Transferring Alternatives to Pre-trial Detention in the European Union context. Can European Agreements Be Trusted?

ABSTRACT

One critical element of interagency and international cooperation in the area of criminal justice is whether organizations – and more generally countries – can trust one another to follow through on agreements that have been mutually established, such as the utilization of a home country’s alternatives to incarceration. This paper builds on the existing literature on mutual trust and adds more empirical data regarding how competent authorities in the European Union (EU) perceive the mutual trust concept in day-to-day practice. In our examination of mutual trust, we draw on an EU survey and three interviews with judiciary members in Spain. Based on our review of the survey findings and interview data, we find that, although mutual trust is essential for all mutual recognition instruments in the EU, its dimensions are far from being fully understood. Whilst the political discourse at the EU level presumes the “pure” existence of the mutual trust, both the European Court of Justice and the European Court of Human Rights recognize its limitations, especially when human rights standards are in question. Scholars have also started to challenge the absolute existence of mutual trust independent of any determinants. This paper adds to this debate by illustrating how mutual trust is not only complex and dynamic but also selective and differential. It seems that different problem-solving strategies in the field of criminal and juvenile justice demand different levels of mutual trust, and mutual trust appears to manifest itself more with some Member States than with others.

KEYWORDS:

• Mutual trust
• mutual recognition
• area of freedom
• security and justice

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Council Framework Decision 2008/947/JHA on the application of the principle of mutual recognition of probation decisions and alternative sanctions (Probation and Alternative Sanctions).

2. Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments imposing custodial sentences or measures involving deprivation of liberty (Transfer of Prisoners).

3. Available at: http://www.europarl.europa.eu/summits/tam_en.htm#c.

4. See Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C 12/10, 15 January 2001, p. 1; available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001Y0115(02)&from=LV.

5. Note that the use of the term “confidence” is used in FD 2002/584/JHA on the European arrest warrant (EAW) in explanatory statement nº 10, which says that “the mechanism of the European arrest warrant is based on a high level of confidence between Member States”, identifying this term interchangeably with “trust”. FD available at: https://eur-lex.europa.eu/resource.html?uri=cellar:3b151647-772d-48b0-ad8c-0e4c78804c2e.0004.02/DOC_1&format=PDF.

6. Note that, according to this article, “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail”.

7. See also Pitto (2005), p. 49.

8. Case 120&78, Cassis de Dijon, Official Journal C 256, 03/10/1980, pp. 2-3. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31980Y1003%2801%29.

9. Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. Available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A41968A0927%2801%29.

10. Court of Justice, judgment of 26 February 2013, case C-399/11. In this case, the Court was asked to give an official interpretation of one article of the European Arrest Warrant Framework Decision and also to examine whether a Member State may refuse to execute a European arrest warrant on the grounds of infringement of the fundamental rights of the person concerned. Available at: https://eur-lex.europa.eu/legal content/EN/TXT/PDF/?uri=CELEX:62011CJ0399&from=EN.

11. Opinion 2/13 of the Full Court of 18 December 2014 on the agreement on accession to the ECHR, ECLI:EU:C:2014:2454, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CV0002.

12. Court of Justice, judgment of 5 April 2016, joined cases C-404/15 and C-659/15 PPU.

13. Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. According to the ECHR Case Law the notion of “family life” is quite large, not confined solely so the families based on marriage and may encompass other de facto relationship (couples, children of the couple, family-in-law etc.). In the same line, the Court retained a broad concept of “private life”, including here the right to determine your sexual orientation, your lifestyle and so on.

14. Information about this project can be found at: www.probationobservatory.eu.

15. Available at: https://www.ejn-crimjust.europa.eu/ejn/libdocumentproperties/EN/1223.

16. In this case, The European Court of Justice acknowledged the obligation of the competent authorities to check on the human rights standards in the Executing State prior to transferring the person to that Member State.

Additional information

Funding

This work was supported by the European Commission – DG Justice [grant number 807026 — PONT].