Fundamental rights and mutual trust in the area of freedom, security and justice : a role for proportionality?

著者

書誌事項

Fundamental rights and mutual trust in the area of freedom, security and justice : a role for proportionality?

Ermioni Xanthopoulou

（Modern studies in European law, v. 98）

Hart, 2020

  • : hb

タイトル別名

Proportionality and mutual trust in the area of freedom, security and justice

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注記

Based on author's thesis (doctoral - King's College London, 2017) issued under title: Proportionality and mutual trust in the area of freedom, security and justice

Includes bibliographical references (p. [199]-215) and index

内容説明・目次

内容説明

This book explores the relationship of mutual trust and fundamental rights in the Area of Freedom, Security and Justice (AFSJ) of the European Union and asks whether there is any role for proportionality. Mutual trust among Member States has long been presumed by the Court in a manner that mutual recognition was prioritised in regard to, but to the detriment of, the protection of fundamental rights. After thoroughly reviewing this relationship, this book offers a comprehensive framework of proportionality and explores its impact on the protection of fundamental rights in a mutual trust environment. It applies a theoretical and a normative framework of proportionality to two case studies (EU criminal and asylum law) by reference to several fundamental rights, enabling a carefully constructed analysis with useful parallels. The book argues that such analysis, based on proportionality, is not always desirable and helpful for the protection of fundamental rights in this area and thoroughly explores its impact on the protection of fundamental rights vis-a-vis mutual trust.

目次

  • 1. Mutual Recognition: From Passive to Active Recognition Introduction Overview of the Area of Freedom, Security and Justice Origins of Mutual Recognition Transfer of Mutual Recognition to the Area of Freedom, Security and Justice Typology and Operation of Mutual Recognition Development of Mutual Recognition Models of Mutual Recognition From a Passive to an Active Model of Mutual Recognition Seeking Equivalence and a Role for Proportionality? Conclusion 2. Mutual Trust: From Blind to Gained Trust Introduction Mutual Trust in the Framework Decision on the European Arrest Warrant Mutual Trust in the Dublin III Regulation Evolution of Trust Blind Trust The FDEAW Dublin System Qualified System of Trust Trust Based on Individual Assessment? Age of Distrust? Brexit and Distrust Rule of Law Crisis and Mutual Trust ECtHR Threshold: Flagrant Denial of Justice Criticism and Commentary Grounds for Pragmatic Earned Trust Conclusion 3. Deconstructing Proportionality Introduction Early Philosophical Foundations Emergence of a Legal Doctrine Structure of the Proportionality-based Analysis Legitimate Objective Suitability and Necessity Challenges and Limits Proportionality in EU Law Conclusion 4. The Quest for Balancing in the AFSJ Case Law: Needle in a Haystack Introduction Protection of Victims in Criminal Proceedings Case Law European Arrest Warrant Case Law Kozlowski
  • I.B. Leyman
  • Wolzenburg Lopes Da Silva Jeremy F Radu Melloni Aranyosi and Caldararu LM and the Essence of the Rights Remarks Dublin System Case Law Conclusion 5. Constructing Proportionality for the Area of Freedom, Security and Justice Introduction Deconstructing EU Fundamental Rights Fundamental Rights in EU Constitutionalism The Charter and its Scope of Application The Place of Fundamental Rights in the AFSJ Constructing Proportionality for the AFSJ Criteria on the Relevance of Proportionality Per Se Article 52(1) of the Charter and the Essence of the Rights European Investigation Order and Proportionality Context of Application: Transfers of Individuals Based on Mutual Recognition Generic Balancing Parameters Variable Intensity Seriousness of the Value Under Restriction Vulnerability of Individuals Degree of Harmonisation Conclusion 6. Case Study I: European Arrest Warrant Transfers Introduction EU Criminal Justice: Evolution and Framework in the Context of Mutual Recognition Security and the Constructed European Public Order Constitutional Framework of EU Criminal Justice Surrender Procedures and Fundamental Rights Breaches Informing and Applying a Proportionality-based Analysis in the Context of the FDEAW Disproportionate Requests and Proportionality The Legality Principle and the Opportunity Principle in Prosecution Proportionality-based Analysis Informed by the Rights in Question The Principle of Ne Bis in Idem The Right to be Informed and Defence Rights Right to Appeal Principle of Legality in Criminal Law Proportionality in Light of Aranyosi: Mission Impossible Conclusion: The Impact of Proportionality-based Analysis on Surrenders 7. Case Study II: Dublin Transfers Introduction Public Discourse and EU Asylum Law The Common European Asylum System The Institutional and Legal Evolution of the Current Framework on CEAS Dublin III Regulation Dublin Shortcomings Border and Migration Control as Dominant Narrative Refugee (Governance) Crisis Informing and Applying a Proportionality-based Analysis in the Context of the Dublin III Regulation Proportionality-based Analysis Informed by the Rights in Question Criteria of Balancing Impact
  • the Limits of the Principle of Proportionality No Place for Proportionality where Absolute Rights are Breached Conclusion Reflecting and Looking Ahead: Summation of Arguments, the Way Forward and Conclusion Summation of Arguments The General Reach of the Argument and its Limits Variable Impact of Proportionality-based Analysis The Way Forward for Mutual Trust and Recognition EU Criminal Justice CEAS The Need for a Consistent Theory of Fundamental Rights for EU Law Conclusion

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