Mutual Recognition in Civil Law Cooperation: The Case of Child Abduction — Some General Remarks in the Light of the Jurisprudence of the Cjeu (the Brussels Ii Bis Regulation)

Abstract

Judge Lars Bay Larsen's paper does not focus specifically on criminal law but it is of most instructive in terms of understanding the genesis and difficulties of the principle of mutual recognition based on mutual trust and incidentally it follows neatly on the conference of the European Criminal Bar Association in the Court of Justice on 3 October 2015 where, ably led by Advocate General Sharpston, the same topic was discussed.

The Court is not going to abandon mutual trust for a system arguably more sensitive to fundamental rights. It is for that reason that Judge Bay Larsen's clear message is so important. It is that mutual trust is not blind trust and systemic deficiencies in a given requesting State may not be ignored, but that there is a presumption which should normally apply, that fundamental rights have been respected in the requesting Member State.

The point being, of course, that presumption can be rebutted.