CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 27, 2023

Bard & Kochenov on The EU Arrest Warrant and the De Facto Presumption of Guilt

Petra Bard and Dimitry Kochenov (Radboud University and CEU Democracy Institute, Budapest) have posted What Article 7 Is Not: The European Arrest Warrant and the De Facto Presumption of Guilt – Protecting EU Budget Better Than Human Rights? (forthcoming in Adam Łazowski and Valsamis Mitsilegas (eds) The Arrest Warrant at Twenty, Oxford: Hart Publishing, 2024) on SSRN. Here is the abstract:
The EU’s proclaimed nature as a value-based Union trumps its values in practice, as well as the most essential rights of Europeans caught in the maze of CJEU’s wishful thinking. This reveals the new face of the Union as a powerful actor of injustice, which is incapable – as years go by – to correct the excesses of own – not only national-level – departures from the essential values it was created to ensure, safeguard and uphold. We demonstrate that the application of the current standards of mutual trust in EU law lead the EU and the Member States to systematically disregard the most essential principles of law, such as the presumption of innocence. In the current context neither the political institutions, nor the CJEU have displayed willingness in fully addressing Rule of Law backsliding and significant breaches of Article 2 TEU within the framework of mutual recognition. This reluctance persists despite the other EU institutions either lacking the ability, or the willingness, to shoulder political responsibility and actively contribute to resolving the intricate problem of a crisis in shared values. As a result, the EU becomes complicit, via its institutions unable to ensure that the basic substance of the Rule of Law be adhered to on the ground, while at the same time demanding mutual trust based on the requirement of ignorance of the actual state of the Union. This is a significant and painful violation of the core ideas underpinning post-enlightenment criminal law and the most basic due process guarantees. While mutual trust is crucial for the Union’s functioning, it is rightly not mentioned among the founding values of Article 2 TEU. Treating mutual trust as a super-principle capable of outweighing those values in practice – the daily practice of CJEU today, as we have demonstrated – is a grave violation of EU law significantly endangering the European unification project.

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