LM judgment – effective judicial protection as general principle and fundamental right

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 by Joana Covelo de Abreu, Editor

2018 is the year when effective judicial protection undertakes several new developments.

In this sense, the Associação Sindical dos Juízes Portugueses’ judgment (ASJP) set the tone to great developments under effective judicial protection dimension concerning the independence of courts. In this decision, the Court of Justice understood effective judicial protection as not only a fundamental right, but also a general principle of EU law. In fact, the Court of Justice preferred to set this jurisprudence based on the general principle – as enshrined Article 19 (1) (2) TFEU – because that was the way to liberate effective judicial protection from the methodical difficulties brought by Article 51 CFREU.

In this decision, the Court of Justice reasoned based on Article 2 TEU (concerning the values of the EU), Article 4 (3) TEU (principle of sincere cooperation) and Article 19 (1) TEU, emphasising Article 19 (1) TEU as a “concrete expression to the value of the rule of law stated in Article 2 TEU” and acknowledging the integrated nature of the EU judiciary system – composed both by ECJ as EU organic court and national courts as EU functioning courts.

But when we thought the Court of Justice had already enough developed effective judicial protection, we are surprised with the LM judgment (case C-216/18 PPU).

This decision, issued on the July 25th 2018, was developed under a preliminary reference made in order to interpret the limits concerning the enforcement of three European Arrest Warrants. They aimed at arresting and surrendering LM to Polish authorities for the purpose of conducting criminal prosecutions (concerning trafficking in narcotic drugs and psychotropic substances).
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Editorial of May 2018

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 by Joana Whyte, Junior Editor and Associate Lawyer at SRS Advogados


The German Court’s decision on Mr. Puigdemont’s EAW and its similarities to a Swiss Cheese

The European Arrest Warrant (EAW) represented one of the most important developments of the Area of Freedom, Security and Justice whose creation and development with the Amsterdam Treaty became one of the European Union’s objectives.

The EAW abolished the traditional process of extradition and made it simpler for European Member States to request the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

The EAW is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to in the 1999 Tampere European Council as the “cornerstone of judicial cooperation in both civil and criminal matters within the Union”.

According to the principle of mutual recognition, a decision adopted by a judicial authority of a Member State (the issuing Member State), on the grounds of its internal legislation, must be recognised, accepted and executed by the executing Member States’ judicial authorities, even though the same case, according to the executing Member States’ law, could lead to a different outcome.

The EAW also abolished the principle of double criminality for a list of 32 crimes established in Article 2(2) of the EAW’s Framework Decision (Council Framework Decision 2002/584/JHA).

This is fundamentally where the issue on Carles Puigdemont case arises.
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