Principle Of Mutual Recognition Research Articles

Positive harmonisation of national criminal law: Necessary or essential for mutual recognition?

Positive harmonisation of criminal law should only be a subsidiary means of implementing the principle of mutual recognition. Regarding criminal procedural law, this is laid down in Art. 67 TFEU (‘if necessary’) and in Art. 82(2) TFEU (‘to the extent necessary’). However, the effectiveness of the principle of mutual trust depends on the harmonisation of the national laws of the Member States, especially in cases when the national law of the executing State does not regulate at all aspects that may affect the nature or aggravate the sentence which is to be recognised. In this context, we will try to show that, if the alternative execution modality of a custodial sentence is not at all regulated in the national law of the executing State, its recognition and enforcement, with the consequent continuous deprivation of liberty of the sentenced person, could be considered an aggravation of the sentence and thus a violation of Article 8(4) of FD 2008/909. The paper thus highlights not only the differences between the legal frameworks of some Member States, but also how the lack of regulation on alternative execution modalities to custodial sentences or probation measures and alternative sanctions could stand in the way of reaching the purposes of Framework Decisions 2008/909 and 2008/947. On the other hand, we will show that although the framework decisions cannot have a direct effect, when applying national law, the national authorities are therefore required to interpret it, to the greatest extent possible, in light of the text and the purpose of the framework decision in order to achieve the result sought by that decision.

Enforcement of alternative measures to detention in EU countries: The Italian situation

Enforcement of alternative measures to detention in EU countries: The Italian situation

Regulation (EU) 2018/1805: Mutual recognition of freezing and confiscation orders between efficiency and safeguards. “Proceedings in criminal matters” and non-conviction based confiscation

December 2020 saw the entry into force of Regulation 1805/2018, the adoption of which is a doubly important event: first, because it confirms the principle of mutual recognition in this sensitive area, following Framework Decision 2006/783/JHA; second, because it establishes mutual recognition by means of a directly applicable legislative measure, a Regulation, adopted in accordance with the ordinary legislative procedure pursuant to Art. 82 (1) TFEU. In order to understand the scope of the Regulation – what types of domestic confiscation are covered – it is important to interpret the EU autonomous concept of “proceedings in criminal matters” (art. 1), “notwithstanding the case law of the European Court of Human Rights” (recital 13). To increase enforcement, it will be crucial to improve harmonisation through the new proposed Directive (May2022).

PRINCIPIO DE RECONOCIMIENTO MUTUO Y DE COOPERACIÓN EN LA UNION EUROPEA

This work focuses on the study of the principle of mutual recognition and cooperation, the result of the effort of the European Union to achieve an area of ​​freedom, security and justice. To this end, numerous legal instruments have been created, which turned out to be fragmentary and dispersed. This necessitated a new approach based on mutual recognition of criminal decisions in cases with a cross-border dimension. This is achieved through a new legal cooperation model, based on mutual trust, the use of uniform forms and the way the Member States interact.

Трансцендентальные основания права в коммуникативной теории права А. В. Полякова: правовое признание

Introduction. The communicative theory of law put forward in the first years of the XXI century by A. V. Polyakov received further development in the next decade due to the substantiation of the metatheoretical foundation of this theory in the doctrine of legal recognition as the transcendental basis of law. The idea of objectification of law through recognition proposed by A. V. Polyakov becomes the basis of a new humanistic understanding of law, which asserts the key character of trust in legal genesis. Theoretical analysis. The development of the doctrine of recognition as the foundation of legal genesis begins with the substantiation of the idea of recognition of law. A. V. Polyakov connects the very possibility of law with the fact that interacting subjects must not only understand the boundaries of their behavior, but also continuously coordinate them with each other. In this process, each of the subjects must recognize the presence of symmetrical abilities in the counterparty, therefore, recognition is the unity of intellectual and cognitive aspects of law with emotional and axiological one, which asserts the primacy of freedom, equality, dignity and responsibility of the participants in the interaction. From this thesis A. V. Polyakov deduces four aspects of formal equality – communicative equality, normative legal equality, equality as a legal ideal and equality as conformity. Еmpirical analysis. The author considers the conceptual transition from the idea of law as recognition to the principle of mutual legal recognition. Legal recognition as a principle is based on the ontological fact of the existence of Another as a representative of the human race, recognition of the human status of Another means the acceptance by an individual of responsibilities corresponding to the rights of Another as a response to expectations about their own rights. Results. A. V. Polyakov revealed the transcendental foundations of law through the analysis of legal recognition. These data deepen the provisions of the communicative theory of law on the ontological status of law, give the doctrine of legal communication a metaphysical and existential perspective, considering a person in the unity of his / her cognitive, emotional and volitional abilities.

The European Arrest Warrant - Optional Reasons for Refusing its Execution. Case Law Aspects

This paper aims to bring to attention certain optional reasons for refusing the execution of a European arrest warrant, situations in which the courts can defeat the principle of mutual recognition and trust between the judicial authorities of the European Union states, which represents the “cornerstone” of judicial cooperation in criminal matters. The judicial enforcement authorities cannot refuse to execute a European arrest warrant except for reasons resulting from the Council Framework Decision No. 2002/584/JAI of 13 June 2002, however, in practice, the optional reasons for non-execution often raised problems, the wording of article 4 and article 4a leaving a margin in the judgment of the courts.

Концепт справедливости в современной российской правовой системе

The idea of a continuous dialogue between the legislator and its addressees about ‘equity law’ with an emphasis on the moral & legal value of justice as substantive equality (equality in the proper) is suggested as the basis for the concept of justice in Russia today. The fundamental values of law, such as justice, freedom (equality in freedom), human dignity, as they are reflected in the principles of law, thereby acquire a regulatory practical focus, obliging both lawmakers and law enforcers to follow these principles. Justice itself can claim to be a general legal principle. In addition, the article describes the idea of legal justice as the obligation to follow the principles of law. According to this approach, all principles of law are derived from the principle of mutual recognition, including the principle of justice. The principle of mutual legal recognition is the basis for understanding the measure and limits of human responsibility and legal duties, reflecting the principle of solidarity. To assess the applied significance of theoretical studies of justice, the authors turned to the analysis of the acts of the Constitutional Court of the Russian Federation, which through its legal views partially compensates for the lack of a legal constitutional definition of justice. The apparent variability and ambiguity in the language used by the Constitutional Court should not conceal the unified legal nature of the principle of justice. The study of the concept of justice has proven to be particularly relevant in the field of sports: the sport regulators, explicitly or implicitly, are increasingly ignoring the fundamental principles of law. Appeals to justice in sports law illustrates its fragmentation, reduction to equality, and limitation to the purpose of providing procedural guarantees in dispute resolution. Analysis of the current situation in the field of sports suggests that justice should be considered in a comprehensive way: as a material and fundamental basis of normative and legal regulation and law enforcement.

Moral Foundations of Legal Communication

The article is founded on the position that social communication as an evolutionary option for the development of communication of all living beings must also include legal communication. In this existential context, legal communication is not reduced only to the transfer of symbolic (textual) information determining the behavior of subjects of law. It is also considered as a vital option for adapting to the environment, which allows both individuals and society to survive, develop and self-realize. Legal communication involves not just cooperation and interaction between legal subjects, but also the observance of the necessary conditions for the implicit and explicit goals of legal communication to be achieved and realized. Implicit (universal, transcendental, evolutionarily necessary) goals are reflected at the sociobiological level in the reciprocal altruism (ego-altruism) of communicants, at the philosophical (rational) level — in the principle of mutual legal and moral recognition, at the religious level — in the commandment “love your neighbor as yourself.” The authors reveal the connection between these concepts and the concept of communication by J. Habermas and the principle of mutual recognition by A. Honneth, on the one hand, and the idea of intuitive law by L.I. Petrażycki and the ideal of “free all-unity” by P.I. Novgorodtsev, on the other hand. It is shown that the findings of these scholars lie at the heart of the communicative theory of law and are supported by neuroscience data. According to the position put forward in this research, the rejection of mutual recognition inevitably entails the assertion of parochial altruism, the ideology of tribalism, the ideological justification of authoritarianism, violence as a universal political method, the neglect of human rights and, as a result, the deformation and destruction of legal communication.

Erosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings

An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.

Considerations regarding the Transposition by Romania of Council Framework Decision 2008/947/JHA Of 27 November 2008

The application of the principle of mutual recognition in the case of court decisions in criminal matters represents one of the important aims of the European Union, not only in the matter of punishments or custodial measures but also of suspended sentences or alternative sanctions to detention and decisions on conditional release. This study aims to present the way in which Romania transposed Framework Decision No. 2008/947/JAI of the Council dated November 27th, 2008 in the national legislation, Law no. 302/2004 on international judicial cooperation in criminal matters, with regard to probation measures and alternative sanctions must be mandatorily supervised, during the execution phase of the sentence, even if it is executed in another (requested) state than the one of conviction (applicant), in order to increase the chances of social reintegration of the convicted person. The study will also analyze some of the solutions of the Romanian courts, the jurisprudence in the application of these provisions being in an early stage.

Свобода и справедливость в правовом осмыслении

It is a response to the article by V. A. Belov and O. Yu. Skvortsov «Justice vs Freedom = Law: Antagonistic Contradiction and its Solution» (Statute [Zakon]. 2023. No. 2–3). The author examines positive and negative aspects of the concept of justice, emphasising its natural law orientation and ideological proximity to the school of «revived natural law». Another positive aspect of the proposed concept is the recognition of human freedom and justice as inalienable attributes of law. The very idea of opposing justice to freedom is regarded as controversial. The author argues that such opposition does not make sense, because it does not allow to think without contradictions of the very notion of freedom. The «narrow», socio-centrist interpretation of justice has no satisfactory theoretical justification and must be reformatted. The author offers for discussion his own concept of justice in law based on a communicative approach, interactive methodology and the principle of mutual legal recognition. Arguments in support of this view on the nature of justice are derived not only from philosophical and sociological research but also from evolutionary theory, biology and neuroscience. The basic idea is to justify the existence of two fundamental traditional values that underlie human conceptions of justice: the value of the human person and the value of society. Their optimal coexistence is possible only on the basis of the realisation of the principle of mutual legal recognition and the mutual rights and obligations arising from it. In the realisation of this principle lies the idea of justice. Law is born not in a struggle between justice and freedom, but in a struggle for justice and freedom.

Свобода и справедливость в правовом осмыслении

It is a response to the article by V.A. Belov and O.Yu. Skvortsov “Justice vs Freedom = Law: Antagonistic Contradiction and its Solution” (Statute [Zakon]. 2023. No. 2-3). The author examines the positive and negative aspects of the concept of justice offered by them, emphasising its natural law orientation and ideological closeness to the school of “revived natural law”. Another positive aspect of the proposed concept is the recognition of human freedom and justice as inalienable attributes of law. The very idea of opposing justice and freedom is regarded as controversial. The author argues that justice must not be opposed to freedom, because this opposition does not allow to think without contradictions of the very notion of freedom. The “narrow,” socio-centrist interpretation of justice has no satisfactory theoretical justification and must be reformed. The author offers for discussion his own concept of justice in law, based on a communicative approach, dialogical methodology and the principle of mutual legal recognition. Arguments in support of this view on the nature of justice are derived not only from philosophical and sociological research but also from evolutionary theory, biology and neuroscience. The basic idea is to justify the existence of two fundamental traditional values that underlie human conceptions of justice: the value of the human person and the value of society. Their optimal coexistence is possible only on the basis of the realisation of the principle of mutual legal recognition and the mutual rights and obligations arising from it. In the realisation of this principle lies the idea of justice. Law is born not in a struggle between justice and freedom, but in a struggle for justice and freedom.

A typology of reverse discrimination in EU citizenship law

AbstractThis Article sheds new light on one of the longest-running debates in the European Union (EU) citizenship literature: the concept of ‘reverse discrimination’ and the question of whether it is justified. Reverse discrimination has divided EU lawyers into roughly two distinct groups. One group believes that it constitutes an unjustified violation of the principle of equality; a second that it is inevitable in a Union governed by the constitutional principle of divided powers. This Article questions this by offering a typology of reverse discrimination. While most scholars assume that reverse discrimination is a singular phenomenon that demands a singular response, this Article shows that it is a variegated phenomenon that demands a variegated response. It distinguishes three types of reverse discrimination and explains that the proper response depends on the type we are considering. Type I is caused by the application of the principle of mutual recognition; Type II by an interaction between domestic federalism and internal discrimination; and Type III by the CJEU’s confusion over the aim of the right to free movement and residence. Through this typology, the Article shows that reverse discrimination is never a corollary of the principle of divided powers, nor is it always incompatible with the principle of equality. Finally, the Article shows that to the extent that reverse discrimination violates the principle of equality, the solution is not to equalise rights upwards but downwards to the lower (national or regional) level of government. This shows that the principle of equality and the principle of divided powers need not collide.

Values in the moral dimension of law: the dispute with A.V. Polyakov in the works of P.P. Serkov. View of the Petersburg school

The article presents a general characterization of three monographs by professor Peter Pavlovich Serkov — “Legal relationship (Morality of modern legal regulation)”, “Legal relationship (Theory and practice of modern legal policy). Part one: legal doctrine and measures of legal policy” and “Legal relationship (Theory and practice of modern legal policy). Part Two: Generalization of legal experiences of ascent to human, society and state” — and the analysis of some key provisions of the first of these monographs is presented, taking into account the polemics with the Petersburg school of philosophy of law, represented by A. V. Polyakov’s communicative approach to law, which is expressed on the pages of these monographs. The authors emphasize that the problem of the correlation between law and morality is a key problem of both legal theory and legal practice. This issue is particularly relevant in light of the goals and objectives defined by the Fundamentals of State Policy on Preservation and Strengthening of Traditional Russian Spiritual and Moral Values, approved by Presidential Decree No. 809 of 09.11.2022. Moral and ethical values should be taken into account in the processes of creating legal rules, applying legal rules, interpreting the law precisely because the value aspect in the law, expressed in its moral dimension, is an integral part of the law itself or a necessary condition for its existence and functioning — this idea unites the works of both professor P. P. Serkov and professor A. V. Polyakov. And, moreover, despite the criticism targeted at A. V. Polyakov as presented in the monograph of P. P. Serkov, in view of the authors of this article, one can see more similarities between the positions of the authors than differences — this applies to the general methodology and individual provisions, relating, first of all, to the ideas about the importance of morality (morality) for the legal system, the subject of law, the principle of mutual legal recognition.

CONSIDERATIONS REGARDING THE LIMITS AND EFFECTS OF THE RECOGNITION OF A FOREIGN JUDGMENT

In this article we aimed to analyze from a theoretical and practical point of view the limits and effects of the recognition of a foreign court decision in criminal matters, in relation to the existing regulations in European and national legislation. The establishment at European level of an area of freedom, security and justice through the provisions of art. 67 of the Treaty on the Functioning of the European Union (TFEU), imposed a new approach to the entire issue of judicial cooperation in criminal matters. The research undertaken aims to highlight the interest of the European legislator, but also the national one in this segment, as well as the existing regulatory limits, with consequences in judicial practice, but also the need for the intervention of the Union legislator to give full and complete efficiency to the principle of mutual recognition of decisions foreign judicial orders pronounced by the judicial authorities of the member states.

Risk assessment of food contact materials.

In the EU, any material or article intended to come into contact with food, which is placed on the market, has to comply with the requirements of the Regulation (EC) No 1935/2004 - the so called 'framework regulation' for food contact materials (FCM). FCM covers a wide range of materials, including plastics, paper, metal and glass, which contain chemicals that might migrate into food. These chemicals must not migrate into the foodstuff in quantities that could endanger human health, bring about an unacceptable change in the composition of the food, or bring about a deterioration in the organoleptic characteristics thereof. Despite of this general regulation, the safety of new and specific materials that are not covered must be assessed case-by-case. In addition, national authorities can set their own regulations, and in this context, the BfR sets recommendations, which are not legal norms, but represent a standard for the production of materials not subjected to any specific legislation and are well accepted by other European Commission member states according to the mutual recognition principle. The BfR Unit 74 is responsible not only to deal with chemical risk assessment of FCM but also to evaluate application dossiers to include new substances in the positive list of FCM chemicals. In the proposed EU-FORA programme, the fellow had the opportunity to gain experience in the evaluation of toxicological data from applicant dossiers and in the methodologies of migration tests performed in the laboratories. Moreover, the fellow also made a bibliographic review on scientific literature on the migration studies from starch-based materials.

The Future of EU Substantive Criminal Law

Abstract When criminal law became one of the components of the Union’s objectives, the EU obtained explicit substantive criminal law competences. Minimum rules on substantive criminal law facilitate the principle of mutual recognition, allow for the approximation of sanctions and common definitions of certain offences, and make it possible to respond to global challenges. Criminal law could also have serious consequences for the persons involved. The EU legislator should therefore exercise caution when exercising its competences to approximate the substantive criminal law of its Member States. Criminalisation principles offer the legislator an argumentative framework, which can be used to determine whether criminalisation is legitimate and justified. This article aims to introduce a set of uniform set of criminalisation principles at the EU level.

Принципът на взаимно признаване в правото на ЕС и някои негови проявления в наказателното производство

This paper traces the emergence and development of mutual recognition as a guiding principle in EU law. The principle of mutual recognition was initially adopted in the area of judicial cooperation in civil and commercial matters. It is a key factor in the establishment and functioning of the internal market. In Case 120/78, the Community’s highest court held that there was equivalence between national regulatory requirements for goods, which in turn counterbalanced the trade barriers existing in the different national legislative provisions in the Member States. As a result, this allowed free movement of goods within the Community. Subsequently, at the end of the 20th century, the scope of mutual recognition expanded to cover a range of criminal law matters. Given the significance of the interference with the rights of the individual in the exercise of criminal liability, as well as the lack of respective uniform mechanisms in the Member States, mutual recognition of acts and actions committed in one State and performed in another raised a number of questions, the answers to which are sought in this paper.

The Surrender of Fugitive Offenders between Mainland China and Hong Kong: European Arrest Warrant Model or US Interstate Rendition Model?

Under the ‘one country, two systems’ policy, the surrender of fugitive offenders between Mainland China and Hong Kong has been debated. This article will frame the debate on the application of traditional extradition rules in Mainland China and Hong Kong by exploring the more recent ‘European Arrest Warrant’ system and the long-standing US interstate rendition system. It thus aims to find a suitable model for Mainland China and Hong Kong. The US interstate rendition system is one domestic system, which seems most appropriate for application to Mainland China and Hong Kong as two regions of the same country. However, this article finds that the US interstate rendition system is too direct and inflexible to be enacted by Mainland China and Hong Kong where the legal situation is more complicated and human rights protection differs. This article argues that the European Arrest Warrant can better address the ‘one country, two systems’ situation of Mainland China and Hong Kong. Mainland China and Hong Kong can learn from the European Arrest Warrant to apply the ‘mutual recognition principle’ and other concrete extradition principles to their own surrender system.

ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

As stated in the European Convention on Hu- man Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms . Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision . Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue be- tween two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts . 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/traffick- ing in human beings charges). At the same time, this interpre- tation opens the floor for discussion on potential applicability of other Convention provisions (Arts . 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc .). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i .e . a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra­ ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.