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Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice

A Role for Proportionality?

By: Ermioni Xanthopoulou
Media of Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice
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Published: 30-04-2020
Format: Hardback
Edition: 1st
Extent: 248
ISBN: 9781509922253
Imprint: Hart Publishing
Series: Modern Studies in European Law
Dimensions: 234 x 156 mm
RRP: £70.00
Online price : £63.00
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About 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.

Table Of Contents

1. Mutual Recognition: From Passive to Active Recognition
Introduction
Overview of the Area of Freedom, Security and Justice
Origins of Mutual Recognition
Transfer of Mutual Recognition to the Area of Freedom, Security and Justice
Typology and Operation of Mutual Recognition
Development of Mutual Recognition
Models of Mutual Recognition
From a Passive to an Active Model of Mutual Recognition
Seeking Equivalence and a Role for Proportionality?
Conclusion

2. Mutual Trust: From Blind to Gained Trust
Introduction
Mutual Trust in the Framework Decision on the European Arrest Warrant
Mutual Trust in the Dublin III Regulation
Evolution of Trust
Blind Trust
The FDEAW
Dublin System
Qualified System of Trust
Trust Based on Individual Assessment?
Age of Distrust?
Brexit and Distrust
Rule of Law Crisis and Mutual Trust
ECtHR Threshold: Flagrant Denial of Justice
Criticism and Commentary
Grounds for Pragmatic Earned Trust
Conclusion

3. Deconstructing Proportionality
Introduction
Early Philosophical Foundations
Emergence of a Legal Doctrine
Structure of the Proportionality-based Analysis
Legitimate Objective
Suitability and Necessity
Challenges and Limits
Proportionality in EU Law
Conclusion

4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack
Introduction
Protection of Victims in Criminal Proceedings Case Law
European Arrest Warrant Case Law
Kozlowski; I.B.
Leyman; Wolzenburg
Lopes Da Silva
Jeremy F
Radu
Melloni
Aranyosi and Caldararu
LM and the Essence of the Rights
Remarks
Dublin System Case Law
Conclusion

5. Constructing Proportionality for the Area of Freedom, Security and Justice
Introduction
Deconstructing EU Fundamental Rights
Fundamental Rights in EU Constitutionalism
The Charter and its Scope of Application
The Place of Fundamental Rights in the AFSJ
Constructing Proportionality for the AFSJ
Criteria on the Relevance of Proportionality Per Se
Article 52(1) of the Charter and the Essence of the Rights
European Investigation Order and Proportionality
Context of Application: Transfers of Individuals Based on Mutual Recognition
Generic Balancing Parameters
Variable Intensity
Seriousness of the Value Under Restriction
Vulnerability of Individuals
Degree of Harmonisation
Conclusion

6. Case Study I: European Arrest Warrant Transfers
Introduction
EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition
Security and the Constructed European Public Order
Constitutional Framework of EU Criminal Justice
Surrender Procedures and Fundamental Rights Breaches
Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW
Disproportionate Requests and Proportionality
The Legality Principle and the Opportunity Principle in Prosecution
Proportionality-based Analysis Informed by the Rights in Question
The Principle of Ne Bis in Idem
The Right to be Informed and Defence Rights
Right to Appeal
Principle of Legality in Criminal Law
Proportionality in Light of Aranyosi: Mission Impossible
Conclusion: The Impact of Proportionality-based Analysis on Surrenders

7. Case Study II: Dublin Transfers
Introduction
Public Discourse and EU Asylum Law
The Common European Asylum System
The Institutional and Legal Evolution of the Current Framework on CEAS
Dublin III Regulation
Dublin Shortcomings
Border and Migration Control as Dominant Narrative
Refugee (Governance) Crisis
Informing and Applying a Proportionality-based Analysis in the Context of the Dublin III Regulation
Proportionality-based Analysis Informed by the Rights in Question
Criteria of Balancing
Impact; the Limits of the Principle of Proportionality
No Place for Proportionality where Absolute Rights are Breached
Conclusion

Reflecting and Looking Ahead: Summation of Arguments, the Way Forward and Conclusion
Summation of Arguments
The General Reach of the Argument and its Limits
Variable Impact of Proportionality-based Analysis
The Way Forward for Mutual Trust and Recognition
EU Criminal Justice
CEAS
The Need for a Consistent Theory of Fundamental Rights for EU Law
Conclusion

Reviews

Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice … 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 … 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.” –  Ester Herlin-Karnell, University of Gothenburg (from the foreword)

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