From mutual trust to mutual distrust in the EU’s Area of Freedom, Security and Justice, by Ermioni Xanthopoulou

Introduction

The legal principle of mutual trust in the Area of Freedom, Security and Justice (AFSJ) includes an obligation of national authorities to show confidence in – and recognise – their counterparts’ decisions. The principle is founded on the presumption that Member States (including their public bodies, such as prisons and asylum reception centres) respect EU and international fundamental rights law. EU and international fundamental rights laws commonly accepted by Member States offer a common denominator that renders different approaches equivalent and trustworthy. Mutual trust constitutes the basis for several mutual recognition instruments of the Area of Freedom, Security and Justice (AFSJ): examples include the Framework Decision on Supervision Measures, the Directive on the European Protection Order, the Framework Decision on the European Arrest Warrant (FDEAW). Mutual trust further enables the mutual recognition of administrative and judicial decisions. Under the FDEAW, for instance, judicial authorities of one Member State trust the judicial authorities of the Member State issuing a European Arrest Warrant (EAW), and act upon it by surrendering the person requested to the issuing Member State. In the context of the Dublin III Regulation, one Member State is recognised as responsible for examining an asylum application, while the rest trust that the asylum seeker will be treated in accordance with EU law.

The development of the principle of mutual trust is thoroughly analysed here and here. When studied through the lens of two AFSJ instruments – the FDEAW and the Dublin III Regulation – mutual trust appears to have been progressively transformed, growing from a phase of blind trust to a phase of pragmatic trust. Cooperating authorities, acting in a spirit of urgency and effectiveness, were initially compelled to presume their counterparts’ compliance with fundamental rights (blind mutual trust). However, reported violations of fundamental rights in the AFSJ fuelled distrust in some areas which gradually led to an increase of exceptions to mutual trust. Distrust manifests itself through exceptions to the obligation to trust, and eventually through exceptions to mutual recognition. The recognition of exception arguably constitutes a pragmatic refinement of mutual trust which is shifting away from the original model of blind trust. This can be seen as a positive development, as argued by Hamenstädt. However, it is also argued that it is of no added value, since the increase of exceptions to trust perplexes the function of cooperation in the AFSJ as mutual recognition of decisions becomes increasingly difficult.

This post examines judicial manifestations of distrust by classifying the relevant case-law based on several underlying roots of distrust linked to either inhuman asylum reception and prison conditions or the rule of law backsliding. This blog article argues that indications of distrust do not constitute the fall of the principle of mutual trust. On the contrary, recognising limits to the principle is necessary for building actual trust, given that this signifies the Court of Justice’s syncing with reality as well as a process of maturity in EU criminal law.

Asylum reception conditions

The first ‘crackdown’ on mutual trust in the AFSJ took place in EU asylum law in light of reports of inhuman and degrading treatment of asylum seekers located in Greece. The then Dublin II Regulation was suspended, as the Court held in N.S. and M.E. that EU law prevents the application of a conclusive presumption that Member States’ public bodies operating in the field of asylum law always respect the law on the protection of fundamental rights (para 105). Thus, a transfer of an asylum seeker to the responsible Member State may be prohibited where systemic violations of rights present a well-founded danger of exposing the applicant to conditions where their right under Article 4 of the Charter could be breached (para 106). Furthermore, in C.K. and Others, the CJEU held, expanding the exception, that despite the lack of systemic failures in the asylum procedure and the reception conditions of the responsible Member State, a transfer in itself could still entail a risk of inhuman or degrading treatment, where an applicant is seriously ill (para 96). Recently, in Jawo, the CJEU further conceded that not only systemic but also deficiencies of a general nature may make a Dublin transfer incompatible with Article 4 of the Charter. Therefore, breaches of Article 4 of the Charter in the context of Dublin III Regulation constitute the first reason of distrust.

Distrust, however, is neither generic in relation to the whole regime nor endemic to all Dublin transfers. The exceptions recognised are specific and limited to the localised conditions that gave rise to it in certain domestic environments. Mutual trust did not collapse, but continued to support cooperation in asylum matters. This is the very reason why the law, even in its reformed version, still stands despite the heavy criticism. If distrust was widespread, the Dublin III Regulation that has been so heavily criticised would perhaps no longer stand.

Prison conditions

Prisons conditions in Hungary and Romania posed similar concerns about potential violations of Article 4 of the Charter. This is because overcrowding in correctional facilities (which again are public bodies operating in the field of criminal justice) resulted in inhuman living standards. Consequently, a surrender of a person to Hungary and Romania requested by an EAW could expose them to a real risk of violation of Article 4 of the Charter. Indeed, in Aranyosi and Caldararu, the Court held that when judicial authorities have evidence that there is a risk of inhuman or degrading treatment, they are bound to assess the possible existence of that risk, relying on ‘objective, reliable, precise and duly updated elements’ (para 89). The establishment of the fact that such a risk exists is not sufficient to allow the executing authority to refuse the execution of an EAW (para 91). A second test also needs to be conducted where the authorities must establish that the specific person concerned will be exposed to this risk specifically because of the conditions of their detention (para 92). If an executing authority is convinced of the existence of this risk for the particular person, it has to postpone – but not abandon – the EAW and make a decision on detention after informing Eurojust (para 99). Furthermore, according to Generalstaatsanwaltschaft (ML), an assessment of detention conditions in the issuing Member State must be limited to the prisons in which it is actually intended that the person concerned will be held (para 84). Dorobantu further specified the minimum standards for custodial conditions required under Article 4 of the Charter and resorted to ECtHR jurisprudence in the same spirit of recognising specific limits to mutual trust (para 72). Moreover, according to Lanigan, the executing authority may decide to hold the requested person in custody only if the procedure for the execution of the EAW has been done in a sufficiently diligent manner and the ‘duration of the custody is not excessive’ (para 58).

The judgments denote a significant shift from Radu and Melloni and thus from the initial phase of blind trust. They introduce exceptions to mutual recognition based on a climate of distrust towards prison conditions in Hungary and Romania. Still, the Court adopts a specific tone of controlled derogations from the obligation to trust and makes a measured recognition of existing deficiencies within a wider context of mutual trust. In fact, the judgments read as an opportunity for the Court to establish guidelines for judicial authorities in matters of criminal justice beyond the nation-state from which questions may naturally arise.

Rule of law backsliding and judicial independence

Another set of EAW case-law that manifests an environment of distrust is the one relating to judicial independence and the right to a fair trial. Distrust is here particularly expressed towards the Polish judicial system, following governmental judicial reforms that granted the executive greater powers over the judiciary. In this regard, the Court was asked, in LM, whether Article 1(1) of the FDEAW could be interpreted in a way that a judicial authority may refuse the surrender where a breach of the right to a fair trial is feared due to reports concerning systemic breaches of the rule of law.

The Court, in principle, ruled that this may happen and set out a two-fold elaborate test, thus adapting Aranyosi and Caldararu to the case in question. The judgment, following that of Aranyosi, established that when there is a real risk of breach of the fundamental right to a fair trial, an executing authority must determine whether,

having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the framework decision, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State.

The Court also held that a surrender may not happen when there is a real risk of breach of the essence of the right. It is worth noting that the Court accepted for the first time that mutual trust may be challenged even where non-absolute rights are under threat – a significant expansion of the recognised exceptions to mutual recognition. The judgment is of course clear evidence of distrust towards the Polish judicial system – given that it is not sufficiently independent – which squarely affects a meaningful exercise of the right to a fair trial. At the same time, the judgment defines and defends the minimum content of mutual trust, further informing in a substantial way the legal principle.

Besides, distrust was also manifested towards the UK in Brexit-related case-law because of the growing uncertainty in relation to the applicable law, including human rights law. In RO, Irish judicial authorities were unsure about whether they should surrender the requested persons to the UK based on two EAWs. The CJEU ruled that Ireland had to execute the EAWs in question as long as the UK had not left the EU, but the submission of a preliminary question to the CJEU is telling of the general lack of certainty – and, subsequently, trust – in the procedure. Although this line of case-law is no longer pertinent and the Court anyway clarified that the law was applicable, a crucial message here is that legal certainty is a prerequisite for mutual trust.  

Distrust as an opportunity to define trust

The evolution of the principle of mutual trust might be welcome from a rights perspective, but comes with its own challenges from a cooperation perspective. At first glance, cooperation seems perplexed. At a second glance, however, the Court’s case-law serves as a manual answering important questions on what the minimum content of trust is. Acknowledging fundamental rights issues in Europe that naturally affect EU cooperation – such as the rule of law backsliding, overcrowded prisons, and the actual treatment of asylum seekers – is necessary. The legal principle of mutual trust was initially constructed as an axiom which compels authorities to trust in a rather dogmatic fashion, thus resisting any regular ‘check-in’ with the reality. Syncing law with reality by recognising the dissonance between law and practice is a very important opportunity for a pragmatic and nuanced development of the principle.

Posted by Dr Ermioni Xanthopoulou, Senior Lecturer in Law, Brunel University London