The ‘licence to distrust’ and the protection of individual rights in the execution of a European Arrest Warrant: A comment

This comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the presumption of respect for fundamental rights that underlies mutual recognition. The exercise of trust is now monitored by those Courts, as a means of protecting individual rights. This rehabilitates the proper meaning of trust, which can be reinforced by assurances. Prison conditions and legal changes affecting the rule of law are analysed in this light, as ‘drivers of distrust’. In sum, distrust can legitimately provide immediate protection for the individual, and the spectre of distrust causes the appreciation of trust, which in turn is beneficial for fundamental rights.