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Extradition, Asylum and Mutual Trust in the European Union.

Winther, Dace LU (2018) JAMM07 20181
Department of Law
Faculty of Law
Abstract
The problem studied in this thesis is the impact of the principle of mutual trust on the possibility of EU nationals to claim asylum and avoiding extradition for political offences within the EU. The principle of mutual trust presumes that human rights are not violated in any EU Member State. The difficulty arises if and when human rights are actually violated. It is not clear to what extent fundamental rights can be invoked to rebut the mutual trust principle in avoiding extradition and claiming asylum. The case of the deposed Catalan leader Carles Puigdemont reveals that the questions of asylum and non-extradition of a political offender in the EU is a complicated and controversial topic. Thus, the research questions of this thesis ask... (More)
The problem studied in this thesis is the impact of the principle of mutual trust on the possibility of EU nationals to claim asylum and avoiding extradition for political offences within the EU. The principle of mutual trust presumes that human rights are not violated in any EU Member State. The difficulty arises if and when human rights are actually violated. It is not clear to what extent fundamental rights can be invoked to rebut the mutual trust principle in avoiding extradition and claiming asylum. The case of the deposed Catalan leader Carles Puigdemont reveals that the questions of asylum and non-extradition of a political offender in the EU is a complicated and controversial topic. Thus, the research questions of this thesis ask how the application of the principle of mutual trust impacts the rights of the individual in cases of extradition and asylum, (and cases where extradition and asylum intersect), involving political offences.

The problematics of extradition and asylum for EU nationals in the EU are studied through analysing the EU provisions in an international law context. In addition, the CJEU jurisprudence is studied, with regard to how mutual trust is compatible with fundamental rights considerations in asylum and extradition cases. The case of Carles Puigdemont is used as the principal illustration for the problematic issues of asylum and extradition concerning EU nationals in the EU, while other cases from EU Member States are used to enforce the arguments of the thesis.

It is concluded in the thesis, that it is not fully clear what the principle of mutual trust actually entails. The Member State practice on when to rebut the presumption of mutual trust on human rights grounds, is based on random criteria and not indicative of a uniform approach. Meanwhile, the CJEU is very restrictive as to when fundamental rights grounds can be invoked in order to rebut the principle of mutual trust. It has so far been done only in cases involving potential ill-treatment. Also, national courts have mainly invoked ill-treatment, and have abstained from evaluating the right to fair trial in potential political offence cases. While national courts do occasionally refuse extradition (execution of the EAW), using fundamental rights grounds, the threshold of the Aznar Protocol for when an asylum claim by an EU national in another EU Member States would not be treated as "manifestly unfounded" is so unreasonably high, that it could be unattainable even in straight-forward cases of political persecution. Eventually the conclusions highlight that invoking the principle of mutual trust without actual respect for fundamental rights that this principle presumes, deems the principle senseless. (Less)
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author
Winther, Dace LU
supervisor
organization
alternative title
One man's terrorist is another man's freedom fighter, yet another man's asylum seeker, yet another man's fugitive.
course
JAMM07 20181
year
type
H2 - Master's Degree (Two Years)
subject
keywords
Asylum, extradition, mutual trust, European Union, European arrest warrant, Aznar Protocol, Carles Puigdemont.
language
English
id
8944578
date added to LUP
2018-06-15 11:11:27
date last changed
2018-06-15 11:29:13
@misc{8944578,
  abstract     = {The problem studied in this thesis is the impact of the principle of mutual trust on the possibility of EU nationals to claim asylum and avoiding extradition for political offences within the EU. The principle of mutual trust presumes that human rights are not violated in any EU Member State. The difficulty arises if and when human rights are actually violated. It is not clear to what extent fundamental rights can be invoked to rebut the mutual trust principle in avoiding extradition and claiming asylum. The case of the deposed Catalan leader Carles Puigdemont reveals that the questions of asylum and non-extradition of a political offender in the EU is a complicated and controversial topic. Thus, the research questions of this thesis ask how the application of the principle of mutual trust impacts the rights of the individual in cases of extradition and asylum, (and cases where extradition and asylum intersect), involving political offences. 

The problematics of extradition and asylum for EU nationals in the EU are studied through analysing the EU provisions in an international law context. In addition, the CJEU jurisprudence is studied, with regard to how mutual trust is compatible with fundamental rights considerations in asylum and extradition cases. The case of Carles Puigdemont is used as the principal illustration for the problematic issues of asylum and extradition concerning EU nationals in the EU, while other cases from EU Member States are used to enforce the arguments of the thesis. 

It is concluded in the thesis, that it is not fully clear what the principle of mutual trust actually entails. The Member State practice on when to rebut the presumption of mutual trust on human rights grounds, is based on random criteria and not indicative of a uniform approach. Meanwhile, the CJEU is very restrictive as to when fundamental rights grounds can be invoked in order to rebut the principle of mutual trust. It has so far been done only in cases involving potential ill-treatment. Also, national courts have mainly invoked ill-treatment, and have abstained from evaluating the right to fair trial in potential political offence cases. While national courts do occasionally refuse extradition (execution of the EAW), using fundamental rights grounds, the threshold of the Aznar Protocol for when an asylum claim by an EU national in another EU Member States would not be treated as "manifestly unfounded" is so unreasonably high, that it could be unattainable even in straight-forward cases of political persecution. Eventually the conclusions highlight that invoking the principle of mutual trust without actual respect for fundamental rights that this principle presumes, deems the principle senseless.},
  author       = {Winther, Dace},
  keyword      = {Asylum,extradition,mutual trust,European Union,European arrest warrant,Aznar Protocol,Carles Puigdemont.},
  language     = {eng},
  note         = {Student Paper},
  title        = {Extradition, Asylum and Mutual Trust in the European Union.},
  year         = {2018},
}