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Znaczenie zasady wzajemnego zaufania w procesie tworzenia przestrzeni wolności, bezpieczeństwa i sprawiedliwości

100%
Kamarad E.
Przegląd Zachodni
|
2020
|
issue 1 (374)
71-84
EN
The purpose of the article is to discuss the importance of mutual trust between EU Member states, which is key to the process of European integration. Without mutual trust it would be impossible to create an Area of Freedom, Security and Justice (AFSJ), which in this aspect applies to both the legal systems and the justice systems of the Member States. Mutual trust allows to assume that the legal system of each Member State guarantees the same level of protection of individuals and that law enforcement bodies carry out their tasks equally effectively. However, the level of mutual trust is not constant - one can observe its slow and systematic growth, but its level may as well decrease, which has recently occurred in the case of relations between Poland and other Member States. This condition has an adverse effect on the functioning of the AFSJ and causes the occurrence of many practical problems, which are presented in the article. The legal order was determined based on the formal-dogmatic method and presented using the descriptive method. The case study method was used when presenting CJEU rulings.
2
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A Bottom-up Look at Mutual Trust and the Legal Practice of the Aranyosi Test

100%
Peristeridou C.
Review of European and Comparative Law
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2023
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vol. 54
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issue 3
51-72
EN
This contribution offers an insight into the legal practice of the Aranyosi test during the EAW proceedings in seven Member States, an outcome of the research conducted during the ImprovEAW Project. Only the executing judicial authorities of some Member States do trigger the test. Member States are roughly differentiated between those having facilities with usually bad or usually good detention conditions, promoting antagonistic relationships instead of equal partnership. The lack of streamlining of the communication when supplementary information is requested, the lack of common standards and approach towards guarantees lead to further misunderstandings and frustration. The findings of this research have revealed the importance of departing from a pure legal understanding of mutual trust and follow a more empirical, experiential or bottom-up concept. Mutual trust is not only a legal concept, but it underpins the legal culture of the cooperation and collegial attitudes of authorities towards one another. This expression of mutual trust remains quite undiscovered: how is miscommunication affecting mutual trust? Do judicial authorities of legal systems express collegiality to one another? How do cultural aspects and preconceived ideas regarding the quality of other legal systems influence mutual trust? Accordingly, some suggestions have been made to improve the cooperation and the establishment of rapport when supplementary information is requested. Finally, I advocate for a more neutral view towards the Aranyosi test. As opposed to considering it as a supervisory mechanism, I have explored the idea of approaching it as a risk management tool: it tackles risks created by mutual trust. Such approach helps both sides to take responsibility to avert ad hoc risks, instead of experiencing Aranyosi as a testing moment. Such approach centres the real problem, i.e. the risks created by mutual trust for individuals and it can stimulate more proactive policy-making in this regard.
3
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Nowe granice wzajemnego zaufania w Unii Europejskiej

88%
Michalik M.
Przegląd Zachodni
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2020
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issue 1 (374)
85-99
EN
This paper is an analysis of case law of European Court of Justice and political documents concerning the principle of mutual trust. The aim of the author is to characterize the principle of mutual trust in judicial cooperation between Member States and its borders in the European legal area. The research hypothesis is that the principle of mutual trust, which is the foundation of the European legal area, is a dynamic phenomenon and its functioning within the EU legal framework depends on the will of Member States. In order to achieve the assumed research goals, the following research methods are used in the paper: formal-dogmatic, historical-legal and theoretical-legal. The CJEU jurisprudence and doctrine are analysed. The analysis is complemented by a case study on restrictions to the functioning of the principle of mutual trust based on selected case law of the Court of Justice of the European Union and materials constituting political programs, communications or recommendations of the European Commission and the European Parliament. The fourth part examines the various mechanisms created by EU and non-EU institutions to control mutual trust in the European legal area. The conclusion of the analysis states that mutual trust as a non-absolute instrument depends on the sovereign will of the Member States and that the Union institutions and bodies should establish mechanisms to ensure that mutual trust is maintained at an appropriate level.
4
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About Joint Investigation Teams in a Nutshell

75%
Nagy J.
Issues of Business and Law
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2010
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vol. 2
105-117
EN
Joint investigation teams are fundamental instruments of cooperation in the field of EU Freedom, Security and Justice. The core legal basis of the EU has not been implemented in all member states yet. Nonetheless, joint investigation teams have demonstrated their usefulness in investigating the most serious forms of criminality such as terrorism and drug trafficking. Implementation difficulties include admissibility of evidence in court, high costs of running joint investigation teams and drafting comprehensive agreements on setting up joint investigation teams. This instrument could be used more effectively, in particular through a stronger involvement of both Europol and Eurojust. Joint investigation teams can be considered as a valuable tool in the development of a criminal justice area in the EU.
5
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Interpretation of Art. 54 of the Convention Implementing the Schengen Agreement

75%
Losy O.
Adam Mickiewicz University Law Review
|
2019
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vol. 9
EN
The paper discusses the problem of the ne bis in idem principle stipulated in the Convention Implementing the Schengen Agreement (CISA) and the Charter of Fundamental Rights of the European Union. Article 54 of the CISA makes the application of the principle ne bis in idem subject to the condition of execution of the penalty. An analogous condition is not provided for in the Charter. These differences caused doubts regardingthe application of the ne bis in idem principle and were subject of the question for preliminary ruling in the Spasic case (C-129/14 PPU). The paper contains a critical review of the reasoning of the Court of Justice of the European Union in this judgment. In addition, the article also contains an analysis of the CJEU’s decision in Case C-398/12 M. in which the CJEU has analysed the meaning of “final disposal” of the judgment in the context of the ne bis in idem principle. Based on the above judgments, the article presents arguments indicating that the reasoning of the CJEU on the conditions for the application of the ne bis in idem principle in judicial cooperation in criminal matters in the EU is not consistent.
6
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Erosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings

75%
Sakowicz A.
Review of European and Comparative Law
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2023
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vol. 54
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issue 3
11-50
EN
An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.
7
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Problematika litispendence a jejích následků v nařízení Brusel I bis i ve vztahu k třetím státům

45%
Tichý L.
Právník. Teoretický časopis pro otázky státu a práva (The Lawyer - Scientific Review for Problems of State and Law)
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2019
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vol. 158
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issue 11
1010-1030
EN
The purpose of this contribution is an analysis of lis pendence in the Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast) and based on it an assessment of conditions of possible opening this regulation towards third states. The opening of the Brussels system requires a reflection of risks associated with its implementation. The main purpose of this regime is to prevent of irreconsilable judgements rended by two courts in different states in the same matter. The operation of lis pendence dependens upon four assumptions. The first assumption concerning the design of the regulations response to parallel proceedings is that the appropriate forum may be sufficiently identified. The second assumption is that there are no relevant differences between the courts of Member States in terms of the legal and practical implications of litigation. The third assumption is that parallel proceedings and irreconcilable judgements in the same matter are a real threat to the stability of the regulation and in particularly to the mutual recognition and enforcement of judgements between Members States. The forth assumption is that he model of litigation embodied in the Brussels regime adequately secures procedural justice.
CS
Účelem tohoto příspěvku je stručná analýza institutu litispendence v nařízení č. 1215/2012 o příslušnosti, uznávání a výkonu soudních rozhodnutí v občanských a obchodních věcech (Brusel I bis) a na jejím základě ověření podmínek otevření této úpravy vůči třetím státům. Otevření bruselského systému vůči třetím státům znamená nutnost zohlednění rizik spojených s takovýmto řešením. Hlavním účelem úpravy litispendence je zabránit vzniku navzájem neslučitelných rozhodnutí. Fungování litispendence závisí na čtyřech předpokladech. Prvním předpokladem je, že musí být dostatečně jasně upravena příslušnost soudů. Druhým předpokladem je neexistence relevantních rozdílů mezi soudním systémem ve smyslu právních a praktických implikací soudního řízení. Třetím předpokladem je, že paralelní řízení a navzájem neslučitelná rozhodnutí ve stejné věci představují skutečnou hrozbu stability samotné právní úpravy a zejména vzájemnému uznávání výkonu rozhodnutí. Čtvrtým předpokladem je, že model výkonu spravedlnosti zabezpečuje přiměřeným způsobem výkon spravedlnosti (soudnictví).
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