ABSTRACT
Mutual recognition is perceived as the ultimate solution to the creation of a common EU area of freedom, security and justice. However, its practical application in criminal law shows substantial differences in the understanding of criminal law, especially as regards criminal procedure in the Member States. Such differences and their accommodation (in cross-border cooperation) through an automatic mutual recognition system could challenge the classical role of a judge in a modern democracy, as well as his/her legitimacy and the perception of legitimacy of his/ her decisions. An uncritical application of mutual recognition bears the danger of transforming the judge into a kind of ‘ticking box’ automaton checking only pre-established criteria and neglecting his/her duty of a critical assessment and safeguarding fundamental (constitutional) rights of the defendant. Therefore, it is necessary to define a balancing theory of mutual recognition in EU criminal law allowing a national judge to conduct a fair procedure, safeguard fundamental (constitutional) rights, as well as to foster a pro-European understanding allowing efficient mutual cooperation between Member States. Such a theory has to establish equilibrium in a way to keep the fundamentals of legitimacy of a national legal constitutional system untouched, on one side, and to help to transform the idea of an EU criminal law area into a coherent and functioning reality, thus legitimising the EU legal system, on the other side.
