What about fundamental rights? Security and fundamental rights in the midst of a rule of law breakdown

Abstract

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This article considers the balance between security and fundamental rights that characterises EU criminal law and examines how processes of rule of law backsliding have re-shaped it. Traditionally, EU criminal law has been characterised by its securitisation, which crystallised in the prioritisation of the principle of mutual trust over concerns for the rights of defendants. However, processes of rule of law breakdown at Member State level have challenged this balance and demonstrated the flawed foundations of mutual trust. This paper explores how the CJEU is addressing these contradictions through case law that, nonetheless, continues to prioritise security over the right to a fair trial, whilst Member State courts challenge these interpretations and develop decentralised interpretations of the right to a fair trial. The goal is to evaluate whether judicial dialogue provides an adequate framework to counter the securitisation of EU criminal law and protect the right to a fair trial in the midst of a process of rule of law breakdown.