The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe's Area of Criminal Justice

Abstract

The entry into force of the Treaty of Lisbon has brought questions of the compatibility of aspects of EU criminal law – and in particular the application of the principle of mutual recognition in criminal matters – with fundamental rights. The constitutionalisation of the EU Charter of Fundamental Rights has added urgency to these questions. At the heart of the debate lies the question of the relationship between mutual trust and the protection of fundamental rights in Europe's area of criminal justice. This article will examine the evolving and symbiotic relationship between the protection of fundamental rights and mutual trust before and after Lisbon. It will examine four different types of relationship between fundamental rights and mutual trust: fundamental rights as the outcome of trust (by examining the evolution of ne bis in idem from a principle to a fundamental right); fundamental rights as a limit to trust (by focusing on fundamental rights as grounds for refusal to recognise and execute judicial decisions, and in particular European Arrest Warrants); fundamental rights as the source of trust (by focusing on legislating for human rights at EU level via the adoption of minimum standards on procedural rights in criminal proceedings); and fundamental rights as a source of trust via the development of uniform, autonomous concepts. The article will conclude by reiterating the importance of ensuring effective and on the ground protection of fundamental rights as a cornerstone of establishing a system of mutual recognition based on earned, rather than presumed, trust.