Mutual Recognition in Criminal Matters, Deprivation of Liberty and the Principle of Proportionality
Maastricht Journal of European and Comparative Law, 25(6), 718–732, 2018
16 Pages Posted: 15 Apr 2019 Last revised: 23 Apr 2019
Date Written: March 19, 2018
This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasises the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice (CJEU); on the other, the three FDs on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, in spite of the increasing attention payed to proportionality in relation to the right to liberty in mutual recognition, the potential offered by Union law to better protect the right to liberty is still underexploited.
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