Mutual recognition in criminal matters, deprivation of liberty and the principle of proportionality

• Leandro Mancano ^[1]
  1. [1] University of Edinburgh

     University of Edinburgh

     Reino Unido

     
• Localización: Maastricht journal of European and comparative law, ISSN 1023-263X, Vol. 25, Nº. 6 (Special issue: Punishment, deprivation of liberty and the Europeanization of criminal justice), 2018, págs. 718-732
• Idioma: inglés
• DOI: 10.1177/1023263x18818654
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• Resumen

  • This paper argues that the application of mutual recognition to judicial cooperation in criminal matters within the European Union (EU) imposes a redefinition of the right to liberty to adjust the latter to the peculiarities of the Union legal order. The article emphasizes the important role that the principle of proportionality in EU law can have for improving the protection of the right to liberty. The two main scenarios of this research are analysed against the different understandings of proportionality: on the one hand, the European Arrest Warrant Framework Decision and the interpretation of the EU Court of Justice; on the other, the three Framework Decisions on transfer of prisoners, probation measures and pre trial measures alternative to detention. The conclusions reveal that, despite the increasing attention paid to proportionality in relation to the right to liberty in mutual recognition, the potential offered by EU law to better protect the right to liberty is still underexploited.