New Issues, Theories and Methods
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 10: A predicament for domestic courts: caught between the European Arrest Warrant and fundamental rights
The European Arrest Warrant (EAW) is one of the most important mechanisms for judicial cooperation in criminal matters. This mechanism was laid out in the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (hereinafter, FD), following the terrorist attacks in the United States on 11 September 2001. The main goal was the introduction of a simplified system for the surrender between Member States of suspected or sentenced persons for the purposes of prosecution or execution of criminal sentences. The EAW is premised upon the principle of mutual recognition of judicial decisions, which implies that domestic courts will abstain from second-guessing decisions issued by judicial authorities of other Member States. In turn, mutual recognition presupposes mutual trust among Member States, particularly regarding their criminal justice systems and the respect for fundamental rights. And yet, the diversity of criminal proceedings and failure to ensure a certain level of rights protection hampers mutual trust and thereby the effectiveness of the EAW. There is hence pervasive tension between the principle of mutual recognition and the protection of fundamental rights.
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