transfers The legal competences of the European Union in judicial cooperation on criminal matters are organised between the two competing methodologies of approximation and mutual recognition.37 Approximation was provided even before Lisbon by the former Articles 29 and 31(e) TEU regarding the adoption of measures ‘establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking’. Another noteworthy effect of the Treaty of Lisbon is the change of legal instruments. Instead of Framework Decisions, Common Positions, Deci­ sions and Conventions, lawmakers can now use Directives and Regulations as well.38 The new measures could have direct effect, similar to legislation in other policy areas of the European Union. Individuals will have rights-enforcing potential and the CJEU will have full jurisdiction over these new measures.39 It is particularly hoped that the European Parliament will take better account of the fundamental rights concerns hitherto outweighed by the security objectives, in light of the new law-making rules.40 A decisive role in the EU legislation is conferred by the Treaty of Lisbon on the European Parliament because of a considerable change in the inter-institutional balance of the European Union’s political and judicial institutions in the field of EU criminal law. The ordinary legislative procedure now plays a big part in the policy field. A Regulation, a Directive or a Decision shall only be jointly adopted by the European Parliament and the Council on a proposal from the European Commission, after a qualified majority vote in the Council.41 Additionally, following Lisbon, EU criminal law is subject to complete judicial scrutiny, unlike in the former third pillar, where the Court’s jurisdiction was limited and not uniform (former Article 35 of the Treaty of the European Community (TEC)). The Commission is now also fully competent to bring infringement proceedings in relation to Member States’ failures to fulfil their obligations; the preliminary reference procedure is broadened; and jurisdiction regarding action against EU institutions for compensation of damages is now provided.42 In light of these changes, there are hopes for better enforcement of rights and duties in EU criminal law and expectations of more consistent interpretation of the acquis of EU criminal law.43 This interpretation44 should now be enshrined in 37 TFEU, arts 82, 83. 38 See, for example, TFEU, art 82(2). 39 Peers, EU Justice and Home Affairs Law 664–73, 759–66, 813–18. 40 Maria Fletcher, ‘EU Criminal Justice: Beyond Lisbon’ in Christina Eckes and Theodore ­Konstadinides (eds), Crime Within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011) 19. 41 TFEU, arts 289, 294. 42 TFEU, arts 258–60, 276, 267, 268. 43 Fletcher, ‘EU Criminal Justice’ 23; Ester Herlin-Karnell, ‘Is the Citizen Driving the EU’s Criminal Law Agenda?’ in Michael Dougan, Eleanor Spaventa and Nic Shuibhne (eds), Empowerment and Disempowerment of the European Citizen (Hart Publishing 2012) 207. 44 Estella Baker and Christopher Harding, ‘From Past Imperfect to Future Perfect? A Longitudinal Study of the Third Pillar’ (2009) 1 European Law Review 25, 49.

Surrender Procedures and Fundamental Rights Breaches  109 the constitutional principles of EU law and the currently justiciable Charter of Fundamental Rights.45 The previous concerns regarding gaps in the judicial protection, stemming from the varied national responses to criminal law,46 should now be more consistently addressed. Moreover, national parliaments’ role is considerably enhanced as each is called to participate in the decision-making procedures at an early stage, equipped with the filter of subsidiarity.47 This may result in improving the democratic legitimacy of adopted measures, which is welcome and arguably alleviates the previous concerns regarding the democratic deficit to a certain extent compared to the previous regime.48 Although this development might lead to delaying the production of criminal law, it can hopefully lead to ‘better law’ rather than ‘more law’, directly legitimised.49

Surrender Procedures and Fundamental Rights Breaches An EAW is a judicial decision issued by one Member State and transmitted to another, in order to arrest and lead to the surrender of a person for the purpose of their prosecution, or for the execution of a sentence or a detention order.50 The judicial authority of the Member State which receives the EAW (executing authority)51 is under an obligation to arrest and surrender the requested person with the minimum of formalities52 and within a strict time limit.53 The FDEAW is the first instrument of mutual recognition, the so-called ‘cornerstone’ of judicial cooperation in criminal matters.54 It is also based on a high level of mutual trust between Member States: that they all comply with their international human rights obligations stemming from the ECHR.55 An EAW may be issued for acts punishable by the law of the issuing Member State with a custodial sentence or a detention order for a maximum period of at least 12 months, or when the requested person has already been tried and given a custodial sentence or a detention order of at least four months.56 The scope of 45 Fletcher, ‘EU Criminal Justice’ 23. 46 Alicia Hinarejos, ‘The Lisbon Treaty vs Standing Still: A View from the Third Pillar’ (2009) 5 European Constitutional Law Review 99. 47 Consolidated Version of the Treaty on the European Union (TEU) [2008] OJ C115/13, art 12; Protocol No 1 on the role of national parliaments in the European Union [2010] OJ C83/203, art 3. 48 John D Occhipinti, ‘Whither the Withering Democratic Deficit? The Impact of the Lisbon Treaty on the Area of Freedom, Security and Justice’ (2014) 27(1) Cambridge Review of International Affairs 83. 49 For the controversial application of the principle of subsidiarity, see Paul Craig, ‘Subsidiarity: A Political and Legal Analysis’ (2012) 50(1) Journal of Common Market Studies 72. 50 FDEAW, arts 1(1), 9(1), 10. 51 ibid, art 6(2). 52 ibid, art 1(2), ‘on the basis of the principle of mutual recognition’. 53 ibid, arts 15(1), 17. 54 ibid, Preamble, recital 6. 55 ibid, Preamble, recital 10. 56 ibid, art 2(1).

110  Case Study I: European Arrest Warrant Transfers the EAW also extends to a list of serious offences if the law of the issuing Member State punishes the requested person with a custodial sentence or a detention order for a maximum period of at least three years.57 For this list of offences, the requirement of double criminality of the act was abolished and the Court confirmed that this abolition is in line with both the principle of legality in criminal law and the principle of non-discrimination.58 The measure was adopted because the previous formal extradition procedures59 were insufficient.60 The need for an efficient and quick mechanism became more pressing in view of the EU’s counter-terrorism policy, and the FDEAW was adopted ‘as a central plank of this policy’61 along with the Framework Decision on Combating Terrorism.62 Moreover, the objective of the EU to become an AFSJ highlighted the need to replace the previous politicised and slow extradition mechanism with a simplified surrender system among judicial authorities.63 The FDEAW thus replaced the previous EU and international law extradition system of transfer of individuals, marking the shift from political to judicial power. The EAW procedure is automatic as judicial authorities complete a form and operate within a limited time frame and to strict deadlines.64 Speed is a prevailing element of the FDEAW.65 The FDEAW is divided into four chapters.66 Clearly, the legislation covers the whole spectrum of extradition, which is now called surrender between Member States of the EU. The FDEAW has caused extensive debates in the literature from 57 ibid, art 2(2). 58 Advocaten voor de Wereld. 59 European Convention on Extradition (1957); European Convention on the Suppression of Terrorism (1977); Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders OJ L239; Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union OJ C78; FDEAW, Preamble, recitals 3, 4. 60 FDEAW, Preamble, recital 1; European Council, ‘Presidency Conclusions’ (Tampere Presidency Conclusions) (1999) Tampere, 15 and 16 October 1999, OJ C332 E, 305. 61 Murphy, EU Counter-Terrorism Law 183. 62 Council Framework Decision of 13 June 2002 on combating terrorism OJ L164. 63 FDEAW, Preamble, recital 5. 64 ibid, arts 15, 17, 22, 23. 65 ibid, art 17(1), ‘A European arrest warrant shall be dealt with and executed as a matter of urgency’. 66 The first chapter involves general principles as it defines an EAW, the scope of its application, the grounds for mandatory and optional non-execution of an EAW, several guarantees to be given by issuing authorities in particular cases, the competent judicial authorities and the content and form of the EAW. The second chapter, on surrender procedure, provides details for a transmission of an EAW; rights of a requested person; rules concerning detention; consent to surrender; hearing of a requested person; surrender decision; what happens in the event of multiple requests; limits and procedures for the decision to execute an EAW; the situation pending an EAW and hearing of a person pending an EAW; time limits; notification of the requested person; postponed and conditional surrender. The third chapter, on effects of a surrender, provides for the deduction of a detention period served in an executing Member State; details on possible prosecution for other offences, on surrender or subsequent extradition; handing over property which might constitute evidence of a crime; and finally a provision on expenses. The fourth and final chapter involves general and final provisions on the entry into force and the implementation and the relationship of this legal instrument with others.

Surrender Procedures and Fundamental Rights Breaches  111 different perspectives.67 The problems generally discussed in the literature could be classified in the same way as those linked to the FDEAW itself and as those caused by the incompleteness and imbalances of the AFSJ.68 Some issues have been addressed to a certain extent by the CJEU,69 and the prevailing view is that the new surrender system is successful.70 Nevertheless, certain problems have still not been resolved, despite academic and institutional attention. These include the disproportionate use of the EAW,71 and reconciling fundamental rights with executing an EAW.72 67 Murphy, EU Counter-Terrorism Law, ch 7; Massimo Fichera, The Implementation of the European Arrest Warrant in the European Union: Law, Policy and Practice (Intersentia 2011); Valsamis Mitsilegas, EU Criminal Law (Modern Studies in European Law, 1st edn, Hart Publishing 2009) 120–42; Peers, EU Justice and Home Affairs Law 696–710; Susie Alegre and Marisa Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far too Soon? Case Study – The European Arrest Warrant’ (2004) 10(2) European Law Journal 200, 200; Ester Herlin-Karnell, ‘European Arrest Warrant Cases and the Principles of Non-Discrimination and EU Citizenship’ (2010) 73(5) Modern Law Review 824; Ester Herlin-Karnell, ‘From Mutual Trust to the Full Effectiveness of EU Law: Ten Years of the European Arrest Warrant’ (2012) European Law Review 1; Alicia Hinarejos, ‘Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists’ (2007) 7 Human Rights Law Review 793, 793; Theodore Konstadinides, ‘The Europeanisation of Extradition: How Many Light Years Away to Mutual Confidence?’ in Theodore Konstadinides and Christina Eckes (eds), Crime within the Area of Freedom Security and Justice: A European Public Order (CUP 2011); Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice; Nico Keijzer and Elies Van Sliedregt (eds), The European Arrest Warrant in Practice (Asser Press 2009). 68 Anne Weyembergh, Ines Armada and Chloé Brière, Critical Assessment of the Existing E ­ uropean Arrest Warrant Framework Decision. European Added Value Assessment: The EU Arrest Warrant (­European Union 2014) 7, 31. 69 Steve Peers, ‘The European Arrest Warrant: The Dilemmas of Mutual Recognition, Human Rights and EU Citizenship’ in Court of Justice of the European Union’ (ed), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law – La Cour De Justice et la Construction de Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence (Court of Justice of the European Union 2013). 70 For recent empirical assessments of the mechanism see Cian C Murphy, Aldo Zammit Borat and Lucy Hoyte, Prosecutor and Government Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant (SECILE: Securing Europe through Counter-Terrorism – Impact Legitimacy & Effectiveness 2014); Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision 7. 71 Malcolm Hawkes, ‘Extradition of fugitive offender to Poland refused: a disproportionate interference with Article 8’ (LinkedIn, 20 July 2018) www.linkedin.com/pulse/extradition-fugitive-offender-polandrefused-article-8-malcolm-hawkes/; European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The issue of proportionality – Meeting of experts (2009); Council of the EU, Revised version of the European handbook on how to issue a ­European arrest warrant (2010) 14; Council of the EU, Follow-up to the evaluation reports on the fourth round of mutual evaluations: practical application of the European arrest warrant and the relevant surrender procedures between Member States (18 November 2011); European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 Final 7–8; Council of Europe, Press Release: Overuse of the European Arrest Warrant – A Threat to Human Rights (2011). 72 Other problems pertaining to the operation of the EAW either caused by the instrument itself or the general imbalances of the AFSJ are the silence of the law on remedies, remaining difficulties on multiple requests with respect to the same person, ambiguity concerning the transmission of a translated EAW and the additional information that might be requested by the EAW, early issuance of EAWs, overuse of pre-trial detention and generally insufficient consideration of the defendant’s  ­interests.

112  Case Study I: European Arrest Warrant Transfers Mutual recognition and mutual trust are principles that have a central position in judicial reasoning of the CJEU case law on the FDEAW. The mechanism of the EAW is based on a high level of confidence between Member States.73 This is the underlying reason why the double criminality requirement was abolished by Article 2(2) of the FDEAW for a series of serious acts, which are all presumed to be recognised as criminal offences by the laws of Member States. This is also why the responsible judicial authorities of Member States are, in principle, obliged to act upon an EAW, and may derogate only on the basis of the option or on the mandatory grounds for refusal,74 and now in the extreme situation of an existing and real risk of inhuman and degrading treatment in light of the issuing Member State’s detention conditions.75 The executing authority may also make the execution of the EAW subject to the guarantees of Article 5. In particular, an executing state must refuse to execute an EAW when the offence triggering the EAW is covered by amnesty in the executing Member State; when the requested person has already been tried and convicted for the same acts and a sentence has already been served or is currently being served or may no longer be executed (principle of ne bis in idem); and/or when the requested person is too old to be held criminally responsible. Moreover, the executing authority has discretion to refuse when the person is prosecuted in the executing state for the same acts as those that an EAW is based on; when the judicial authorities decide that they will no longer prosecute the person or because a final judgment has been passed for the same acts; and/or when the offence is statute barred according to the law of the executing state.76 The implementation of the EAW mechanism could also be suspended if this requirement of confidence is diminished by a serious and persistent breach of the values laid down in Article 6(1) of the TEU, following the procedure of Article 7 of the TEU.77 As an exception, this mechanical system of arrest and surrender also operates (or should operate) based on conditional or postponed surrender, with the judicial authorities agreeing further on a bilateral, ad hoc basis, pursuant to the circumstances of the specific case. ‘The executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities’.78

See the empirical reports produced by Murphy, Borat and Hoyte, Prosecutor and Government ­Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant; Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision. 73 FDEAW, Preamble, recital 10. 74 FDEAW, arts 3, 4 and 4a; Radu, paras 35, 36; Leymann and Pustovarov, para 51; Mantello, para 37. 75 Aranyosi and Căldăraru. 76 See for the full list arts 3, 4, 4a. 77 FDEAW, Preamble, recital 10. 78 FDEAW, art 24.

Surrender Procedures and Fundamental Rights Breaches  113 Fundamental rights do not constitute a specific ground for refusal to execute an EAW.79 However, it would be an error to claim that fundamental rights are ignored by the FDEAW since the instrument generally refers to them both in the Preamble, recital 10 and in Article 1(3), reminding Member States of their obligations to respect fundamental rights. Furthermore, Article 5 provides particular guarantees that the executing state may request from the issuing state. For example, the execution of the EAW may be subject to the condition that the requested person will be given the opportunity to apply for a retrial when the EAW concerns the execution of a sentence or a detention order issued based on a judgment imposed in absentia.80 What is more, several provisions of the FDEAW provide for specific rights of the requested person, without, however, clarifying whether their infringement constitutes a ground for refusal.81 Despite the safeguards provided in the FDEAW, the lack of an explicit and specific ground for refusal with reference to fundamental rights infringement or a risk of their infringement is a thorny problem of the operation of the EAW mechanism, which has not yet been fully clarified either by the Court or by the Commission’s reports on the implementation of the FDEAW.82 This silence had led to various interpretations and implementations of the instrument in this regard.83 Certain countries84 did not perceive the lack of an explicit ground as a prohibition against formulating one, given the fundamental rights references in the instrument and, most importantly, their overarching obligation to respect fundamental rights.85 Nevertheless, it is particularly difficult for some states to raise a ground for refusal based on fundamental rights violations when they have not interpreted the law as allowing them to have one.86 Besides, even in Member States where such an explicit ground for refusal exists, it is difficult, and in fact rare, for a defendant to succeed in making a case for fundamental rights breaches or risk of infringement.87

79 It should be noted that a ban was contemplated by the Commission’s proposal on the adoption of the instrument. See Commission, Proposal of 19 September 2001 for a Council Framework Decision on the European arrest warrant and the surrender procedures between Member States, COM (2001) 522, art 26. 80 FDEAW, art 5(1). 81 FDEAW, art 11 on the rights of the requested person; art 12 on detention; art 13 on consent; art 14 on hearing. 82 The case law of the CJEU has indeed shed light on the test that determines when the presumption of compliance with rights obligations should be rebutted, giving effect to a non-execution of an EAW. However, there are still persisting questions regarding the scope of the test. 83 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-8, 9. 84 See for a full list the Commission Evaluation Report 2006. 85 Daniel Flore, ‘Le mandat d’arrêt europeén: première mise en oeuvre d’un nouveau paradigme de la justice pénale européenne’ (2002) Journal des Tribunaux 121, 278. 86 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-9. 87 John Spencer, ‘Extradition, the EAW and Human Rights’ (2013) 72(2) Cambridge Law Journal 252; Krolik v Regional Court in Czestochowa, Poland [2012] EWHC 2357, [2013] 1 WLR 490;

114  Case Study I: European Arrest Warrant Transfers In light of the above, several views are expressed on whether adding such an explicit ground for refusal is desirable or necessary. We could say that it is indeed unnecessary, given the already existing general obligation to respect fundamental rights at a constitutional level, both national and European.88 It is therefore not necessary to repeat an obligation of constitutional importance at a secondary legislative level. Nevertheless, an explicit insertion of a ground for refusal in the event that fundamental rights are breached, or where there is a risk of breach, would arguably ‘increase the visibility’ of fundamental rights in Member States, which tend not to take into account this obligation.89 Finally, it is argued, albeit not convincingly, that this insertion would go against the principle of mutual recognition and would distort the smooth operation of the EAW, giving space for the abuse of such a clause by the defendant.90 The reason why this is not convincing is the numerous references to the protection of fundamental rights by the FDEAW, the overarching constitutional obligation to respect fundamental rights, and an application of mutual recognition in other contexts of EU law in a way which is not absolute and which allows for derogations.91 The argument that such a ground for refusal does not need to be explicitly repeated by the secondary legal instrument is the most convincing one, given that the obligation to respect fundamental rights is well established. Increasing the visibility of the obligation would not necessarily bring different results as it would be naïve to think that it is the lack of visibility that leads to infringements of rights and brings about the tendency of judicial authorities not to apply this ground. There is now a textual argument that judicial authorities must respect fundamental rights obligations stemming from a plethora of sources binding them. There is a need at the same time to preserve the acquis of the FDEAW as it is a successful instrument and even the proponents of inserting a ground for refusal advocate in favour of it in moderation.92 The book argues that a proportionality test should here be considered by the judicial authorities, regardless of whether a specific ground for refusal is inserted into the instrument or not.

­ atherine Heard and Daniel Mansell, ‘The EAW: The Role of Judges when Human Rights are at Risk’ C (2011) 2(2) New Journal of European Criminal Law 133–47. 88 See Brasov Court of Appeal of Romania, Decision No 30/F/N/24 March 2008, 2 August 2010. 89 Jannemieke Ouwerkerk, ‘Mutual Trust in the Area of Criminal Law’ in Meijers Committee, The Principle of Mutual Trust in European Asylum, Migration and Criminal Law (Utrecht 2011) 42. 90 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-10. 91 Gráinne de Búrca, ‘The Principle of Proportionality and Its Application in EC Law’ (1993) 13(1) Yearbook of European Law 105, 126; Tor-Inge Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16(2) European Law Journal 158. 92 See European Parliament, Recommendation to the Council on the Evaluation of the EAW, 15 March 2006, (2005/2175(INI)), point K; Fundamental Rights Agency, in Opinion on the Draft Directive Regarding the EIO 14 February 2011, 12–13.

Informing and Applying a Proportionality-based Analysis  115

Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW Having situated the chapter within the specific policy area of EU criminal justice and its several and often conflicting dynamics, this section of the chapter will now discuss the impact of the analysis in relation to rights which are breached, or where there is a risk that they might breached. As explained earlier, a proportionalitybased analysis is embedded into a context of mutual trust and recognition where there are interferences with fundamental rights. A proportionality-based analysis pertains to the proportionality test on breaches of fundamental rights per se of Article 52(1) of the Charter. Therefore, the discussion of the chapter specifically focuses on the proportionality of interferences with fundamental rights which could be caused by a surrender procedure by reference to case law.

Disproportionate Requests and Proportionality A typology for proportionality was earlier formed regarding a context of mutual trust instruments in the AFSJ. That was informed by constitutional theory and the development of EU law constitutionalism. It was suggested that we need to determine whether a breach of right in this respect is so severe that a surrender would lead to a disproportionate interference. In particular, it is suggested that an executing authority should conduct a proportionality-based analysis. EU institutions have suggested that it should be the issuing authorities that conduct a proportionality test in cases of disproportionate EAWs that might lead to breaches of fundamental rights. Although I suggest that a proportionality test should be incorporated in the assessment of the executing authorities, it is useful to take into consideration those institutional suggestions that are addressed to the issuing authorities. The problem of disproportionate EAWs93 pertains to the principle of legality in certain prosecutorial systems. The concept of the principle is encapsulated in the idea that no offence, as the law prescribes it, should remain unprosecuted. Countries led by the legality principle in prosecution are more likely to resort to the EAW more frequently.94 The problem of proportionality is noticed on two o ­ ccasions: when the extraterritorial surrender is not necessary because 93 European Commission, Report on FDEAW (2011) 7–8; European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The issue of proportionality – Meeting of experts (2009); Council of the EU, Revised Handbook on EAW (2010) 14; Council of the EU, Follow-up to the evaluation reports (2011); Council of Europe, Press Release: Overuse of the European Arrest Warrant – A Threat to Human Rights (2011); Fair Trials International, ‘The European Arrest Warrant Eight Years On’ (2012) 3, paras 4–6. 94 In 2010 Poland (population 38 million) issued 3,753 EAWs whereas Germany (population 82 million) issued 2,096 and the UK (population 62 million) issued 257 EAWs. See Fair Trials International, ‘The European Arrest Warrant Eight Years on’ 3–5.

116  Case Study I: European Arrest Warrant Transfers it is too coercive given the circumstances,95 and in cases of minor offences. The counterfeiting of 100 euros,96 or minor theft such as of two tyres,97 two piglets,98 or ten chickens,99 are only a few examples of petty crimes for which EAWs were issued. It is broadly acknowledged that a test to ensure the respect for the principle of proportionality is necessary in cases of such minor offences.100 A proportionate approach to the use of EAWs is particularly important because disproportionate recourse to EAWs could in some cases lead to a breach of the requested person’s fundamental rights.101 An extradition for petty crimes might disproportionately limit the person’s right to liberty (Article 5 ECHR/ Article 6 of the Charter) or the right to a fair trial (Article 6 ECHR/Article 47 of the Charter).102 This overload might be especially burdensome for an executing country in relation to the police, courts, and legal representation and interpretation, and it is not surprising that an EAW was called a ‘sledgehammer to crack a nut’ in some cases.103 Member States are concerned about these costs of judicial cooperation and extensive use of the EAW.104

The Legality Principle and the Opportunity Principle in Prosecution The operation of the EAW is linked with the principles on the basis of which a criminal justice system operates. The different prosecutorial principles might lead 95 Fair Trials International, ‘Ashya King’s Parents Arrested and Facing Extradition after S­ eeking Treatment Abroad for Critically Ill Son’ (2014) http://www.fairtrials.org/campaigns/parents-of-ashyaking-arrested-and-facing-extradition-due-to-european-arrest-warrant/. 96 Case of Patrick Connor, in Fair Trials International, ‘The European Arrest Warrant Eight Years On’ 4. 97 Council, Report On France Council Doc No 9972/2/07 (20 July 2007) 23. 98 ibid 11, fn 1. 99 Sandru v Government of Romania [2009] EWHC 2879 (Admin). 100 Sergio Carrera, Elspeth Guild and Nicholas Hernanz, ‘Europe’s Most Wanted? Recalibrating Trust in the European Arrest Warrant System’ (CEPS Special Report no 76/March 2013) 16–18; Sarah Haggenmüller, ‘The Principle of Proportionality and the European Arrest Warrant’ (2013) 3 Oñati Socio-Legal Series 95; Valsamis Mitsilegas, ‘Note on Lukaszewski, Pomieschowski, Rozanski and R.’ (2013) 2 Criminal Law Review 149; Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice’ 323–30; Fair Trials International, ‘The European Arrest Warrant Eight Years On’ 3–5; Joachim Vogel and John Spencer, ‘Proportionality and the European Arrest Warrant’ (2010) Criminal Law Review 474, 474. 101 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-34. 102 Furthermore, the financial burden of the process should also not be ignored. The excessive use of the extradition mechanism has further resulted in significant financial burden on an executing country. European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the Implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States’ COM (2011) 175 Final 8; European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The Issue of Proportionality – Meeting of experts (2009) 4. 103 European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The issue of Proportionality – Meeting of experts (2009) 2. 104 Valsamis Mitsilegas, The European Arrest Warrant (Podcast by European Criminal Law Academic Network) www.eclan.eu/default.aspx?catid=102&ccatid=1a5&ctrlclientid=_ctl7&sysid344=51&podca stid=51.

Informing and Applying a Proportionality-based Analysis  117 to a disparate operation of the instrument. Poland105 and Romania,106 which have been flagged for overusing the EAW mechanism, argue that they are obliged to issue EAWs because of the legality principle in their systems. Germany, on the contrary, seems to be more reserved, since it essentially applies a proportionality test before executing a request.107 There, criminal justice authorities enjoy discretion as to whether to prosecute a crime or not,108 in light of the opportunity principle, as compared to Romanian authorities having to prosecute a crime in light of the legality principle. Some states follow the legality principle109 and some others use the opportunity principle.110 In those states where the principle of legality is followed, leaving a crime unpunished would be in conflict with the principle of legality, as certain states111 apply this principle at a very strict level.112 In these countries the issuing authorities try to make full use of the EAW and prosecute even minor crimes with a cross-border dimension, as otherwise these crimes would remain unpunished. The Polish Code of Criminal procedure provides in Article 10(1) that ‘the authority responsible for prosecuting offences is bound to initiate and conduct preparatory proceedings and a public accuser is also bound to bring charges and support them with respect to an offence prosecuted ex officio’.113 Conversely, under the opportunity principle, the judicial authorities enjoy the discretion to decide which offences to prosecute, which arguably leads to ‘a more pragmatic approach of the enforcement of criminal law’.114 A basic reason for this conundrum is the low threshold of the FDEAW. In particular, Article 2(1) of the FDEAW allows EAWs to be issued for acts punishable by the law of the issuing authority with a custodial sentence for a maximum period of 12 months, or when the sentence is at least four months. The case of theft is a typical example, as this offence fulfils the requirement of the maximum

105 Council, Report on Poland, Doc No 14240/2/07 (7 February 2008) 37–38. 106 Sandru v Government of Romania; Haggenmüller, ‘The Principle of Proportionality and the ­European Arrest Warrant’ 100; Council, Report on Romania, Doc No 8267/2/09 (20 May 2009) 34–35. 107 Joachim Vogel, ‘Introduction to the Ruling of the Higher Regional Court of Stuttgart of 25 Feb. 2010 – The Proportionality of a European Arrest Warrant’ (2010) 2 New Journal of European Criminal Law 145. 108 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-33. 109 Austria, Bulgaria, Croatia, Czech Republic, Finland, Germany, Greece, Hungary, Italy, Latvia, ­Lithuania, Malta, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden. 110 Belgium, Cyprus, Denmark, Estonia, France, Ireland, Luxembourg, the Netherlands, and the United Kingdom. 111 Slovenia, Poland, Lithuania. 112 National Reports on Slovenia, Poland and Lithuania in Gisele van Vernimmen, Anne W ­ eyembergh, Laura Tiggelen Surano, The Future of Mutual Recognition in Criminal Matters in the European Union/ L’Avenir de la Reconnaissance Mutuelle en Matière Pénale dans l’Union Européenne (Institut d’Etudes Européennes, Editions de l’Université de Bruxelles 2009). 113 Celina Nowak and Slawomir Steinborn, ‘Poland’ in Katalin Ligeti (ed), Toward a Prosecutor for the European Union, Volume 1 (Hart Publishing 2013) 500. 114 UK Home Secretary, A Review of the United Kingdom’s Extradition Arrangements (2011) 162.

118  Case Study I: European Arrest Warrant Transfers period everywhere in Europe. Hence, an EAW could be issued even for a case of shoplifting. Various solutions can be put in place with regard to the problem of disproportionate extradition.115 One suggestion concerns the legislative amendment of the instrument by raising the threshold of Article 2(1) of the FDEAW.116 Another suggested solution, which is the prevailing one, concerns the introduction of a proportionality test conducted by an issuing authority, either through the amendment of the FDEAW117 or without an amendment. A third suggestion again concerns the introduction of a proportionality test for both executing and issuing judicial authorities. The EU institutions, therefore, call on issuing judicial authorities to conduct an explicit proportionality test and to take into account certain criteria.118 The Commission further suggests that an issuing authority should explain on an EAW form the reasons why the mechanism is used.119 Member States also agree that the issuing authority should apply a proportionality check as well.120 This approach is, moreover, followed by national courts.121 It is also argued by civil society groups that Article 2 of the FDEAW should be amended so that ‘an EAW may not be issued unless the requesting state is satisfied that the person’s extradition from another Member State is necessary and proportionate’.122 The latter suggestion is counter-argued on grounds of the reference to the principle of proportionality in a plethora of sources123 at any relevant level of the legal hierarchy, arguably rendering the above-mentioned proposal unnecessary. However, since not all the judicial authorities carry out the test, the suggestion of EU institutions that they do so is still of relevance.124 Given the recognition of the principle of proportionality by the constitutional texts both at national and European level, an explicit reference to the principle may not in fact be necessary. 115 ibid, 34–38. 116 Carrera, Guild and Hernanz ‘Europe’s Most Wanted? Recalibrating Trust in the European Arrest Warrant System’ 28. 117 Fair Trials International, ‘The European Arrest Warrant Eight Years On’ para 7. 118 Council of the EU, ‘Revised version of the European handbook on how to issue a European Arrest Warrant’ (2010) 14; European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 Final, 7. 119 European Commission, Implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant – The issue of Proportionality – Meeting of experts (2009) 2. 120 Council of the EU, Follow-up to the evaluation reports on the fourth round of mutual evaluations: practical application of the European arrest warrant and the relevant surrender procedures between Member States (18 November 2011). 121 Mitsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice’ 327; ‘The scheme of the EAW should be reconsidered in order to make express provision for consideration of proportionality’. See Assange v The Swedish Prosecution Authority, para 90. 122 Fair Trials International, ‘The European Arrest Warrant Eight Years On’ (2012), paras 7, 4. 123 TEU, art 5(4); TFEU, art 69 and 296(1); Charter, arts 49(3), 52(1); ECHR, art 5(1). 124 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision.

Informing and Applying a Proportionality-based Analysis  119 The Commission also adds emphasis to the objective of the law. The issuing authority specifically should ensure that the extradition is necessary, emphasising the discretionary character of the instrument.125 This corresponds to the first stage of the proportionality-based analysis, which determines that the contested measure aims to achieve a legitimate objective.126 As the objective of the FDEAW is to prevent criminals from taking flight within a borderless Europe in cases of serious cross-border crimes, an issuing authority should apply a proportionality test in concreto in order to avoid excessive use of the EAW. The FDEAW’s objective is to abolish the slow and complicated extradition system and replace it with a quick and simplified system of surrender between judicial authorities.127 An EAW, according to the teleological approach suggested by the Commission, should be used when it is necessary to have a requested person on a country’s territory, as the instrument provides that an ‘EAW may be issued for acts …’.128 A link to the objective of the FDEAW should be established to avoid issuing EAWs for those suspected of committing minor offences. It should be recalled that the FDEAW was not adopted to address issues of minor criminality in Europe in the first place.129 The historical circumstances under which the instrument was adopted should also not be ignored when the judicial authorities consider the objective of the measure. The instrument was urgently adopted in the context of the EU counter-terrorism policy, which is demonstrated by the short timeline of its adoption; the FDEAW was adopted only nine months following the Commission’s proposal.130 Therefore, it should not be forgotten that the influence of counterterrorism policies on shaping the JCCM was significant.131 At the necessity stage, the proportionality assessment seeks to establish whether the measure under consideration is the least restrictive one, but adequately effective at the same time. Using the coercive mechanism of arrest and surrender to another Member State should be necessary and should be the least restrictive option. Article 2(1) of the FDEAW states that an EAW ‘may be issued’ rather than ‘should/must be issued’. For this reason, the Council introduced an amendment to the handbook as regards a proportionality test; the amendment sets out several

125 European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 Final 8. 126 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2012) ch 1. 127 FDEAW, Preamble, recital 5. 128 FDEAW, art 2(1) (emphasis added). 129 Fichera, The Implementation of the European Arrest Warrant. 130 See Anne Weyembergh, ‘L’impact du 11 Septembre sur l’équipage Sécurité/Liberté dans l’espace Pénal Européen’ in Emmanuelle Bribosia and Anne Weyembergh (eds), Lutte Contre le Terrorisme et Droits Fondamentaux (Bruylant 2002) 153–95. 131 Murphy, EU Counter-Terrorism Law 183; Theodore Konstadinides, ‘The Perils of “Europeanisation” of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees’ in Christina Eckes and Theodore Konstadinides (eds), Crime Within the Area of Freedom, Security and Justice: A European Public Order (CUP 2011) 192.

120  Case Study I: European Arrest Warrant Transfers factors to be considered before issuing an EAW.132 The list includes the seriousness of the offence, possibility of detention, the penalty which is likely to be imposed, the effective protection of the public, and the interests of the victims of the offence. It suggests in particular that a warrant should not be issued when the coercive measure could be something other than detention.133 Some available relevant measures which could alternatively be considered by the judicial authorities are the Framework Decision on probation decisions and the Framework Decision on custodial sentences.134 In this respect, it is worth considering a judicial direction suggested by the Criminal Division of the Court of Appeal135 that involves a table with categories of offences whose seriousness shall not justify the extradition because it is disproportionate, ‘unless there are exceptional circumstances’.136 Though only applicable in the United Kingdom, it is worth considering the development of such criteria. The table involves the offences of ‘minor theft, minor financial offences (forgery, fraud, tax offences), minor road traffic, driving and related offences, minor public order offences, minor criminal damage and possession of controlled substance of a very small quantity and intended for personal use’.137 The categories are further qualified with examples. The exceptions relate to cases that involve ‘vulnerable victims, crime committed against someone because of their disability, gender, identity, race, religion or belief, or sexual orientation, significant premeditation, multiple counts, extradition also sought for another offence, previous offending history’.

Proportionality-based Analysis Informed by the Rights in Question After considering the discussion at an institutional and a judicial level regarding the conduct of a proportionality test by the issuing authorities, we will now turn to application of proportionality by executing authorities with a specific focus on rights. Speedy judicial cooperation is often the objective for which rights are limited, for the sake of protecting mutual trust and preserving the operation of

132 Council of the EU, ‘Revised version of the European handbook on how to issue a European arrest warrant’ (2010) 14. 133 ibid; European Commission, ‘Report from the Commission to the European Parliament and the Council of 11 April 2011 on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 Final 100. 134 Stéphanie Bosly, Daniel Flore, Amandine Honhon and Jacqueline Maggio (eds), Probation Measures and Alternative Sanctions in the European Union (Intersentia 2012) 537–38. 135 Court of Appeal (Criminal Division) Criminal Practice Directions Amendment No. 2 [2014] EWCA Crim 1569. 136 ibid, para 17 A.3. 137 ibid, para 17 A.5.

Informing and Applying a Proportionality-based Analysis  121 mutual recognition.138 The rights under limitation, on the other hand, can be several, and a careful analysis of them is required. The selected method, here, is the analysis of judgments of the Court in relation to the FDEAW, which affected different rights. The right in question will first determine whether a proportionality-based analysis is relevant. In particular, it was argued that a proportionality-based analysis is relevant only when the rights in question are amenable to limitations and when the limiting clauses are of constitutional importance. If proportionality actually is relevant, the content of the right has to be considered by the judicial executing authority. In cases of breaches of fundamental rights, the executing judicial authorities must consider the right in question as it is protected by the ECtHR case law since all EU Member States are Contracting Parties to the ECHR, and since the EU is meant to accede to it as well.139 The cases, which constitute examples of application, test and support the theoretical framework of the proportionality-based analysis. The first case, Mantello, concerns the principle of ne bis in idem and is an example of where the principle of proportionality is neither relevant nor helpful. The second case, Radu, concerns the right to be informed and defence rights, and is a case in which the Court should have used proportionality-based analysis. The third case, Jeremy F, is about the right to appeal and is an example where the Court actually balanced the various competing considerations. Further, the fourth case, Melloni, concerns the right to review a judgment issued in absentia where a proportionality-based analysis was, albeit implicitly, inherent to the judgment, but where the test was not properly applied for a number of reasons, which are explored in this section.140 Then, Aranyosi is discussed with reference to how proportionality should not have been used in the first place. It should be noted that this argument is aligned with the Court’s decision in LM, where it ruled that a breach of the essence of the right must be considered by the judicial authorities.141 The chapter, finally, shows a different impact of the proportionality-based analysis.

The Principle of Ne Bis in Idem Firstly, this section examines a case where a proportionality-based analysis is neither relevant nor helpful. This is where the principle of ne bis in idem is breached. The principle of ne bis in idem is enshrined in the FDEAW in Article 3(2), 138 Adam Łazowski, ‘From EU with Trust: The Potential and Limits of the Mutual Recognition in the Third Pillar from the Polish Perspective’ in Gisele van Vernimmen, Anne Weyembergh and Laura Tiggelen Surano (eds), The Future of Mutual Recognition in Criminal Matters in the European Union/L’Avenir de la Reconnaissance Mutuelle en Matière Pénale dans l’Union Européenne (Editions de l’Université de Bruxelles 2009) 419–44; Valsamis Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 CML Rev 1277; Ilias Bantekas, ‘The Principle of Mutual Recognition in EU Criminal Law’ (2007) 32 European Law Review 365. 139 TEU, art 6. 140 The judgment in LM, with its interesting reasoning referring to the essence of the rights, is further discussed in the final chapter of the book in light of recent developments. 141 LM, para 60.

122  Case Study I: European Arrest Warrant Transfers in Article 50 of the Charter, in Article 14(7) of the ICCPR, and in Articles 54–58 of the Schengen Agreement. The principle, as enshrined in the Charter, provides for the right ‘not to be tried or punished twice in criminal proceedings for the same criminal offence’. In particular, ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law’. The Schengen agreement states in a more careful and correct wording that ‘a person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts’. The principle constitutes the basis of a ground for refusal to execute an EAW when the requested person has already been finally judged in respect of the same acts, and is particularly encapsulated in the FDEAW in Article 3(2).142 The article states that if the judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State (emphasis added).

In a system of mutual recognition, ne bis in idem should be understood as an absolute principle, which trumps any competing consideration. It is noted that, unlike the rest of the special elements of the right to a fair trial, ne bis in idem is not jeopardised in view of mutual recognition and mutual trust considerations. On the contrary, respect for the principle is better satisfied through mutual recognition of judgments. The principle implies that a person should not be sentenced twice in respect of the same acts.143 The notion of the principle is correlated with the rule of law, the principle of res judicata and the proportionality of penalties. When a person has already been convicted in respect of an act and has served their sentence, the society has exhausted its legitimate right to further punish this person. Moreover, the proportionality of penalties means that the penalty must be proportionate to the seriousness of the act committed.144 From the perspective of an individual, the principle appeals to fairness and legal certainty since a person, after ‘paying his debt’ to a community, is entitled to return to it, being certain that no prosecution for this act will be revived.145 Therefore, a proportionality-based analysis here is irrelevant.146 142 John Vervaele, ‘The Transnational Ne Bis Idem Principle in the EU Mutual Recognition and Equivalent Protection of Human Rights’ (2005) 1 Utrecht Law Review 211, 219; Anne Weyembergh, ‘Le principe ne bis in idem: pierre d’achoppement de l’espace pénal européen?’ (2004) 40 Cahiers de Droit Européen 337. 143 Opinion in Mantello, para 26. 144 ibid, para 27; Charter, art 49(3). 145 ibid, para 28. 146 Vervaele, however, takes a different view along with Weyemberh that the principle can be restricted under certain strict circumstances. See Vervaele, ‘The Transnational Ne Bis Idem Principle in the EU Mutual Recognition and Equivalent Protection of Human Rights’ 227; Weyembergh, ‘Le Principe Ne Bis in Idem’ Point 3.1.

Informing and Applying a Proportionality-based Analysis  123 In Mantello the Court grappled with the concept of the ‘same acts’ of Article 3(2) of the FDEAW with the purpose of determining whether the principle147 applies in light of the special circumstances of a case.148 In 2008 an Italian judicial authority issued an EAW in respect of Mr Mantello’s participation in organising drug trafficking in Italy and Germany. The same person was convicted by an Italian court in 2005 of the offence of unlawful possession of cocaine. Back in 2005 Italian prosecutors were already aware of this person’s participation in the drug trafficking organisation, which was the basis of the second EAW. Despite this knowledge, they chose not to prosecute him on this second basis of drug trafficking so as not to jeopardise the conduct of the investigation, which was still ongoing. The higher regional court of Stuttgart, the German executing judicial authority, made a reference to the CJEU, asking whether it was allowed to refuse the execution of an EAW, by virtue of Article 3(2). The reason why it was concerned about respect for the principle of ne bis in idem was due to the Italian authorities’ awareness of drug trafficking at the time of the first prosecution. Although the Italians were aware of the offence, they refrained from prosecuting him. In this sense, there was uncertainty about whether their decision was ‘final’ in the meaning of ne bis in idem. After recognising the principle as a fundamental right, Advocate General Bot proclaimed that when the Member States implement EU law, they must do so in conformity with fundamental rights and that the executing authority is particularly bound by that obligation when executing an EAW.149 Advocate General Bot pointed out that the principle of ne bis in idem is ‘inseparable from the proportionality of penalties’.150 The Court replied that this is determined by the law of the Member State delivering the judgment, respecting the margin of appreciation of national criminal procedural law.151 Therefore, the Court diverted from the dilemma of a wide or narrow interpretation, which favours or negatively affects an individual at a central EU level. The place of a proportionality-based analysis here is irrelevant and balancing is unnecessary as the question escaped a restricting and central interpretation which would call for further justification based on a proportionality test. This is an example of where proportionality would not be helpful.

The Right to be Informed and Defence Rights Radu In Radu the CJEU was asked inter alia whether the executing judicial authority may refuse to execute the EAW in light of a potential breach of the right to a fair 147 The terms ‘principle’ of ne bis in idem and ‘right’ to ne bis in idem are used interchangeably here with the purpose to declare the same thing, the requested person’s claim from the state to abstain from repetition of prosecution. 148 Mantello. 149 Opinion in Mantello, paras 86–88. 150 ibid, para 27. 151 Mantello, paras 46–47.

124  Case Study I: European Arrest Warrant Transfers trial and defence rights (Articles 5 and 6 ECHR or Articles 6, 48 and 52 of the Charter). The question was raised in the context of a preliminary reference made by the Romanian Court of Appeal. Mr Radu was a Romanian national, subject to four EAWs issued by the German judicial authority for bringing a criminal prosecution in respect of acts of robbery. Mr Radu, the requested person, claimed that he had ‘not been notified in respect of the charges against him, not been subpoenaed in respect of them and found himself in a situation where it was completely impossible to defend himself ’.152 As he did not consent to his surrender, he claimed that the contested EAWs were issued without his having been summoned or having had the possibility of hiring a lawyer or presenting his defence, in breach of Articles 47 and 48 of the Charter and Article 6 ECHR.153 The CJEU was asked by the Romanian Court of Appeal, inter alia, whether the executing judicial authority may refuse to execute an EAW where the execution of the EAW would infringe or would risk infringing the right to a fair trial and defence rights. The question for the Court was whether, in light of potential breaches of the right to a fair trial and defence rights, the FDEAW should be read in such a way as to allow an executing authority to refuse to execute an EAW, or where there was a serious danger of future infringements of such rights. The Court made reference to the purpose of the instrument to replace the multilateral system of extradition between the Member States with a system of surrender between the judicial authorities and that this system of surrender is based on the principle of mutual recognition,154 as was affirmed by recent case law.155 It further elaborated on the objective of the Framework Decision to facilitate and speed up the judicial cooperation with the purpose of contributing to the objective of creating a European space of freedom, security and justice.156 The Court stressed that the Member States are ‘in principle obliged’ to implement an EAW157 and that this strict obligation is further qualified only by the explicit exceptions and guarantees that the law provides in Articles 3, 4, 4a and 5 of the Framework Decision.158 The Court further clarified that the EAW in question was issued for bringing a criminal prosecution and indicated that this scenario did not fall within the scope of exceptions for executing an EAW that the law provides.159 It then simply asserted that respect for rights does not require that the executing authority may refuse to execute an EAW in the event of fundamental rights breaches.160 The Court remained true to the letter of the instrument with respect to the exhaustive list of

152 Opinion

in Case C-396/11 Ciprian Vasile Radu ECLI:EU:C:2013:648, para 65; Radu, paras 26, 29. para 29. 154 ibid, para 33. 155 Case C-42/11 João Pedro Lopes da Silva Jorge ECLI:EU:C:2013:517, para 28. 156 Radu, para 34. 157 ibid, para 35. 158 ibid, paras 36, 37. 159 ibid, para 38. 160 ibid, para 39. 153 Radu,

Informing and Applying a Proportionality-based Analysis  125 grounds for refusal. It left no space for any interpretation explicated by the Charter or even by Article 1(3) of the FDEAW, read in conjunction with Article 6 TEU and the Charter provisions. If the person were heard before the issuing authority, this would inevitably affect the effectiveness of the instrument, would lead to the failure of the system of surrender, and would consequently forestall the achievement of an AFSJ.161 Following the latter statement, the Court stated, in a spirit of reassurance, that the ‘European legislature has ensured that the right to be heard will be observed in the executing Member State’.162 The observance of the right to be heard would be performed in such a way as not to compromise the effectiveness of the EAW system. The last insertion manifestly demonstrates that the focus of the Court was on the effectiveness of the surrender system. The analysis asserts rather than substantiates the Court’s arguments. Application of Proportionality in Radu Had the Court employed a proportionality-based analysis, the reasoning would have been different. It would not necessarily have been different as to the result, but it would have provided indications for the judicial authorities as to the structure of the questions they could ask when a similar case with fundamental rights implications were presented to them. The following analysis pertains to a structure that should have been adopted partially by the CJEU on a general level and by the judicial authorities on an individual level. The analysis focuses on executing authorities faced with a dilemma as to whether they should surrender an individual in light of fundamental rights breaches. The executing authorities might be better placed to actually conduct a thorough and detailed balancing test with reference to the real facts of every case. So, an initial analysis should first be conducted by the CJEU to provide guidelines in relation to a proportionality-based analysis on questions of constitutional importance that need to be in harmony between the European judicial authorities. For example, it is for the CJEU to determine which limiting clauses should be accepted as legitimate aims of constitutional importance. However, it is for the judicial authorities to conduct the individual assessment that is required by the last stage of a proportionality-based analysis. The use of the EAW in this case serves the objective of fast judicial cooperation, an element of the AFSJ. The objective is to facilitate the judicial cooperation in cross-border serious crimes and to simplify the extradition procedures.163 It is an objective set both by the FDEAW and by the Treaties.164 Therefore, the first stage of a proportionality-based analysis is satisfied.165 Mr Radu was sought to

161 ibid,

para 40. para 41. 163 FDEAW, Preamble, recitals 1, 3. 164 Art 82 TFEU. 165 Klatt and Meister, The Constitutional Structure of Proportionality 10. 162 ibid,

126  Case Study I: European Arrest Warrant Transfers be prosecuted by Germany for the offence of aggravated robbery, which constitutes a serious crime in both countries. Setting out an exhaustive list of grounds for refusal for the executing judicial authority is, moreover, a suitable means to achieve the objective of fast cooperation, which satisfies the second stage of the test.166 The fewer the checks and grounds for refusal to surrender, the more effective is the application of mutual recognition. The interpretation by the CJEU of the FDEAW not to allow the judicial authority to refuse the execution of the EAW on fundamental rights grounds seems suitable in light of this understanding. Nevertheless, under the third stage of a proportionality test, the Court’s interpretation of the FDEAW was not substantiated as necessary. The assertion that the surrender system is based on the principle of mutual recognition, and that a different result would endanger the effectiveness of the instrument, is not an adequate argument.167 Recourse to other alternatives that are less restrictive than the coercive mechanism should be discussed, and it should then be demonstrated that there is no other, less restrictive, equally effective way. Finally, the balancing stage will ensure that the surrender of the requested person is not manifestly disproportionate. At this stage, the executing judicial authority is called to balance the different interests, as long as the surrender passes the other three tests. The judicial authorities must balance whether the satisfaction of surrendering the person for the purpose of the concrete EAW is greater than the failure to satisfy the second principle, that of respect of the fundamental right. Given the constitutional status of fundamental rights in EU and national law, the degree of satisfaction of the first principle should be significant. Taking a strict interpretation on grounds for refusal solely based on the list of grounds with the result of precluding fundamental rights considerations to inform a wider interpretation is, moreover, not consistent with the FDEAW per se. Member States’ obligation to respect fundamental rights is stressed in both Recital 12 of the Preamble and Article 1(3) of the FDEAW. Contrary to the Court, Advocate General Sharpston stated that Member States should in principle be obliged to ‘act upon a European Arrest Warrant’,168 as otherwise the spirit of mutual recognition would not be meaningful. However, mutual recognition should not be blind.169 The requested person was subject to a definitive judgment of a judicial authority of a state different from the one where he resided, and with a different jurisdiction. He was not heard for this definitive judgment issued by alien authorities, which resulted in his own relocation. Furthermore, the cases of Andrew Symeou, Edmond Arapi and Graham Mitchell should not be ignored.170 Given that 166 ibid, 9. 167 ibid. 168 Opinion in Radu, para 36. 169 ibid. 170 Fair Trials International, ‘Andrew Symeou – Greece’, http://www.fairtrials.org/cases/andrewsymeou/; Fair Trials International, ‘Graham Mitchell – Portugal’, http://www.fairtrials.org/cases/ graham-mitchell/; Fair Trials International, ‘Edmond Arapi – Italy’, http://www.fairtrials.org/cases/ edmond-arapi/.

Informing and Applying a Proportionality-based Analysis  127 concerns regarding the protection of fundamental rights undermine the spirit of mutual trust, an interpretation not as strict as the one provided by the Court would empower the judicial authorities to be more flexible and balance the cases’ different considerations. Having said that, the value of the EAW system and of mutually recognising judgments across the EU is admittedly high. However, the coercive effects of the instrument coupled with fundamental rights concerns demonstrate that the Court’s judgment missed those shortcomings. A reflection on certain criteria is necessary as these might be used as indicators in the balancing exercise. The violation of the right at issue – past or future – must be so detrimental that the core of the right to a fair trial, which is being able to substantially and adequately defend oneself, is absolutely impaired. In this respect, in her Opinion in Radu, Advocate General Sharpston developed a systematic and informed reasoning. She suggested, in her Opinion, a sophisticated balancing test for the executing judicial authority to carry out. Although the executing judicial authorities are in principle obliged to surrender the person,171 she argued that they can refuse the request for surrender ‘where it is demonstrated that the human rights of the person whose surrender is requested have been infringed, or will be infringed, as part of or following the surrender process’.172 She suggested that this refusal should be ‘exceptional’ and reserved for situations where complying with the EAW would ‘fundamentally destroy the fairness of the process’.173 In carrying out the balancing test suggested by Advocate General Sharpston, the judicial authority would have to consider closely the rights at issue in order to assess the seriousness of the violation by reference to the essence of the fundamental right, which, according to LM, should not be compromised.174 Right to a Fair Trial Everyone charged with a criminal offence shall have the right to be informed ‘of the nature and cause of the accusation against him’, as is provided by Article 6(3) (a) of the ECHR. The information shall be given promptly and in a language that the person understands, according to the same article. The right to a fair trial is a ‘popular’ right on the basis of which a huge volume of applications are lodged with the ECtHR.175 The right is the cornerstone of a democratic society and its criminal proceedings. It is a guarantee of ‘justice and the rule of law’.176 The right to a fair trial involves various elements. Fundamentally, the right establishes the state’s 171 Opinion in Radu, para 68. 172 ibid, para 97. 173 ibid. 174 The judgment constitutes the most recent limit to the principle of mutual trust. 175 Eva Brems, ‘Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2005) 27 Human Rights Quarterly 294; Helen Fenwick, Civil Liberties and Human Rights (Routledge 2007) 60. 176 Ana D Bostan, ‘The Right to a Fair Trial: Balancing Safety and Civil Liberties’ (2004) 12 Cardozo Journal of International & Comparative Law 1, 1.

128  Case Study I: European Arrest Warrant Transfers obligation to ‘provide a fair procedure for the determination of all civil rights and obligations, and all criminal charges’.177 Article 6 of the ECHR requires ‘a fair and public hearing’, ‘within reasonable time’, before an ‘independent and impartial tribunal’. It also states that ‘in determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing’. Article 13 of the ECHR, establishing the right to an effective remedy, states: ‘Everyone whose rights and freedoms … are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’. Article 14 of the ICCPR states that ‘in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone should be entitled to a fair and public hearing, by a … tribunal’. Article 47 of the Charter, unifying in one provision the right to an effective remedy and the right to a fair trial, states that ‘everyone whose rights and freedoms … are violated … has the right to an effective remedy before a tribunal’, and in paragraph 2 states that ‘everyone is entitled to a fair and public hearing’. The Charter approaches the right to judicial protection stricto sensu as distinct from the right to be heard in front of a tribunal.178 This is further explained later in this chapter. Defence rights are a special category of the right to a fair trial. It is a sensitive category of rights as the defendant finds himself in a particularly vulnerable position vis-à-vis criminal justice. This is evident in Article 6(3) of the ECHR, Article 14(3) of the ICCPR and Article 48(2) of the Charter, which bestow on the defendant certain special rights in addition to the general rights to judicial protection and to a fair and public hearing. Special procedural rights are also recognised by Article 5(3), (4) of the ECHR, providing safeguards for detainees so that the lawfulness of their detention is determined. The Charter does not provide for a detailed list of defence rights. However, Article 48(2) of the Charter recognises the special position of the defendant in criminal justice. Critiques on the absence of common EU defence rights, especially following the quick adoption of the EAW in the post-9/11 disordered legal environment, led to the adoption of a roadmap on procedural rights in 2009.179 A number of instruments have now been adopted.180 However, achieving political 177 Richard Stone, Textbook on Civil Liberties and Human Rights (OUP 2014) 184. 178 Vasilios Skouris, Dioikitiko Dikonomiko Dikaio (tr from Greek ‘Administrative Procedural Law’) (Sakkoulas 1996) 59. 179 Council Resolution 2009/C of 4 December 2009 on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1. 180 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right to access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013]

Informing and Applying a Proportionality-based Analysis  129 consensus on the roadmap and actually adopting these instruments has been a lengthy process,181 especially when considered vis-à-vis how quickly the FDEAW was adopted. The various elements of the right may be understood at various proportionate degrees.182 For instance, establishing and preserving effective judicial protection can be quite costly and complicated for a state. This consideration justifies certain limitations to the number of cases which actually have access to justice. Setting out some preconditions indirectly reduces the number of cases which can reach the judicial system and is a realistic and necessary limitation.183 This limitation, however, should respect the principle of proportionality. The absence of a written translation of the indictment, which might result in misinformation and the hindrance of the defence of the person accused, violates Article 6(3)(a) of the ECHR, according to the jurisprudence of the Strasbourg Court.184 According to the ECtHR case law with regard to grounds for refusal to extradite, general references to a risk of fundamental rights violation in a country are not accepted as a ground for refusal.185 The reasons should be serious and well founded. In Soering v United Kingdom, the ECtHR held that the state should not extradite the requested person ‘where substantial grounds were shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country’.186 A ‘flagrant denial’ of the right to a fair trial in particular may give rise to the refusal of the contracting state to extradite the requesting person, according to the Strasbourg Court. Although the Soering doctrine of the ECtHR was not transposed to the EAW case law of the CJEU, similar reasoning is identifiable in CJEU jurisprudence,187 where the Court was asked to interpret the Regulation establishing criteria for determining the Member State responsible for examining an asylum application. OJ L294/1; Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1; Directive 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings [2016] OJ L132/1; Directive 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings [2016] OJ L297/1. 181 For a detailed analysis on the roadmap and the protection of the fair trial rights see Debbie Sayers, ‘Protecting Fair Trial Rights in Criminal Cases in the European Union: Where Does the Roadmap Take Us?’ (2014) 14(4) Human Rights Law Review 733. 182 Stone, Textbook On Civil Liberties and Human Rights 184. 183 Kostas Chrysogonos, Atomika kai Koinonika Dikaiomata (tr from Greek ‘Individual and Social Rights’, Sakkoulas 2002) 447. 184 Application No 9783/82 Kamasinski v Austria ECtHR 19 December 1989. 185 Application No 12343/10 Dzhaksybergenov v Ukraine ECtHR 10 February 2011, para 37. 186 Application No 14038/88 Soering v United Kingdom ECtHR 07 July 1989, para 44. 187 Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:865.

130  Case Study I: European Arrest Warrant Transfers The Court was asked to assess the impact of Article 4 of the Charter with regard to prohibition of torture and inhumane or degrading treatment or punishment to the interpretation on this Regulation. It held that Member States may not transfer an asylum seeker to another Member State where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhumane or degrading treatment.188

It is argued that the seriousness of the violation is certainly a criterion to be ­considered in line with what Advocate General Sharpston’s Opinion, discussed above, had suggested, and in line with the ECtHR in Soering. The violation of the right must be so serious that the right holder is absolutely divested of the possibility to fairly enjoy his due process rights to the extent that this is not remediable. Moreover, another indication is that the crucial element must be examined in concreto with particular regard to the normative content of the right in question, as it is developed by the ECtHR, the CJEU – if there is relevant case law – and by the national constitutional traditions. For instance, in Radu189 the alleged violations concerned, inter alia, the right to be informed and the right to prepare the defence. In light of the first right, everyone charged with a criminal offence shall have the right to be informed ‘of the nature and cause of the accusation against him’, as provided for by Article 6(3a) of the ECHR. This is provided now by the two Directives that were adopted: one on the right to information in a criminal proceeding190 and the other on the right to interpretation and translation in a criminal proceeding.191 Moreover, the Framework Decision provides for the arrested person’s right to be informed of the EAW and of its contents.192 According to ECtHR case law, the information shall be given promptly and in a language that the person understands, according to the same article. The absence of a written translation of the indictment, which might result in misinformation and the hindrance of the defence of the person accused, violates Article 6(3)(a) of the ECHR, according to the jurisprudence of the Strasbourg Court.193 In addition, Article 6(3)(b) of the ECHR and Article 14(3)(b) of the ICCPR provide for the right to prepare the defence, which focuses on two elements. First the defendant shall have adequate time to prepare, and second he shall have adequate facilities. The adequate preparation of the defence requires that

188 ibid, para 94 (emphasis added). 189 Opinion in Radu, para 65. 190 Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. 191 Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1. 192 FDEAW, art 11(1). 193 Kamasinski v Austria, para 81.

Informing and Applying a Proportionality-based Analysis  131 the defendant or his counsel should be able to have access to the case and to any evidence available against the defendant.194 In this respect, it was ruled by the ECtHR in Hatzianastasiou that Greece violated the right to prepare the defence because Article 425(1) of the Greek Military Penal Code provided for a five-day term to appeal against the judgment of the military criminal tribunal, which started from the oral announcement at the public hearing of the ruling. The judges did not have to develop their reasoning at the announcement of the ruling, which prevented the defendant from preparing for his appeal as he was deprived of the ability to submit the reasons why the first-stage ruling was erroneous.195 In Radu the applicant claimed that he was neither informed of the charges against him, nor was he subject to subpoena, with the result that his defence was impaired. It is correct that not being informed in due time of the charges and not being subject to subpoena can impair the fairness of the process. It is also true that the strict time limits that the instrument sets render the preparation of the defence even more difficult, especially for someone who is not aware of why he has been arrested. Therefore, it is arguable that the applicant’s rights were seriously breached, if we consider the LM test regarding the essence of the right as unfolded by the previous analysis and coupled with a proportionality test. It is clear that a proportionality test combined with the LM test would offer an outcome that appears to be the safest in terms of fairness. The seriousness of the violation is linked to the remediability of it as well. The violation in question can clearly be remedied so that the person retains the time needed to prepare his defence.196 A lack of subpoena is a remediable breach of the fair trial right, which alone does not justify the refusal, according to Advocate General Sharpston’s Opinion.197 As a result, Mr Radu was not in a position where his rights were so detrimentally impaired that they could not be remedied, and therefore he was not absolutely prevented from preparing his defence. Conversely, when the issuing authority arbitrarily destroys DNA, for example, and the requested person claims that this DNA is evidence of his innocence, the wrongdoing cannot be remedied. His right to defend himself is absolutely impaired and the executing authority should not execute the EAW. Nevertheless, the failure of the issuing authority to notify the requested person of charges against him is a remediable infringement and should not justify a refusal to execute.198

194 Application No 12350/86 Krenzow v Austria ECtHR 21 September 1993. 195 Application No 12945/87 Hadzianastassiou v Greece ECtHR 16 December 1992. 196 In this respect, the Advocate General suggested that the executing authority may not refuse to execute an EAW in the event of breaches which are remediable: Opinion in Radu, para 88. 197 ibid, para 90. 198 Opinion in Radu, para 90.

132  Case Study I: European Arrest Warrant Transfers

Right to Appeal Jeremy F The CJEU discussed the right to appeal in two instances in the context of the case law on the EAW.199 First, in Jeremy F it was asked by a preliminary reference procedure made by the Cour de Cassation of France whether the FDEAW allows for Member States to provide for a right to appeal with the effect of suspending the execution of a decision extending the effects of an EAW. The measure did not explicitly include such a provision, whereas the national law of the executing state did. Secondly, in the case of Melvin West, the Court was asked whether Article 28(2) of the FDEAW should be interpreted in such a way that the subsequent surrender of the person in the event of successive EAWs is subject to the consent of the last state, the initial, or both. The question affects how many times the requested person can actually appeal against a decision of the executing authority to consent to his surrender. This section will focus on the judicial reasoning in Jeremy F. A right to appeal to a tribunal of higher degree must be enjoyed by a person who is convicted of a criminal offence so that his conviction and penalty are reviewed by a higher tribunal.200 The convicted person is entitled to bring an appeal or to seek review of his conviction or of his sentence. This renders criminal appeals a very important part of the criminal justice system.201 Therefore, a conviction decision is only final when appeal rights are exhausted or waived.202 The sources and history of the right to appeal vary from civil- to common law countries. In continental Europe, the right is found in statutes or in constitutions, whereas in common law countries the right has only recently been added to the process.203 Despite disparities, a significant convergence has developed with regard to the understanding of the right in the different types of jurisdictions. The right is understood as ‘requiring a state to provide criminal defendants with the opportunity to access a fair process that permits adequate and effective review of one’s convictions’. The philosophical foundation of the right to appeal is also common to all jurisdictions, national or multilateral. Correcting errors in criminal justice is the existential purpose of the right, either in relation to fact finding which will be truth revealing or in relation to rules application.204 A concern with regard to wrongful convictions highlights a need to protect defendants from miscarriages of justice. Another foundation of the right to appeal is a need for judicial consistency, which is achieved through clarifications that courts provide.205 199 Case C-192/12 Melvin West ECLI:EU:C:2012:404; Case C-168-13 PPU Jeremy F. v Premier ministre ECLI:EU:C:2013:358. 200 Art 2, Protocol No 7, ECHR; art 14(5) ICCPR. 201 Peter D Marshall, ‘A Comparative Analysis of the Right to Appeal’ (2011) 22 Duke Journal of Comparative & International Law 1, 1. 202 ibid. 203 ibid. 204 John H Langbein, Renée Lettow Lerner and Bruce P Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (Wolters Kluwer Law & Business 2009). 205 Lester B Orfield, ‘The Right of Appeal in Criminal Cases’ (1936) 34 Michigan Law Review 937, 938.

Informing and Applying a Proportionality-based Analysis  133 The right is amendable to restrictions serving a state interest in fast and efficient cooperation, and these restrictions should always respect the principle of proportionality. States in Europe which acceded to the ECHR enjoy a wide variety of discretion as to determining the scope of the right,206 and they are also permitted to impose restrictions on this right, which should pursue a legitimate aim and not infringe the core of the right.207 The states are, for example, justified in setting reasonable conditions, such as time limits for lodging the appeal. In Jeremy F, the Court was asked whether EU law allows a Member State to provide for the right to appeal, which suspends the execution of a decision, extending the effects of an EAW. Mr Jeremy F was requested by the judicial authorities of the United Kingdom (Crown Court at Maidstone) to be surrendered by French judicial authorities (Cour d’Appel de Bordeaux). The latter consented to an application of the extension to surrender made by the UK authorities for acts committed before his surrender, but different from the one leading to the EAW at issue. Mr Jeremy F appealed against the judgment consenting to the extension of the EAW, which led to proceedings on ‘a priority question of constitutionality’ at the Cour de Cassation. The latter asked the CJEU whether the appeal brought by Mr F was compatible with the FDEAW, which does not provide for such an appeal.208 The rule of specialty in extradition states that following extradition a person may only be tried/sentenced for offences in respect of which he was extradited and cannot face proceedings for other offences that pre-date his extradition.209 Therefore, the right of a requested person to appeal against a decision extending the effect of an EAW to other acts lies on the obligation that the specialty rule places on the state. A competing interest here is facilitation and acceleration of the extradition. The ultimate objective of the EU to provide an AFSJ would require, in line with Melloni,210 Costa v E.N.E.L.,211 and Simmenthal212 that, since the FDEAW does not provide for a right to appeal, it is consistent with the purpose of uniformity not to allow a wide interpretation of the FDEAW. Surprisingly, the Court, despite the recent narrow interpretations in the judgments of Melloni and Radu, established that EU law does not prevent Member States from providing for an appeal suspending the execution of a decision extending the effects of an EAW. Moreover, a proportionality-based reasoning is inherent in the judgment. The Court acknowledged a security interest of speedy cooperation. Satisfaction of this interest is facilitated by mutual recognition of judicial decisions ‘with a view to 206 Application No 27931/96 Krombach v France ECtHR 13 February 2001, para 96. 207 Application No 61406/00 Gurepka v Ukraine ECtHR 6 September 2006, para 59. 208 Jeremy F, para 22. 209 FDEAW, arts 13, 27; Leymann and Pustovarov; R v Seddon (Neil) [2009] EWCA Crim 483; R v Jones (Royston) [2011] EWCA Crim 107; Stone, Textbook on Civil Liberties and Human Rights 476. 210 Case C-399/11 Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107. 211 Case C-6/64 Costa v E.N.E.L. ECLI:EU:C:1964:66. 212 Case C-106/77 Simmenthal ECLI:EU:C:1978:49.

134  Case Study I: European Arrest Warrant Transfers contributing to the objective set for the European Union to become an area of freedom, security and justice’.213 Moreover, by discussing a possibility of ‘bringing an appeal with suspensive effect’214 and the limits of the right to appeal,215 the Court assessed the time limits inherent in the FDEAW, and therefore the necessity for allowing the possibility of bringing an appeal with suspensive effect. The Framework Decision aiming to reduce delays sets certain strict time limits, which manifest in the interest for mutual recognition and speed.216 Thereafter, the Court identified the interests that underpin the FDEAW. These considerations require fast cooperation, and it could be argued that a right to appeal suspending the execution of the EAW may run counter to the measure’s objectives.217 The Court recalled that the purpose of the measure is to replace the complicated system of extradition with a simplified mechanism of surrender.218 This would lead to facilitating and speeding up judicial cooperation, eventually contributing to the objective set for the EU to evolve as an AFSJ.219 The Court also held that Member States are, in principle, required to execute an EAW based on the FDEAW, in light of the principle of mutual recognition.220 At a second stage, the Court assessed the ‘possibility of bringing an appeal with suspensive effect’.221 It highlighted that the absence of such an appeal in the measure does not entail that Member States cannot provide for one reflecting on their obligation to respect fundamental rights and legal principles.222 The Court also stressed the significance of the right to an effective remedy.223 The Court stated that this possibility of bringing an appeal in a case of a decision to execute an EAW follows necessarily from the wording of the FDEAW and the term ‘final decision’ in Article 54. At this second stage, the importance of the right and the detriment to it were assessed, corresponding to the second step of the balancing stage of a proportionality-based review.224 The Court eventually pointed out that as long as the application of the measure is not hindered, Member States should not be prevented from applying their own constitutional rules with respect to the right to a fair trial. The nature of the measure as a Framework Decision is what gives discretion to Member States to choose the manner of achieving the desired results.

213 Jeremy F, para 41. 214 ibid, paras 37–55. 215 ibid, paras 56–75. 216 ibid, para 60. 217 FDEAW, art 27(4). 218 Jeremy F, para 34. 219 ibid, para 35. 220 ibid, para 36. 221 ibid, paras 37–55. 222 ibid, paras 37–41. 223 ibid, para 42; art 13 ECHR; art 47 Charter. 224 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris 433, 436, 436–37; Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002) 102.

Informing and Applying a Proportionality-based Analysis  135 Melloni The Court in Melloni was asked whether it is permissible for an executing state to make the surrender of a requested person, convicted in absentia, conditional upon subsequent retrial in an issuing state. This higher level of protection was provided by the Spanish constitutional law, in contrast to the FDEAW, which explicitly prohibits an executing state from refusing to cooperate under the circumstances of the case. The Court, also faced with a supremacy type of question, delivered a landmark ruling reiterating the primacy of EU law vis-à-vis national law, even if the latter has constitutional status. The Court also stated that, in light of Article 53 of the Charter, the FDEAW should be interpreted in such a way that an executing Member State is not allowed to make a surrender conditional upon a conviction rendered in absentia being open to review in an issuing Member State. The Court again, and similar to Radu, argued that allowing an executing authority to make the surrender of a person convicted in absentia conditional upon a subsequent review of a judgment leading to an EAW, would undermine the efficacy of the FDEAW.225 The Court’s reasoning relied extensively on the preservation of mutual recognition and the efficacy of the surrender system, with the result of lowering the level of protection of a fair trial right. The Court stated in particular that the measure established a simplified and more effective system for surrender of persons. Moreover, Advocate General Bot opined that the objective of creating an area of freedom, security and justice shapes the framework of the protection of fundamental rights within the EU.226 It is not clear what exactly the meaning of this statement is, but it could prove dangerous to subject the protection of fundamental rights to policy objectives. Finally, the Court in Melloni referred to the interest of establishing an AFSJ,227 a primary law objective enshrined in the Treaties, as well as respect for the principles of mutual recognition and effectiveness,228 both general principles of EU law. The Court further relied upon an interest of simplification of the extradition system, which should be classified as a secondary law objective.229 Reflecting on the analysis carried out in the second chapter of the book, not all the interests shaping law making should be capable of restricting fundamental rights, which are constitutionally protected. Moreover, not all interests should be accepted as objectives in the sense granted to them by the first stage of the proportionality test as they are not all equally valued by the constitutional Treaties. An interest in preserving an area of freedom and security within the European space, and an interest in facilitating judicial cooperation, are objectives having high constitutional value in the Treaties as such. These interests could be discussed and



225 Melloni,

para 63. in Melloni, paras 107, 112, 113, 115. 227 ibid, paras 107, 112, 113, 115. 228 Melloni, para 62. 229 ibid, para 43. 226 Opinion

136  Case Study I: European Arrest Warrant Transfers balanced against a possibility of preserving a higher level of fair trial rights protection as they, by nature, also constitute objectives. However, should the principle of mutual recognition also enjoy a status of a highly valued constitutional objective, whose promotion should justify a restriction of a constitutional right? The answer to this question should be in the negative. The principle of mutual recognition, albeit constitutional, is a regulatory method through which the above-mentioned legal objectives are better achieved and promoted. It is not an objective on its own but a means to an end. There is, admittedly, an interest in preserving and facilitating mutual recognition of judgments in the EU. However, this is not a law objective, eligible to be balanced against the protection of fundamental rights. Furthermore, the Court in Melloni relied on the measure’s objectives in order to justify any restrictions on the right in question as enshrined in national constitutional law. The judgment stated that Article 4a of the FDEAW, including the restriction in question, should be interpreted in light of the objectives of the Framework Decision 2009/299. This measure was intended to facilitate JCCM through the harmonisation of the grounds for non-recognition of judgments issued in absentia.230 It is again suggested that an objective of a Framework Decision alone should not be accepted as a legitimate aim in view of which a higher level of protection of national constitutional law will not be applied. It is merely an objective of a secondary law. Only objectives of constitutional value should be balanced against the fundamental rights of a person requesting them. If rights are granted a higher constitutional footing than the right enjoyed by secondary legislative measures, the Court would allow an executing authority to make a surrender conditional upon a guarantee given by an issuing authority that a person will enjoy the right to appeal against the decision issued in absentia resulting in the EAW. The analysis now proceeds to the third stage of a proportionality test, the necessity stage. Although it indeed seems necessary, in view of the effectiveness and consistency of EU law, to choose a level of protection provided for by the FDEAW, it is not demonstrated how this is the least restrictive choice. It was simply asserted – rather than demonstrated – that this was necessary to respect principles of consistency and effectiveness. Lowering the level of protection below the threshold set by national constitutional law would certainly require a more detailed and convincing analysis. This analysis should illustrate why this is the option leading to the expected result with the least possible interference with a right. However, it should be acknowledged that in Melloni the Court was asked to clarify the meaning of a harmonised concept of the EU secondary legislation, which was not in line with the more generous provision of the national constitutional law. So, arguably, it is not the judicial interpretation on the use of the instrument that is not compliant with the principle of proportionality, but the harmonising

230 ibid,

para 43.

Informing and Applying a Proportionality-based Analysis  137 Framework Decision itself. Nevertheless, the Court was not asked to review the legality of the measure, but to provide a preliminary ruling on how a provision should be read. It would have been interesting to see what the Court’s ruling would have been if it had actually been asked to review the legality of the instrument pertaining to this matter. Still, the Court’s reasoning in delivering a ruling on the right’s interpretation by relying either on the methodological principle of mutual recognition, or on objectives of secondary law to justify the restriction of a constitutional right, is flawed. Melloni, the Authority of EU Law and Fundamental Rights The relationship between the EU legal order and the national legal order is an important aspect for the protection of fundamental rights in the AFSJ of EU law, where Member States might have different standards of protection. The CJEU in Melloni upheld the doctrine of supremacy in post-Lisbon EU law, even when the autonomous interpretation of EU law was in contrast to national constitutional rules on the protection of fundamental rights. This section considers this judgment from the perspective of an autonomous constitutional legal order with special reference to fundamental rights in the AFSJ. In Melloni the Court’s evaluation was flawed for an evolutionary reason. The Court, in Costa v E.N.E.L.231 reflected on a teleological interpretation of EU law, which corresponded to the telos of the then European Community of the early integration. At the time, the European Union was mainly seen merely as a common-market union with idiosyncratic economic elements. Its telos was informed by the creation of an internal market, and a narrative of constitutionalism was mainly informed by this. Nowadays, the Community has evolved, in contrast, into a Union which inter alia aims to provide an AFSJ. Apart from this aim, the EU Treaties are now accompanied by the Charter, having a constitutional status equal to that granted to the Treaties.232 There is also a provision on respect to national identities (Article 4(2) of the TEU), which calls for limitations to EU law authority.233 Therefore, the EU’s identity has significantly evolved from what it used to be at its early stages of integration. The relationship of different secondary instruments is also worth revisiting as the case of Melloni concerned the interpretation of the FDEAW in light of another harmonising secondary instrument, whose definition of the contested right was narrower than the one in Spanish constitutional law. So, it is worth considering what the relationship between different secondary instruments is, especially when issues of protection of fundamental rights arise. This is especially interesting when 231 Case C-6/64 Costa v E.N.E.L. ECLI:EU:C:1964:66. 232 Jo Shaw, ‘Postnational Constitutionalism in the European Union’ (1999) 6 Journal of European Public Policy 579; Jo Shaw, ‘Process, Responsibility and Inclusion in EU Constitutionalism’ (2003) 9 European Law Journal 45. 233 Stephan Schill and Armin von Bogdandy, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CML Rev 1417.

138  Case Study I: European Arrest Warrant Transfers there is a subsequent, secondary law harmonising national legislation, in light of which another secondary law has to be given effect, but the subsequent secondary law does not comply with the EU primary law. It is argued that when harmonising secondary legislation does not respect EU primary law, but affects the interpretation of other secondary measures, it should not be taken into account by the judicial authorities of the Member States. For example, in the case of Melloni, the FDEAW was informed by the Framework Decision 2009/299 on the harmonisation of the grounds for non-recognition of judgments issued in absentia. The interpretation of the FDEAW, in light of the harmonising instrument, resulted in defining the right to appeal in a case where an EAW was issued in absentia in a narrow manner when compared to Spanish constitutional law. It appears that the secondary harmonising legislation here was in conflict with Article 53 of the Charter, which states: ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application … by the Member States’ constitutions’. Since the Charter constitutes primary EU law according to Article 6 of the TEU, which renders it of equal constitutional status to the constitutional Treaties, it appears that the Framework Decision 2009/299 did not respect Article 53 of the Charter and thus EU primary law. Therefore, in Melloni the real clash of rules was within the EU legal order itself as the harmonising secondary instrument did not respect EU primary law. In this case, the subsequent secondary harmonising instrument should not have informed the interpretation of another secondary instrument which had been adopted before the latter. In particular, it is argued that the FDEAW should not have been read in light of the secondary subsequent harmonising law not taking into account EU primary law. Therefore, the Court should allow for such a higher level of protection when this is prescribed both by national law and ECtHR case law. This could happen via an instruction to judicial authorities to cooperate, seeking guarantees that the right will be satisfied even by the issuing Member States. It should be recalled that fundamental rights, as an important aspect of EU law, were even prioritised in relation to international law.234 Therefore, arguments based merely on the autonomy and effectiveness of EU law do not adequately address concerns about a decreased protection of fundamental rights.

Principle of Legality in Criminal Law This section demonstrates the meaning, the origins, the scope and the nature of the principle of legality, as enshrined in various legal instruments, interpreted by the ECtHR jurisprudence and observed by scholars. The scope of the principle in 234 See Juliane Kokott and Christoph Sobotta, ‘The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?’ (2012) 23(4) European Journal of International Law 1015; Kadi I, para 303.

Informing and Applying a Proportionality-based Analysis  139 relation to criminal procedural law, and particularly extradition, is demonstrated, and of course the position of the principle of proportionality with reference to a breach of the principle is also assessed. However, the principle of proportionality is not relevant to assess whether limitations on the principle of legality in criminal law are justified because the principle of legality is an absolute one. The section examines EAW case law regarding the principle of legality. Whether or not, and how, the CJEU referred to the principle of proportionality is closely observed. It is put forward that legality remains relevant for an EAW and that for a potential future breach in another hypothetical scenario a proportionality-based reasoning should not be used by the Court. The CJEU was twice faced with preliminary references regarding the principle of legality in criminal law in the context of case law on the EAW.235 In particular, Advocaten voor de Wereld, a non-profit organisation, brought an action contesting the Belgian law on the FDEAW. Hence, the Belgian Constitutional Court submitted the first preliminary question to the CJEU, almost a decade ago, on the FDEAW.236 The Court examined, inter alia, whether the abolition of the double criminality requirement respects the principle of legality in criminal proceedings and correspondingly Article 6(2) TEU.237 Advocaten voor de Wereld argued that the Belgian law transposing the Framework Decision does not satisfy the condition of the principle because it includes a list of offences with no ‘sufficiently clear and precise legal content, but only vague categories of undesirable behaviours’.238 The applicant’s position was that since the FDEAW does not include detailed and clear definition of offences for which the requirement of the double criminality is abolished, it contravenes the principle of legality which is fundamental to every Member State’s system. The abolition of this rule entails that a person can be arrested and surrendered to a requesting state without enjoying the guarantee that criminal law must be clear, precise and predictable, thus allowing each person to know, when an act is committed, whether it constitutes an offence.239 So, it was asked by the referring court whether the measure disrespects the principle of legality in criminal proceedings, nullum crimen nolla poena sine lege (no crime without law). Advocate General Colomer proclaimed in his Opinion in Advocaten voor de Wereld240 that the protection of the principle of legality had been recognised by the Court in its case law.241 He also stated,242 and the Court reiterated,243 that common rules found in Member States’ legal orders are embraced as general principles of

235 Advocaten voor de Wereld; Case C-296/08 Ignacio Pedro Santesteban Goicoechea ECLI:EU:C: 2008:457. 236 Advocaten voor de Wereld, para 1. 237 Opinion in Advocaten voor de Wereld, paras 5, 83. 238 Advocaten voor de Wereld, para 13. 239 ibid, para 48. 240 Opinion in Advocaten voor de Wereld, para 73. 241 Case 14/86 Pretore Di Salo [1987] ECR 2545; Case-80/86 Kolpinghuis Nijmegen [1987] ECR 3969. 242 Opinion in Advocaten voor de Wereld, para 76. 243 Advocaten voor de Wereld, para 49.

140  Case Study I: European Arrest Warrant Transfers EU law, which, as such, must be protected.244 Moreover, he referred to the Charter, which initially did not have any legal force.245 The Charter admittedly ‘codified and reaffirmed’ the rights and principles which were common in Member States’ traditions, based either on their national law or on international conventions that they had signed.246 Advocate General Colomer called on the Court to ‘break its silence’ and to recognise the Charter as an authority as regards the interpretation of the protection of fundamental rights.247 The Court must take into consideration the value of legality as enshrined in Article 49 of the Charter as this was a principle commonly acknowledged in the constitutional frameworks of Member States.248 The Court, according to Advocate General Colomer, should also refer to the jurisprudence of national courts and of the Strasbourg Court.249 The principle, in CJEU case law on the EAW, was given paramount significance by Advocate General Colomer,250 who cited Rolland’s comment on the principle of legality as a foundation of legal civilisation.251 He quoted the principle enshrined in Article 7(1) of the Rome Convention and Article 49(1) of the Charter, and interpreted it as the precondition of a pre-existing definition of offences, and penalties applicable to them.252 In principle, a negative obligation for a state not to consider an action as a criminal offence concerns any judgment imposing criminal penalties.253 It is not applicable to pre-trial measures as the starting point for its applicability is whether a measure is imposed ‘following conviction for a criminal offence’.254 The ECtHR has explicitly ruled out the applicability of the article on pre-trial detention.255 As regards the nature of the principle, Advocate General Colomer acknowledged that that the principle is substantive in nature and absolute in scope,256 as is also illustrated by Article 15(2) of the ECHR. However, the ECHR does not discuss the scope of the principle of legality as extensively as it discusses the right to a fair trial.257 This has resulted in it under-theorising the principle of legality and not exploring the full dimension of its normative content.

244 Case 4/73 Nold v Commission ECLI:EU:C:1974:51, para 13. 245 Opinion in Advocaten voor de Wereld, para 76. 246 ibid, paras 77, 78. 247 ibid, para 79. 248 ibid, para 82. 249 ibid, para 82. 250 ibid, para 100. 251 Louis-Edmond Pettiti, Emmanuel Decaux and Pierre-Henri Imbert and, La Convention E ­ uropéenne des Droits de l’Homme: Commentaire article par article (2nd edn, Economica 1999) 293. 252 Opinion in Advocaten voor de Wereld, para 100. 253 Peers, EU Justice and Home Affairs Law 681. 254 Application No 17440/90 Welch v UK ECtHR 9 February 1995, para 28. 255 Application No 11956/07 Stephens v Malta ECtHR 21 April 2009. 256 Opinion in Advocaten voor de Wereld, para 100. 257 Cian Murphy, ‘The Principle of Legality in Criminal Law under the ECHR’ (2010) 2 European Human Rights Law Review 192, 193.

Informing and Applying a Proportionality-based Analysis  141 An argument of scope made by the CJEU established that the principle of legality does not concern criminal procedure at all. Advocate General Colomer stated that the principle is pertinent to the state’s function to set offences and penalties, and therefore it is relevant only to substantive criminal law.258 Following this judicial reasoning, the principle of legality cannot be breached by the FDEAW. It does not contain any definition of offences because it does not intend to define or describe crimes. The FDEAW is not a measure of substantive criminal law and the applicability of the principle of legality is excluded for procedural and extradition law, limiting its scope of applicability.259 Advocate General Kokkot, in Santesteban, has reiterated the significance given to legality in Advocaten voor de Wereld260 and shed some light on the function of the principle as regards non-retroactivity, meaning that ‘the legislature cannot retroactively create an offence or a penalty or make a penalty more severe’.261 Mr Santesteban was detained in France after serving a sentence of imprisonment for the sole purpose of his extradition to Spain for offences which were statute barred in France. He claimed inter alia that his extradition to the Spanish authorities would be contrary to the principle of legality and non-retroactivity of the more severe criminal law and the principle of legal certainty.262 However, the Court finally reiterated what was submitted in Advocaten voor de Wereld: that the principle does not apply to extradition because it does not apply to procedural law.263 This limited view on retroactivity was also taken earlier by the Court in Pupino.264 The Court did not consider whether the principle was breached at all as the ­principle was dissociated from criminal procedure and extradition in the first place. Although it is correct that the principle of legality was not breached here by the FDEAW because the offences listed were always defined by the substantive criminal law of an issuing Member State, it is argued here that the Court’s reasoning to prove this is flawed for several reasons. The following section identifies these errors of reasoning. It argues that a proportionality-based reasoning for a potential breach of the principle of legality is inappropriate because of the absolute nature of the principle.

258 Opinion in Advocaten voor de Wereld, para 103. 259 ibid. Despite highlighting the significance of the principle, the Opinion unlinked the FDEAW from the principle on the grounds that the measure does not criminalise or harmonise criminal laws but intends to coordinate judicial cooperation. Legal certainty sought by the principle is found, according to AG Colomer, in the substantive criminal law of the issuing state. See Opinion in Advocaten voor de Wereld, para 104. The mechanism of the FDEAW is not punitive and the execution of a warrant is the only responsibility of the executing judicial authority and not the examination of the substance of the case. See Opinion in Advocaten voor de Wereld, para 105. 260 Santesteban, para 42. 261 ibid, para 44. 262 ibid, para 41. 263 ibid, paras 42–46. 264 Case C-105/03 Criminal Proceedings Against Maria Pupino ECLI:EU:C:2005:386, paras 44–46.

142  Case Study I: European Arrest Warrant Transfers Relevance of Legality for the EAW First, the relevance of the principle of legality for the EAW is proved. The Court’s decision to unlink legality from extradition is incorrect for a doctrinal reason and for a reason of scope. The principle of legality, and particularly of non-retroactivity, in criminal law is enshrined in Article 7 of the ECHR, which provides that no one shall be held guilty of any criminal offence on account of any act or omission, which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

Article 49 of the Charter reiterates the content of Article 7 of the ECHR, adding that ‘if subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable’. The protection of legality is underpinned by a requirement of legal certainty in criminal law. An individual should be aware of which actions he should refrain from (lex praevia), and this requires a strict and clear definition of offences (lex certa).265 As a result, an individual should know with a reasonable degree of foreseeability ‘the acts and omissions which will give rise to criminal liability’, precluding an analogous and retrospective application.266 The last aspect was also established by ECtHR case law.267 The principle consists of ‘three overlapping rules’:268 a law is required for the prescription of a crime and of a penalty, prohibition of retrospective criminal law and imposition of a lighter subsequent penalty. First, the requirement of dual criminality appears as a manifestation of the principle of legality in extradition as they are closely connected.269 The principle of dual criminality is a principle which traditionally serves legality in this field. Second, the applicability of the principle as regards criminal procedural law is not clearly precluded by the Strasbourg Court, and the same applies to extradition.270 Extradition is either pre trial or post trial. It follows that pre-trial extradition, for the purpose of criminal prosecution, according to Welch v UK, could not trigger Article 7 of the ECHR. However, if a sentence has already been handed down, the extradition concerns the execution of a sentence imposed by virtue of a judgment issued in breach of Article 7. The judge of an executing Member State would therefore face the predicament of having to execute a warrant issued on the basis of a judgment which was issued in breach of the principle of legality.271 In the latter case, preclusion of legality in extradition by the CJEU would lead to an unfair result. 265 Opinion in Advocaten voor de Wereld, para 98. 266 ibid, para 102. 267 Application No 14307/88 Kokkinakis v Greece ECtHR 25 May 1993, para 52; Application No 20166/92 SW v United Kingdom ECtHR 22 November 1995, para 35. 268 Murphy, ‘The Principle of Legality in Criminal Law under the ECHR’ 192, 193. 269 Lech Gardocki, ‘Double Criminality in Extradition Law’ (1993) 27 Israel Law Review 288, 289. 270 Peers, EU Justice and Home Affairs Law 681. 271 ibid.

Informing and Applying a Proportionality-based Analysis  143 In Szabo272 the Strasbourg Court held that Article 7 of the ECHR does not apply to a transfer of a prisoner as such, ie to a warrant on grounds of which the extradition is requested. It rather applies to the judgment convicting the prisoner and sentencing him, leading to the issuance of the warrant requesting a person. By analogy, the principle should not apply on the arrest and surrender warrant as such, but to the judgment that gave rise to the extradition. Then the question moves to the archetypical ‘human rights question’, which is whether an executing judicial authority could refuse the execution of a warrant in the event of a human rights breach. Therefore, the Court should not have taken a narrow interpretation as regards the applicability scope of legality in all cases of extradition.273 An objection based on an argument of legality should be possible against a judgment leading to a post-trial EAW which is in breach of legality, as every other human rights argument should be able to be constructed. This is not the case in Advocaten voor de Wereld as in this case the compatibility of the FDEAW was generally examined. But this question might arise in the context of a fundamental right ground for refusal in the context of execution of an EAW which still requires the verification of double criminality. It should then be clear that no restrictions are allowed on the principle of legality.

Proportionality in Light of Aranyosi: Mission Impossible A ground for postponement of a surrender is now recognised by Aranyosi and Căldăraru in the extreme circumstances of a serious risk of inhuman and degrading treatment, similar to the Dublin system. This case was earlier considered in the first chapters from two different perspectives. It was earlier discussed regarding its contribution to the operation of mutual recognition, where it was argued that the judgment signifies a departure from the previous rigid regime of absolute mutual recognition, which is, however, very slow and insufficient. Moreover, it was argued that the judgments of the Court on the FDEAW in relation to a surrender in light of fundamental rights breaches contain almost no reasoning based on proportionality. It was argued there that the Opinion of Advocate General Bot in Aranyosi and Căldăraru opened a window to proportionality, whereas the judgment did not make references to proportionality. This section revisits this case in light of the overarching purpose of the chapter to formulate the analytical framework of

272 Application No 28578/03 Szabo v Sweden ECtHR 27 June 2006. 273 It is, however, noted that the scope is ‘tempered’ by the ECtHR through a narrow approach. As Greer stresses, the ECtHR provides limited definitions of the terms in question, when it is asked to interpret non-derogable rights, as this is a way to achieve ‘satisfactory results’ and with the purpose of deferring to national criminal justice. See Steven Greer, The European Convention on Human Rights (CUP 2006) 241; Murphy, ‘The Principle of Legality in Criminal Law under the ECHR’ 205; Alastair Mowbray, ‘No Violations but Interesting: A Study of the Strasbourg Court’s Jurisprudence in Cases Where No Breach of the Convention Has Been Found’ (2008) 14 European Public Law 237, 252.

144  Case Study I: European Arrest Warrant Transfers the book. The approach of the Court to a proportionality analysis is here closely and critically considered with the purpose of informing the book’s framework of analysis. Advocate General Bot, who delivered his Opinion on Aranyosi and Căldăraru only a few weeks after the hearing, suggested a review of proportionality for the EAW to be conducted by the executing authorities.274 He acknowledged that ‘it is necessary to weigh up the rights of the surrendered person against the requirements of the protection of the rights and freedoms of others’.275 He considered security as a right to be protected in the sense of Article 6 of the Charter and he stated that this right is an absolute and non-derogable one, similar to Article 4 of the Charter. However, he suggested that weighing, conducted by the judge – ‘the guardian of individual freedoms’ – is essential, and the judge must choose the prevailing principle in every case, through the application of the principle of proportionality.276 Referring to the individualisation of the penalty, both at the stage of imposition and that of execution, he suggested that it is absolutely necessary to take into account the state of prisons.277 The penalty cannot become humiliation.278 Therefore, the principle of proportionality must be respected when issuing an EAW for the purpose of execution of a penalty, but also for conducting a criminal prosecution.279 Presumption of innocence is, in particular, another reason encouraging moderation, even if this is not expressly required by any provision in the FDEAW.280 It is the quality of proportionality, being a general principle of law, that urges the judge to take it into account and ensure moderation.281 Moreover, Articles 4 and 5 of the FDEAW are a manifestation, according to Advocate General Bot, of the principle of proportionality, which is translated to offering discretion to the executing authority.282 He further cited increasing institutional voices accepting the view that the principle of proportionality must be respected, at least by the issuing authorities, and explained why he thought that a proportionality review must be carried out by the executing authorities as well.283 Furthermore, Advocate General Bot clarified that although it is for the judicial authorities of the executing Member States to conduct the proportionality review, it is for the CJEU only to define the scope and the parameters of the principle.284 Therefore, he invited the national courts to refer relevant questions regarding a proportionality review to the Court by means of preliminary references.285

274 Opinion

in Aranyosi and Căldăraru, para 160. para 135. 276 ibid, para 136. 277 ibid, paras 137–41. 278 ibid, para 144. 279 ibid, paras 142, 145. 280 ibid, paras 146, 147. 281 ibid, para 147. 282 ibid, para 148. 283 ibid, para 154. 284 ibid, para 165. 285 ibid. 275 ibid,

Informing and Applying a Proportionality-based Analysis  145 Furthermore, Advocate General Bot found it necessary that the executing authority must be able to ask the issuing authority for any additional necessary information that will help to determine whether the surrender of the individual might expose him/her to disproportionate detention conditions, in light of systemic deficiencies in the detention conditions in the issuing Member State.286 Advocate General Bot illustrated in his Opinion in Aranyosi and Căldăraru how the principle of proportionality may be understood differently in different contexts. He interestingly discussed the principle from two angles: first, from the perspective of constitutional law, referring to the values of security and individual freedoms, and secondly, from the perspective of criminology. This multifaceted analysis shed light on the principle of proportionality in the AFSJ and revealed its sophisticated role. Moreover, he acknowledged the centrality of the principle, asking the national courts to refer questions in relation to it to the CJEU so that the latter could develop the scope and parameters of the principle. He also recognised that the proportionality of mutual recognition is inherent in the law as such, irrespective of the lack of an express reference to proportionality. Articles 4 and 5 of the FDEAW are nothing more than manifestations of proportionality. What is more, he admitted that the suggested approach, in tandem with references to the ECtHR,287 effectively calls the Court to act as a human rights court. His Opinion was welcome as it was fundamental rights informed and reflective of the evolving EU constitutionalism in the AFSJ. However, certain suggestions were based on a wrong premise and should be underscored and corrected. For example, he referred to ‘disproportionate detention conditions’, which implies that Article 4 of the Charter does not involve an absolute prohibition. This part of the Opinion lacks clarity in relation to the analysis on the right restricted. Such an understanding does not do justice to Article 4 of the Charter or to Article 3 of the ECHR. Although suggestions on a proportionality-based analysis are welcome, they should be informed by the rights in question, as a proportionality-based analysis is not always relevant. Moreover, he referred to the value or public interest of security as being a right and, most importantly, as being an absolute right similar to Article 4 of the Charter, including the absolute prohibition against torture and inhuman and degrading treatment. As a result, these two absolute rights, according to his view, should be balanced against each other. Security is recognised by some as a right, and this reading is not a new one.288 However, this reading is dangerous in many different ways, which could lead to pre-emptive securitisation.289 In this particular case, an 286 ibid, paras 167–68. 287 Application No 7337/05 Ladent v Poland ECtHR 11 April 2011, para 170. 288 Rhonda Powell, ‘The Right to Security of Person in European Court of Human Rights Jurisprudence’ (2007) 6 European Human Rights Law Review 649; Ian Loader and Neil Walker, Civilising Security (CUP 2007). 289 Sandra Fredman, ‘The Positive Right to Security’ in Benjamin J Goold and Liora Lazarus (eds), Security and Human Rights (Hart Publishing 2007); Mariana Valverde, ‘Governing Security, Governing Through Security’ in Ronald Daniels, Patrick Macklem and Kent Roach (eds), The Security of

146  Case Study I: European Arrest Warrant Transfers understanding of a right to security as an absolute right undermines the absolute prohibition of Article 4 of the Charter as it is set on an equal footing with it. Furthermore, the judgment made reference to proportionality in relation to all rights and particularly to the right to liberty,290 holding that [i]n that regards [sic], the executing judicial authority must respect the requirement of proportionality, laid down in Article 52(1) of the Charter, with respect to the limitation of any right or freedom recognised by the Charter. The issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time.

The judgment emphasised the role of the principle of proportionality as well and reiterated the importance of cooperation between the judicial authorities.291 Based on this, the executing authority will have to defer the execution of an EAW until further information is gathered for an informed decision to be made, but the surrender procedure must come to an end when the executing authority cannot rule out the possibility that there is a serious risk of inhuman or degrading treatment due to prison conditions.292 The judgment confirms that even though mutual trust remains a central principle, it is not based on a conclusive presumption but is rebuttable. The threshold is the risk of violation of fundamental rights, and a proportionality-based analysis is called for to assess whether the violation is excessive.

Conclusion: The Impact of Proportionality-based Analysis on Surrenders This chapter has demonstrated the impact and the limits of a proportionalitybased analysis in the context of executing an EAW in light of fundamental rights violations. The principle of proportionality should be respected in light of an interference with a fundamental right. The application of a proportionality-based analysis would help to assess whether an interference with a fundamental right is proportionate to allow a surrender under the FDEAW. The chapter has reflected on this context, offering an insight into a proportionality-based analysis with reference to different affected rights. In particular, the chapter has examined the development of EU criminal justice from the former third pillar to a central policy area of EU law and has provided an exposition of its constitutional framework. This area of law constitutes an example ­ reedom:  Essays on Canada’s Anti-Terrorism Bill (Toronto University Press 2001) 83; Liora Lazarus, F ‘The Right to Security – Securing Rights or Securitising Rights’ in Rob Dickinson, Elena Katselli Proukaki and Colin Murray (eds), Examining Critical Perspectives on Human Rights (CUP 2012). 290 Aranyosi and Căldăraru, paras 12 and 101. 291 ibid, paras 91, 94. 292 ibid, paras 100–01.

Conclusion: The Impact of Proportionality-based Analysis on Surrenders  147 of ‘criminal law beyond the state’,293 which finds itself in limbo since the EU is not a state and criminal law has always been a statehood field of law, delimited by constitutional principles.294 The FDEAW, replacing extradition with surrender, constitutes a spectacular example of this development and the main example of mutual recognition instruments in EU criminal law. The chapter has focused on the unfortunate but real scenario of executing an EAW in light of fundamental rights violations. Departing from a premise that the FDEAW must be read in a manner that the executing authority must be able to refuse the execution of an EAW in light of any interferences with rights, the chapter grapples with the more perplexing question of when such a breach is proportionate. The threshold would be that a surrender must not take place when mutual trust is so detrimental that no benefit of a surrender can outbalance the need to act in trust. An executing authority that has to make a decision should also consider other alternatives and criteria, such as the severity of the crime and the degree of seriousness of the risk. The proportionality-based analysis here is informed by the institutional suggestions to the issuing authority to conduct a proportionality test. Executing authorities should apply, when relevant, a proportionality-based analysis to the interference with the right in order to determine whether this is disproportionate. Here, judicial authorities should balance the importance of executing an EAW with the impairment of an individual’s position. To this end, the chapter examined different rights based on the premise that a proportionality test is only relevant with regard to rights amenable to restrictions. An analysis based on different rights provides an insight into them, and into the case law of the CJEU in conjunction with the ECtHR. With reference to the balancing stage, judicial authorities should consider the seriousness of infringement, the standard of protection according to the ECtHR, EU law and national law, and the remediability of the violation. These are some criteria that should determine whether any interference with a right is disproportionate. The FDEAW is a successful measure according to academic and empirical commentary.295 However, the quick transition from extradition to surrender was viewed as ‘a step too far too soon’296 and as ‘running before we can walk’.297 This is because the operation of mutual recognition in EU criminal justice was developed 293 Fichera, ‘Criminal Law Beyond the State’ 175. 294 ibid, 182. 295 Weyembergh, Armada and Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision I-3; Valsamis Mitsilegas, ‘The Area of Freedom, Security and Justice from ­Amsterdam to Lisbon. Challenges of Implementation, Constitutionality and Fundamental Rights, General Report’ in J Laffranque (ed), The Area of Freedom, Security and Justice, Including Information Society Issues. Reports of the XXV Fide Congress, Vol 3 (Tallinn 2012) 21–142; Murphy, Borat and Hoyte, Prosecutor and Government Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant 2. 296 Susie Alegre and Marisa Leaf, ‘Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant’ (2004) 10(2) European Law Journal 200. 297 Emily Smith, ‘Running Before We Can Walk? Mutual Recognition at the Expense of Fair Trials in Europe’s Area of Freedom, Justice and Security’ (2013) 4(1–2) New Journal of European Criminal Law 82.

148  Case Study I: European Arrest Warrant Transfers without sufficiently encompassing the protection of fundamental rights and predicting methods of addressing violations. Therefore, when assessing the impact that a proportionality-based analysis could have, in light of the neutral constitutional structure of proportionality, we should be careful. A proportionality-based analysis could be a Trojan horse to the process of decision making, inserting a degree of moral or policy choice. With an instrument such as the FDEAW, following criticism of the protection of fundamental rights using a proportionality-based analysis again could be dangerous. So, it is only safe to use it if it is accompanied by a consistent theory of rights which recognises their special force and priority. The next chapter moves to the different field of CEAS, which explores interferences with rights in the context of mutual trust under the Dublin system and the role of proportionality.

7 Case Study II: Dublin Transfers Introduction Transfers of asylum seekers in light of the Dublin III Regulation1 of the Common European Asylum System (CEAS) have been criticised as not being respectful of the protection of fundamental rights.2 In particular, it took many years for the Court to acknowledge that the presumption of mutual trust could be rebutted in light of systemic violations of fundamental rights that could give rise to substantial reasons to believe that there is a real risk that the applicant will be subject to inhuman or degrading treatment.3 Similar to the previous case study on EU ­criminal justice and particularly the FDEAW,4 this chapter considers the impact of a proportionality-based analysis in the context of transfers of individuals under the Dublin III Regulation. The chapter specifically examines the impact that a proportionality-based analysis could have on transfers of individuals, in light of breaches of fundamental rights. As explained earlier, a proportionality-based analysis could be embedded in mutual trust when there are interferences with fundamental rights. More specifically, the context of application pertains to the principle of proportionality in light of Article 52(1) of the Charter,5 in particular in relation to breaches of fundamental rights per se. National authorities should determine whether a transfer of an asylum seeker would lead to a disproportionate interference with their rights. 1 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III) [2013] OJ L180/31. 2 Claudio Matera, ‘The Common European Asylum System and its Shortcomings in Protecting Human Rights: Can the Notion of Human Security (Help to) Fill the Gaps?’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute, CLEER 2014) 12, 13; Joanna Lenart, ‘“Fortress Europe”: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012) 28(75) Utrecht Journal of International and European Law 4, 4–19; ECRE, ‘European Comparative Report; Dublin Regulation; Lives on Hold’ (February 2013). 3 Evelin Brouwer, ‘Mutual Trust and the Dublin Regulation: Protection of Fundamental Rights in the EU and the Burden of Proof ’ (2013) 9(1) Utrecht Law Review 135, 139, 143, 144. 4 Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (FDEAW) [2002] OJ L190/1. 5 Charter of Fundamental Rights of the European Union (the Charter) [2012] OJ C326/391, article 52(1).

150  Case Study II: Dublin Transfers The chapter applies a proportionality-based analysis in this context with reference to certain rights, and, similar to the previous case study, the chapter discusses several criteria which could be considered. The chapter argues that the impact of a proportionality-based analysis in addressing the imbalance regarding the presumption of mutual trust and fundamental rights is limited. First, a ­proportionality-based analysis should not apply to cases where absolute rights have been infringed. In those cases in which the Dublin system is suspended, a proportionality-based analysis is not useful. Having said that, proportionality could be beneficial when relative rights are infringed. Mutual trust should thus be limited even when violations of rights pertain to relative prohibitions. Moreover, the use of a proportionality-based analysis could be ­dangerous in the CEAS because of the deep-rooted flaws of the Dublin system.6 The deep-rooted problems of the area pertain to the lack of effective protection of fundamental rights. Fundamental rights of asylum seekers are effectively divested of the special force that they should have. As was discussed earlier in relation to legal ­indoctrination and the theory on proportionality, the principle is neutral and thus open to various theories of rights. This could result in allowing political bias. In CEAS, and particularly in the context of the Dublin system, where fundamental rights are not given sufficient regard and where the CJEU has been timid, if not slow, at recognising exceptions in the presumption of mutual trust, a theory of fundamental rights is far from well formed. Under these circumstances, there is a danger that a proportionality-based analysis would be fed by a theory that does not recognise rights’ special force. A proportionality-based analysis would thus be nothing more than a painkiller to treat the chronically ill Dublin III Regulation of the CEAS. However, a proportionality-based analysis could be useful in a future reformed framework of transfers in the CEAS, when the current overwhelming problems are addressed. This chapter first explores the CEAS and the asylum protection for an i­ndividual in EU law. It considers the public discourse in relation to humanitarian and border control narratives, in order to provide an exposition of the CEAS’ background. It proceeds to the institutional and legal evolution of the CEAS and then focuses on setting out the law on the Dublin III Regulation of the CEAS. Then, it applies the framework of proportionality analysis to it. Similar to the case study on the FDEAW, the structure is based on several rights, which are discussed by the case law of the CJEU. In particular, the chapter discusses various criteria of balancing, as developed by the CJEU in the context of determining the responsible Member State in the event of fundamental rights violations. Next, the chapter considers the impact of a proportionality-based analysis in relation to transfers where due 6 The term Dublin system is used to refer to the legislation concerning the determination of responsibility of a Member State for examining the application of a third-country national who seeks international protection. The legislation is now provided by the Dublin III Regulation, which amended Dublin II and Dublin I, Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the Member States by a third-country national OJ L50 (Dublin II).

Public Discourse and EU Asylum Law  151 process rights are interfered with by a state. The last part of the chapter assesses the reasons that render the impact of a proportionality-based analysis limited in this context.

Public Discourse and EU Asylum Law In order to understand the development of the CEAS and the Dublin III Regulation of the CEAS, we need to grasp the debates around it in the European public sphere. The discussion on the CEAS was heavily based on migration and border policies discourse and was mainly informed by security concerns. Humanitarian rhetoric was only gradually incorporated into the public discourse.7 It was in late 2004 that a humanitarian tone was first noted in official documents that had a border and migration narrative,8 following the Cap Anamur case. In June 2004, the German humanitarian ship, Cap Anamur, took 37 Sudanese asylum seekers aboard as it came across their inflatable dinghy, partially deflated. Libya was the closest land, but could not be considered as a safe place. Lampedusa, an Italian island, was the closest European land, and Malta the second closest. As the Lampedusa port was too small, the ship moved towards Sicily, having been given permission from the Italian authorities to enter Porto Empedocles. However, just before the ship entered Italian waters, Italian authorities revoked permission. Germany, Italy and Malta then subsequently refused to accept responsibility.9 No country wanted the rescued migrants in their territory. The dispute went on for 11 days, and in the meantime the Cap Anamur had to wait at the margin of the Italian sea borders, with the mental balance of the rescued people being affected.10 The ship finally entered the Sicilian port after having declared a state of emergency. The ship was immediately confiscated, with the ship’s master, the head of the NGO and the first officer being detained under the charge of aiding and abetting illegal immigration.11 This was the first case that triggered discussions regarding human security, later exacerbated by the Lampedusa tragedy of October 2013.12 Moreover, several other practices of EU states attracted criticism. Pushing asylum seekers back to North African states by not allowing people to cross sea 7 Paolo Cuttita, ‘From the Cap Anamur to Mare Nostrum: Humanitarianism and Migration Controls at the EU’s Maritime Borders’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute, CLEER 2014) 2–15. 8 ibid, 22. 9 Della Fina, ‘Cap Anamur Case, Tribunal of Agrigento, First Criminal Section, Judgment of 15 February 2010’ (2011) 13 Yearbook of International Humanitarian Law 544. 10 Cuttita, ‘From The Cap Anamur to Mare Nostrum’ 23. 11 After five years, they were all acquitted of all charges as they were acting for humanitarian purposes and not for profit. See Tribunale Di Agrigento, I Sezione Penale, I Collegio, 7 October 2009. 12 European Parliament Resolution of 23 October 2013 on migratory flows in the Mediterranean, with particular attention to the tragic events off Lampedusa (2013/2827(RSP)).

152  Case Study II: Dublin Transfers borders was a method used by Italian authorities until 2012. Then, the ECtHR ruled in Hirsi that the practice of repulsing 24 Eritrean and Somali people was unlawful as it violated Article 3 (prohibition of inhuman or degrading treatment) of the ECHR, Article 4 of Protocol 4 (prohibition of collective expulsion) and Article 13 (right to effective remedy) of the ECHR.13 The repatriation of the so-called economic migrants and interceptions of migrant boats by Libyan boats were other methods which violated the principle of non-refoulment.14 Migration and security control was therefore a dominant element in the debate on the CEAS.

The Common European Asylum System The Dublin III Regulation of the CEAS for determining the Member State responsible for examining an application of a third-country national for international protection is part of the wider framework on the CEAS and the Dublin system. Asylum protection and the definition of refugee are the first steps of exploration. These terms were developed in light of international refugee law and ­international human rights law. In this respect, EU law is informed by and complies with the standards of international human rights law protection as enshrined in the ECHR, the Geneva Convention, the ICCPR and the jurisprudence of the ECtHR.15 For example, Article 14(1) of the Universal Declaration of Human Rights states that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’. Moreover, Article 18 of the Charter states that ‘the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention …’. Therefore, in line with the aforementioned international commitments, the AFSJ is committed to being open to those who legitimately seek protection in the European Union, ‘forced by the circumstances’.16 In line with international refugee law, Article 2(e) of the Qualification Directive17 provides that ‘refugee status means the recognition by a Member State of a third-country national or a stateless person as a refugee’. Article 2(d) of the same instrument provides that a ‘refugee’ is a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear,

13 Application No 27765/09 Hirsi Jamaa and Others v Italy ECtHR 23 February 2012. 14 Chiara Marchetti, ‘Expanded Borders: Policies and Practices of Preventive Refoulement in Italy’ in Martin Geiger and Antoine Pécoud (eds), The Politics of International Migration Management (Palgrave Macmillan 2010) 160–83. Marchetti calls this preventive refoulment. 15 On the relationship of the different interrelated legal orders see Violeta Moreno-Lax, ‘Of Autonomy, Autarky, Purposiveness and Fragmentation: The Relationship between EU Asylum Law and International Humanitarian Law’ in Jean-François Duryea and David Cantor (eds), Refuge From Inhumanity: Enriching Refugee Protection Standards through Recourse to Humanitarian Law (Martinus Nijhoff 2014) 295–341. 16 Dublin III, Preamble, recital 2. 17 Qualification Directive.

The Common European Asylum System  153 is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it.

This definition is based on that provided in Article 1A(2) of the Geneva Refugee Convention.18 It is worth noting that the definition provided in the Qualification Directive refers to third-country nationals, thus excluding citizens of the EU Member States from the scope of protection of the Directive. This is an indication of the presumption of mutual trust among the Member States of the European Union. It follows that recognition of a person as a refugee does not make that person a refugee, but formally affirms him or her to be one. Furthermore, the principle of non-refoulement must be respected, which guarantees that no one is sent back to endure persecution.19 Article 21 of the Qualification Directive, in light of Article 33(2) of the Geneva Refugee Conven­ tion, states that exceptions to the principle of non-refoulment are allowed only on the grounds explicitly provided there. The well-founded fear of being persecuted must be associated with one of the grounds involved in the refugee definition (race, religion, nationality, political opinion or membership of a particular social group). In situations of armed conflict where particular groups of persons are targeted for racial, religious, ethnic, political or social reasons, these acts can amount to persecutory acts within the meaning of the refugee definition.

The Institutional and Legal Evolution of the Current Framework on CEAS It was in this context of public discourse that the CEAS has been developed over the last decade. The aim was to create a common space where any person s­ eeking protection would be treated according to the same standards, everywhere.20 A central feature of the CEAS is that it is anchored by a presumption of mutual trust. The law is premised on the confidence that there is equivalence in standards of protection granted to asylum seekers with regard to asylum procedures and the protection of fundamental rights throughout the European Union. This fundamental element of the law is why this case study was chosen as this book considers only limits to mutual trust posed by fundamental rights breaches. The EU competence in matters related to asylum was first established by the Treaty of Amsterdam of 1997, by which decision-making powers with respect to asylum, immigration and residence of third-country nationals were transferred

18 Convention relating to the status of refugees (1951). 19 Dublin III, Preamble, recital 3. 20 Myrthe Wijnkoop, ‘Human Security and CEAS: Bringing Human Rights into the Centre of the EU’s Asylum Policy’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute, CLEER 2014) 40.

154  Case Study II: Dublin Transfers to the European Union.21 With particular regard to asylum matters, the then provision on competence, Article 63(1) of the TEC, required that measures to be adopted by the EU legislature must be in accordance with the Geneva Convention and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties such as the ECHR. The powers of harmonisation, according to the same provision, were restricted to setting minimum standards. The need for harmonisation was stressed by the Tampere Council to prevent ‘asylum shopping’ and provide for better safeguards throughout the European Union.22 Moreover, European leaders committed to giving ‘absolute respect of the right to seek asylum’.23 Two further phases of the harmonisation process were agreed using the consultation procedure with limited participation of the European Parliament. During the first period, from 1999 until 2004, minimum standards were developed with regard to reception conditions, asylum procedures and qualification criteria for protection, and a new Regulation for the allocation of responsibility was adopted. This first legislative phase was criticised as disappointing from a fundamental rights perspective.24 It was considered as a ‘race to the bottom’, reflecting the lowering of international human rights protection.25 The next multiannual programme, the Hague programme, aimed at better and more harmonised standards of protection than before and was based on a thorough assessment conducted by the Commission. The external dimension of asylum policy was also considered in order to build external collaborations with third states. Despite the thorough assessment and the promising commitments, ‘legislative fatigue’26 led to delays and unsatisfactory changes from the perspective of fundamental rights.27 In the meantime, the Lisbon Treaty brought significant changes to the protection of fundamental rights as the Charter became legally binding28 and the AFSJ became a central EU policy area.29 National courts could now submit preliminary references to the CJEU with reference to secondary CEAS measures, and the Charter could be used to ensure the protection of fundamental rights.30 After the Treaty of Lisbon, policies on asylum, immigration and border checks fell within the remit of the AFSJ, under Title V TFEU. Chapter II of Title V focuses

21 Steve Peers, EU Justice and Home Affairs Law (Oxford EU Law Library, 3rd edn, OUP 2011) 19–24. 22 European Council, ‘Presidency Conclusions’ (Tampere Presidency Conclusions) (1999) Tampere 15 and 16 October 1999 OJ C332 E, 3. 23 ibid, 13. 24 Wijnkoop, ‘Human Security and CEAS’ 42. 25 UN Secretary General Kofi Annan, ‘Address to the European Parliament’ (29 January 2004). 26 ibid, 45. 27 Steve Peers, ‘The Second Phase of the Common European Asylum System. A Brave New World – Or Lipstick on a Pig?’ (Statewatch Analysis, 8 April 2013) www.statewatch.org/analyses/no-220-ceassecond-phase.pdf. 28 Art 6(1), Consolidated Version of the Treaty on the European Union (TEU) [2008] OJ C115/13. 29 TFEU, art 78. 30 ECRE and Dutch Council of Refugees, ‘The Application of the EU Charter on Fundamental Rights to Asylum Procedural Law’ (October 2014).

The Common European Asylum System  155 on asylum policies in particular.31 Article 77 of the TFEU states that the European Union shall ensure the abolition of any checks for the movement of people when crossing any internal borders, irrespective of the nationality of people. Instead, the checks and controls shall be moved to external border crossings. It is specifically stated that the Union shall develop a common policy on asylum, subsidiary protection and ­temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement.32

Another central feature of this policy area is the principle of solidarity among Member States with regard to the allocation of responsibility. According to Article 80 of the TFEU,33 this principle should govern the application of the EU competence on borders, migration and asylum policies. Moreover, according to Article 67(2) TFEU, the principle of solidarity is referred to as the cornerstone of EU policies on borders, migration and asylum. A CEAS shall also (continue to) comprise common procedures throughout the European Union for granting and withdrawing asylum status, establishing criteria and mechanisms for the determination of the Member State responsible, setting standards for the reception conditions of applicants, and finally arranging partnerships with third countries in relation to management of migration flows.34 Moreover, Article 78(3) of the TFEU provides that, in the event that one or more Member States face a sudden inflow of nationals from third countries, provisional measures may be adopted for the benefit of the Member State concerned. It is the Council which may adopt the measures, following a proposal by the Commission and a consultation with the European Parliament. This provision again strengthens the idea behind creating a common asylum system where only external borders exist and the confrontation of any emergent problems should be uniform. On the other hand, the legislative procedure triggered for the adoption of these measures is not an ordinary one.35 The Council adopts the measure merely through consulting the Parliament. It is questionable whether the Treaty offers sufficient credentials for democratic legitimisation of such an important measure of solidarity. The Stockholm Programme did not include any more plans on additional binding asylum instruments but focused on the implementation of the second phase of instruments.36 In June 2015 the Council adopted new strategic guidelines as a post-Stockholm measure, which predominantly focused on border control

31 TFEU, arts 77–80. 32 TFEU, art 78(1). 33 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47. 34 TFEU, art 78(2). 35 ibid. 36 European Council (2010/C115/01) The Stockholm Programme – An Open and Secure Europe Serving and Protecting the Citizens OJ C115/1.

156  Case Study II: Dublin Transfers and prevention of irregular migration rather than the protection of fundamental rights.37 In summation, a number of secondary measures were adopted in the context of the CEAS.38 Procedures and substantive rules of refugee law were harmonised. The legislation involves, inter alia, common standards for the granting and withdrawal of asylum status,39 minimum standards for the qualification of persons as refugees,40 and minimum standards for setting reception conditions.41 As was highlighted in the previous section, the CEAS is based on the mutual trust that fundamental rights are going to be respected. Therefore, certain secondary measures, such as the Qualification Directive and the Reception Conditions Directive, constitute ‘trust-building’ or ‘trust ensuring’ instruments.42

Dublin III Regulation The CEAS involves, inter alia, legislation concerning the criteria and mechanisms for determining the responsible Member State for examining an asylum application lodged by a third-country national. The first version of the measure was adopted in 1990 on an intergovernmental basis in order to meet the objectives of creating a common area of freedom of movement (the internal market) as targeted by the Single European Act. Subsequently, after the Treaty of Amsterdam,43

37 European Council Conclusions, EUCO 79/14 (26–27 June 2014). 38 For an analytical discussion of the CEAS and the secondary measures adopted in this context see Kay Hailbronner and Daniel Thym (eds), EU Immigration and Asylum Law (Hart Publishing 2015); Violeta Moreno-Lax, Accessing Asylum in Europe: Extraterritorial Border Controls and Refugee Rights under EU Law (OUP 2017); Samantha Velluti, Reforming the Common European Asylum System  – Legislative Developments and Judicial Activism of the European Courts (2013 Springer Link); Steve Peers, Elspeth Guild and Jonathan Tomkin, EU Immigration and Asylum Law: Text and Commentary (Leiden/Boston: Martinus Nijhoff, 2012); Flora ANJ Goudappel and Helena S Raulus (eds), The Future of Asylum in the European Union; Problems, Proposals and Human Rights (Springer 2011. 39 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status OJ L326. 40 Qualification Directive; Council Directive 2004/83 is repealed with effect from 21 December 2013 by article 40 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted OJ 2011 L337. 41 Directive 2013/33/EU of the European Parliament and the Council of 26 June 2013 laying down standards for the reception of applicants for international protection OJ L180. 42 However, the Member States failed to implement these measures in a consistent way. See Lieneke Slingenberg, ‘Asylum Seekers’ Access to Employment: Tensions with Human Rights Obligations in the Recast of the Directive on Reception Conditions for Asylum Seekers’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection In Times of Emergencies (Asser Institute, CLEER, 2014) 93; Robert K Visser, ‘Two Realities: Striking the Balance’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute, CLEER 2014). 43 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the ­European Communities and certain related acts [1997] OJ C340.

The Common European Asylum System  157 a shared competence was created for the European Union to legislate on asylum issues.44 On this basis, the Dublin Convention of 1990 was replaced by the Dublin II Regulation, a result of the first phase of implementation of the CEAS, as stipulated by the Tampere programme.45 The Dublin III Regulation amended the Dublin II Regulation, following the ground-breaking judgment of N.S. and M.E.46 Nonetheless, the fundamentals of the allocation process remained the same, which reflects a reluctance by the Member States to change the legislation.47 The measure was adopted in view of the implementation of the second phase of the CEAS, along with complementary instruments comprising the so-called Dublin system. The Dublin system is supported by a measure on the establishment of an expansive database of fingerprints, EURODAC.48 The current legislation on the allocation of responsibility under the Dublin III Regulation is comprised of eight chapters.49 The Dublin III Regulation of the CEAS operates on the premise that all the Member States are considered safe states for third-country nationals and that they all respect the principle of n ­ on-refoulment.50 On this premise, a single Member State is determined as the one r­esponsible to examine an application of a third-country national to be granted asylum ­protection.51 This is the first Member State where the application is lodged. The rest of the Member States may refuse to examine an application (re)­submitted to them if they are not responsible. Therefore, the asylum seeker should be transferred to 44 TEC, art 73. 45 See European Council, Tampere Presidency Conclusions (15–16 October 1999). 46 Opinion in Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:611. 47 See Moreno-Lax, ‘Life after Lisbon’ 148, 149; Peers, ‘The Second Phase of the Common E ­ uropean Asylum System’; Steve Peers, ‘The Revised “Dublin” Rules on Responsibility for Asylum-Seekers: The Council’s Failure to Fix a Broken System’ (2012) (Statewatch http://www.statewatch.org/analyses/ no-181-dublin.pdf. 48 Regulation (EU) 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) 1077/2011 establishing a European agency for the operational management of large-scale IT systems in the area of freedom, security and justice (Recast) [2013] OJ L180/1, 1–30; Dublin III Regulation. 49 Chapter I contains definitions and the subject matter of the Regulation. Chapter II includes general principles and safeguards. Chapter III lists the criteria for determining the Member States responsible. Chapter IV contains provisions in relation to dependent person and lists discretionary clauses. Chapter V provides for the obligations of the Member State responsible. Chapter VI elaborates on the procedures for taking charge and taking back the asylum seeker. Chapter V provides rules for the detention of applicants when needed. Chapter VI regulates the actual transfers of the applicants with regard to time limits and modalities, the cost of the transfers, the exchange of relevant date before the transfer between the competent authorities and a mechanism of early preparedness and crisis management. Finally, the last three chapters regulate the administrative cooperation between the relevant authorities, provide rules on conciliation and final and transitional provisions are set out. 50 Dublin III, Preamble, recital 3. 51 ibid, art 1(1).

158  Case Study II: Dublin Transfers this first state if he is located in another Member State and attempts to lodge an application with the latter one.52 Humanitarian and compassionate criteria may allow derogations from the rules on responsibility so that Member States can reunite family members.53 Applicants moving freely within the European Union were seen as a threat to the system as it could lead to asylum shopping and repeated requests for asylum protection.54 As one Member State is determined to be responsible, the rest of the Member States trust the responsible Member State, thus recognising its responsibility and dispensing with their own responsibility.55 Moreover, responsibility is determined by various criteria outlined in Chapter III, including family, age and residence, or if the claimant previously held an immigration document.56 The first criterion is driven by a guarantee to respect family unity,57 and the rest of the criteria are linked to the immigration control of a Member State through which an applicant entered the European Union and managed to obtain a visa or residence permit.58 Suspension of transfers under Article 3(2), and special responsibility rules for unaccompanied minors under Article 8(4), are two innovations brought in by the Dublin III Regulation. In the event of the absence of standard criteria for the determination of the responsible Member State, and in the event of an irregular entry into the European Union, responsibility is with the Member State of first entry of the applicant.59 Article 13 of the Dublin III Regulation states: Where it is established … that an applicant has irregularly crossed the border into a Member State … the Member State thus entered shall be responsible for examining the application for international protection.

The latter rule was adopted based on mutual confidence that all Member States comply with their obligation to respect fundamental rights created by international human rights law and EU law. From a legal point of view, it is ensured that the treatment of asylum seekers in each Member State satisfies their obligations to respect fundamental rights in light of Member States’ participation in the ECHR60 52 The mandatory tone of the law contradicts the Preamble, where the voluntary nature of the transfer is highlighted. See ibid, Preamble, recital 24: the transfers to the responsible state should be carried out on a voluntary basis. The character of the state’s contributory role to the transfers should be supervisory. 53 ibid, recital 17. 54 Silvia Morgades-Gill, ‘The Discretion of States in Dublin III System for Determining Responsibility for Examining Applications of Asylum; What Remains of the Sovereignty and Humanitarian Clauses after the Interpretations of the ECtHR and the CJEU?’ (2015) 27(3) International Journal of Refugee Law 433, 434. 55 Valsamis Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ (2014) 2(2) Comparative Migration Studies 181, 184, 190. 56 Dublin III, arts 7–15. 57 The importance of this guarantee is highlighted by UNHCR Standing Committee, ‘Family Protection Issues’, UN Doc EC/49/SC/CPR.14, 4 June 1999. 58 Agnès Hurwitz, ‘The Dublin Convention: A Comprehensive Assessment’ (1999) 11 International Journal of Refugee Law 646, 648. 59 Dublin III, art 13(1). 60 European Convention on Human Rights (Council of Europe, Rome, 1950).

The Common European Asylum System  159 and in the Geneva Convention.61 The EU legislature adopted the Dublin III Regulation of the CEAS precisely on the premise of mutual confidence, and it is because of this premise that the objectives pursued can actually be realised.62 Two discretionary flexible clauses were also established, allowing Member States to accept responsibility even in cases where they are not primarily responsible. The sovereignty clause is of particular interest. Article 3(2) of the Dublin II Regulation (now amended by the Dublin III Regulation) states By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation.

The sovereignty clause is now enshrined in Article 17(1) of the Dublin III Regulation, which repeats the same provision. A second discretionary clause concerns humanitarian and cultural reasons based on when a Member State, even if not primarily responsible, may decide to examine applications.63 Moreover, competent authorities are obliged to inform an applicant on the objectives and operation of the Dublin III Regulation, the criteria for determining the responsible Member State, the provision of a personal interview according to Article 5 of the Regulation, the possibility of challenging a decision on responsibility and requesting the suspension of a transfer, and the consequences of moving from one Member State to another while an application is pending.64 It is now recognised by the recast Dublin III Regulation that deficiencies in the operation of national asylum systems might endanger respect for the fundamental rights of asylum seekers as they are enshrined in the Charter, the ECHR and other international human rights agreements.65 The amendment signifies a slight but expected departure from a rigid, state-centric assessment of the objective of the Regulation.66 This is viewed as a suspension of the Dublin system and was followed by several other cases wherein the authorities of the Member States refused to send an asylum seeker to a responsible Member State because they did not consider it safe, or because they accepted a larger number of refugees than they would otherwise, based on the Dublin III Regulation.67 A recent example is a judgment where a Finnish court suspended Dublin returns to Hungary.68

61 Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949); Dublin III, Preamble, recital 3. 62 Case C 394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813, para 53. 63 Dublin III, Preamble, recital 17. 64 Dublin III, art 4. 65 ibid, Preamble, recital 21. 66 ECRE, ‘European Comparative Report; Dublin Regulation; Lives on Hold’ 14–17. 67 Germany suspended the Dublin system in August 2015 in an act of European solidarity to receive Syrian refugees. See www.euractiv.com/section/global-europe/news/germany-suspendsdublin-agreement-for-syrian-refugees. Hungary reversed suspension of the law in June 2015 and stopped receiving asylum seekers. See http://ecre.org/component/content/article/70-weekly-bulletinarticles/1112-hungary-reverses-suspension-of-dublin-regulation.html. 68 Finland’s supreme administrative court recently ruled that returning an Afghan asylum seeker to Hungary was problematic because of the country’s asylum procedures. See ‘Finland

160  Case Study II: Dublin Transfers The case law of the CJEU also developed several conditions. In particular, it established that national authorities implementing the law must not worsen the position of the applicant.69 It also held that the state where the applicant currently resides, but which cannot transfer the applicant to the primary responsible Member State, does not become automatically responsible, but has to continue the determination process for the next country.70 Moreover, it ruled that the humanitarian clause of Article 15 does not necessarily have to be established for a state to exercise responsibility,71 and that there is no need to request the opinion of the United Nations High Commissioner for Refugees (UNHCR) when it is apparent from the documents submitted to the Court that the Member State in question is in breach of EU law on asylum.72 Furthermore, the Court held that the applicant for asylum can only challenge the state’s decision not to examine his application by claiming that he would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.73

Dublin Shortcomings Border and Migration Control as Dominant Narrative What is more, the CEAS was developed in a way that access to the EU area for asylum seekers is generally impeded in the name of the fight against illegal migration and trafficking.74 The link between asylum and migration policy has greatly shaped CEAS law, with the result that there is more focus on migration control than on international protection.75 Commentators, both from academia and the Suspends Asylum Seeker Returns to Hungary Following Higher Court Ruling’, http://yle.fi/uutiset/ finland_suspends_asylum_seeker_returns_to_hungary_following_higher_court_ruling/8828852. 69 N.S. and M.E., para 98; Puid, para 35. 70 Case C-4/11 Bundesrepublik Deutschland v Kaveh Puid ECLI:EU:C:2013:740, paras 25–26. 71 Case C-528/11 Zuheyr Frayeh Halaf v Darzhavna Agentsia Za Bezhantsite Pri Ministerskia Savet ECLI:EU:C:2013:342, para 39; In Halaf, the Court further clarified that the humanitarian clause of art 15 is not necessary to be established, for the benefit of the applicant. The referring court here asked whether art 3(2) of the Dublin III Regulation should be interpreted as meaning that it permits a Member State to assume responsibility for examining an application for asylum where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause of art 15. The provision must be interpreted as permitting a Member State, which is not indicated as responsible under the criteria in chapter III of the Regulation, to examine an application for asylum even though no circumstances exist which establish the applicability of the humanitarian clause in art 15 of the Dublin III Regulation. That possibility is not conditional on the responsible Member State to have failed to respond to a request to take back the asylum seeker concerned. Here, the Court tilted the balance towards a pro-applicant interpretation of art 3(2) of the Regulation. 72 ibid, para 47. 73 Abdullahi, para 62. 74 Matera, ‘The Common European Asylum System and its Shortcomings in Protecting Human Rights’ 13. 75 Moreno-Lax, ‘Life After Lisbon: EU Asylum Policy as a Factor of Migration Control’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law; After Lisbon and Stockholm (Hart Publishing 2014) 165; Lenart, “Fortress Europe”‘ 4.

The Common European Asylum System  161 non-governmental sector, revealed that the Dublin III Regulation of the CEAS operates to the detriment of asylum seekers’ rights.76 Furthermore, from an institutional perspective, the CEAS, and the Dublin III Regulation of the CEAS in particular, currently fail to embrace and apply the solidarity principle enshrined in Articles 80, 67(2) and 222 TFEU.77 The Dublin III Regulation of the CEAS is criticised for putting pressure and over-relying on asylum systems of the Member States located at the external borders. Additionally, the objectives of the Dublin III Regulation of the CEAS, as enshrined by the legislation and read by the case law, reveal a state-centric perception. A teleological understanding of the measure in case law recognises the state-centric objectives of the measure and does not make the expected references to the interests of the people who are directly affected by the allocation of responsibility. As a result, the objective of the measure, which interferes with the right, is often recognised in isolation from fundamental rights considerations. For example, avoiding forum shopping by allowing only one Member State to accept responsibility is usually referred to by the Court as a prevailing interest and constitutes an objectives shaped by migration policy.78 The main objective of the Dublin III Regulation of the CEAS recognised by case law is to shape ‘a clear and workable method’ for which a Member State is responsible for accepting applications.79 Additionally, the judicial reasoning in Puid demonstrates the same narrative. The question was whether an asylum seeker had an enforceable right to request the examination of her application; the Court dismissed the applicant’s argument. Advocate General Jaaskinen highlighted the Regulation’s commitment to speed and prevention of forum shopping,80 by establishing the criteria and mechanisms for identifying the Member State responsible as the objective of the measure. He went on to explicitly state that the measure does not intend to vest individuals with rights, but merely to organise states’ relations.81 According to the Court, this is because the seizure of responsibility under the sovereignty clause can be said to detract from the rapid operation of the Dublin system – as it delays the automatic transfer of asylum seekers to their designated state as predetermined by the Regulation. The crucial consideration in teleological interpretation is the mechanical process of identifying the responsible state. This ultimately works to the detriment of asylum seekers’ position in the context of the CEAS, and particularly 76 ECRE, European Comparative Report, ‘Dublin Regulation; Lives on Hold’; Moreno-Lax, ‘Life After Lisbon’ 149. 77 See for this issue Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’; Carlier, ‘Droit d’asile et des réfugiés’. 78 Dublin III, Preamble, recital 5. 79 Dublin III, Preamble, recital 4. 80 Opinion in Case C-4/11 Puid ECLI:EU:C:2013:244, para 57. 81 ibid, paras 58, 63. So, the applicants do not have an enforceable right to request that a Member State where they are located assume responsibility in the event of systemic deficiencies in reception conditions and asylum procedure in the state primarily responsible. The Member States are only obliged by virtue of art 6(1) TEU not to transfer the applicant to the ‘dangerous’ state and continue the process of determination.

162  Case Study II: Dublin Transfers under the Dublin system, as it gives rise to judgments which seem more protective of EU law than of the individual involved. This is problematic as it engenders an imbalance between competing interests and fails to put fundamental rights on an equal footing with other interests, let alone recognise the special force of fundamental rights. This will result in balancing which does not start from a solid premise. This is evident when trying to apply a proportionality-based analysis in light of these circumstances. A ­ proportionality-based analysis requires indicating the measure’s legitimate objectives. The first stage checks whether the legislative measure alleged to have breached the fundamental right of the individual pursues a certain legitimate objective.82 As was developed earlier, the objective of the measure is identified in the candidate interests which are rationally connected to the policy that dictates the interference with the right.83

Refugee (Governance) Crisis While refugees continue to arrive at the European shores every day, EU asylum law is upholding its policies as ‘Fortress-Europe’.84 More broadly, it has been questioned whether EU law and policy are humane enough.85 EU law’s promise to rely on solidarity is being continuously proven naked86 and its emphasis on human rights seems to be forgotten. But this only seems to apply to asylum policy. While barriers are mounting for asylum seekers, the EU geographical space is still celebrated as a borderless space for economic activity. Increased bordering and refusal of EU states to share responsibility in the asylum crisis are rendering the EU asylum law ineffective. While the European Union is receptive where economic gain is concerned, it appears to be a fortress when human lives are at stake during the alleged refugee crisis.87 Commentators have highlighted the f­ailings of EU asylum law from different specific angles.88

82 See Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2009) 47 Columbia Journal of Transnational Law 73, 76. 83 Kai Möller, ‘Proportionality: Challenging the Critics’ (2012) 10(3) International Journal of ­Constitutional Law 709. 84 Lenart, “Fortress Europe”‘ 4; Efthymios Papastavridis, ‘“Fortress Europe” and FRONTEX: Within or Without International Law?’ (2010) 79(1) Nordic Journal of International Law; Steve Peers, ‘Building Fortress Europe: The Development of EU Migration Law’ (1998) 35(6) CML Rev 1235. 85 Nuno Ferreira and Dora Kostakopoulou (eds), The Human Face of the European Union (CUP 2016) ch 10 (Dallal Stevens). 86 EU asylum law has not, it is argued, realised its constitutional promise to rely on solidarity. Esin Kucuk, ‘The Principle of Solidarity and Fairness in Responsibility Sharing: More Than Window Dressing?’ (2016) 22(4) European Law Journal 448. 87 Elspeth Guild, Cathryn Costello, Madeline Garlick and Violeta Moreno-Lax, ‘The 2015 Refugee Crisis in the European Union’ (2015) Centre for European Policy Studies No 332. 88 Violeta Moreno-Lax, ‘Life After Lisbon’ 149, 165; ECRE, ‘European Comparative Report; Dublin Regulation; Lives on Hold’; Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ 184, 190; Lenart, “Fortress Europe”’.

The Common European Asylum System  163 The European Union is under enormous pressure to respond to the increasing influx of people who have managed to flee from war zones, famine and authori­­­tarian regimes, and who view Europe as a secure land.89 Since 2011 the emergencies affecting north and central African and Middle Eastern ­countries have intensified the need for the European Union to provide asylum to those people.90 The crisis is far from over and reveals an existential question facing the CEAS and concerning the application of the principles of solidarity,91 nonrefoulment and mutual trust. The legislative response of the European Union to the humanitarian crisis – especially to the ongoing influx of Syrian refugees during and after the summer of 2015 – was extremely slow92 and ‘far from satisfactory’.93 The loss of human lives is a painful reality, as 3,000 people died in 2014 trying to cross Greek sea borders and the Mediterranean sea and the EU Member States’ maritime borders.94 As a result of the worsening of the refugee crisis in 2015 and 2016 to a degree which is now beyond local control, Dublin III is de facto suspended. Member States’ discretion to transfer an individual to the primarily responsible Member State was already limited by the CJEU judgments and the amendment of the Regulation.95 If  Member States transferred an applicant back to the primarily responsible Member State, they would be held in breach of Article 4 of the Charter. As a result, transfers back to Greece of applicants who had irregularly entered an EU Member State, but who had made their way out of the country, had already been suspended following M.S.S. v Belgium and Greece in 2011.96 In sharp contrast to

89 European Commission, Remarks by Commissioner Avramopoulos on thee Situation in the Mediterranean at the LIBE Committee in the European Parliament of 14 April 2015, Speech/15/4774, http:// europa.eu/rapid/press-release_speech-15-4774_en.htm. 90 Giuseppe Campesi, ‘The Arab Spring and the Crisis of the European Border Regime: Manufacturing Emergency in the Lampedusa Crisis’ (2011) EUI RSCAS Working Paper Mediterranean Programme, http://cadmus.eui.eu/handle/1814/19375. 91 Iris Goldner Lang, ‘Is There Solidarity on Asylum and Migration in the EU?’ (2013) 9(9) Croatian Yearbook of European Law and Policy 1. 92 The gaps in EU legislation and lack of humanitarian crisis management were filled by the unofficial solidarity collective actions of locals and of non-state actors. For example, people of my hometown, located close to the Greek – North Macedonia borders voluntarily organise themselves through social media to provide refugees with food, medicine, clothing and legal advice. See Marianna Karakoulaki, ‘Borders of Despair: Refugees at the Greek–Macedonian Borders’ (2015) Demotix the Home of World-Leading Photojournalism, www.academia.edu/12297875/Borders_of_Despair_Refugees_at_the_ Greek__Macedonian_Borders; Teleuteos Stathmos Eidomeni (Terminal Stop: Idomeni, Translated From Greek) www.parallaximag.gr/parallax-view/teleytaios-stathmos-eidomeni. 93 Matera, ‘The Common European Asylum System and its Shortcomings in Protecting Human Rights’ 12. 94 International Organization for Migration, Fatal Journeys; Tracking Lives Lost During ­Migration, Tara Brian and Frank Laczko (eds) 2014, www.iom.int/files/live/sites/iom/files/pbn/docs/Fatal-­ Journeys-Tracking-Lives-Lost-during-Migration-2014.pdf. 95 Morgades-Gil, ‘The Discretion of States in the Dublin III System for Determining Responsibility for Examining Applications for Asylum’ 433. 96 Colin Yeo, ‘Returns to Greece Unlawful, Says Strasbourg’ (Free Movement Immigration Law Blog, 21 January 2011) www.freemovement.org.uk/returns-to-greece-unlawful-says-strasbourg/.

164  Case Study II: Dublin Transfers this obligation, the EU–Turkey agreement97 now permits transfers of applicants to Turkey, despite serious concerns that this agreement will end up in violations of fundamental rights.98 As Peers puts it, this ‘suggestion is now utterly preposterous’ in light of the general state of human rights in Turkey.99 These recent developments have transformed the system of allocation of responsibility and now inform the concept of trust in a manner far more distorted than before M.S.S. v Belgium and Greece: that mutual trust was ‘blind’ and absolute. Although not explicitly stated in the EU–Turkey statement,100 trust has now implicitly been extended to a third country, Turkey, for the purpose of putting forward the EU–Turkey agreement, revealing a glaring gap in the rationale behind this agreement and displaying a contrast with the principles of the CEAS, when trust was already collapsing within the European Union. Clearly, the Dublin system is not related to this agreement as it only governs the relations between EU Member States. However, it is clear that the concept of mutual trust is the victim of a paradox.

Informing and Applying a Proportionality-based Analysis in the Context of the Dublin III Regulation It was held that an asylum seeker cannot be transferred to the responsible state where the systemic violations of fundamental rights present a well-founded danger of exposing him to conditions where his right under Article 4 of the ECHR could be breached. However, this is the only case where the Court allows limitations on mutual trust. This only refers to extreme circumstances and precludes other occasions of breaches of fundamental rights. The same ‘delimitated limit’ was recently used in the context of the FDEAW.101 The book submits that challenging a transfer in light of fundamental rights violations must also be accepted in relation to other fundamental rights violation, if the transfer leads to disproportionate interference with these rights. A proportionality-based analysis here would assist the assessment on whether the interference with an applicant’s fundamental rights is disproportionate enough to oblige a Member State not to transfer the applicant. 97 European Council and Council of the EU, ‘EU-Turkey Statement’ 18 March 2016 Press Release. The agreement aims to respond to the increasing flow of smuggled migrants travelling across the Aegean from Turkey to the Greek islands. The agreement allows Greece to return to Turkey ‘all new irregular migrants’ arriving after 20 March 2016. 98 Amnesty International, ‘EU-Turkey Refugee Deal a Historic Blow to Rights’ (18 March 2016) www.amnesty.org/En/Latest/News/2016/03/EU-Turkey-Refugee-Deal-A-Historic-Blow-To-Rights/; Human Rights Watch, ‘EU: Turkey Mass-Return Deal Threatens Rights’ (15 March 2016) www.hrw. org/news/2016/03/15/eu-turkey-mass-return-deal-threatens-rights. 99 Peers, ‘The Final EU/Turkey Refugee Deal: A Legal Assessment’. 100 European Council and Council of the EU, ‘EU-Turkey Statement’ (18 March 2016) www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/. 101 Joined Cases C-404/15 and C-659/15 PPU Pal Aranyosi and Robert Căldăraru ECLI:EU:C:2016:198.

The Common European Asylum System  165 A proportionality-based analysis, in the context of mutual trust, would assess certain criteria in a similar way as in the context of the FDEAW. These criteria could shape a qualified form of mutual trust when fundamental rights are infringed or if there is a serious risk that they will be infringed if an individual is transferred.

Proportionality-based Analysis Informed by the Rights in Question This section considers the rights of the asylum seeker that might be interfered with by the asylum procedure and then applies the proportionality-based analysis with regard to those rights. First, the section considers the absolute prohibition included in Article 4 of the Charter and argues that the principle of proportionality is not compatible with any violation of this article. It follows that the Court must not engage in any balancing exercise here, once it is established that a transfer of an asylum seeker could amount to a serious risk of interference with this right. Second, the section considers the right to a fair trial and procedural safeguards in asylum procedures. It is argued that protection under this right must be recognised for asylum seekers as well, and then it is discussed how a proportionality-based analysis could apply in a case where an asylum seeker claims that his right to a fair trial was interfered with by the state. Absolute Prohibition of Torture, Inhuman and Degrading Treatment In view of the case study, the CJEU argued in N.S. and M.E.102 that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.

The chapter argues that judicial authorities must not apply a proportionality-based analysis to an interference with this right. Here, as long as the minimum level of interference is ascertained, an application of a proportionality-based analysis to the interference with this right is not helpful. This is argued based on the CJEU case of N.S. and M.E., the theoretical account of rights which should accompany an account of the principle of proportionality and with reference to the minimum level of interference as prescribed by the ECtHR. First of all, the turning point in N.S. and M.E. about when the presumption of mutual trust is not conclusive anymore is when systemic deficiencies in asylum procedures and in reception conditions pose a serious risk that an individual might be subject to inhuman or degrading treatment. The first of the two cases



102 Paras

82–86.

166  Case Study II: Dublin Transfers concerns an Afghan national who came to the United Kingdom after travelling through Europe and lodged an asylum application in the United Kingdom. The secretary of state requested that Greece, pursuant to Article 17 of the Dublin II Regulation, take charge of the appellant and examine his application. According to Article 17 of the Dublin II Regulation, ‘where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application’, it has discretion to request the latter Member State to take charge of the applicant within three months of the date on which the application was lodged.103 As Greece did not reply to this request within the time limit provided for by Article 18(7) of the Dublin II Regulation, it was assumed that it had taken on ­responsibility, and the applicant was notified that he would be transferred to Greece.104 However, he requested from the secretary of state that the United Kingdom accept responsibility for examining his asylum claim under Article 3(2) of the Dublin II Regulation as he claimed that his fundamental rights under EU law, the ECHR and the Geneva Convention would be breached if he were transferred to Greece. However, the Secretary of State replied that his claim was clearly unfounded and maintained the original decision.105 Then, the applicant issued proceedings for judicial review of the decision of the Secretary of State and as a result the latter annulled the directions for his transfer to Greece.106 Against this background, the referring Court asked whether and when the United Kingdom may be required to assume responsibility for examining asylum applications itself, despite the fact that Greece is primarily responsible under Regulation No 343/2003. Does a Member State’s discretion to assume responsibility according to Article 3(2) of the Dublin II Regulation, as a way of derogation of the normal rules, become a duty if there are concerns that the asylum seeker’s fundamental rights will be violated when he is transferred to the primarily responsible Member State? The other cases that were joined with N.S. and M.E. concerned five appellants from Afghanistan, Iran and Algeria who entered the European Union through Greece, were arrested there for irregular entry but managed to make their way to Ireland where they applied for asylum.107 They all opposed being transferred to Greece and argued that the procedures and conditions for asylum seekers in Greece were inadequate and that Ireland was therefore required to exercise its power under Article 3(2) of the Dublin II Regulation to accept responsibility for examining and deciding on their asylum claims.108 Under those circumstances, the High 103 It should be noted that despite the recast of the Dublin II Regulation, this provision remains the same although now hosted by article 13(1) of the recast Dublin III Regulation. See Peers, ‘The Second Phase of the Common European Asylum System’. 104 N.S. and M.E., para 37. 105 ibid, para 40. 106 ibid, para 41. 107 ibid, para 51. 108 ibid, para 52.

The Common European Asylum System  167 Court (the Irish referring court) asked whether the transferring Member State was obliged to assess the compliance of the receiving Member State with ‘Article 18 of the Charter … Directives 2003/9/EC, 2004/83/EC and 2005/85/EC and Regulation (EC) No 343/2003’ and whether it was obliged to accept responsibility to examine an application in light of the primarily responsible state’s non-compliance with one of the above-mentioned provisions.109 The Court conducted a realistic analysis with regard to the presumption of mutual confidence among Member States. When the CEAS was agreed, it was assumed that all participating states must respect fundamental rights.110 It was because of this mutual confidence that the EU legislature decided to adopt the Dublin Regulation and its counterparts of the CEAS in order to rationalise the asylum system, simplify the procedures and ensure legal certainty.111 Therefore, the Court held that it should be assumed that the system does respect fundamental rights and that when transferred, the asylum seekers when transferred would be treated in a manner compliant with fundamental rights.112 However, the Court acknowledged that, despite the above-mentioned assumption, it was not ‘inconceivable that that system may, in practice, experience major operational problems in a given Member State’.113 As a result, there was a high chance that asylum seekers might not be treated in a way respecting their fundamental rights.114 A mere ratification of human rights treaties by Member States must not be considered sufficient evidence to suggest that a conclusive presumption exists.115 An actual observance of the treaties signed must be ensured in order to confirm the presumption that Member States will comply with EU law and international human rights law.116 Therefore, the Court held that whenever there are ‘substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment in the responsible state, the transfer should not be executed’.117 By recognising that the actual lack of respect for fundamental rights should be a driving force behind decision making, the judgment contributed to shaping the logic of transfers in a less unbalanced way than before. The judgment departed from a regime of blind mutual trust. Quickly designating the responsible Member State was not the only decisive factor anymore. The actual protection of the fundamental rights of the asylum seeker should have the last word, in view of the conditions of the judgment.118 The judgment was seminal in the evolution 109 ibid, para 53. 110 ibid, para 78. 111 ibid, para 79. 112 ibid, para 80. 113 ibid, para 81. 114 ibid. 115 ibid, para 103. 116 ibid, para 102. 117 ibid, para 106. 118 This comment refers to the value of proportionality as a requirement of bringing ‘everything in proportion’ and not to the legal principle of proportionality.

168  Case Study II: Dublin Transfers of the concept of mutual trust in the form of a non-conclusive presumption.119 It recognised what had long been obvious with regard to the asphyxia of the Greek asylum system, leading to systemic deficiencies and the gross fundamental rights violations of the applicants. The Court was ‘forced’, in view of the serious circumstances, to re-evaluate the concept of mutual trust and mechanical ‘recognition’ resulting in transfers without checks. Therefore, when an interference with Article 3 of the ECHR or Article 4 of the Charter is established, Member States must never transfer an individual. The Court’s judgment was correct in not employing any balancing with reference to this right. The last line of argument stems from a more theoretical aspect on rights than their jurisprudential analysis. In light of the theoretical framework of the principle of proportionality, developed earlier, a proportionality-based analysis is not always relevant. It is worth noting that a substantive theory of rights should accompany the test to determine the seriousness of the violation. As is explicated earlier, a weak-trump theory120 should be followed with reference to due process rights that might be infringed in the context of transfers, and a strong-trump theory with reference to the freedom from torture and inhuman and degrading treatment.121 It is argued that a proportionality-based analysis should not be of use when a right is absolute and thus not amenable to restrictions, whereas it could be of use when the right is a relative one.122 Therefore, balancing should not apply at all in relation to Article 3 of the ECHR or Article 4 of the Charter. Finally, for a complete account of a proportionality-based analysis – ­including when it should not apply – judicial authorities must be aware of the scope of Article 3 ECHR or Article 4 of the Charter. Recourse to this article must take place when a certain level of ill-treatment has taken place. In particular, ill-treatment must attain a minimum level of severity in order to trigger this article’s scope of application. Judicial authorities of the Member States should therefore consult the ECtHR case law in this regard. Although the logical next stage of analysis would be

119 Xing-Yin Ni, ‘The Buck Stops Here: Fundamental Rights Infringements Can no Longer be Ignored When Transferring Asylum Seekers Under Dublin II’ (2014) 37(2) Boston College International and Comparative Law Review 72; Klaudia Jadqwiga Mierswa, ‘Is the Cornerstone of the Common European Asylum System Crumbling? A Study on the Compliance of the Dublin II Regulation with Human and Fundamental Rights Provisions’ (2013) University of Twente Student Theses; Joanna Buckley, ‘Case Comment: NS v Secretary of State For The Home Department (C-411/10) (2012) 2 European Human Rights Law Review 205–10; Maarten Den Heijer, ‘Case Comment: Joined Cases C-411 and C-493/10, NS v Secretary of State For The Home Department and Me v Refugee Applications Commissioner’ (2012) 49(5) CML Rev 1735. 120 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2012) ch 2. 121 ibid, 3. 122 Although the ECHR does not distinguish between rights and the instrument does not offer a ­classification of rights, it is generally accepted that article 3 provides for an absolute right. See, Michael K Addo and Nicholas Grief, ‘Does Article 3 of the European Convention on Human Rights Enshrine Absolute Rights?’ (1998) 9 European Journal of International Law 510, 512–13; David John Harris, Michael O’Boyle and Colin Warbrick, Law of the European Convention on Human Rights (Butterworths 1995) ch 3.

The Common European Asylum System  169 to ascertain what the minimum level of ill-treatment is, according to the ECtHR, this would be a different question and beyond the scope of this book.123 As the book focuses only on EU law, it would divert the focus from the main question, which seeks to give an account of and demonstrate the impact of the principle of proportionality on mutual trust and mutual recognition instruments. Therefore, when there is a serious risk in relation to Article 3 ECHR, the transfer of an asylum seeker should not take place, and no proportionality-based analysis should be applied to any interference with this right. This context is a useful showcase of the limits of a proportionality-based analysis in this area. The analysis cannot be employed when the right interfered with by the asylum procedure or the reception conditions is an absolute one. In such cases, interference can never be justified. This results in an absolute loss of mutual trust and an abolition of the presumption of compliance with fundamental rights. Right to a Fair Trial; Right to an Effective Remedy and Procedural Guarantees When the principle of proportionality can be useful is when non-absolute rights are interfered with by the procedure, as was argued in the previous case study on the FDEAW when the requested person claimed that an issuing authority has breached his rights. However, the CJEU held in N.S. and M.E.124 that not all infringements of fundamental rights obligations should allow a derogation of the rules and result in hindering the transfer. Only interferences with Article 3 ECHR or Article 4 of the Charter could allow a derogation from the rules established under the Dublin III Regulation of the CEAS and constitute a sufficient challenge to the principle of mutual trust. Only in view of this test established by N.S. and M.E. with regard to Article 4 of the Charter may an applicant challenge his transfer. As a corollary, this precludes the possibility that a ground for challenging mutual trust could be provided based on the right to appeal and other due process rights. This was held in Abdullahi.125 This approach is currently the same as the one applied in the context of FDEAW and exhibits an anchorage to a forced trust, which cannot be challenged except in

123 Still, it is worth referring, at least here, to an anthology of case law, which could be a helpful starting point for further researching this question. On the treatment of individuals by military and the police see Application No 5310/71 Ireland v United Kingdom ECtHR 18 January 1978; Application No  21987/93 Aksoy v Turkey ECtHR 18 December 1996; Application No 23178/94 Aydin v Turkey ECtHR 25 September 1997; Application No 25803/94 Selmouni v France ECtHR 28 July 1999; Application No 59334/00 Chitayev v Russia ECtHR 18 January 2007; Application No 22978/05 Gäfgen v Germany ECtHR 1 June 2010; Application No 18896/91 Ribitsch v Austria ECtHR 4 December 1995; Application No 33394/96 Price v United Kingdom ECtHR 10 July 2001; Application Nos 23184/94, 23185/94 Selçuk & Asher v Turkey ECtHR 24 April 1998; For failure of the state to prevent art 3 interference from private actors see Application No 29392/95 Z v United Kingdom ECtHR 10 May 2001; For art 3 in criminal trials and the use of illegally obtained evidence see Application No 22978/05 Gäfgen v Germany ECtHR 1 June 2010. 124 N.S. and M.E., paras 82–86. 125 Abdullahi, para 60.

170  Case Study II: Dublin Transfers extreme circumstances. This leads to an ‘all or nothing’ approach. Instead of this approach to mutual trust, the book supports a qualified application of it. A textual argument is first put forward to support this, drawing on both EU law and ECHR law. To determine the scope of legal protection with reference to procedural guarantees offered to the asylum seeker, the section considers the right to a fair trial as enshrined in Article 6 ECHR, Article 47 Charter, Protocol 7 ECHR and the specific procedural guarantees provided by the Dublin III Regulation. The right to a fair trial as enshrined in Article 6 ECHR provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

The definition of the term ‘civil rights and obligations’ in Article 6 of the ECHR, which could be used as a window on the scope of the right available for asylum seekers, proved more problematic than the definition of the other terms of the  ­article.126 According to the ECtHR the article does not apply to an asylum seeker.127 The applicant in Maaouia v France complained about the length of the proceedings he brought to overturn an order excluding him from France. The ECtHR reflected on the intention of the Contracting States when drafting the Convention and the later incorporation of Protocol 7 to the ECHR in 1984.128 The Protocol extends the list of rights protected under the Convention and its Protocols to include the right of aliens to procedural guarantees in the event of expulsion from the territory of a state (Article 1). The Court held that given the need to include this Protocol in the ECHR after the initial drafting of the ECHR, Article 6 does not apply to asylum procedures. The judgment in Maaouia v France is not welcome for several reasons. First, the article does apply to a plethora of cases of non-criminal character where the dispute might be of a horizontal or vertical nature. Hence, the exclusion of asylum cases is not sufficiently justified. Although there was no difficulty in accepting that the Article applies to ordinary civil litigation, such as tort or family law, it was admittedly more problematic to establish that the article would apply to vertical disputes. This is important, as it is more difficult in an asylum dispute of a vertical nature to engage Article 6 of the ECHR. The Court has not managed to develop universal criteria to identify civil rights and obligations.129 Nonetheless, the ECtHR held for the first time, in the Ringeisen case,130 that the Article applies to disputes between the individual and the state, and since then the Court has followed an increasingly liberal interpretation of the scope so as to include even

126 For an overview of the case law of the ECtHR on art 6 ECHR see Bernadette Rainey, Elizabeth Wicks and Clare Ovey, The European Convention on Human Rights (6th edn, OUP 2015). 127 Application No 39652/98 Maaouia v France ECtHR 5 October 2000. 128 Protocol No 7 to the ECHR, 22 November 1984. 129 Rainey, Wicks and Ovey, The European Convention on Human Rights, 252. 130 Application No 2614/65 Ringeisen v Austria ECtHR 16 July 1971.

The Common European Asylum System  171 more vertical disputes. For example, the Court held that Article 6 applies to proceedings about a withdrawal of an authority to run a medical clinic;131 withdrawal of an applicant’s licence to operate a taxi;132 and disputes in relation to environmental law133 and social security.134 Article 6 of the ECHR also applies to non-contributory types of social assistance, such as for a dispute over a disability allowance which is not based on any reciprocal or contractual relationship with the state. It is therefore argued that in light of the latter application, Article 6 of the ECHR must also cover asylum cases.135 Asylum protection also constitutes a non-contributory, non-reciprocal form of benefit provided by a state to an individual in need, and it is not clear why Article 6 should not apply here. Moreover, the court’s justification that the later adoption of Protocol 7 and Article 1, with regard to procedural guarantees for aliens facing expulsion to the ECHR, indicating that Article 6 of the ECHR does not cover asylum cases, is weak. The absence of this Protocol could be interpreted as meaning that Article 6 of the ECHR already covers asylum cases and the later incorporation of it into the ECHR could very well indicate the commitment of the Contracting Parties to the protection of this vulnerable group. Furthermore, if the economic detriment of an individual seems to be a relatively consistent criterion developed by the Court with regard to where Article 6 must apply, it is obvious that a refusal to grant leave to an individual will have serious detrimental effects on the financial situation of this individual. This is highlighted further by the Dublin III Regulation of the CEAS. The law in question might not define when a state may grant or refuse to grant leave to an applicant but constitutes part of a wider system in which this is regulated. A procedurally flawed decision issued by the national authorities that determines which Member State will examine the application of an asylum seeker does have serious effects on the financial situation of the individual. In the diverse European Union, where financial inequality in opportunities exists for its own EU citizens based on where they happen to live and are born,136 the asylum seeker will face, at least, the same financially detrimental effects.137 For example, a Syrian refugee will not have as many chances for employment in Bulgaria as he could have in Denmark. Therefore, even

131 Application No 6232/73 König v Germany ECtHR 28 June 1978. 132 Application No 10426/83 Pudas v Sweden ECtHR 27 October 1987. 133 Application No 11309/84 Mats Jacobsson v Sweden ECtHR 28 June 1990. 134 Application No 8562/79 Feldbrugge v Netherlands ECtHR 29 May 1986. 135 Rainey, Wicks and Ovey, The European Convention on Human Rights, 252. 136 European Commission, ‘Why Socio-Economic Inequalities Increase? Facts and Policy Responses in Europe’ (2010). 137 An eye-opening example of this is the horrendous case of Manolada. A complaint was lodged with the ECtHR in the famous case of Manolada where a group of 42 Bangladeshi workers were shot by farm supervisors when they joined other workers protesting because they had not been paid for seven months. The Greek court acquitted the accused persons and the victims lodged a complaint with the Strasbourg Court aiming to prevent human trafficking as well as to punish the migrants’ employers. The ECtHR has now issued a landmark judgment, ruling in favour of the 42 applicants. See Application No 21884/15 Chowdury and Others v Greece ECtHR 30 March 2017.

172  Case Study II: Dublin Transfers applying this criterion, the justification is unconvincing. It is thus argued that this article should cover asylum cases as well, and this is an important premise for an argument with regard to these rights. Furthermore, other sources are also examined to draw the full picture of protection for the individual. As regards Protocol No 7 to the ECHR, it provides: An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

The article provides for the right to defend oneself, the right to a review and the right to representation. Under Article 47 the Charter provides: Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

Article 47 does not include the phrase ‘in the determination of his civil rights and obligations’, which caused problems in its interpretation, and particularly with regard to whether it could apply to an asylum process. It could therefore be assumed that the right shall truly be exercised by absolutely everyone as it is declared by the wording of the Article. With regard to the right to an effective remedy, Article 13 ECHR provides: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Moreover, Article 47 of the Charter provides: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

The Dublin III Regulation added a number of rules regarding procedural rights.138 Article 4 of the Regulation expands the right to information and provides that the asylum seeker must be informed of the objectives of the instrument, the consequences of applying in another Member State or moving between Member States; 138 For a critical overview, see Steve Peers, ‘Reconciling the Dublin System with European Fundamental Rights and the Charter’ (ERA 2015) www.era.int/cgi-bin/cms?_SID=NEW&_sprache=en&_ bereich=artikel&_aktion=detail&idartikel=124676.

The Common European Asylum System  173 the criteria for determining responsibility and the hierarchy of those criteria; the rules on being granted a personal interview and the possibility of submitting information regarding family members and relatives; the possibility of challenging a transfer decision and applying for a suspension of a transfer; and the rules relating to data procession and data protection (Article 4(1)). The Dublin III Regulation also clarifies that the information must be provided ‘as soon as’ the application is lodged. Article 5 of the Regulation also states that Member States should conduct a personal interview so as to facilitate the process of determination. Furthermore, Articles 26–27 of the Regulation provide for specific procedural safeguards, such as on the notification and information of an applicant’s legal remedies, including the possibility of applying for suspending effect under Article 27 or legal assistance. A right to an effective remedy is particularly enshrined under Article 27(1), including an appeal to a decision on transfer and a review of the facts and law. There are also provisions on legal assistance and legal aid.139 These rights define the rule of law, a cornerstone of constitutional principle, even from a procedural perspective,140 and it would be very much against the heart of rule of law to allow transfers of individuals in the event of disproportionate restrictions to this right. As is also argued by Peers,141 the incorporation of these procedural guarantees in the Dublin III Regulation renders the restrictive judgment in Abdullahi irrelevant, and it is a wonder why the Court made this decision. Following the expansion of procedural rights recognised by the Dublin III Regulation, an individual should be able to challenge his transfer to a Member State in the event of a violation of one of these rights.

Criteria of Balancing The book suggests a proportionate operation of mutual trust here for both systemic and isolated cases of interferences with the right to a fair trial. So far, the Court has dealt with ‘trump-card’ cases, where the asylum seeker demonstrated the most serious violation of an absolute right as a ground for blocking the transfer as unlawful. The sad existence in twenty-first-century Europe of such extreme cases must not overshadow other rights violations of asylum seekers that might not be associated with such extreme cases as in Greece or Hungary. For the purpose of discussing the proportionality-based analysis and the criteria that the CJEU and the national authorities could consider when assessing whether a transfer of an individual to the responsible Member State would lead to 139 Dublin III Regulation, arts 27(5), (6). 140 Joseph Raz, ‘The Rule of Law and Its Virtue’ (1977) 93 LQR 195, where he points out that ‘the rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree’. See also on the substantive approach to the rule of law Lord Hope (A and Others v Home Secretary [2005] 2 AC 68); Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67–85 and particularly see fourth, fifth, seventh and eighth sub-rules. 141 Peers, ‘Reconciling the Dublin System with European Fundamental Rights and the Charter’. See section on procedural safeguards.

174  Case Study II: Dublin Transfers a disproportionate interference with his/her rights, it would be useful to consider an example of applying such criteria. As no case was heard by the CJEU with relevant real facts, where an individual claims that his or her right to a fair trial was or would be interfered with if he were transferred to the responsible state, and not necessarily in a systematic way, a fictitious example is constructed to consider the application of proportionality-based analysis. Let us assume that Mr X, an asylum seeker from Eritrea, successfully claims that his right to information was seriously impaired when he managed to reach Lampedusa, Italy because the Italian authorities did not ensure his awareness of the law in a language he understood. He later found himself in France, where the French authorities remedied the failure of the Italian authorities and informed him on the law in his mother tongue. According to the Dublin III Regulation, he should be transferred to Italy, although his right to be informed was not respected there and there was a serious risk that it might be restricted again. The first three stages of a proportionality-based analysis are not as difficult as the last stage. According to the first stage, the restriction must have a legitimate objective, which is one of the objectives of the legislation. The purpose of the Dublin III Regulation is to determine which EU Member State is responsible for examining an application for asylum by a third-country national.142 Only one Member State is responsible for examining an application.143 Therefore, the rest of the Member States may refuse to examine an application resubmitted to them. Despite the aspiration to create an AFSJ without borders, even in asylum and immigration,144 applicants moving freely within the European Union are seen as ‘asylum shoppers’, and repeated requests for asylum protection are prevented according to the law.145 Member States trust the single responsible Member State, recognise its responsibility and dispense with their own responsibility, in a spirit of negative mutual recognition and mutual trust.146 This requirement, and the allegation of asylum shopping, does not resonate with the spirit of free movement of EU law, where forum shopping has elsewhere been allowed to take place in tandem with mutual recognition in the context of other areas where the latter applies, allegedly leading to a ‘race the bottom’, and at the cost of workers’ rights.147 However, let us benevolently assume that it was put in place simply because immigration and granting asylum are areas of law that are closely linked to national statehood.

142 Dublin III, art 1. 143 Dublin II, art 3(1), Dublin III, art 3(1). 144 See TFEU, art 67. 145 Morgades-Gill, ‘The Discretion of States in Dublin III System for Determining Responsibility for Examining Applications of Asylum’ 433, 434. 146 Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ 184, 190. 147 Catherine Barnard and Simon Deakin, ‘Market Access and Regulatory Competition’ in Catherine Barnard and Joanne Scott (eds), The Law of the European Single Market (Hart Publishing 2005); Floris de Witte, ‘Transnational Solidarity and the Mediation of Conflicts of Justice in Europe’ (2012) 18 European Law Journal 694; Simon Deakin, ‘Legal Diversity and Regulatory Competition: Which Model for Europe?’ (2006) 12 European Law Journal 440, 441–43.

The Common European Asylum System  175 Let us also realistically assume that while politically powerful Member States are willing to accept this kind of integration as it would reap financial benefits, they are not willing to eliminate the same obstacles with regard to fairly sharing responsibility, based on logical factors. In any case, since the restriction is based on the law’s objective, it is a legitimate one. However, it is questionable whether the objective of the law is legitimate in light of constitutional principles and the extent to which it constitutes a principle of a constitutional nature which could compete with fundamental rights.148 The second and third stages of a proportionality-based analysis examine the suitability and necessity of the measure leading to a restriction (ie the transfer) in order to achieve the legitimate objective of the legislation. If we accept that there is a legitimate objective and this is not deconstructed, the transfer of the individual appears to be in correlation to the objective to be achieved and is indeed necessary. However, the suitability and the necessity of the transfer are questionable in line with questioning the rationale behind the legitimate objective as such. With regard to the fourth element of a proportionality-based analysis – the balancing stage – the book suggests certain criteria, in light of the theory developed earlier. According to Alexy, balancing can be broken down into three steps.149 The first step is about establishing the degree of non-satisfaction or of the detriment to the right. The second step is about establishing the importance of satisfying the competing policy interest, and the third step is about establishing whether the importance of satisfying the second ‘principle’ justifies the non-satisfaction or the detriment of the first one. In order to assess the last step, certain criteria are needed. Conditions developed by the Court in the context of rebutting the presumption of compliance could be critically employed, in conjunction with other criteria in the examined context of fundamental rights violations as extreme as in N.S. and M.E., and do not concern absolute rights. Seriousness of Infringement The first criterion that could be considered regards the seriousness of the interference with the right in question. The Court particularly points out that it would be incompatible with the spirit of the Regulation if the slightest infringements of Directives 2003/9, 2004/83 or 2005/85 were sufficient to prevent a Member State from transferring the asylum seeker to the primarily responsible Member State. In principle, this is true. The Court sets out that the Regulation is premised on the idea that all Member States respect the fundamental rights of asylum seekers and therefore a single Member State is responsible for the examination of their claim.150 If any infringement of Directives 2003/9, 2004/83 or 2005/85 148 Klatt and Meister, The Constitutional Structure of Proportionality 10. 149 Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris 433, 436, 437. 150 Opinion in N.S. and M.E., para 84.

176  Case Study II: Dublin Transfers by the Member State responsible results in the Member State being excluded from examining applications, that would first add another exclusionary criterion pursuant to which even minor infringement of the above-mentioned Directives would free the Member State of its responsibility. The Advocate General concluded that such a result would nullify those obligations and ‘endanger the objective of quickly designating the Member State responsible’.151 The reasoning suggests balancing, taking into account the seriousness of the infringement. It would be useful and necessary for the Court to reflect on the ECHR standards, as they are developed by case law, with regard to different rights. The violation at issue – past or future – must be so detrimental that the core of the right to a fair trial, which is being able to substantially and adequately defend oneself, is absolutely impaired. Remediability of the Breach Furthermore, reflecting on the suggestion of Advocate General Sharpston152 that another factor that could be balanced by the Court when assessing whether a refusal to execute an EAW is justified, is the remediability of a past breach. Advocate General Sharpston acknowledged that it is not useful to create hard rules as it will be for the judicial authorities to decide on a case-by-case analysis.153 The same should be applied for an infringement under the Dublin Regulation. If it can be remedied the transfer should be carried out unless the other factors strongly indicate differently. In the same spirit, the Court suggested that not worsening the position of the applicant in the Dublin system should be taken into account.154 This principle should apply to all transfers where the fundamental rights of the individual are infringed. When the breach is remediable, the transfer cannot be prevented but the two states could establish a form of bilateral cooperation. The law offers this flexibility. They might subject the transfer of the person to the other state providing the guarantee that the person will be offered full respect for his rights. For example, if it is established that a defendant’s right to a fair trial is seriously violated because he has not been offered interpretation services, but it is clear that this breach could be remedied, the two states should agree, in the context of Article 24155 of the FDEAW, on certain conditions being attached to the process. Similar to the EAW, the same criterion could apply to the Dublin III Regulation of the CEAS. When the interference with the right could be remedied in the state where the applicant 151 ibid, para 85. 152 Opinion in Radu, para 88. 153 ibid, paras 91, 93. 154 N.S. and M.E., para 98; Puid, para 35. 155 FDEAW, art 24 states that ‘instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State’.

The Common European Asylum System  177 should be transferred, or it has already been remedied by the state where he is transferred, this could be another indication that the transfer is not disproportionate. Moreover, a person should also be informed on how to seek damages with respect to the infringements, under national or EU law, or Article 41 of the ECHR, which provides for just satisfaction of the victims. Given the limited actual procedural possibilities given to asylum seekers in many Member States, and their actual opportunities to rebut the presumption of mutual trust,156 asylum seekers should have an effective procedural opportunity to rebut this presumption. Returning to our fictitious example of Mr X from Eritrea, let us assume that he managed to successfully show a serious infringement of his right, demonstrating that the procedure was seriously compromised. However, his well-founded claim that he was subject to a serious infringement should not prevent the authorities from transferring him to Italy. A balancing exercise here would identify that the breach of his rights might be serious, but the fact that it was remedied is a decisive factor which tilts the balance towards allowing the transfer according to the law. However, assuming, in the same scenario, that he was significantly delayed in Italy and his health was deteriorating, as testified by doctors, the verdict should be different. The rest of the factors of the case should be taken into account. The decision of the authorities should be informed by the state of his health and the fact that his transfer should not be worsened. Despite the remediability of the serious interference with the fundamental right in question, he should be allowed to submit an application to France, in contrast to the Dublin III Regulation. His transfer, according to the legislation, should be deemed disproportionate and must be prevented. In the case of Abdullahi,157 following the recent judgment of the CJEU in Ghezelbash,158 the claimant could now revoke the false application of the rules of the Dublin III Regulation and her inability to challenge them as a manifest interference with her right to an effective remedy under Article 13 of the Charter. Standard of Proof An important consideration for the national authorities is the standard of proof. Although this point is beyond the remit of the book, from a criminal proceedings point of view it is worth considering the impact of proof on an assessment of whether the individual must not be transferred to the responsible Member State in case of alleged interferences with fundamental rights. Although this does not refer to assessing an interference with a right, it does involve some balancing with regard to rebutting the presumption of mutual trust, in light of the proof provided.



156 ECRE,

‘European Comparative Report; Dublin Regulation; Lives on Hold’ 2. C 394/12 Shamso Abdullahi v Bundesasylamt ECLI:EU:C:2013:813. 158 Case C‑63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie ECLI:EU:C:2016:409. 157 Case

178  Case Study II: Dublin Transfers One can observe a balancing of this presumption of compliance against proof of the real risk of fundamental rights violations challenging it. The Court clarified that the risk of a future violation should be actual and well substantiated by the evidence provided.159 According to the opinion of Advocate General Trstenjak, when the MS is in a position where it is unable to comply with its obligations created by EU Directives and international law in relation to the treatment of asylum seekers, there is a de facto risk that the asylum seekers will be exposed to treatment which violates their fundamental rights.160

One of the conditions under which the Member States may not transfer the asylum seeker is ‘where they cannot be unaware’ of the systemic deficiencies. The Court in N.S. and M.E. stated that the parties which have submitted observations to the Court agree that Greece was, in 2010, the point of entry in the European Union of almost 90 per cent of third-country nationals who irregularly crossed the borders. This places a disproportionate burden on the country, with the result that it is unable to deal with the massive influx.161 Therefore, a unanimous opinion on a country’s situation is, according to the Court, one of the conditions to be taken into account. The Court also referred to the ECtHR case law and the evidence that was used there, such as regular and unanimous reports of international nongovernmental organisations bearing witness to the practical difficulties concerning the implementation of the CEAS in a Member State, the correspondence sent by the UNHCR to the ministries, and also the Commission reports on the evaluation of the Dublin system.162 Furthermore, the judgment in Halaf dealt with the question, inter alia, of whether the Member State is obliged to request the UNHCR to present its views.163 The Court clarified that the Member State in which the asylum seeker is present is not obliged to request the UNHCR to present its views wherever it is apparent from previous UNHCR documents that the responsible Member State, according to the Dublin Regulation, is in breach of the rules of EU law on asylum.164

159 Opinion in N.S. and M.E., para 105. 160 ibid, para 110. 161 ibid, para 87. 162 ibid, para 90; Opinion in N.S. and M.E., paras 101, 102; Application No 30696/09 M.S.S. v Belgium and Greece ECtHR 21 January 2011, paras 347–50. 163 The main proceedings concern an Iraqi national who applied for asylum in Bulgaria in 2010. The Bulgarian authorities found out that he had previously lodged an asylum application in Greece and requested the Greek authorities to take him back in accordance with art 13 of the Dublin II Regulation. As the Greek authorities did not respond to the request in the time limit provided by the Dublin Regulation, the Bulgarian authorities decided not to proceed to the examination of the application and to authorise his transfer to Greece. The applicant appealed this decision, arguing that the UNHCR had called on European governments to refrain from sending asylum seekers back to Greece. 164 The Court refers to the documents of the UNCHR drawing a bad picture of the asylum reception conditions of Greece and reminds Bulgaria that these documents need to be consulted although the UNCHR need not be called again.

The Common European Asylum System  179 Furthermore, it might be useful to reflect on the case law of the ECtHR on the standard of proof and on the Opinions of the CJEU, even from the perspective of the FDEAW. The ECtHR held that it is for the applicant who brings the challenge165 to demonstrate that Article 3 of the ECHR has been violated on the grounds of the evidence submitted ‘beyond reasonable doubt’ but such proof ‘may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account’.166 Advocate General Sharpston, moreover, submitted that the ‘beyond reasonable doubt’ test that the ECtHR suggests in Garabayev v Russia as the standard of proof for justifying a refusal to execute an extradition should not be employed by the Court under these circumstances. The reason why she suggested this lower standard of proof is because the ‘beyond reasonable doubt’ threshold is used in criminal trials to make sure – insofar as possible – that an accused person is not wrongfully convicted.167 Therefore, as this is not the case, this standard of proof should not be transferred to asylum cases, given that the person might rely on state assistance to prepare his defence.168 Instead, the claimant should be able to prove that his objections are well founded.169 Duration of Transfer Another factor that could be considered at the balancing stage is the overall duration of the transfer. The judgments in N.S and M.E. and in Puid favoured a narrow interpretation of Article 3(2).170 However, there is an indication of the need to consider the effect of the length of the protection of fundamental rights. The Member States determining the Member State responsible for examining the application should ensure that the process does not take an unreasonable length of time. This would worsen the whole situation. In this case, the transferring state should, if necessary, even exercise responsibility. The submission of this criterion by the Court is welcome but many questions are raised pertaining to the meaning of the wording used here. These are vague assertions, not accompanied by any guidelines for the national authorities. Some factors that could be taken into account so as to assess when the waiting time is unreasonable are the time that the asylum seeker had already waited; his state of health; and his state of well-being in general. Therefore, although hard rules should not be adopted, and the criterion of duration should be considered on a case-by-case analysis, the vulnerability of the applicant’s situation must be taken into account. 165 Application No 37201/06 Saadi v Italy ECtHR 28 February 2008, paras 128 and 129. 166 Application No 38411/02 Garabayev v Russia ECtHR 7 June 2007, para 76. 167 ibid, para 84. 168 ibid. 169 ibid. ibid, para 85. 170 N.S. and M.E., paras 98, 108; Puid, para 35.

180  Case Study II: Dublin Transfers

Impact; the Limits of the Principle of Proportionality The previous section informed the proportionality-based analysis of the context of the Dublin III Regulation of the CEAS and considered the application of the framework of the proportionality-based analysis to the second case study. This was examined with reference to the rights that could be affected. Various criteria of balancing were also examined. In theory, a proportionality-based analysis could be applied to restrictions of fundamental rights, similar to the operation of the EAW.171 The book generally suggests that mutual trust should be neither absolute nor ‘blind’ but should allow limitations, similar to other areas of EU law.172 Proportionality-based analyses would entail limiting mutual trust in a more sophisticated way than the one currently recognised by the Court, which only recognises limits in extreme circumstances.173 The following section comments on the impact of the analysis and adopts a more critical stance given the lack of sufficient protection of fundamental rights. The impact of a proportionality-based analysis to transfers of individuals in this area is a limited one as the area suffers from serious problems, which affect the protection of fundamental rights. The impact of proportionality-based balancing on the presumption of mutual trust and the operation of mutual recognition is measured with reference to the protection of fundamental rights of asylum seekers. In relation to infringements of fundamental rights, proportionality’s impact is largely limited for several reasons. At a theoretical level the principle of proportionality does not apply to cases where absolute rights are implicated,174 and secondly, the principle of proportionality is essentially open to various theories of rights.175 Chapter 3, discussing the limits and challenges of a proportionality-based analysis, took into account the criticism on the principle, highlighting the open 171 See previous chapter for the operation of the EAW. In this framework an argument of proportionality concerns the mutual recognition premise and the grounds for refusal for executing an EAW either when fundamental rights are violated or when the person is a national or a resident of the executing Member State or when the extradition is disproportionate as such. 172 In the area of free movement, the limitation imposed by the national legislation to free movement rights should be proportional. See, for example, Festersen, where the Danish law required that the agricultural landowners truly reside on their land, the idea being that the Danish agricultural tradition is preserved. Mr Festersen, a German national who bought agricultural land, failed to comply with this requirement for four years and was prosecuted and fined. The court, applying a rigorous proportionality test, found that the national law disproportionately violated the free movement of capital and therefore the limitation to free movement could not be justified. Moreover, where the review takes place against EU measures, the measure should not be manifestly disproportionate with reference to the individual EU freedoms and rights. See, for example, Case C-84/94 United ­Kingdom v Council ECLI:EU:C:1996:431; Case C-233/94 Germany v European Parliament and Council ECLI:EU:C:1997:231; Case C-157/96 National Farmers’ Union and Others ECLI:EU:C:1998:191; Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco ECLI:EU:C:2002:741. 173 N.S. and M.E.; Abdullahi; see, however, the more recent case of Ghezelbash. 174 Kai Möller, The Global Model of Constitutional Rights (OUP 2012). 175 Klatt and Meister, The Constitutional Structure of Proportionality 52–56; Dimitrios Kyritsis, ‘Whatever Works: Proportionality as a Constitutional Doctrine’ (2014) 34(2) Oxford Journal of Legal Studies 1, 3.

The Common European Asylum System  181 nature of the proportionality-based analysis. It clarified that the structure of the proportionality-based analysis is neutral.176 As discussed, this open nature could be problematic where there is no developed theory of rights.177 It was pointed out that such problems exist especially in areas of law where choices of morality informed by fundamental rights are yet to be made. In light of the fundamental problems in this area, it is evident that rights are not well protected in the context of the CEAS. Fundamental rights are not given sufficient attention and the CJEU has been timid, if not slow, at recognising exceptions in the presumption of mutual trust. Furthermore, the law has failed for a long period to move away even slightly from a border control narrative and embrace the humanitarian side of the debate. Under these circumstances, there is a danger that a proportionality-based analysis would be led by an idea that treats the rights of asylum seekers as simple interests, not recognising their special force, and considering them outweighed by other interests for the sake of efficiency. This cannot be addressed merely by the incorporation of a proportionality-based analysis. Nevertheless, a proportionality-based analysis could be constructive if changes are introduced in the CEAS, and particularly the Dublin system. This chapter has demonstrated the limited impact of the principle of proportionality, but also revealed a need pertaining to developing a theory of rights, which is also discussed earlier.

No Place for Proportionality where Absolute Rights are Breached The Dublin III Regulation triggered a significant debate with regard to its compliance with fundamental rights. Similar to the area of the EAW, the Court generally highlights the state-centric objectives shaping the Dublin system at the cost of the protection of fundamental rights. Mutual trust was preserved by the Court in an absolute way until fundamental rights violations became so pressing, serious and unavoidable that turning a blind eye to them was no longer possible. The prevalence of the state-centric structure of the Regulations was noticed both at the legislative and jurisprudential levels.178 The extreme, but not infrequent, case that asylum seekers are victims of degrading and inhuman treatment breaches the absolute and non-derogable right not to be subjected to such treatment and

176 Paul Craig, Administrative Law (6th edn, Sweet & Maxwell 2008) 63. 177 Since a proportionality-based analysis is neutral and open to various theories, the results of balancing cannot be predicted, which makes it a dangerous method of adjudication. The results are subject to the theories and the hierarchy of values of the adjudicator. See also, Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal of Constitutional Law 448, 474. 178 Minos Mouzourakis, ‘“We Need to Talk About Dublin”: Responsibility under the Dublin System as a Blockage to Asylum Burden-Sharing in the European Union’ (2014) Refugee Studies Centre Oxford Department of International Development, Working Paper Series No 105, 27; Valsamis M ­ itsilegas, ‘The Limits of Mutual Trust in Europe’s Area of Freedom, Security and Justice: From Automatic InterState Cooperation to the Slow Emergence of the Individual’ (2012) 31(1) Yearbook of European Law 319, 334.

182  Case Study II: Dublin Transfers destroys the presumption of mutual trust.179 This was because of the poor state of reception conditions in certain Member States.180 This growing humanitarian crisis was disappointingly overshadowed by the euro-zone crisis181 and was not given enough attention so that substantial, timely and adequate changes could be made. As a result, there is essentially nothing left to balance in such circumstances of absolute crisis and proportionality is thus irrelevant. Moreover, reports demonstrate that refugees are often not informed of the possibility of applying for asylum; access to a lawyer is denied and no interpreter is provided. Serious delays in examination claims, excessive use of detention, separation of families, denial of an effective opportunity to appeal against transfers, and limited use of discretionary provisions within the Regulation are some of the problems often reported in the majority of asylum procedures.182 As a corollary, the presumption of compliance with EU law obligations to respect fundamental rights has been demolished and this was confirmed by judgments that order the suspension of the transfer to take into account the systemic deficiencies of human rights.183 In particular, numerous challenges were made in front of national and the European courts to prevent transfers to Greece in view of worrying reception conditions and inadequate human rights protection.184 The challenge culminated in the ECtHR’s ruling in M.S.S. v Belgium and Greece that Belgium had violated Articles 3 and 13 of the ECHR by sending an asylum seeker back to Greece on the basis of the (then) Dublin II Regulation. The ECtHR found that Belgium had exposed the asylum seeker to the deficiencies of the reception

179 Eva Nanopoulos, ‘Trust Issues and the European Common Asylum System; Finding the Right Balance (Case Comment)’ (2013) 72(2) Cambridge Law Journal 276. 180 Dutch Council for Refugees, Finnish Refugee Advice Centre, Pro Asyl and Refugee and Migration Justice, ‘Complaint against Greece to the Commission of the European Communities Concerning Failure to Comply with Community Law’ (10 November 2009); Pro Asyl, Group of Lawyer for the Rights of Refugees and Migrants, ‘The Truth May Be Bitter but It Must Be Told: The Situation of Refugees in the Aegean Sea and the Practices of the Greek Coast Guard’ (October 2007); Human Rights Watch, Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union (November 2008) www.hrw.org/sites/default/files/reports/greeceturkey1108_webwcover.pdf. 181 Lillian M Langford, ‘The Other Euro Crisis: Rights Violations under the Common European Asylum System and the Unraveling of EU Solidarity’ (2013) 26 Harvard Human Rights Journal 217. 182 Amnesty International revealed difficulties in accessing the asylum system and registering a claim; unfair examinations of asylum claims; a lack of procedural safeguards as required by international law to ensure the correct identification of those in need of international protection, and to prevent violation of the principle of non-refoulement. See, Amnesty International, ‘The Dublin II Trap; Transfer of Asylum Seekers to Greece’ (Amnesty International Publications 2010) www.amnesty.eu/static/ documents/2010/greecedubliniireport.pdf. 183 Mierswa, ‘Is the Cornerstone of the Common European Asylum System Crumbling?’; ­Nanopoulos, ‘Trust Issues and the European Common Asylum System’. 184 Steve Peers, ‘Justice and Home Affairs Law Since the Treaty of Lisbon: A Fairy-Tale Ending?’ in Diego Acosta Arcarazo and Cian C Murphy (eds), EU Security and Justice Law; After Lisbon and Stockholm (Hart Publishing 2013) 17–37; Moreno-Lax, ‘Life After Lisbon’ 146, 147; Human Rights Watch, Stuck In A Revolving Door; Matera, ‘The Common European Asylum System and its Shortcomings in Protecting Human Rights’ 12, 13.

The Common European Asylum System  183 and living conditions and asylum procedures in Greece, and, for this reason, it found that Belgium had violated Article 3 of the ECHR.185 The Strasbourg Court also found that Belgium was also in breach of Article 13 in combination with Article 3 of the ECHR because of the lack of an effective remedy against the (then) Dublin II Regulation.186 The CJEU adopted the M.S.S. v Belgium and Greece ruling in its N.S. and M.E. judgment and pre-empted the amendment of the Dublin II Regulation by Dublin III.187 The Dublin III Regulation went on to consolidate the ruling by recognising that a Member State shall not transfer the asylum seeker to the primary responsible state when systemic flaws are observed in the asylum procedure and in reception conditions, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter.188 Member States can no longer disregard such fundamental rights violations.189 Although the presumption of mutual trust no longer turns a blind eye to systemic fundamental rights violations, the departure from the previous ‘blind’ presumption of mutual trust was dictated by breaches of Article 4 of the Charter, an absolute right. A proportionality-based analysis is of no use in such an environment. It requires a premise of trust, whose ‘trauma’ can be cured and balanced against other considerations. This requires that the rights which are interfered with by the EU Member States are not absolute190 and that such interference by the EU Member States does not breach the core essence of the rights. As was theoretically developed earlier and discussed in relation to the surrender procedures under the EAW in the previous chapter, a proportionality-based analysis is not always appropriate.191 A proportionality-based analysis is irrelevant where any possibility for the protection of fundamental rights has vanished, and where the fundamental rights in question are absolute rights. Under such circumstances, the failed presumption of mutual trust cannot be remedied and there is no space for balancing considerations. A proportionality-based analysis could be of use in cases where the Dublin III Regulation still applies and where non-absolute rights are involved. It is not relevant and helpful, though, for the main problematic areas of its application, and this significantly limits the impact of incorporating the analysis into decision making.

185 The provision prohibits torture and inhuman and degrading treatment and punishment. 186 For a comment see Violeta Moreno-Lax, ‘Dismantling the Dublin System: M.S.S. v Belgium and Greece’ (2012) 14(1) European Journal of Migration and Law 1–31. 187 Peers, ‘The Revised “Dublin” Rules on Responsibility for Asylum-Seekers’. 188 Dublin III, arts 3(2), 5; Peers, ‘Reconciling the Dublin System with European Fundamental Rights and the Charter’. 189 Ni, ‘The Buck Stops Here’ 72. 190 See, for example, arts 1 and 4 of the Charter on the right to human dignity and prohibition of torture and inhuman and degrading treatment or punishment respectively. 191 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 193; Klatt and Meister, The Constitutional Structure of Proportionality, ch 2.

184  Case Study II: Dublin Transfers

Conclusion The chapter has considered the application of a proportionality-based analysis to the context of the Dublin III Regulation of the CEAS, which is similar to the first case study on how the FDEAW operates based on a presumption of mutual trust. It has considered particularly whether a proportionality-based analysis would be helpful in a case where the fundamental rights of an applicant have been breached or if there is a risk that they will be breached. A proportionality-based analytical framework has been developed with reference to fundamental rights and based on various criteria which indicate whether a transfer based on the Dublin III Regulation should happen or not. This should depend on the degree of the interference with the right. It is argued that the impact of such an analysis on cases where fundamental rights are violated, or where there is a risk of them being violated, is limited, for certain reasons. The chapter has elaborated on the reasons why the analysis would not be particularly helpful here. A proportionality-based analysis, first, does not apply to cases where absolute rights are violated, which pertain to a plethora of cases, and secondly because of an underdeveloped theory of fundamental rights, which is evidenced in the various flaws of the law and jurisprudence. These flaws concern a crisis in mutual trust in most of the relevant cases, which in turn stem from deep-rooted problems in the CEAS and the Dublin system. The discussion exhibits and considers problems inherent in the coercive nature of transfers, the distribution of responsibility and the state-centric narrative in law, whose reconsideration involves one important step before the qualification of the presumption of mutual trust through proportionality. Hence, the impact of a proportionalitybased analysis cannot be as extensive as it is in the context of the FDEAW, where the system of arrest and surrender is praised as being relatively successful. The analysis of this chapter showcases the limits of the principle of proportionality stemming from the underdeveloped theory of fundamental rights in this area.

Reflecting and Looking Ahead Summation of Arguments, the Way Forward and Conclusion Summation of Arguments The first chapters of the book demonstrated the difficult relationship of fundamental rights and systems of cooperation in the AFSJ based on mutuality. Mutual trust and recognition were observed and their different phases were identified. Mutual recognition grew from a passive to an active phase, where authorities engage actually with the decisions and rules of the ‘other’ state, observing them and making judgements on whether these rules should be trusted. After all, trusting blindly is naïve and could lead to harmful results to the people affected by the decision. Likewise, trust grew from a phase of blind trust to a phase where exceptions are allowed in clear situations and where an individual assessment is gradually allowed. Member States still have to act in good faith, or pretend to be doing so, and recognise each other’s decisions, except for exceptional cases. This is absolutely remarkable, given how long it took the Court to revisit this unbalanced situation, and how many individuals were affected by it when their rights were violated. Reported violations of fundamental rights led to a functional and existential crisis of such a presumption of mutual trust. As a result, the application of the Dublin III Regulation of the CEAS was suspended and this had a spill-over effect to the FDEAW. It is now accepted that compliance with the obligation to respect fundamental rights cannot always be guaranteed by Member States, despite being presumed. Any presumption on which Member States’ cooperation is based cannot be­ conclusive. Moreover, fundamental rights violations might occur even where there are no systemic deficiencies in either the criminal justice system or the asylum structures of Member States. Infringements might occur in individual cases, which may not cause general distrust among Member States but will seriously affect the individual case of an asylum seeker or a suspect. These challenges might occur due to distrust generated by domestic developments causing uncertainty, such as in the case of the United Kingdom’s imminent exit from the European Union and the case of the Polish reforms that threatened the judicial autonomy. Recalibrating transfers of individuals in light of mutual trust and fundamental rights violations is where this book makes its contribution, via reflecting on

186  Reflecting and Looking Ahead alternative conceptualisations of mutual trust, recognition, fundamental rights and the role of a proportionality-based analysis in an ever-evolving framework of cooperation. Concerned about this unbalanced equilibrium of dogmatic trust, I have explored how a proportionality-based analysis could guarantee the protection of rights by assessing the restrictions in question. The first question I asked was whether a proportionality-based analysis is generally employed in this framework either by the Court or by the judicial authorities. The second question was what a proportionality-based analysis would mean here, and how it could be used. The third and final question concerned the impact of proportionality and whether it could actually enhance the protection of fundamental rights. Therefore, the book was organised based on these questions, the answers to which shaped the arguments. In response to the first question, on whether the CJEU employs a proportionality test, I found that the principle of proportionality is not generally absent from the case law of the CJEU when interpreting the instruments of the AFSJ. However, it is not used when there are, or when it is feared that there might be, interferences with fundamental rights as a result of a transfer. Nonetheless, slow emergence of a proportionality-based analysis is evidenced. In response to the second question, on how a proportionality-based analysis could be defined and applied here, I found that a proportionality-based analysis could determine whether an interference with a right caused by the procedure of a mutual recognition instrument is disproportionate enough to prevent a transfer. A proportionality-based analysis is only relevant in cases where nonabsolute rights are limited by public interests. A consistent definition and application of a proportionality-based analysis is informed by constitutional theory and EU law with reference to relevant criteria for AFSJ transfers. Such a definition must recognise the constitutional limits of the principle of proportionality as a neutral structure open to different tendencies. Therefore, for a proportionality test to be meaningful as a shield preventing excessive interferences with rights, it has to be accompanied by a consistent theory of rights that recognises their special force and footing in the EU constitutional legal order. Furthermore, rights – amenable to limitations – should only be balanced against objectives of constitutional importance of the same significant status as that of fundamental rights in the European Union. If EU secondary law objectives are not, however, linked to an EU constitutional objective, they should not be able to compete with fundamental rights, and therefore the limitation should not be justified. With this conceptualisation of the principle of proportionality in mind, the application of a proportionality-based analysis to cases has to be informed by the rights in concreto with reference to the relevant case law of the ECtHR. In the context of the necessity stage, alternative measures and equivalences should also be considered, when they are available. In particular, the balancing could be informed by criteria developed, such as the seriousness of the interference, the remediability of it, the existence of alternatives and equivalences, the situation of

The General Reach of the Argument and its Limits  187 the individual, and the degree of coercion in relation to the case. The similarities and the differences between the two areas were highlighted throughout the book to indicate the extent of the particular criteria and their boundaries. However, some criteria could have more general applications. Finally, regarding the response to the third question, on the impact of a proportionality-based analysis to fundamental rights protection, it was found that this relates to several factors and dimensions. First, a proportionality-based ­analysis is precluded from cases of inhuman or degrading treatment, as the prohibition of Article 4 of the Charter is absolute. However, a proportionality test could be especially helpful when non-absolute rights are restricted, and this would contribute to a realistic recalibration of mutual trust as an evolving organism rather than as a static dogma. From a comparative perspective, although a proportionalitybased analysis could have a considerable impact on the FDEAW, its contribution to the Dublin III Regulation of the CEAS is limited by numerous problems in the conceptualisation and operation of this legislation. More particularly, although a proportionality-based analysis could ­contribute to protecting relative rights from disproportionate restrictions, here too the protection of fundamental rights in the Dublin system has already been affected by far more deep-rooted flaws than an erroneous conception of mutual trust. As a result, the special force of rights could be disregarded, and the potential of a proportionality-based analysis to act as a shield preventing excessive restriction of rights could not be achieved.

The General Reach of the Argument and its Limits The book offers a contribution to the constitutional aspect of mutual recognition instruments in general when the relevant proceedings might lead to violations of fundamental rights. The FDEAW and the Dublin III Regulation of the CEAS served as examples in studying the interaction between mutual trust, mutual recognition and fundamental rights. Conclusions and arguments of a constitutional nature could in theory be applied to other instruments of mutual recognition when rights are breached. In particular, the more generic chapters, and some parts of the case studies, offering an analysis of rights, could potentially be applied to other instruments with similar problems. This would be a stimulating exercise for future research steps to take, in order to test how far the theoretical argument reaches other areas of the AFSJ, with similar complications. However, this paradigmatic application should be careful, reserved and mindful of the peculiarities of other instruments under consideration. The arguments could be generalised only to a certain extent. This is because the arguments have been generated with reference to the case studies. In particular, the book highlighted the differentiated criteria of balancing, and the differentiated impact and intensity of a proportionality-based analysis on the

188  Reflecting and Looking Ahead two case studies. This shows that the application of the idea to other instruments of mutual recognition could lead to different outcomes. Therefore, if we apply the theoretical argument of Chapter 2, we should be mindful of the environment where it is applied, the operation of mutual trust in the area in question, the relevance of the criteria of balancing, and the intensity of the review.

Variable Impact of Proportionality-based Analysis As demonstrated later in the book by the two case studies, the impact of a proportionality-based analysis on effectively protecting fundamental rights from disproportionate restrictions is not uniform. Though relatively helpful in the context of the FDEAW, the Dublin III Regulation would not benefit to the same degree from such an analysis before other fundamental flaws are addressed. Although the impact of a proportionality-based analysis on the different case studies is independently and thoroughly discussed at the end of each specific chapter, this section intends to submit, from a holistic point of view, the reasons why we cannot expect that the impact of a proportionality-based analysis will be uniform and substantial in different case studies. Limits on the impact of a proportionalitybased analysis are first related to the challenges of the principle’s constitutional structure, and second to the different problems regarding the protection of fundamental rights in the two areas. In particular, the proportionality-based analysis is a neutral structure which is fed by a selected theory of rights. The principle of proportionality is open to various theories of rights and, in essence, various moral choices. Thus, this openness effectively renders the analysis an elastic adjudication technique, unless the choices embedded in it are stable and consistent. The proportionality-based ­analysis could therefore be transformed from a helpful method of decision making to a dangerous tool of political bias, which sets aside whichever value is in the way of achieving policy goals. Moreover, apart from the danger of instability, another dangerous feature is the content of the moral choice embedded in the framework of analysis. This directly affects the outcome of balancing. If the theory of rights and other moral choices embedded in the proportionality-based analysis do not take full account of the high normative power of rights as developed by EU constitutionalism, the outcome will not reflect the latter either. Therefore, the impact of proportionality really depends on these choices before it is applied. In both case studies, the protection of fundamental rights has often been neglected for the sake of efficiency, which might be the case in other mutual recognition instruments to which a proportionality-based analysis could be applied. Thus, the theoretical choices on the status of fundamental rights that would be embedded in the proportionality-based analysis do not reflect a consistent theory of rights, and particularly the spirit manifested by the ECHR and the Charter. This in turn undermines the impact that a proportionalitybased analysis could have here.

Variable Impact of Proportionality-based Analysis  189 Moreover, the impact of a proportionality-based analysis could depend on the overall state of the mutual recognition measure. If a measure is deeply problematic, the insertion of a proportionality-based analysis, before a transfer takes place, will be nothing more than ‘lipstick on a pig’, rendering any contribution minimal. For example, the dysfunction of mutual trust is only part of the problem that ‘haunts’ the Dublin III Regulation.1 The very construction of the area has been founded on incorrect premises from a perspective of fundamental rights. The tendency of the CJEU to maintain the presumption of mutual trust except in extreme situations is only one of the many issues that the instrument suffers from. There are flaws which are evidenced in the law, case law and law in a practical context, amounting to serious and systemic deficiencies in the protection of fundamental rights in the CEAS. Unlike the context of the FDEAW, it cannot be claimed that the Dublin III Regulation is a successful measure.2 Therefore, applying a proportionality-based analysis here would only contribute to the protection of fundamental rights to the extent that the misconception and dysfunction of mutual trust forms part of the problematic mosaic. This demonstrates the limited impact of the argument here. On the other hand, the FDEAW, though facing challenges in relation to the protection of fundamental rights in the context of mutual recognition, is generally considered a successful measure, without so many foundational flaws as those in the CEAS.3 Undeniably, it is dangerous to attempt any comparison, or to draw

1 See, for example, the disheartening literature on the Dublin system: Minos Mouzourakis, ‘“We Need to Talk About Dublin”: Responsibility Under the Dublin System as a Blockage to Asylum Burdensharing in the European Union’ (2014) Refugee Studies Centre Oxford Department of International Development, Working Paper Series No 105, 27; Lillian M Langford, ‘The Other Euro Crisis: Rights Violations Under the Common European Asylum System and the Unraveling of EU Solidarity’ (2013) 26 Harvard Human Rights Journal 217; Klaudia Jadqwiga Mierswa, ‘Is the Cornerstone of the Common European Asylum System Crumbling?: A Study on the Compliance of the Dublin II Regulation with Human and Fundamental Rights Provisions’ (2013) University of Twente Student Theses; Claudio Matera, ‘The Common European Asylum System and Its Shortcomings in Protecting Human Rights: Can the Notion of Human Security (Help to) Fill the Gaps?’ in Claudio Matera and Amanda Taylor (eds), The Common European Asylum System and Human Rights: Enhancing Protection in Times of Emergencies (Asser Institute, CLEER 2014); Human Rights Watch, ‘European Union: Refugee Response Falls Short’ (27 January 2016) www.hrw.org/news/2016/01/27/european-union-refugee-response-fallsshort; International Organisation for Migration, Fatal Journeys; Tracking Lives Lost During Migration. 2 ibid. 3 See Anne Weyembergh, Inés Armada and Chloé Brière, Critical Assessment of the Existing European Arrest Warrant Framework Decision. European Added Value Assessment the EU Arrest Warrant European Union 2014) I-3, where the FDEAW is described as a ‘success story’ in light of the assessments carried out. See UK House of Lords, European Union Committee, ‘European Arrest Warrant – Recent Developments’ 30th Report of Session 2005–2006, 4 April 2006; House of Lords, European Union Committee, ‘EU Police and Criminal Justice Measures: The UK’s 2014 Opt-Out’, 13th Report of Session 2012–2013, 23 April 2013, 56–67. For doctrinal evaluations see Valsamis Mitsilegas, ‘The Area of Freedom, Security and Justice from Amsterdam to Lisbon. Challenges of Implementation, Constitutionality and Fundamental Rights, General Report’ in J Laffranque (ed), The Area of ­Freedom, Security and Justice, Including Information Society Issues, Reports of the XXV Fide Congress, Vol 3 (Tallinn 2012) 21–142; Cian C Murphy, Aldo Zammit Borat and Lucy Hoyte, Prosecutor and Government Officials’ Perspectives on Impact, Legitimacy and Effectiveness of the European Arrest Warrant (SECILE: Securing Europe through Counter-Terrorism – Impact Legitimacy & Effectiveness, 2014).

190  Reflecting and Looking Ahead parallels between the two fundamentally different areas. However, one of the reasons why the impact of a proportionality-based analysis is considerable in the FDEAW is the sufficiently established mutual trust, and the functionality of the EAW system,4 which, despite challenges, is not as challenging as in the CEAS. In practical terms, this is manifested by the fact that the Dublin system is suspended for some countries,5 whereas the FDEAW is not.6 Finally, the book also puts forward the argument that rights must be taken seriously in this area of freedom, security and justice, and submits that their special force must not be neglected when balancing. This suggestion is not an easy one, if one takes into account the 2/13 Opinion of the CJEU and the reasoning of the Court often prioritising other values vis-à-vis rights. However, later on, the Court admittedly appeared more reflective, and opened a window for the future evolution of this area incorporating a more intense rights review. This is a promising development, which is welcome, but it remains to be seen whether a sparrow will herald the spring, if this is not accompanied by a foundational development of a theory of rights.

The Way Forward for Mutual Trust and Recognition In light of an unprecedented refugee governance crisis and several challenges to the common bonds between Member States, the way forward for maintaining and recalibrating mutual trust in the AFSJ appears to be a rocky path. The way forward for mutual recognition instruments should be considered with reference to the way forward for the AFSJ in general and the construction of fair and efficient systems of cooperation in particular. The analysis revealed that the impact of a proportionality-based analysis is influenced by several idiosyncratic elements of the policy areas as well as their priorities, urgencies and emergencies. For this reason, it is worth reminding ourselves of the foundations of an AFSJ.

4 Council of the EU, ‘Final Report on the Fourth Round of Mutual Evaluations – The Practical Application of the European Arrest Warrant and Corresponding Surrender Procedures Between Member States’ Brussels, 28 May 2009, 8302/4/09 Rev 4. 5 Apart from the suspension of the Dublin system in relation to Greece, following M.S.S. v Belgium and Greece of the ECHR and N.S. and M.E. of the CJEU, Finland’s Supreme Administrative Court ruled that returning an Afghan asylum seeker to Hungary was problematic because of the country’s asylum procedures. See ‘Finland Suspends Asylum Seeker Returns to Hungary Following Higher Court Ruling’, https://yle.fi/uutiset/osasto/news/finland_suspends_asylum_seeker_returns_ to_hungary_following_higher_court_ruling/8828852. 6 The exception established in Aranyosi cannot be read in the same way as the exception established in N.S. and M.E., as in the former, the Court set out many more conditions that need to be fulfilled than in the latter.

The Way Forward for Mutual Trust and Recognition  191

EU Criminal Justice The creation of an AFSJ stems from the need to protect a value common to peoples from all Member States of the European Union: security in an environment of freedom and justice. Freedom and justice are very important components of this venture but it has admittedly been a security-driven project. States first got together because of common concerns related to security rather than a desire to increase their fundamental freedoms, which arguably were already protected both at national and international level. Academics debated whether we could actually discuss a European public order and a common European security.7 Security is pertinent to an objective factor, ie what is actually threatened, and a subjective factor, ie what is valued, both of which might be variable.8 However, some values are common to every society and they do not necessary exhaust themselves within the national borders of a state. For example, the value of free movement of people is arguably valued by all European peoples, and not only is not confined within national borders but, on the contrary, it justifies its very existence beyond the national borders. European security, understood as distinct from national securities, is a sine qua non in the internal market. We need a secure space to move freely to trade, study and work, but the four freedoms of movement could facilitate cross-border criminality. This is where European security found its very justification and paved the way for the development of an AFSJ. Recently, the EU project has been significantly challenged. Euroscepticism has been growing, with EU citizens doubting the benefit of the European project. European security was remarkably not challenged. This aligns with the general approval of instruments such as the FDEAW by Member States’ judiciaries and practitioners, instruments which have been considered as very useful measures that have certainly had a positive impact on extradition. Not surprisingly, the UK government wishes to retain all measures of the EU security framework, following its exit from the European Union.9 Despite the doubts over the EU project, EU criminal justice remains relevant and necessary. On 1 December 2014 a five-year transitional regime for the jurisdiction of the CJEU expired and the Police and Judicial Cooperation in Criminal Matters was upgraded to a fully fledged policy area. Moreover, EU criminal

7 Damien Chalmers, Gareth Davies and Giorgio Monti, European Union Law (2nd edn, CUP 2010) 587; Sandra Lavenex and Wolfgang Wagner, ‘Which European Public Order? Sources of Imbalance in the European Area of Freedom, Security and Justice’ (2007) 16 European Security 225, 227; J Peter Burgess, ‘There Is No European Security, Only European Securities’ (2009) 44(3) Cooperation and Conflict: Journal of the Nordic International Studies Association 309, 310. 8 Arnold Wolfers, ‘“National Security” as an Ambiguous Symbol’ (1952) 67 Political Science ­Quarterly 481; Paul Roe, ‘The “Value” of Positive Security’ (2008) 34 Review of International Studies 777. 9 Ermioni Xanthopoulou, ‘The Impact of Brexit on Extradition between EU countries and the UK’ (published on The Conversation, June 2018).

192  Reflecting and Looking Ahead law played a significant role in the enlargement policy,10 which highlights its paramount significance for the future evolution of EU law. Tackling cross-border crime remains one of the European Union’s top priorities. Promisingly, fundamental rights has increasingly become the epicentre of the CJEU’s attention, and this is very encouraging for the future generation of legislation, from the angle of fundamental rights protection. The CJEU is influenced by the Charter and this feeds back to EU criminal law. However, rebalancing the different values involved is yet to come, and although procedural safeguards have certainly been strengthened, it is taking time for this field to be completed. Nevertheless, the level of complexity involved in applying fundamental rights in this field must not be underestimated given the perplexing nexus of protection.

CEAS With particular regard to the CEAS, we should radically reconsider the future of a fair and efficient CEAS with respect to fundamental rights. It was argued that deep-rooted problems in the very conceptualisation of this area affect fundamental rights protection in a manner much more systematic than blind mutual trust. Therefore, the book would be incomplete without submitting some suggestions on how this area could be ameliorated. Although this is not the focus per se of the book, a critique has been submitted in numerous places and some constructive thoughts should be helpful. First, transfers of individuals in this area should embrace the humanitarian character of asylum law. A main challenge the European Union is facing is how to prevent unsafe journeys for asylum seekers. It is believed that the danger of the journey was increased by the introduction of the EU visa policies and this should be taken into account for a future reconfiguration of this area.11 The European Union must ensure safe and lawful access to its space, which will decrease the demand for the dangerous services of smugglers. To ensure safe access, a range of options has been suggested. These include humanitarian evacuation programmes, humanitarian visas and more extensive use of existing migration visas for family reunification, study, research etc.12 Another main challenge facing the European Union is how to organise the distribution of responsibility among Member States in a fair way. Member States are reluctant to undertake the responsibility for examining an application for 10 See Adam Łazowski, ‘EU Criminal Law and EU Enlargement’ in Valsamis Mitsilegas, Maria Bergström and Theodore Konstadinides (eds), Research Handbook on EU Criminal Law (Edward Elgar 2016) 507. 11 Section 1, ‘until the 1990s, there were relatively few drownings of migrants at sea suggesting that the introduction of mandatory visas, carrier sanctions, and other border control measures, establish the conditions under which people engage in irregular, unsafe journeys, often using the services of smugglers’. 12 ibid, 9.

The Way Forward for Mutual Trust and Recognition  193 international protection, and a mentality of burden is dominating the allocation of responsibility and transfer under the Dublin system. Advocate General Trstenjak, in his N.S. and M.E. Opinion13 stressed that the criteria should be fair and objective both for the Member States and for the applicants to ensure ‘effective access to the asylum procedure’.14 Support from the European Union and from Member States for the frontline Member States is necessary in order to build capacity in the long term.15 Moreover, the fundamentals of the mentality should change with reference to the treatment of individuals. While they are in a remarkably vulnerable position,16 the transfers of applicants based on the Dublin III Regulation of the CEAS rely heavily on coercion.17 A free-choice approach could be employed, coupled with an EU-wide agency able to make asylum decisions at a central level, and suspending the Dublin rules for frontline and overwhelmed Member States.18 Moreover, we should avoid certain failed choices that increase coercion, such as limited appeal rights, which risk incompatibility with effective remedy standards, and the lack of any input from asylum seekers in transfer decisions.19 Most importantly, if the CEAS keeps relying on mutual trust, strengthening fundamental rights is vital for constructing a real mutual trust and dispensing with presumed trust.20 Mutual confidence is nothing more than a precondition of ensuring that minimum standards for asylum seekers are upheld and that refugees are not doomed to languish ‘in orbit’.21 The discretion to assume responsibility under the sovereignty clause is limited by ‘the imperative to respect fundamental rights when implementing EU legislation’.22 The attribution of responsibility under 13 Opinion in Joined Cases C-411/10 and C-493/10 N.S. and M.E. and Others v Secretary of State for the Home Department ECLI:EU:C:2011:610, para 93. 14 ibid. 15 Elspeth Guild, Cathryn Costello, Madeline Garlick and Violeta Moreno-Lax, ‘Enhancing the Common European Asylum System and Alternatives to Dublin’ 2015 Study for the LIBE Committee, European Parliament, www.europarl.europa.eu/regdata/etudes/stud/2015/519234/ipol_ stu(2015)519234_en.pdf, 9. 16 Individuals here are third-country nationals and stateless persons, qualifying as refugees or as persons eligible for subsidiary protection. See Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted of 20.12.2011, OJ L337, p 9; Dublin III, Preamble, recital 10. Furthermore, unaccompanied minors might often be also subjected to the procedures. See Dublin III, Preamble, recital 13. 17 Guild et al, ‘Enhancing the Common European Asylum System and Alternatives to Dublin’, 8, 9. 18 ibid, 10. 19 ibid, 11. 20 Valsamis Mitsilegas, ‘Solidarity and Trust in the Common European Asylum System’ (2014) 2(2) Comparative Migration Studies 181. 21 Joanna Lenart, ‘“Fortress Europe”: Compliance of the Dublin II Regulation with the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2012) 28(75) Utrecht Journal of International and European Law 4–19. 22 European Commission, Memo/11/942, ‘Statement by Cecilia Maelstrom, EU Commissioner for Home Affairs, Following the Preliminary Ruling of the European Court of Justice on the Transfer of Asylum Seekers under the EU Dublin Regulation’ 21 December 2011, http://europa.eu/rapid/ press-release_memo-11-942_en.htm.

194  Reflecting and Looking Ahead the Dublin III Regulation of the CEAS does not merely intend to permit Member States to recognise other Member States’ responsibility with the aim of dispensing with their own commitments to respect fundamental rights. Accession of the European Union to the ECHR is a necessary minimum step in this direction, so that the European Union is accountable for human rights violations. In addition, although mutual recognition is a key principle of EU law, only negative asylum decisions are subject to mutual recognition at the moment in the context of the CEAS, and mutual recognition does not extend to positive asylum decisions. Therefore, free movement is not extended to individuals who have been issued with a positive asylum decision by the national authorities. Mutual recognition must be extended to positive asylum decisions, driven by the aspiration to build a ‘common status valid throughout the Union’, which the European Union is obliged to adopt as part of the CEAS under the EU Treaties aspiring to an AFSJ.23 The argument has textual support as this obligation flows directly from Article 78 TFEU, which calls for a ‘uniform status’ ‘valid throughout the EU’. EU free movement provisions could therefore be extended to where positive asylum decisions are made from the date of granting asylum status.24 Let us not forget that the aim of Dublin is to allocate responsibility.

The Need for a Consistent Theory of Fundamental Rights for EU Law Numerous sections of the book reveal the need for a consistent and strong theory of fundamental rights. The discussion of the principle of proportionality at the level of constitutional theory and its application, as evidenced in the second case study, suggested the limits of proportionality-based analysis and more broadly of an individualised rights-based assessment. Since the proportionality-based analysis is neutral, the results of adjudication are subject to the theories and the hierarchy of values of the adjudicator.25 Criticism at the theoretical level essentially targets (or should target) the substantive theory of rights, which feeds the neutral proportionality-based analysis rather than the principle of proportionality-based analysis itself. Although this is not a book on a theory of rights, the discussion would be incomplete without submitting some initial thoughts on how we should understand rights. However, as an understanding of what rights we have, morally speaking, will support the technical structure of a proportionality-based analysis,26 it is worth exploring this need at an embryonic level. 23 Guild et al, ‘Enhancing the Common European Asylum System and Alternatives to Dublin’, 8. 24 ibid, 10. 25 Jürgen Habermas, Between Facts and Norms (Harvard University Press 1996) 255–59. 26 Kai Möller, ‘Balancing and the Structure of Constitutional Rights’ (2007) 5(3) International Journal of Constitutional Law 453.

The Need for a Consistent Theory of Fundamental Rights for EU Law  195 In view of certain recent sophisticated accounts, the principle of proportionality could be combined with liberal theories of rights.27 At the heart of EU constitutionalism, respect for fundamental rights is found as a core principle of constitutional law, as defined both in common law and civil law jurisdictions.28 The centrality of their role is not questioned in theory, but the content of their status is still sought, particularly in relation to other, competing values. Constitutional and human rights theory could prove a source of inspiration. So, fundamental rights, according to Alexy,29 cannot be dispensed with whenever they are not useful and expedient. They are also characterised by certain qualities, which we should bear in mind.30 Rights are universal as they apply to all human beings irrespective of geographical, cultural, racial and social circumstances.31 They are also fundamental, pertaining to interests of primary importance to all human rights bearers, and abstract in the sense that they have general features of what it means to live well. Finally, they have moral force and priority.32 The latter quality views human rights as moral norms,33 that is, ‘the norms that define the duties we owe one another’,34 which also have a heightened moral force. Positivist accounts of rights, however, would argue that the content of rights can only be derived by the law of the state, thus removing moral assumptions and naturalism.35 As the understanding of rights can pertain to different perspectives and at different levels,36 the definition here particularly concerns the position of rights with respect to other values, such as security, and other interests, such as mutual recognition, which is the main question facing the AFSJ. In this respect, rights are often balanced against other values, such as speedy extradition and the allocation of responsibility to examine an asylum application. This debate would beg the question of whether the fundamental rights of defendants or asylum seekers are

27 Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (OUP 2012) ch 1. 28 See Federico Fabbrini, Fundamental Rights in Europe; Challenges and Transformations in Comparative Perspective (OUP 2014); Kaarlo Tuori, European Constitutionalism (CUP 2015). 29 Robert Alexy, ‘Discourse Theory and Human Rights’ (1996) 9(3) Ratio Juris 209; the account was subsequently supplemented in Robert Alexy, ‘Menschenrechte ohne Metaphysik?’ (2004) 52(1) Deutsche Zeitschrift für Philosophie 15. 30 Alexy, ‘Menschenrechte ohne Metaphysik?’, 16. 31 See, on the other side, accounts of human rights based on pluralism and accepting cultural relativism: Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 Human Rights Quarterly 281; Edward Graig, ‘Pluralism’ in Edward Craig (ed), Concise Routledge Encyclopaedia of Philosophy (2000) 683. 32 For other accounts of rights see Romuald R Haule, ‘Some Reflections on the Foundation of Human Rights – Are Human Rights an Alternative to Moral Values?’ in Armin von Bogdandy and Rudiger Wolfrum (eds), (2006) 10 Max Planck Yearbook of United Nations Law, Vol 367; Scott Davidson, Human Rights (Open University Press 1993) 30; Costas Douzinas, The End of Human Rights (Hart Publishing 2000) 246. For a pragmatic approach which treats proliferated human rights as rules with ample room for compromise, see Alan S Rosenbaum, The Philosophy of Human Rights. International Perspectives (Greenwood Press 1980) 216 and a critique in Douzinas, The End of Human Rights, 380. 33 As contrasted to positivist accounts, see Davidson, Human Rights 30. 34 Dimitrios Kyritsis, ‘The Transcendental, the Existential and the Ethical: Alexy and Dworkin on the Foundation of Rights’ (2008) 59(1) Northern Ireland Legal Quarterly 91, 92. 35 Davidson, Human Rights, 30. 36 ibid, 91.

196  Reflecting and Looking Ahead placed on an equal footing with security interests such as speedy extradition or immigration control. Most often, the debate on the ‘special force’37 of fundamental rights refers to two certain models,38 the ‘interest’ and the ‘trump’ model, and there is also a distinction between ‘strong’ or ‘weak conception of rights’.39 According to the first model, rights can be outweighed by public interests, and they have no priority over competing considerations.40 According to the second model, the ‘trump model’, rights are conceived as ‘trumps’,41 enjoying priority over other public considerations. Moreover, ‘if in cases of collision all reasons can assume the character of policy arguments, then the firewall erected in legal discourse by a deontological understanding of legal norms and principles collapses’.42 Waldron highlights that belief in rights entails belief that the basic individual interests in liberty and well-being are afforded special protection. Therefore, individual rights should not be overridden by considerations of efficiency or prosperity of the amelioration of the public good.43 Furthermore, respect for fundamental rights will prove to be hollow if it is not accompanied by a degree of sacrifice of these benefits, which see fundamental rights as inconvenient.44 Such a theory of rights, giving a priority and a special force to rights, is accepted by the book. So, the rights of the persons in the AFSJ should be given special force and priority over other considerations, and not be automatically overridden each time a policy is applied. In this manner, a rights review will gradually be developed by the CJEU in light of the binding force of the Charter, and fundamental rights will cease to be only limiting clauses of fundamental freedoms; this so far appears to be the ‘master principle’.45 Having said that, it is important to ensure the security interests of this area as well. Rights can enjoy a priority status over other considerations but they can be relative to a certain extent, with respect at their core. Fundamental rights, according to Alexy, should be considered as ‘optimisation requirements’ and thus be open to balancing. This means that rights are realised, to the greatest extent possible, 37 Borrowing the expression from Kyritsis, ‘The Transcendental, the Existential and the Ethical’ 92. 38 Klatt and Meister, The Constitutional Structure of Proportionality 16; Aileen Mcharg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (2003) 62(5) Modern Law Review 673. 39 See Mattias Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in George Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart Publishing 2007). 40 Mcharg, ‘Reconciling Human Rights and the Public Interest’; Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2004) 2 International Journal of Constitutional Law 574; Kumm, ‘Political Liberalism and the Structure of Rights’ 139. 41 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 193. 42 Habermas, Between Facts and Norms 258–59. 43 Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 30. 44 Dworkin, Taking Rights Seriously 193. 45 Massimo Fichera, ‘The Resilience of the Principle of Proportionality’ (2016) Presentation at 23rd International Conference of Europeanists.

Conclusion  197 given the legal and factual possibilities.46 In view of this approach, suitability and necessity refer to what is factually possible, whereas the legitimacy of the goal and the need for balancing relate to what is legally possible. The legal possibilities are enshrined in competing principles, and balancing refers to optimisation in relation to the given competing principles.47 However, this approach to rights and balancing requires that rights are set on an equal footing with competing interests, which undermines their ‘special force’ or their priority status. According to the trump model, rights should enjoy priority status over other considerations. However, absolute rights ‘trumping’ any other consideration is, in fact, rare. Most cases are relative and are amenable to restrictions. For that reason, a strong trump theory of rights that accepts that rights should trump every consideration is accepted only for those rights that are absolute and should not be amenable to limitations, such as the right not to be tortured. For the remaining rights, a weak-trump theory of rights in particular should be adopted here. This theory combines both balancing and trumping, as opposed to the interest theory and the strong trump theory. It considers rights as having priority over other considerations, but accepting that they could also be balanced against other strong constitutional values.48 A discussion on the nature and position of fundamental rights in EU law is one of many dimensions, and deserves a unique place in scholarship. This section of the last chapter of the book offers some ideas on this debate but the analysis certainly needs independent, systematic development. From a normative point of view, however, with particular reference to the main question of the book on proportionality and mutual trust, the perception that rights have special force should be transferred to the AFSJ. Through balancing, speedy judicial cooperation in criminal matters is acknowledged and rights can be limited for the purpose of achieving certain objectives, illustrated by the Treaties. Concurrently, through trumping, such rights are conceived as having a priority status in relation to their competing interests, with the result that they cannot simply be outweighed by limiting security interests. A proportionality-based analysis could thus offer an effective shield for rights to be protected from disproportionate restrictions caused by the procedures in the context of mutual trust.

Conclusion AFSJ law is a complex area of EU law with many competing considerations to be taken into account. Transnational crime surely necessitates an area of security, and the current alleged crisis highlights now more than ever the need for a common 46 Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002) 47. 47 Robert Alexy, ‘Balancing, Constitutional Review and Representation’ (2005) 3(4) International Journal of Constitutional Law 572, 573. 48 Klatt and Meister, The Constitutional Structure of Proportionality.

198  Reflecting and Looking Ahead and secure area of freedom for Europeans and for those who need international protection. For justice to be achieved as well, recognised principles of global constitutionalism should be embedded in this project. Fundamental rights and constitutional freedoms were always at the heart of European legal culture, and have been a constituent element of the European edifice since the atrocities of the Second World War. Apart from the historical and jurisprudential evidence for the centrality of fundamental rights in EU law, there is now an unequivocal textual argument supporting this view,49 calling for a substantial and not merely declared protection of rights. The principle of proportionality recognised by the Charter as a safeguarding check on limitations on rights is another principle of constitutionalism which should be embedded in this project. Shielding rights protecting against disproportionate restrictions forms a sine qua non for creating a secure area of mutual trust, ensuring the continuance of fundamental and communal values of justice and freedom.



49 TEU,

art 2, art 6(1); Charter, art 7(1), (2).

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