As outlined above, in criminal procedural law the concept of mutual trust is regularly invoked. However, the case law of the ECJ is not yet as elaborate in transforming the concept of mutual trust into a legal principle. This seems, however, due to the more limited competences that the ECJ had according to the ex-Art. 35 EU and the relative novelty of this area of law rather than to a different understanding on the side of the court. Moreover, the ECJ already indicated a similar interpretation in joint decisions
Gözütok/Brügge.298 In both of these cases, the question concerned the interpretation of Art. 54 of the Schengen Convention (ne bis in idem), namely whether the decision of a public prosecutor to discontinue proceedings against an individual can mean that a person’s trial has been “finally disposed of”.
Gözütok was a Turkish national, domiciled in the Netherlands. In his snack bar, the
Dutch police twice seized considerable amounts of drugs in 1996. When Gözütok accepted the prosecution’s offer to pay a certain sum of money (“transactie”), proceedings against him were stopped with the effect that any future proceedings on the same grounds are barred in the Netherlands (Art. 74(1) of the Dutch criminal code). German authorities found out about his activities and later arrested Gözütok in Germany in 1997, assuming jurisdiction on the basis of § 6 Nr. 5 German Penal Code (StGB). The Oberlandesgericht Köln referred the above-mentioned question to the ECJ.
Brügge was a German national, resident in Germany, who was accused of having
wounded a Belgian woman in Belgium. After the German prosecution had discontinued the proceedings following a payment of 1.000 DM according to § 153 a
In Germ any, according to § 153 a para. 1 s. 5 of the Code of Crim inal Procedure, Brügge
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could not be prosecuted on the basis of the sam e facts again unless the legal evaluation changes (from a Vergehen to a Verbrechen, an offence that carries a m inim um prison term of one year; so-called eingeschränkte m aterielle Rechtskraft).
Para. 30s.
300
Para. 33.
301
Cf. also Flore, Confiance, p. 18.
302
See also Conway, 13 EJCCL (2005), p. 280.
303
Only this understanding of Art. 54 will support the full free m ovem ent of persons instead of
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endangering persons who have com m itted only m inor offences and consequently not been subject to a court trial. It also tries to contradict the literal, system atic and historical interpretation of Art. 54-58 of the convention as advanced by several governm ents which seem to further the opposite view , cf. Hecker, Europäisches Strafrecht, p. 497ss.
German Code of Criminal Procedure (StPO), proceedings were started in Belgium. The Rechtbank van Eerste Aanleg Veurne referred a similar question, wanting to know whether the Belgian proceedings could continue.299
The ECJ interpreted the questions as meaning if a case can be considered “finally disposed of” even if no court or tribunal is involved in the proceedings and the final order does not take the form of a judicial decision. It simply states that, in the absence of a contrary provision in the Schengen Convention, it must suffice if future prosecution is barred in a Member State and some kind of atonement has been done.300 It then makes a very significant statement: since nowhere in the Schengen Convention any degree of harmonisation or approximation of national laws is required for the full application of Art. 54, this means that “there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied”.301 This clearly shows that the court regards mutual trust as a legal principle, since for a social phenomenon this would be circular302: the court deduces trust from the unlimited scope of Art. 54, since such a far reaching mechanism of recognition requires trust.303 The first mentioned trust must thus be a normative concept, while the second is the factual state of trust. This shows the terminological, but also the conceptual, confusion that generally exists with regard to trust. The judgment, however, is not solely based on this principle but also relies on purposive interpretation to promote free movement.304
Para. 124 of the opinion, highlighted by author.
305
Para. 41.
306
As concerns the principle of mutual trust, AG Colomer was actually more radical than the court: “This shared goal [an area of freedom, security and justice] cannot be achieved without the mutual trust of the Member States in their criminal justice systems and without the mutual recognition of their respective judgments, adopted in
a true common market of fundamental rights. Indeed, recognition is based on the
thought that while another State may not deal with a certain matter in the same or even a similar way as one's own State, the outcome will be such that it is accepted as equivalent to a decision by one's own State because it reflects the same principles and values. Mutual trust is an essential element in the development of the European Union: trust in the adequacy of one's partners' rules and also trust that these rules are correctly applied.“305
While his definition of mutual trust is much the same as that of the court, Colomer tries to tie mutual trust and mutual recognition back into a common market language. The futility of this has been amply described above. What exactly a common market of fundamental rights is supposed to be remains in the dark, and why this common market should be necessary for mutual trust and mutual recognition is equally unclear. Obviously, fundamental rights are not going to be marketed in different countries. If this only means that different fundamental rights standards are going to be treated as equivalent by judicial authorities, it would have sufficed to say so. The apparent overall coherence of EU law implied by such language on the other hand is both misleading and confusing.
In Bourquain, another - very peculiar - case concerning the ne bis in idem- principle, the ECJ merely reiterated its understanding of trust in Gözütok/Brügge. Advocate General Colomer, however, seized the opportunity to give a new analysis of the concept of mutual trust. In his view, the past understanding of mutual trust has been utilitarian vis-à-vis mutual recognition306 and has been applied as a legal principle: “Although it must be assumed that there is, between the States, a respect for certain conditions, especially regarding fundamental rights, experience shows that mutual
Para. 45 of the opinion.
307
Para. 46.
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Para. 107 nt. 87 of the opinion. In this case, the Court did not follow her opinion.
309
Overstating, in m y view, the varying values that are expressed in crim inal law and their
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incom patibility with recognition. After all, m any current form s of crim inal law and procedure are not necessarily an expression of deep cultural beliefs of the public, but the result of a historical developm ent based on m any accidental factors as well. Even if there should be great cultural differences expressed in crim inal law, this does not m ean that states are not willing to overcom e them in a com m on interest, cf. Sugmann Stubbs / Jager, KritV 2008, p. 66 nt. 32; cf. for ideas on crim inal law as a constitutive elem ent of European identity Hildebrandt, 1 Crim .Law and Philos. (2007), p. 57.
trust applies in a similar way to a normative principle which encapsulates the interpretative rules concerning obligations relating to the ‘third pillar’, fulfilling a role similar to that of loyal cooperation.”307 The problems arising from this could, according to his view, be solved through harmonisation of procedural and substantive criminal law, or in the absence of this, through supplementing the cooperation system through a reference framework of fundamental rights. This corresponds to the observation that mutual recognition, though originating from the field of inter-state cooperation, has materialised in individual safeguards.308
This is the first time any of the institutions have acknowledged the fundamental rights problems that might follow an overly functionalist view of mutual trust. The Court itself, however, did not pursue this thought. Any clear take on mutual trust cannot really be distinguished. There seems to be a great difference of opinion as regards mutual trust. Advocate General Sharpston, for instance, suspects in her analysis in
Gasparini309 that mutual recognition and mutual trust are just “different names for the
same principle”, that in fact the ECJ prefers trust, while the other institutions use recognition. She - unsuccessfully - argues that trust is not a sensible basis for ne bis
in idem. The fact that trust has an important place in the Court’s jurisdiction in
criminal cases has often been attributed to the fact that it has arisen in cases concerning ne bis in idem, where trust is generally conducive to freedom. This might be the reason why AG Sharpston tries to limit the application of the principle of mutual trust and recognition. Since she follows a very traditional, nation-state-based approach to criminal law in the EU,310 she argues for a substance-based definition of
ECJ, reference for a prelim inary ruling, lodged on 27 July 2011, C-396/11 - Radu.
311
ECtHR judgm ent of 21 January 2011, no. 30696/09 - M.S.S. v. Belgium and Greece.
312
The presum ption of Convention com pliance was outlined in the Bosphorus case and stated
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that, when parties to the Convention have given power to an international organisation that has an equivalent degree of fundam ental rights protection such as the EU and apply EU m easures without any m argin of appreciation, they can rely on the presum ption of Convention com pliance, unless the protection is m anifestly deficient in a given case, cf. ECtHR judgm ent of 30 June 2005, no. 45036/98 - Bosphorus.
that they are time-barred should not partake of this protection. Thus criminalisation – which she calls “safety” – should prevail over free movement and recognition in such cases.
4.5 Outlook
If the ECJ really only follows a broad approach towards trust in criminal matters because the ne bis in idem-principle is conducive to freedom, or if it will do so irrespective of fundamental rights as it does in civil matters, remains speculative. The Court will soon have a chance to clarify its approach as a case concerning the responsibility of the executing state in judicial cooperation for fundamental rights violations in the issuing state is now pending.311
If we take into account the recent development of asylum law, the Court may well take a more critical approach to absolute, or normative, views on trust. The jurisdiction of the ECtHR seems to have had some influence on this. It has now decided in M.S.S. v. Belgium and Greece312 that a state is in breach of its obligations
under the ECHR when it transfers an asylum seeker to another EU Member state that is primarily responsible under the EU’s Dublin-system when it knows that the person will be subjected to detention and living conditions that are contrary to Convention rights. At least when the transferring state has a discretionary power to assume responsibility, it cannot rely on inter-state confidence or a presumption of equivalent protection in that Member State.313 It follows that neither a state’s accession to the ECHR nor the transfer of powers to an EU system can build an irrebuttable presumption that another state will honour its obligations with regard to fundamental rights. Since then, Advocate General Trstenjak has given two similar
Joint cases C-411/10 and C-493/10.
314
Opinion in N.S., para. 131, 133.
315
Peers, The death of ‘Mutual Trust’?.
316
ECJ judgm ent of 21 Decem ber 2011, joined cases C-411/10 and C-493/10 at para. 99ss.
317
At para. 100.
318
Both the ECJ and the ECtHR refer to the unanim ous reports of international non-
319
governm ental organisations, correspondence of the UNHCR and Com m ission reports on the evaluation of the Dublin system that expose degrading living conditions, cf. the ECJ at para. 90, ECtHR in M.S.S. v. Belgium and Greece at para. 347ss.
At para. 86, 89.
320
The judgm ent relies heavily on the judgm ent of the ECtHR in M.S.S. v. Belgium and
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Greece, cf. para. 86ss. and the factual findings of the ECtHR.
It m ight have done do so in the case of Pianese v. Italy and the Netherlands (no. 14929/08)
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with regard to the European Arrest W arrant in a case where, inter alia, the Dutch courts had relied on a presum ption that Italian courts would respect the right to liberty of Art. 5(1) ECHR, but with a decision of 27 Septem ber 2011, the application was considered inadm issable for being out of tim e (Art. 35(1) ECHR) in this regard and out of tim e and m anifestly ill-founded (Art. 35(3) ECHR) as to his other com plaints following a partial decision of 15 June 2010. opinions on the 22 September 2011 in the now joint cases of N.S. and M.E.,314
stating that “the conclusive presumption that the asylum seeker’s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the Member State’s duty to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights [...].” Only a rebuttable presumption might be acceptable.315 This development has been discussed under the heading of a possible “death of ‘mutual trust’“.316 The ECJ has mainly followed this reasoning317 and, significantly, added that any secondary legislation requiring such a conclusive presumption might itself be contrary to fundamental rights.318
Even though the observations on mutual trust and fundamental rights might be of general validity, it still does not seem to me that the ECJ will in the future reduce the scope of the principle of mutual trust generally. After all, the opinions were rendered in an area of most systematic fundamental rights violations by one Member State that are more or less generally acknowledged.319 The systemic nature of the deficiencies of the conditions for asylum seekers in Greece were an important argument in the judgment.320 Furthermore, any other reasoning would have resulted in an open conflict with the ECtHR321. The ECtHR has not yet322 taken a similar approach in criminal matters.
Green Paper “Strengthening m utual trust in the European judicial area – A Green Paper on
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the application of EU crim inal justice legislation in the field of detention”, COM/2011/327fin.; Stockholm Program m e, Council Doc. 17024/09, p. 25, 37; Green Paper “The Presum ption of Innocence”, COM/2006/174fin., p. 3; Green Paper on the approxim ation, m utual recognition and enforcem ent of crim inal sanctions in the European Union, COM/2004/334fin., p. 10, 12; Green Paper on crim inal-law protection of the financial interests of the Com m unity and the establishm ent of a European Prosecutor, COM/2001/715fin., p. 17, 48ss.; Program m e of m easures to im plem ent the principle of m utual recognition of decisions in crim inal m atters, OJ C 12/10 of 15 January 2001; Directive 2010/64/EU of the European Parliam ent and of the Council of 20 O ctober 2010 on the right to interpretation and translation in crim inal proceedings, recitals 4, 6, 7, 9, 12; Council Fram ework Decision 2008/978/JHA of 18 Decem ber 2008 on the European evidence warrant for the purpose of obtaining objects, docum ents and data for use in proceedings in crim inal m atters, recital 8; Council Fram ework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, recital 4; Council Fram ework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Mem ber States, recital 10; ECJ judgm ent of 11 Decem ber 2008, C-297/07 (Bourquain), para 37; ECJ judgment of 28 Septem ber 2006, C-467/04 (Gasparini), para 30; ECJ judgm ent of 11 February 2003, C-187/01 and C-385/01 (Gözütok/Brügge), para 33.
Sim ilarly Nettesheim, EuR 2009, p. 28, concerning European citizenship.
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