6533b7d9fe1ef96bd126cb87

RESEARCH PRODUCT

The Protection of the Right of Freedom on the European Union Level: The European Arrest Warrant and Non-custodial Pre Trial Measures. The Guideline of the Principle of Proportionality: An Interpretive Perspective

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“Protection of fundamental rights in particular must be central to the operation of the system:” this formula, found at the heart of the most recent official assessment of the EAW (2011), perfectly summarizes, in terms of political policy, the progressive shift of emphasis from efficiency and security towards the primacy of the protection of individual rights across the entire field of EU measures restricting individual liberty. The experience gained in terms of the principle of proportionality thus becomes a basic paradigm for the interpretation of the system in terms of applied law. The three levels through which the filter of proportionality has operated in the system of the EAW (multilevel gelling of the legislative choices; margins for evaluative discretion attributed to the judicial authority; official retrospective assessments of practice, which trigger off reinvestments in terms of “returns in circulation”) offer significant tools for a wider interpretation, which extends to the phenomenon of the circulation of non-custodial pre trial measures, to which the relevant framework decision of 2009 refers. In the field of pre trial measures the harmonization of the member states’ national legislations seems today to remain hazy, a mere underlying guideline: a methodological backbone that almost seems—paradoxically—to have lost its sheen but which needs to be brought back to the heart of the debate.