Movilidad, soberanìa e “interoperabilidad” de los sistemas penales en la Unión Europea

Abstract

The political integration in the EU, made the rules of the mutual legal assistance insufficient. The old model of mutual assistance was replaced approaching the judicial cooperation within the EU to the cooperation between judges from the same State. For this purpose it was necessary to find a balance between unification and diversity. The selective interoperability between the diverse legal systems of the Member States was the solution to the problem of the fragmentation of the criminal Justice in the European Union. Not all the judicial decisions are interoperable, but only those that were defined as equivalent resolutions in the European common rules. In this system the recognition is widely guaranteed by establishing a compulsory distribution of the competences between executing and issuing judicial authorities, preventing the examination of the internal aspects and basis of the issued resolution by the judge of the executing State, and establishing a strong limitation of the grounds for refusal and of the elements that can be considered by the executing judge. All this together with some limited possibilities offered to the States to reduce the impact of the mutual recognition to protect the national legal identity.