Cooperación judicial penal en el Espacio de Libertad, Deguridad y Justiciala nueva dimensión de la preservación de derechos fundamentales, la armonización por hacer y otros retos actuales. Estudio a partir de la aplicación de las Decisiones Marco sobre Orden Europea de Detención y Entrega y traslado de personas condenadas

Abstract

This thesis by a compendium of publications is composed of eight works that, endowed with conceptual autonomy, share a joint plan: reflecting on the reality of international judicial cooperation in the European Union (EU) and addressing some of its present problems and the future challenges. Our analysis primarily revolves around the implementation of the European Arrest Warrant Framework Decision (EAW FD), and to a lesser extent of the Framework Decision on transfer of sentenced persons (909 FD). Both of them are examples of the model of cooperation in criminal matters within the Area of Freedom, Security and Justice (AFSJ), based on the principles of mutual recognition and mutual trust. These two framework decisions constitute a splendid paradigm to study the cooperation system in general and to make a diagnosis of its health, for various reasons. The EAW FD, since it was the first instrument of cooperation of this nature, serving as a model for many other texts that followed. However, both of them, because their application impacts in a susceptible area that frequently affects the right to freedom of the persons concerned by them and indirectly may entail an endangerment to other rights such as personal dignity or the prohibition of submission to inhuman or degrading treatment. Within this general plan, we have tried to deepen the knowledge of certain aspects and areas almost always following up on the problem that the present moment reflected, paying particular attention to the scrutiny of the latest decisions of the Court of Justice of the European Union ( CJEU) and European Court of Human Rights (ECHR), as well as different national courts. However, some papers also study aspects not strictly related to fully current issues but having to do with structural concerns related to the use of international judicial cooperation instruments, the compatibility between them or their transposition into national legislation of the different EU Member states. The combination of the compilation different articles has been used as a channel and a connector when tackling a series of interesting points regarding the framework decisions studied. It also serves a reference helping to achieve one of the primary compendium objectives: improving our understanding of the AFSJ strengths and weaknesses, and even beyond, of the cohesion of the EU itself. The core areas on which research is carried out are: First. In-depth understanding of certain aspects of the instruments in question. The holistic review performed, ranges from the desirability of a realistic approach to the content and scope of mutual recognition and mutual trust principles to very specific aspects. Among them, the need for a proportionate use of the EAW FD, the scouting of problems arising from the transposition of the EAW FD and 909 FD to national legislations, or the compatibility between the referred framework decisions. Second. Reflection on the way forward concerning a necessary legislative harmonization, which is one of the pillars cooperation in the AFSJ is based on. Certainly, together with areas where there has been a remarkable homogenization thanks to the work of the European legislator, there are others in which the different national systems offer different solutions regarding similar situations. Daily practice shows that the shortcomings detected in this area, the heterogeneity of the criminal and procedural systems of the Member States and the modalities of transposition of European regulations by them, have a decisive influence on both quality and fluency of cooperation. Throughout our studies, we stress this idea from different perspectives, broaching a series of problems. Among them, those related to double criminality requisite, or the different conceptions of proportionality in the use of EAW FD. The latter, partly motivated by the unalike categorization of the behaviours and offences and punitive disparities among the EU Member states. Third. The review of the jurisprudence of the CJEU, ECHR, and of the different national courts in the matter of preservation of fundamental rights in the context international cooperation based on mutual recognition has been a constant throughout these pages. Furthermore, within this more extensive chapter, we have directed our efforts to four essential goals. One, studying the CJEU case law, especially that concerning the EAW FD. Two, analyzing the systemic deficiencies that endanger fundamental rights in some EU Member States, and its impact on judicial cooperation. Three, looking into the safeguarding of fundamental rights of absolute and not absolute content in the context of cooperation based on mutual trust and mutual recognition. And four, reflectin on the future challen es arisin in those fields.