{"id":3000,"date":"2024-03-27T18:30:11","date_gmt":"2024-03-27T17:30:11","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3000"},"modified":"2024-03-27T19:06:07","modified_gmt":"2024-03-27T18:06:07","slug":"mutual-recognition-before-the-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/fr\/mutual-recognition-before-the-european-court-of-human-rights\/","title":{"rendered":"Mutual recognition before the European Court of Human Rights"},"content":{"rendered":"\n

Mutual recognition is an area characterised by some significant methodological differences<\/strong> between the Strasbourg and Luxembourg case-law (see Convention control<\/a> and Trends 2021-24<\/a>) which go to the heart of the notion of fundamental rights<\/strong> and of how fundamental rights should be assessed<\/strong>: individually and\/or collectively?<\/p>\n\n\n\n

On 21 March last, I made an online presentation at the Training Workshop, held at the University of Barcelona, devoted to “Mutual trust and judicial independence in the EAW Framework<\/strong>“. The workshop was part of the European Commission’s funded project TRIIAL 2 (TRust, Independence, Impartiality and Accountability of Legal Professionals under the EU-Charter).<\/p>\n\n\n\n

My presentation, titled: “Mutual recognition before the European Court of Human Rights<\/strong>“, was based on the following considerations.<\/p>\n\n\n\n

    \n
  1. The mutual recognition mechanisms have been accepted in principle by the ECtHR<\/strong> (Avoti\u0146\u0161 v. Latvia);<\/li>\n\n\n\n
  2. While the ECtHR also approved of the two-step methodology<\/strong> of the CJEU in principle, it reaffirmed its own one-step methodology<\/strong> \u201cwhich place[s] the national authorities under a duty to ascertain whether there is a real risk, specifically assessed, to the individual concerned, of treatment contrary to [the Convention]\u201d (Bivolaru and Moldovan v. France, \u00a7 114);<\/li>\n\n\n\n
  3. The general situation<\/strong> occurring in a country is not ignored by the ECtHR, but used as evidence <\/strong>in the assessment of individual risks<\/strong> rather than as an autonomous test<\/strong>;<\/li>\n\n\n\n
  4. According to the latest Luxembourg case-law (C-158\/21, C-819\/21,C-261\/22), national judges should not, in the absence of systemic or generalised deficiencies, apply an individual test<\/strong> as regards risks of breaches of fundamental rights in the issuing Member State;<\/li>\n\n\n\n
  5. This comes down to: a) replacing the individual test by a general test<\/strong>, thus accepting that fundamental rights can be assessed collectively <\/strong>rather than individually<\/strong>, and b) dividing fundamental rights into two categories<\/strong>, those arising from systemic deficiencies<\/strong>, considered relevant, and the others, which can be ignored in the field of mutual recognition;<\/li>\n\n\n\n
  6. However, it is doubtful whether national judges can be precluded by EU law from applying the Convention<\/strong> as legally required, which includes an assessment of the individual risks incurred by the person concerned in the issuing Member State.<\/li>\n<\/ol>\n\n\n\n