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Craies on Legislation: A Practitioner's Guide to the Nature, Process, Effect and Interpretation of Legislation

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


ISBN13: 9781509922253
Published: April 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £70.00



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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 for long been presumed by the Court in a manner that mutual recognition was prioritised vis-a-vis and to the detriment of the protection of fundamental rights. After thoroughly reviewing this relationship, the book offers a comprehensive framework of proportionality and explores its impact to the protection of fundamental rights in a mutual trust environment. It provides a theoretical and a normative framework of proportionality which then applies to two case-studies by reference to several fundamental rights. EU criminal and asylum law serve as the case studies of this book which enable a carefully constructed analysis with useful parallels. It argues that such analysis, based on proportionality, is not actually always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores the impact of it on the protection of fundamental rights vis-a-vis mutual trust.

Subjects:
EU Law
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

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