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Constitutional Identity as a tool to improve Defence Rights in European Criminal Law
journal contribution
posted on 2018-09-07, 14:51 authored by C. Saenz PerezSince the early years of the European arrest warrant (EAW), fundamental rights concerns have
been at the centre of the development of an extensive judicial cooperation in criminal matters
that has taken place in the EU. The attempts to ensure compliance with minimum standards
across the EU after Lisbon did not solve the other pressing issue in this area, namely the
existence of different fundamental rights safeguards at national level. Melloni tried to settle
this dispute by limiting the protection of fundamental rights to those harmonised by EU law,
but recent case-law has questioned this approach. This article explores the possibility of
applying article 4(2) TEU to protect a degree of legal diversity that contributes to improving
the fundamental rights framework applicable to judicial cooperation measures. The goal is to
analyse the possibility of implementing a limited constitutional identity exception that
enables Member States to protect rights that are part of their constitutional identity. For this
purpose, the recent case-law of the CJEU in the Taricco saga will be examined, and compared
with the way in which domestic courts have implemented national identity exceptions
domestically.
History
Citation
New Journal of European Criminal Law, 2018Author affiliation
/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law SchoolVersion
- AM (Accepted Manuscript)
Published in
New Journal of European Criminal LawPublisher
SAGE Publications (UK and US)issn
2032-2844eissn
2399-293XAcceptance date
2018-08-30Copyright date
2018Available date
2019-01-10Publisher DOI
Publisher version
https://journals.sagepub.com/doi/abs/10.1177/2032284418818762Language
enAdministrator link
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