About

MR2.0 Background

EU law provides the national authorities of the Member States with a wide range of instruments concerning judicial cooperation in criminal matters: the European Investigation Order (EIO), the European Surveillance Order (ESO), the European arrest warrant (EAW), mutual recognition of custodial sentences (FD 2008/909), mutual recognition of probation decisions and alternative sanctions (FD 2008/947) and the EU Convention on Mutual Assistance in Criminal Matters between the Member States of the EU. With exception of the EU Convention, all of these EU instruments are based on the principle of mutual recognition, which in turn is based on the principle of mutual trust. The 1972 Council of Europe Convention on the Transfer of Proceedings in Criminal Matters completes the network. As a whole, these instruments cover criminal proceedings from the start of the investigation stage through the trial stage to the sentence enforcement stage. During the proceedings, national authorities (such as public prosecutors or courts) may be confronted with the need for judicial cooperation with the authorities of another Member State and, if so, may be confronted with a choice between the application of two or more instruments. This raises the issue of effective and coherent application of the instruments mentioned above. The notion of ‘effective and coherent application’ of instruments on judicial cooperation in criminal matters has two distinct aspects. Firstly, in deciding whether to initiate a request for judicial cooperation the assessment on which the decision is based must encompass all relevant (i.e. possibly applicable) instruments. Otherwise, it would not be possible to give preference to an effective but less burdensome alternative. Secondly, the application of the instruments and the choices made must be consistent.
The project is a continuation of two previous projects coordinated by Maastricht University and the District Court of Amsterdam, ImprovEAW and InAbsentiEAW.

The issues at stake

Judicial authorities of the Member States when confronted with the need to request judicial cooperation might have more than one option to do so. For instance, when prosecution is started against a national of a different Member State, the national authorities, if the person is not present in the prosecuting Member State, can opt between issuing a European Arrest Warrant or transferring the proceedings to the other Member State.
There is no guidance for making the best decision from the legal instruments themselves. The applicable legal instruments do not give a priority order. This is logical as many decisions very much depend on the circumstances of the case as well as other factors. In this regard, there are five interrelated relevant factors which all may be indicative of the proportionality of a certain measure:

• impact on the right to liberty (presumption of innocence);
• impact on free movement rights;
• existing alternatives to surrender;
• stage of the proceedings (competent authorities);
• circumstances of the case.

Objectives

The project aims to promote judicial cooperation and contribute to the effective and coherent application of the EU and international instruments mentioned above, with an emphasis on the instruments that can minimise endangering the personal freedom of the individuals involved.