Abstract
In 1999, mutual recognition was declared to be the cornerstone of judicial cooperation not only, but also in criminal matters within the European Union (EU). Often this method seems to be regarded as a result of the close European integration and thus an invention of the EU. This article tries to show that even in traditional judicial assistance cases a similar trend could be witnessed and that mutual recognition is also applied – to a more or less intensive degree – in other regions and also in other areas of the law. In the author’s view, mutual recognition is a dynamic concept; its potential degree of realization depends on a number of contextual preconditions. As a result of the comparative view, he maintains that an ‘ordre public-proviso’ is a necessary ‘outlet’ and not at all outdated, especially in the context of judicial cooperation in criminal matters in the EU.
Keywords
A lot has already been written and said about mutual recognition in the framework of the European Union (EU). The aim of this contribution is neither to confine myself to an analysis of some legal acts of the EU which are based on this concept, nor to write another abstract and fundamentally critical evaluation of mutual recognition in general. My task shall consist in taking a more distant and global look at this principle in relation to ‘cooperation’, which – in our context – means, more than anything else, judicial cooperation in criminal matters. Thus my fundamental questions are: has the application of mutual recognition really revolutionized the traditional rules on judicial cooperation in criminal matters? Is the EU’s approach totally different compared to other regions of the world? Or does it just follow a ‘general trend’ in legal assistance in relation to criminal but also non-criminal cases? In the end, such a comparative view will help to clarify what mutual recognition really means and to define the conditions which are necessary to ensure its smooth application and to minimize any impairments.
Concept of mutual recognition in judicial cooperation in criminal matters in the law of the EU
Treaty provisions and definition
According to the Treaty on the Functioning of the European Union (TFEU), the concept of mutual recognition is closely connected to the Union’s objective to create – as Article 67(1) TFEU puts it – an ‘area of freedom, security and justice’. The territory of the Member States shall constitute one single judicial space. Judicial cooperation must be possible although different substantive and procedural laws do persist. And an end to this kind of pluralism is neither foreseeable nor intended, as demonstrated by the second half-sentence of the same Article 67(1) TFEU which explicitly stresses the ‘respect for…the different legal systems and traditions of the Member States’. This is where the concept of mutual recognition comes into play. In relation to cooperation in criminal matters, we usually point to Article 67(3) TFEU: The Union shall endeavour to ensure a high level of security…through the mutual recognition of judgments in criminal matters…. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions…..
The provisions of the TFEU cited so far refer to ‘mutual recognition’, but do not, however, define what this term really encompasses. This is why it is useful – if not necessary – to start by looking at a definition given by the Commission in 2000 in its Communication to the Council and the European Parliament on Mutual Recognition of Final Decisions in Criminal Matters:
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Mutual recognition is a principle that is widely understood as being based on the thought that while another state may not deal with a certain matter in the same or even a similar way as one’s own state, the results will be such that they are accepted as equivalent to decisions by one’s own state. Mutual trust is an important element, not only trust in the adequacy of one’s partners’ rules, but also trust that these rules are correctly applied.
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mutual trust in the adequacy of the rules applied in other Member States, even though they might – and normally will – differ from the own norms and regulations which are applied to a comparable case in the home legal order; mutual trust in the correct application of these rules in the other Member States by the courts and other law-executing bodies; and as a consequence, acceptance of the results achieved in the other Member State on the basis of its laws and regulations as applied by its courts and other law-executing bodies without the result being checked against domestic laws and regulations.
Consequently, the Commission concluded: Based on this idea of equivalence and the trust it is based on, the results the other state has reached are allowed to take effect in one’s own sphere of legal influence. On this basis, a decision taken by an authority in one state could be accepted as such in another state, even though a comparable authority may not even exist in that state, or could not take such decisions, or would have taken an entirely different decision in a comparable case.
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Historical background in the EU
Of course, this method of mutual recognition is nothing radically new to the EU. It already had a certain tradition even before the Commission’s definition in relation to cooperation in criminal matters was published in 2000.
The ‘principle of mutual recognition’ had originally been developed by the Commission for the establishment of the internal market in order to achieve the marketability of goods without a time-consuming and difficult process of harmonization of national provisions regulating the conditions for marketability in the respective countries. 4 Accordingly, through the Union-wide recognition of national judicial decisions, the time-consuming impediments, especially in the area of mutual judicial assistance, are supposed to be removed in order to facilitate effective cross-border enforcement of criminal law without extensive harmonizing efforts. Just as the right to free movement makes crossing the border easier for ‘criminals’, the principle of mutual recognition is meant to relax the constraints that national borders impose on law enforcement authorities and their actions and thus open up the road to a real European area of justice. 5 It corresponds to the predominant view that the successful application of the principle of mutual recognition in the context of creating a single market has been transferred to judicial cooperation in criminal matters. 6 Similar predecessors can be found in the law on asylum – originally laid down in the Dublin Convention 1990, now in the Dublin Regulation. 7 Eventually – as a first step at least – the Tampere Council of October 1999 8 elevated the principle of mutual recognition as a matter of fact (or in other terms: as a matter of pure legal policy) to the status of a ‘cornerstone’ of judicial cooperation in civil and criminal law. 9 However, it was not until the Treaty of Lisbon entered into force that this principle was incorporated into primary European law (Article 82(1) TFEU; cf also Article III-270 TCE) and thus legally codified as part of EU primary law. Now, Article 82(1) subpara 2(a) and (d) TFEU assign the competence to the EU to enact rules for all Member States concerning the mutual recognition of judgments and all forms of judicial decisions. By now, a considerable number of framework decisions and directives is based on the idea of mutual recognition, the first and most important being the Framework Decision on the Arrest Warrant of 13 June 2002.
Mutual recognition as a paradigm change in judicial assistance? – Invented or (only) used by the EU?
Often it is said that the application of the principle of mutual recognition to judicial assistance in criminal matters is no less than a paradigm change in judicial assistance law invented by the EU. But is this really true?
Trends in traditional judicial assistance
If we have a closer look at traditional judicial assistance law, elements and tendencies similar to mutual recognition can already be found there: First of all, judicial assistance relies on the basic thought of mutuality. This already shows that assistance by one state is based on the confidence in the other state’s equivalent behaviour in reverse situations. Moreover, although the requirement of double criminality has been well established according to traditional judicial assistance law, the basis and degree of suspicion that the person to be extradited in fact committed an offence according to the law of the requesting state is and was not to be put into question by the authorities of the requested state. Insofar, the traditional system already relied and still relies on an element of mutual recognition in relation to a sufficient degree of suspicion that the person concerned committed a crime.
Apart from recognizing single preconditions for extradition, the German Constitutional Court (Bundesverfassungsgericht) went one important step further: it does not apply the common German standard of fundamental rights protection in cases of judicial assistance. Rather, it respects different standards of protection in other countries (in the case in question it was Russia!) and as a consequence is even prepared to reduce the applicable constitutional standard of protection to an absolute minimum. 10 The Constitutional Court justifies its approach with the trust in the ‘rule of law’ and the protection of human rights in the requesting state. Here, a clear parallelism with the fundamentals of the principle of mutual recognition as applied in the EU becomes apparent.
If we look across the pond, we can cite an example from US extradition law: the so-called ‘rule of non-inquiry’. 11 This rule was invoked in a case regarding the transfer of two US citizens from US military custody to Iraqi custody for trial in Iraqi courts. Although the US citizens brought forward that they were likely to be tortured in Iraq, the US Supreme Court stated that ‘it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.’ 12 Under this rule, courts refrain from examining whether the proceedings in the requesting state are fair; they also do not inquire into the procedures of treatment which await a surrendered person in the requesting state. 13 In short, this approach is based on a (nearly) unlimited trust – or even blind faith – in the foreign legal system.
Although they constitute instances of traditional legal assistance, these examples show that the notion of trust in another jurisdiction’s level of protection already leads to a considerable degree of recognition of foreign systems’ standards and decisions. It can therefore be concluded that the ideas of mutual trust and mutual recognition are all but new.
The Nordic example
Even more striking is the example of the judicial assistance in relation to the Nordic countries, as had already been applied decades before Tampere and the European Arrest Warrant (EAW). At the end of the 1950s and the beginning of the 1960s, Denmark, Finland, Iceland, Norway, and Sweden established a separate system of intra-Nordic extradition, 14 which was not based on any treaty between those countries. 15 There was no obligation to extradite – the system purely relied on each other’s willingness to cooperate on a practical level and the factual possibility of doing so. The basis was an essentially uniform domestic legislation on extradition between them. As a result, with a minimum of formalities, a most effective and efficient system of extradition based on mutual trust evolved. There was not even a requirement of double criminality. 16 Moreover, the penalty threshold for an offence to be considered extraditable was very low – any act, which was not only punishable with a fine, was sufficient for giving rise to extradition. 17 Due to the absence of any obligation to extradite the system proved to be extremely flexible and enabled, for example, the non-extradition on the ground of a lack of proportionality. As this Nordic system also implied the surrender of own nationals in relation to other Nordic countries and was based on direct communication between judicial authorities, some authors suggest that the Nordic system was a source of inspiration for the Commission when drafting the Framework Decision on the EAW. 18
It is obvious that such a system – although now replaced by the so-called Nordic Arrest Warrant 19 – comes close to a model of ‘pure mutual recognition’. The Nordic model implies a full abolishment of the double criminality requirement – the effectiveness of extradition as a law enforcement tool in the requesting State should and could not be undermined by national provisions of substantive criminal law in the requested State. 20
Similarly, the original Commission proposal for the EAW was meant to introduce a system which was not based on double criminality. Nevertheless, it included a so-called ‘negative list’ system, which gave Member States the option to declare that they would not extradite for certain specific forms of conduct. 21 As we all know the EAW goes not that far – double criminality is still the basic rule, but of course there are wide exceptions for the categories of conduct listed in the Framework Decision itself (a ‘positive list’ system) as far as the conduct is punishable in the requesting State with at least a 3 years maximum period of deprivation of liberty. 22 Thus, the negative – and even more – the positive list system imply clear limitations of the mutual recognition principle.
The MERCOSUR example
Leaving the European continent for a moment, it is worth to have a short glance at the legal situation in Latin America, more precisely at the one in the MERCOSUR. Intriguingly, a very similar trend in judicial assistance can be found there as well.
MERCOSUR, the abbreviation for the Spanish terminology for ‘Common Market of the South’, is sometimes compared to the EU. This is only true insofar as the countries which form the MERCOSUR – Argentina, Brazil, Paraguay, Uruguay, Venezuela (whose membership is, however, currently suspended) and (still in the process of accession) Bolivia 23 – form an economic community with the objective of creating a single market. 24 But, of course, there are fundamental differences between the EU and the MERCOSUR. The latter is no supranational organization, but relies on intra-governmental cooperation. The clear focus is on economic matters. In addition to that constant rivalries and political conflicts between the Member States hinder a further development; the most striking event being the suspension of Venezuela’s membership in December 2016 due to persistent disrespect of human rights.
Despite this incomparability of the EU and the MERCOSUR, the Member States of the latter concluded an international convention in 2010 introducing the so-called ‘ordén MERCOSUR de detención y procedimientos de entrega entre los estados partes del MERCOSUR y estados asociados’, which is – even as far as the title is concerned – a MERCOSUR Arrest Warrant following the EAW example.
Many features are quite similar: there is an obligation to execute the extradition (at least in principle), direct communication between the requesting authority and a central office in the requested state shall be introduced and the use of a standard form is prescribed. There is – as in the EAW – a positive list of crimes for which double criminality is deemed to be fulfilled and there is a penalty threshold quite similar to the one within the Framework Decision on the EAW. Moreover, we find facultative and obligatory reasons for non-execution of the ‘ordén de detención’, comparable to the ones in the Framework Decision on the EAW.
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But one important difference must be mentioned: the explicit ‘ordre public’- proviso (Article 4 II) relating to the internal legal order of the state of execution: Sin perjuicio de la decisión de la autoridad judicial de conformidad con su legislación interna el Estado Parte de ejecución, podrá denegar el cumplimiento de la Orden cuando existan razones especiales de soberanía nacional, seguridad u orden público u otros intereses esenciales que impidan la ejecución de la Orden MERCOSUR de Detención.
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Cooperation with the International Criminal Court
Finally, we will have a look at the cooperation between the International Criminal Court (ICC) and the States Parties to the Rome Statute. When it comes to a ‘request for arrest and surrender’ by the ICC vis-à-vis the States Parties, there is an unconditional obligation of the states to comply with that request. This is due to the fact that States Parties in general are legally bound to cooperate with the ICC: Article 86 Rome Statute – General obligation to cooperate: States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
Only in relation to other forms of cooperation, for example, the execution of searches, the provision of records and documents and so on, we can find a proviso concerning those measures which are prohibited in the requested State on the basis of an existing fundamental legal principle of general application (Article 93 para 3 Rome Statute); in that case, consultations with the ICC are obligatory. In Article 93 para 4 of the Rome Statute, national security may be invoked to deny certain requests.
Of course, these provisos exist to take into account the heterogeneity of the legal systems of the numerous States Parties to the ICC Statute. It must be remembered, however, that – as mentioned before – the ICC regime is not, and is not specifically set out to be, an example for ‘recognition’ in the above-mentioned sense.
Interim conclusion
In summary, it is therefore possible to state the following: Aspects of mutual recognition can be found in the traditional system of judicial assistance in criminal matters already; many of these aspects are also inherent to judicial assistance between jurisdictions outside the EU. Thus, it would be wrong to call the EU the ‘inventor’ of the principle of mutual recognition. But obviously the EU has developed a high degree of mutual recognition in many fields. Nevertheless, the intensity in which the EU realizes the principle is – for example, compared to the Nordic system of extradition – by far not an extreme one.
One thing, however, cannot be denied: The instruments based on mutual recognition have, as far as implemented, brought about changes in the form and degree of judicial assistance between the EU Member States. This can be observed in relation to the EAW, where there is more direct communication and formalization, and in the end, an increase in efficiency from the point of view of the prosecuting authorities is the consequence. As Mathisen puts it from the point of view of a Nordic author, the developments in the EU do not amount to a revolution but, at least, they constitute a considerable evolution of the traditional judicial assistance instruments. 31
The example of the MERCOSUR elucidates that mutual recognition is not restricted to the EU. Theoretically, it can also be used, at least in principle, in other regions, especially – and this is impressively confirmed by the MERCOSUR arrest warrant and especially by its extension to Spain and Portugal – if the states and jurisdictions show certain similarities, if they belong to – more or less – similar legal families, and especially if there are close linguistic, historical and cultural ties between them and if they share – roughly speaking – common values.
The fact that the MERCOSUR integration is confined to economic purposes and that considerable political differences between the MERCOSUR Member States persist are certainly factors, which endanger the functioning of a system based on mutual recognition. Nevertheless, this danger is provided for in the MERCOSUR instrument by an explicit ‘ordre public’ exemption clause. And the clear failure to effectively guarantee fundamental rights in one country – as can be seen in the case of Venezuela – will necessarily put an end to tight cooperation on the basis of mutual trust.
The principle of mutual recognition in other areas of the law and trends there
In a world of increasing globalization, mutual recognition is not only a topic for criminal law, but also becomes relevant in nearly all other areas of the law.
Civil law
Without being able to go into detail, recognition and enforcement of judgments in civil law matters has become more and more important – in a world in which persons and assets can easily be moved across borders, due to a recognition of foreign judgments, it is much harder for the losing party to avoid liability. 32 Consequently bi- and multilateral treaties in that area have been concluded which neither reject nor generally require the recognition of foreign judgments; their regime is designed rather differently. Nevertheless, a clear tendency towards a more liberal recognition practice is becoming obvious. At the same time, States appear to rely increasingly on ‘ordre public’-exceptions when foreign judgments are incompatible with domestic law. Also, in the EU context, the judicial cooperation in civil matters is based on mutual recognition. The ‘first generation’ of regulations in that field (e.g. Brussels Ia, 33 Brussels IIa 34 ) contains an important limitation as they provide for a declaration of enforceability in the state of enforcement. Only in the reformed versions of the regulations, this exequatur procedure is abolished, but – nevertheless – an application for refusal can be made, for example, where the recognition of a judgment is manifestly contrary to public policy. 35
Administrative law
Also, in administrative law, the globalization has had its effects. Transnational effects of administrative acts serve as a means to achieve coordination between jurisdictions by cooperation between States recognizing each other’s acts. This is part of a general development towards a global administrative law. In the framework of the EU – as we have seen earlier – the creation of a single market based on the fundamental freedoms and the Court of the EU’s jurisprudence, for example, in the ‘Cassis de Dijon’ case, 36 have lead towards a wide range of mutual recognition of administrative conditions for production, marketing and so on. Nevertheless, both the TFEU (in its Article 36) and the CJEU (in its Cassis de Dijon jurisprudence) provide for exceptions based on ‘public policy’ or on the so-called ‘overriding reasons of public interest’ in the meaning of the Cassis-de-Dijon-jurisprudence. Another important consequence is that vocational qualifications or national permits have in principle to be recognized by other EU states.
Interim conclusion
Globalization and – to a higher extent – European integration have increased mutual recognition in various areas of the law, not only in judicial assistance in criminal matters. These examples, however, also show that recognition is never meant to be applied without limits. Public policy provisos go hand in hand with increased mutual recognition.
Advantages and dangers of mutual recognition
The advantages of applying mutual recognition to judicial assistance in criminal law matters are obvious: The national legal systems do not have to be transformed in the sense that harmonizing substantive or procedural law is – as such – a formal precondition for mutual recognition. This is – by the way – the reason why the British delegation in Tampere preferred the mutual recognition approach over harmonizing criminal law. Mutual recognition nevertheless provides for speedy procedures with a minimum of formal prerequisites. Judicial assistance may be based on direct communication between the judicial authorities in the requesting and the requested state. Thus, it seems to be a most efficient instrument in order to create an area of freedom, security and justice, as envisaged by Article 67 TFEU.
But – as has been mentioned before in relation to the EU – if national substantive criminal laws and criminal procedures in the relevant states remain different to a considerable extent, an overhasty application of mutual recognition to criminal law matters creates inacceptable risks and disadvantages especially to the person prosecuted. As has been pointed out, even in other areas of the law and outside the EU ‘ordre public’-clauses and -exceptions are common.
As is well known from the discussion within the EU after the introduction of the EAW, especially the rights of the defence are endangered and there is a considerable risk that they become legally and factually ineffective – with the unwanted consequence that the fundamentally important right to a fair trial could potentially be sacrificed to the effectiveness of the procedure.
This is why – as a general rule – the application of mutual recognition has to be accompanied by other steps, as has been pointed out, for example, in the second Manifesto of the International group of criminal law professors called the ‘European Criminal Policy Initiative:’
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The Union legislator must primarily respond to this danger [of losing fundamental rights in transnational proceedings] by creating a general level of protection in respect of the most important suspects’ rights which clearly exceeds the minimum rules of the European Convention on Human Rights.
Apart from that EU instruments based on mutual recognition must in general – as any legal act of the Union – meet the European proportionality test. Cross-border proceedings usually affect the prosecuted person’s rights more intensively than purely national ones. Thus, the instrument must provide for compensations, for example, minimum harmonizations of defendant’s rights, specific grounds for refusal to be used in the executing state or – more general – an ‘ordre public’-clause for extreme violations of fundamental rights could be introduced. 38
Although considerably delayed, EU legislation finally started introducing elements of both, an increase in harmonizing legislature and additional measures to compensate the loss of fairness in cross-border prosecutions and trials which result from the application of the mutual recognition method. The EU did not, however, go as far as to introduce a general ‘ordre public’-proviso in its legal acts. Interesting insofar is the ‘new approach’ of the CJEU in its Aranyosu judgment 39 (and also a rather similar and simultaneous approach of the German Constitutional Court 40 ) which could – if extended or even generalized – result in an important fundamental rights proviso, limiting the mutual recognition as to the EAW (and later perhaps also to other instruments). 41
Mutual recognition understood as a ‘waiver’-concept
To sum up what has been said so far, we have to depart from the simplifying view which has surely been in the mind of many authors when discussing the mutual recognition concept: Mutual recognition does certainly not imply a strict, complete and blind positive acceptance of different national standards. It must rather be considered a ‘waiver-concept’: The executing state waives its sovereignty-based control power and thus the application of – maybe stricter – national standards to a certain extent. But the degree of such a waiver does not necessarily amount to 100%, but depends on the quantity of ‘mutual trust’ which pre-existed or which has been created by international instruments in the concrete area of application. Limitations and grounds for refusal thus do not constitute exceptions to mutual recognition but characterize the concrete form and degree of mutual recognition. 42
Mutual recognition as an ideal solution to be applied to cooperation inside and outside the EU?
Thus, mutual recognition can be regarded and used as a very flexible tool – in this respect, a truly viable path for cooperation in- and outside the EU, but – of course – only under certain circumstances and conditions.
The easiest situation exists if there are nearly no significant differences as to the applicable law – as is the case in most federal states and in autonomous systems as the one created by the Rome Statute. Mutual recognition seems to be a most natural consequence under these circumstances.
If only minor differences remain, especially if the states concerned are part of the same ‘legal family’, if they share the same legal tradition, legal mentality and values, if they both accept a comparable set of fundamental rights, if they have a common history and perhaps even a similar language, the objective basis for mutual trust – essential precondition for any mutual recognition – may be applied, even without any limitations and (public policy) provisos.
However, if the remaining differences are considerable and/or if legal systems have incomparable characteristics, if the history, language and legal tradition do differ, mutual recognition needs additional ‘complementary’ factors in order to create an objective basis for mutual trust. These additional factors may be generated by harmonizing legislation, but – moreover – the legal practice and ‘reality’ in these jurisdictions must be predictable and certainly based on the rule of law; the respect of a common set of fundamental rights in criminal procedures must be guaranteed.
Even though mutual trust may be fostered by the measures indicated, mutual trust cannot simply be ‘created’. One cannot simply order trust to exist. And – what is even more important – one cannot order trust to exist – or persist – no matter how circumstances change. Trust is not static, there is a considerable dynamic element to it. The legal and factual situation in the other countries must be observed continuously; in case of unforeseen events, which change the basis for mutual trust, as, for example, a continuous failure to respect fundamental rights or a constitutional crisis, the state which is meant to execute the decisions has to intervene or to set an end to cooperation. An ‘ordre public’-proviso can provide a solution under these circumstances. Although the situation within the EU is rather stable (at least compared to other parts of the world) and the rule of law and the Charta are in general respected, things may change quickly – as we can see these days (e.g. with a view to Poland or Hungary). 43 Therefore, a strict ‘ordre public’-proviso, especially in relation to extreme fundamental rights violations, should be considered. It works as a flexible ‘outlet’ and as such is not at all outdated.
One final remark has to be added in relation to the effect of applying mutual recognition to judicial assistance in criminal matters within the EU: The result is not necessarily – as might indicate the wording of the Treaties – a uniform judicial space. It is rather a political decision, whether a really high degree of mutual recognition is the objective of the Union. What are the Member States aiming for? A federal state, a loose form of confederation or something in between? Especially nowadays – with Brexit, the rise of anti-European parties in many EU-Member States, the constitutional crisis in some Member States – things are much less clear than they used to be. The Rome declaration of 26 March 2017 – after some discussions – finally points in the direction of an increased use of the concept of a ‘Europe of various speeds’. Thus, the degree of mutual recognition could and most probably will vary within the EU. Some Member States could – on the basis of a higher degree of mutual trust – go ahead with a wider range of instruments of mutual recognition; it is even conceivable – as the Nordic example shows – that third countries which can be sufficiently trusted could be included in the concept of mutual recognition.
Thus once again: understood correctly, mutual recognition is not a ready-made concept but a highly flexible tool, which can be used in many ways and which is theoretically applicable to many states and organizations worldwide, at least if the necessary degree of mutual trust exits or can reasonably be created on a legal and factual basis.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.