PRAVNI ZAPISI • Year XII • No. 2 • pp. 371-395

CANARIES IN A COAL MINE: RULE OF LAW DEFICIENCIES AND MUTUAL TRUST

Petra Bárd
Fernand Braudel Fellow, the European University Institute, Florence
Associate Professor, ELTE Faculty of Law, Budapest
Research Affiliate, Central European University, Democracy Institute, Budapest
e-mail: bardp@ceu.edu

.

Pravni zapisi, No. 2/2021, pp. 371-395

Original Scientific Article

DOI: 10.5937/pravzap0-35035

KEY WORDS
rule of law, judicial independence, human rights, fair trial rights, mutual trust, mutual recognition, EU law, European Arrest Warrant, European Convention on Human Rights, Bosphorus presumption

ABSTRACT
The value decline in the EU has manyfold consequences. It jeopardizes the very essence of Europe as a community of values. At the same time it endangers legal principles, such as mutual recognition, which is based on mutual trust presuming that all Member States are based on the rule of law and protect fundamental rights. Once trust is rebutted, Member States’ judicial authorities will refuse to cooperate and recognize each other’s judgments in order not to become complicit in individual rights violations and not to contradict the European Convention for the Protection of Human Rights and Fundamental Freedoms. This paper argues that EU law must allow for such considerations and suspend mutual recognition-based laws not only on a case-by-case basis, as it happens today in practice, but in general with regard to Member States undergoing rule of law decline, in order to uphold the EU’s fundamental rights culture, and EU law’s equivalency with the Convention’s human rights regime.