APPLICATION OF THE FRAMEWORK DECISIONS IN MEMBER STATES
5.4.2 COOPERATION
Another obstacle observed was that,
when the option of an FD was there or
even when such reliance was mandatory,
the national courts or relevant actors
were sometimes reluctant to use them.
Austria evoked first a lack of knowledge
of other States’ judicial systems, but more
importantly, a general tendency not to trust
other Member States’ legal systems.479 This
idea was notably brought forward by the
Netherlands during the regional consultation workshop, where it was said there
was a general belief that once you let a
person go, the involved countries do not
trust each other to bring the person back
to the court (in time) for the hearing. In
Germany, the same mindset was observed,
added to a general defiance towards the
level of sanctions applied by the other
EU Member States. Germany indicated a
certain fear that the person will no longer
be punished to the extent provided for in
the sentence after the transfer.480
This distrust extends to the point where
some states choose not to respond at all
to other States requesting the opening of
cross-border proceedings. Lithuanian and
Portuguese representatives, during the
regional consultation workshop, notably
evoked issues with cooperation with certain states. In Lithuania, there is a general
understanding that communication with
specific countries on this matter is poor
and that nothing can be done about it.
Even more serious was the issue of Member States which refused to rely on the
framework decisions in general, even when
all conditions were met, as was raised by a
Lithuanian and a Romanian participant at
the consultation workshop.
The principles of mutual trust and mutual
recognition which entail a presumption of
fundamental rights’ application in Member
States are notably at stake in the cases
where countries have created their own
presumptions towards other countries.
Indeed, while the EU Court prioritises
trust and strictly applies the presumption
that States will respect fundamental rights
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by relying on a very high threshold for its
rebuttal, domestic courts have been found
to generally use a different approach.
At the EU level, the TEU provides for the
possibility to rebut the presumption of
fundamental rights’ application in the case
where all the conditions found under Art 7
TEU are fulfilled. It states that:
”On a reasoned proposal by one third of the
Member States, by the European Parliament
or by the European Commission, the Council,
acting by a majority of four fifths of its
members after obtaining the consent of the
European Parliament, may determine that
there is a clear risk of a serious breach by
a Member State of the values referred to in
Article 2.481”
Such values are:
"respect for human dignity, freedom, democracy, equality, the rule of law and respect for
human rights, including the rights of persons
belonging to minorities. These values are
common to the Member States in a society
in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality
between women and men prevail."482
However, we observe at the national level
the rebuttal of such presumption with rules
set at the domestic level, which change
depending on the country and which do not
always have to be based in law. In Austria,
for instance, it was reported that the Ministry of Justice issued decrees on how to
handle cross-border cases with the specific
Member States where the risk of fundamental rights violations appears high. These may
concern the conditions in detention as well
as fair trial guarantees.483 Such inversion of
the presumption exists also with the CPT,
as was reported by Lithuania. Their report
stated that some Lithuanian prisons were
presumed to systematically infringe on the
respect of fundamental rights.484 Germany
evoked a domestic case in which a preliminary ruling was requested from the CJEU
on the obligation to investigate potential
fundamental rights violations for a person in
a situation of vulnerability even without an
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