Constitutional identity as a tool to improve defence rights in European criminal law

Abstract

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Since the early years of the European Arrest Warrant (EAW), fundamental rights concerns have been at the centre of the development of judicial cooperation in criminal matters that has taken place in the European Union (EU). The attempts to ensure compliance with minimum standards across the EU after Lisbon did not solve the other pressing issue in this area, namely the existence of different fundamental rights safeguards at the national level. Melloni tried to settle this dispute by limiting the protection of fundamental rights to those harmonized by EU law, but recent case law has questioned this approach. This article explores the possibility of applying Article 4(2) Treaty on European Union to protect a degree of legal diversity that contributes to improving the fundamental rights framework applicable to judicial cooperation measures. The goal is to analyse the possibility of implementing a limited constitutional identity exception that enables Member States to protect rights that are part of their constitutional identity. For this purpose, the recent case law of the Court of Justice of the European Union (CJEU) in the Taricco saga will be examined and compared with the way in which domestic courts have implemented national identity exceptions.