Lunch seminar with Elise Filius
The European courtroom as a political arena? A study on the role and position of the Dutch Judiciary in Asylum and Surrender cases
One of the main constitutional objectives of the EU is the emergence of an Area of Freedom, Security and Justice (hereafter AFSJ) without internal frontiers. EU competencies within the AFSJ relate to the policy areas of asylum, immigration, criminal law, and civil law cooperation. Due to the politically sensitive nature of these areas, the EU Member States chose to enhance inter-state cooperation via mechanisms that are based on mutual recognition and mutual trust rather than (fully) harmonize the national legal systems. As a result, national decisions taken in Member State A are recognized and executed in Member State B quasi-automatically with limited grounds to refuse the request, trusting the quality and lawfulness of each other’s legal systems.
Two prominent cooperation mechanisms in the AFSJ that function on the notion of mutual recognition and mutual trust are the Framework Decision on the European Arrest Warrant (hereafter EAW) and the Dublin Regulation III. The EAW was the first EU instrument to implement the principle of mutual recognition in criminal matters. It replaced the system of extradition with a faster surrender mechanism between judicial authorities of the EU Member States. In the different yet adjacent field of asylum law, the Dublin Regulation III allocates the responsibility for the examination of an individual asylum claim to one Member State.
As a consequence of mutual trust, the Dublin Regulation III and the FD EAW have been depoliticized, i.e. decisions are now subject only to judicial control. For example, contrary to the extradition procedure, the role of central authorities, such as the Minister of Justice, has been reduced to a minimum in the decision-making process of an EAW. However, this did not prevent national judicial authorities from being confronted with politically sensitive arrest warrants. Even the Catalan leader Puigdemont became the subject of an EAW issued by the Spanish Supreme Court for the purposes of criminal prosecution on charges of rebellion and corruption (i.e. embezzlement of public funds) linked to his part in Catalonia's independence campaign.
Furthermore, the European Union and its Member States are currently faced with major challenges, as a result of inter alia the undermining of the fundamental common values on which the EU is founded, as stated in article 2 TEU. Although these issues are addressed on a political level, it appears to be difficult to find an effective solution. Consequently, the (national) judiciary is faced with pressing politically sensitive issues.
Judicial decision-making in politically sensitive cases has implications that go beyond the individual case, and take on a wider relevance for judicial cooperation in Europe. This raises the question of how national courts deal with these issues, and, second to that, how this (potentially) impacts the way the Dublin Regulation III and the EAW function (such as, with effects that go beyond the respective fields of asylum and criminal law). In my research, I focus on the Dutch national courts dealing with cases that can be deemed as politically sensitive. The research method used to answer the research question contains, in addition to normative elements, qualitative-empirical research methods. More specifically, the question will be answered via doctrinal research, a systematic case law analysis, and semi-structured interviews among the Dutch judiciary.
In this lunch seminar, I will discuss the set of viewpoints that have been drawn up for the aim of this research to distinguish politically sensitive cases from other (non-politically sensitive) cases. Additionally, I will go into the preliminary findings of the interviews.
Speaker bio
Elise Filius is a PhD candidate at the University of Leiden (Europa Institute and the Department of Criminal Law & Criminology). She graduated from the University of Tilburg and holds an LL.M. in Criminal Law. Prior to her PhD, she worked for four years as a lecturer at the University of Tilburg where she taught several courses on European Criminal Law, Global Law and Dutch Criminal Law.
Her research focusses on the question how the Dutch judiciary deals with politically sensitive cases concerning the Dublin Regulation III and the Framework Decision on the European Arrest Warrant, and, second to that, how this (potentially) impacts on the way these EU-instruments function (such as, for instance, with effects that go beyond the respective fields of asylum and criminal law).
Elise will be a Visiting Researcher at iCourts from 8 April – 16 May.
Meeting ID: 688 7355 4692
Passcode: 797133