Force of Circumstance: The European Arrest Warrant and Human Rights

Sanger, Andrew

doi:10.1080/17419160903535301

Cited by 3 publications

(1 citation statement)

References 4 publications

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“…In the UK, concern has been expressed that defendants and their defence rights may 'vanish down the cracks that exist between different national systems'. * 224 Dermot Walsh, on the basis of a study of Irish EAW cases, has raised the question whether the system of mutual recognition will 'contribute to miscarriages of justice which will be more difficult to detect and remedy'. He highlights a range of constitutional rights that have seen a reduced or even 'anaemic' level of protection, and finds that courts are taking 'a more purposive, and even a teleological, approach' to the application of criminal law legislation.…”

Section: The Role Of National Courts In Neofunctionalism Andmentioning

confidence: 99%

A Paradigm Shift in the Role of Courts? Disappearance of Judicial Review through Mutual Trust and other Neofunctionalist Tenets of EU Law

Albi¹

2022

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The article submits that EU law has profoundly been changing the role of courts in Europe, from protecting the fundamental rights of individuals -especially in the event of coercive exercise of public power -towards being seen as agents of, or obstacles to, integration, as well as towards a focus on trust, effectiveness and enforcement, and protection of the market and of the neoliberal economic order. The article postulates for the consideration of the discourse that this change is one aspect of a more fundamental, ongoing Kuhnian paradigm shift in European constitutionalism, from the broader classic comparative (especially continental) European understanding of constitutional law to autonomous EU governance. The lattercontrary to the prevailing assumptions -is predicated on different foundational ideas for the exercise of public power, especially functionalism, neofunctionalism, neoliberalism and market integration, and concepts of international law. The growing tensions around the EU law principle of mutual trust exemplify the 'incommensurabilities' between the two paradigms; the article devotes a chapter to Birgit Aasa's EUI doctoral thesis on the CJEU case law on mutual trust, summarising Aasa's compelling concerns about the systemic unsuitability of trust in the courtroom in Western democratic constitutionalism. The article links Aasa's research findings to concerns that have been raised with regard to other areas and ways in which judicial review has been disappearing through EU law, including through the neofunctionalist doctrine of 'Integration through Law' and through the replication of the US constitutional thinking on the role of courts. The article additionally points to concerns about the resulting far-reaching changes in material constitutional law and fundamental rights protection; these are particularly acute for the post-totalitarian and post-authoritarian constitutional tradition, which, whilst adhered to by more than half of the Member States in both Western and Central and Eastern parts of Europe, is little known in the mainstream EU discourses. The article suggests that questions about the role of courts in European constitutionalism, as well as about the broader paradigm shift, need joined-up, inclusive discussion as part of the debate on the future of Europe. For this to be made possible, a number of structural issues in the EU law scholarly discourse must first be addressed.

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Section: The Role Of National Courts In Neofunctionalism Andmentioning

confidence: 99%

A Paradigm Shift in the Role of Courts? Disappearance of Judicial Review through Mutual Trust and other Neofunctionalist Tenets of EU Law

Albi¹

2022

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Transnational Inquiries and the Protection of Human Rights in the Case-Law of the European Court of Human Rights

Vogler

2012

Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings

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Questionnaire for the Constitutional Law Experts of the Research Project ‘The Role and Future of National Constitutions in European and Global Governance’

Albi

2019

National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law

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The Questionnaire forms the basis for the twenty-nine national reports which were prepared as part of the research project 'The Role and Future of National Constitutions in European and Global Governance', funded by a five-year European Research Council grant. The Questionnaire contains three main parts, which address the following issues: (1) constitutional culture and constitutional amendments regarding EU membership; (2) constitutional/fundamental rights, the rule of law and constitutional adjudication regarding EU measures such as the Data Retention Directive, European Arrest Warrant and ESM Treaty; and (3) novel challenges that are increasingly highlighted in the wider context of global governance (i.e. beyond the classic international treaties that advance human rights, peace and environmental protection) in relation to democratic participation, judicial review and the rule of law. The different parts of the Questionnaire each start with a brief background outlining the specific constitutional issues or challenges encountered in some Member States, and subsequently invite the national constitutional law experts to explore these in relation to their respective countries. Whilst the mainstream English language European constitutional discourse has typically focused on autonomous EU constitutional law, the Questionnaire seeks to make

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Force of Circumstance: The European Arrest Warrant and Human Rights

Cited by 3 publications

References 4 publications

A Paradigm Shift in the Role of Courts? Disappearance of Judicial Review through Mutual Trust and other Neofunctionalist Tenets of EU Law

A Paradigm Shift in the Role of Courts? Disappearance of Judicial Review through Mutual Trust and other Neofunctionalist Tenets of EU Law

Transnational Inquiries and the Protection of Human Rights in the Case-Law of the European Court of Human Rights

Questionnaire for the Constitutional Law Experts of the Research Project ‘The Role and Future of National Constitutions in European and Global Governance’

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