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The unbearable slightness of mutual trust in the area of freedom, security and justice

Author: Pablo Martín Rodríguez

The relationship between mutual trust and mutual recognition has been in constant debate due to the fact that both notions emerge in the area of freedom, security and justice (AFSJ). There is no doubt that they are both crucial in the criminal judicial cooperation. However, its history has been accompanied by other actors of also leading appearance such as harmonization or approximation of legislation, protection of fundamental rights or respect for the rule of law. By mentioning all three, it is observed that, at a certain point in history, each resembled to have equal prominence, but in their evolution, they showed to be the third expendable of the ménage-a-trois.

The current situation might resemble intriguing or disheartening: the mutual recognition based on the mutual trust develops when the legislative agenda appeared to have successfully propping up the probing of mutual trust – that is, the completion of the Stockholm Programme’s package of criminal procedural safeguards – and just when, even if admitting their negative aspects, the instruments were being put in place more firmly ensuring the respect for the rule of law in the Member States; which also means at the same time the protection of fundamental rights seemed to be strong and well structured.

According to the author, two aspects related to mutual trust are the causes of the complex situation aforementioned. Firstly, mutual trust lacks of an agreed and clear definition – which is probably due to its dependent nature – whose legal developments clearly originated an inter-institutional confrontation. Secondly, there is confusion between mutual recognition and mutual trust, which is highly noticeable in the case-law of the Court of Justice of the European Union (CJEU). In this confusion, the mutual trust has been legally instrumental in overcoming the flaws in both legislative policy and strict legal technique that affected the construction of the AFSJ and, more particularly, judicial cooperation in the criminal sphere and its famous cornerstone: mutual recognition.

This confusion has come to a situation where the exception of respect human rights has a “variable geometry” that is unsustainable, in author’s view, from a legal perspective. Finally, so many seams have ended up jumping, particularly when the rule of law, another key notion in the construction of that AFSJ and in the affirmation of mutual trust has also shown profound weaknesses within the Union.

In the full article, the author tries to develop these ideas by trying to provide an account that shows the connections that have taken place between these capital notions in criminal judicial cooperation within the Union.