chapter 1. the council framework decisions related to detention: improving judicial cooperation 1.1. background One key element of the AFSJ is the abolition of internal border controls between Member States and the creation of one single European area, guaranteeing freedom of movement.8 However, it is not accompanied by one common legal area, as the law remained largely territorial and within the competence of individual EU Member States. Consequently, one of the principle challenges for European integration in the AFSJ has been how to ensure that national systems interact in this borderless area. Since harmonisation of national law, including the establishment of minimum standards, has been limited, the focus so far has primarily been on the development of cooperation systems between Member States, aimed at extending national enforcement capacity in order to deal with the practical effects of border controls. Such largely automatised cooperation mechanisms between Member States were established on the basis of the principles of mutual recognition and mutual trust, which will be outlined in more detail in this chapter.9 On the basis of these underlying principles, a number of Framework Decisions were passed, including the FD 2002/584/JHA on the EAW (FD EAW)10, FD 2008/909/JHA on the Transfer of Prisoners (FD TOP)11, FD 2008/947/JHA on Probation and Alternative Sanctions (FD PAS)12 and FD 2009/829/JHA on the European Supervision Order (FD ESO).13 The largely automatized inter-state cooperation established by the FD EAW to prevent those accused or convicted of a criminal offence from evading prosecution or sentence by fleeing the country where the crime or allegation originated14 has been criticised from a fundamental rights perspective.15 Scholars and activists have voiced concerns over the adequate protection of the fundamental rights of individuals subject to an EAW, such as the right to a fair trial, the right to liberty, the presumption of innocence, the principles of nulla poena sine lege, or the prohibition of cruel, inhuman and degrading treatment (ill-treatment). It has further also been the subject of several national and CJEU court proceedings, which will be discussed in greater detail during the course of chapter 3. 8 Valsamis Mitsilegas, `The Limits of Mutual Trust in Europe´s Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual´ Yearbook of European Law, (2012) Vol.31(1) pp.320 et seq. [hereinafter: Mitsilegas (2012)]. 9 European Commission, Green Paper: Strengthening mutual trust in the European judicial area. A Green Paper on the application of EU criminal justice legislation in the field of detention, COM (2011) 327 final, 14 June 2011, p. 2 [hereinafter: European Commission, COM (2011) 327 final]. Also see Koen Lenaerts, `The Principle of Mutual Recognition in the Area of Freedom, Security and Justice´, The fourth annual Sir Jeremy Lever Lecture (30 January 2015) available at https://intranet. law.ox.ac.uk/ckfinder/userfiles/files/The%20Principle%20of%20Mutual%20Recognition%20in%20the%20Area%20 of%20Freedom,%20Judge%20Lenaerts.pdf, p.1 [hereinafter: Lenaerts (2015)]. 10 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (EAW), OJ 2003/ L 109/1. 11 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (FD TOP), OJ 2008/L 327/27. 12 Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements and probation decisions with a view to the supervision of probation measures and alternative sanctions, [2008] OJ 2008/L 337/102. 13 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to pre-trial detention (ESO), OJ 2009/L 294/20. 14 Lenaerts (2015) p.2. 15 See Mitsilegas (2016) p. 151:Mutual recognition, mutual trust and fundamental rights after Lisbon .”See also Torres Perez, (2016) ‘A predicament for domestic courts: caught between the European Arrest Warrant and Fundamental Rights,’ National Courts and EU Law New Issues, Theories and Methods. Elgar 2016 p192. 16