1.3. mutual trust Mutual trust is “premised upon the acceptance that membership of the European Union means that all EU Member States are fully compliant with fundamental rights norms.”19 A series of EU instruments which go beyond pre-existing, traditional forms of cooperation set out under public international law, were adopted under this presumption of fundamental rights compliance by all Member States. This presumption was also used to justify the automatic procedures of inter-state cooperation within the AFSJ. “That trust is grounded, in particular, on the Member States’ shared commitment to the principles of freedom, democracy and respect for human rights, fundamental freedoms and the rule of law.”20 The Hague Programme later referred to mutual confidence as being based on “the certainty that all European citizens have access to a judicial system meeting high standards of quality.”21 In this context, the CFREU and the ECHR provide the framework within which Member States have to act when applying EU law. Additionally, their national criminal laws and procedures must comply with the standards prescribed by the ECHR and set out by the European Court of Human Rights (ECtHR). The mutual trust principle thus also requires that Member States have trust in each other’s criminal justice processes and implies, at the same time, that the conditions of detention and procedural safeguards are equivalent in all Member States.22 While mutual trust between Member States has been described, inter alia, by the CJEU as the “raison d’être” of the EU,”23 in reality discrepancies between norms and practice exist. Such discrepancies become all the more apparent by the significant number of findings of human rights violation of EU Member States before the ECtHR. The ECtHR, for example issued 51 judgments regarding eleven EU Member States concerning a violation of Article 3 ECHR because of poor conditions of detention.24 In 2015 alone, 23% of all violations found by the Court related to Article 3 ECHR25. This does not only raise real concerns with regard to the protection of the fundamental rights of individuals under the jurisdiction of EU Member States but it potentially could also undermine mutual trust as well as the functioning of judicial cooperation. The EU Commission stressed that “detention conditions can have a direct impact on the smooth functioning of the principle of mutual recognition of judicial decisions”, adding that “prison overcrowding and allegations of poor treatment of detainees might undermine the trust that is necessary to underpin judicial cooperation within the European Union”.26 As such, criminal matters, including detention issues, still largely fall within the competences of the individual Member States, but the EU maintains an interest in the workings of national criminal proceedings including the conditions of detention in order to ensure the functioning of the principle of mutual trust. When it comes to the application of mutual recognition instruments on the basis of mutual trust, Recital 10 of the FD EAW for example provides that: 19 Mitsilegas (2012) p.322. 20 EU, Programme of measures, p.10. 21 European Council, The Hague Programme: strengthening freedom, security and justice in the European Union, OJ 2005/C 53/11, para. 3.2. 22 See Lenaerts (2015), p.3. 23 Case C-411/10, N.S et al [2011] para. 83. 24 Figures extracted from the European Court of Human Rights HUDOC database 2016. 25 The ECHR in Facts and Figures 2015 at page 7 available at http://echr.coe.int/Documents/Facts_Figures_2015_ENG.pdf. 26 European Commission, COM (2011) 327 final. 18