Mutual Recognition in Criminal Justice: Towards Order and Method?

The Area of Freedom, Security and Justice encompasses policies and legislation for cross-border criminal matters, including the principle of mutual recognition of judgments and other decisions in such matters (criminal justice). In the field of criminal law, mutual recognition poses several challenges, most notably to the protection of individuals’ fundamental rights. As Article 3(2) TFEU clearly states, the Union must “offer” to its citizens an Area of Freedom, Security and Justice where fundamental rights are respected.

Accordingly, the main question posed in the paper is how and to what extent the sensitive issues of proportionality and fundamental rights protection that spring from EU measures implementing the mutual recognition principle in the field of criminal justice have been or could be balanced. It is argued that there is a need for methodological awareness, particularly as regards the proper way of balancing mutual recognition and fundamental rights. Accordingly, the paper considers whether and to what extent it might be beneficial to transplant in the Area of Freedom, Security and Justice the balancing method developed within the Internal Market, where the mutual recognition made its first appearance.