Constitutional Rights in the EU Area of Freedom, Security and Justice

Ester Herlin-Karnell

This paper will look at the formation of an 'Area of Freedom, Security and Justice' as a constitutional endeavour. The paper aims to address both the abstract need to theorise the 'Area of Freedom, Security and Justice' (AFSJ) as well as the concrete need to pay more attention to the enforcement of constitutional rights with regard to mutual recognition instruments. While it is often emphasised that the different components of the AFSJ need to be adequately balanced, fewer attempts have been made to examine the meaning of balance when discussing the impact of constitutional rights and proportionality in a security related context. This article serves this purpose. I will endeavour to chart the meaning of the principle of proportionality in AFSJ law, both ex ante and ex post. In doing so, the main focus of this paper is the individual and the ramifications of EU involvement in security regulation.Examples will be drawn from practice, by looking at the operation of the European Arrest Warrant. In addition, the present paper will assess the notion of 'trust' and aim to discuss why this concept has played a crucial role in the development of EU criminal law. It will be shown that 'trust' in AFSJ law is a question of legitimacy and, more specifically, that it drives the EU's presence in these matters. These questions are of fundamental importance for analysis, since they highlight the bigger issue of whether important values once recognised within the nation state are lost in the transition to the European level. The paper will discuss the extent to which the principle of proportionality could help maintain these values.

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