Upheavals in extradition law
"In 1993, the Copenhagen criteria set out the requirements for EU membership, which included the “stability of institutions guaranteeing democracy, the rule of law, human rights …”. Article 2 of the Treaty on European Union (TEU), signed in 1992, states that the EU is founded upon “the values of respect for human dignity, freedom, democracy, the rule of law and the respect for human rights …”. Both the Copenhagen criteria and the TEU were drawn up at the high point of the “End of History” debate, when there was a pervasive belief that it was just a matter of time before the whole world surrendered to liberal democracy. Perhaps it is no surprise then, that the protections for the rule of law in Article 7 of the TEU, which enables the European Council to suspend certain rights from member states, appear toothless in the face of the recent actions of the governments of Poland and Hungary.
The crises in Poland and Hungary have brought into sharp focus the fragility of the rule of law. The requirements for a four-fifths majority decision that there is a clear risk of serious breach by a member state by the European Council in relation to Article 7(1), and for a unanimous decision that a serious and persistent breach exists in relation to Article 7(2), mean that it may be difficult for those seeking a determination against the member states in question to obtain the desired result. But without such a sanction, the European arrest warrant system will not, in line with the European Court of Justice cases of LM and L, P be suspended. And so it is that judges across the EU, and, for now, the UK, are left struggling to apply mutual trust (which has as its basis the shared values of Art. 2) to requests from countries that appear bent on dismantling the rule of law."
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