CANARIES IN A COAL MINE: RULE OF LAW DEFICIENCIES AND MUTUAL TRUST

The value decline in the EU has manyfold consequences. It jeopardizes the very essence of Europe as a community of values. At the same time it endangers legal principles, such as mutual recognition, which is based on mutual trust presuming that all Member States are based on the rule of law and protect fundamental rights. Once trust is rebutted, Member States’ judicial authorities will refuse to cooperate and recognise each other’s judgments in order not to become complicit in individual rights violations and not to contradict the European Convention for the Protection of Human Rights and Fundamental Freedoms. This paper argues that EU law must allow for such considerations and suspend mutual recognition-based laws not only on a case-by-case basis, as it happens today in practice, but in general with regard to Member States undergoing rule of law decline, in order to uphold the EU’s fundamental rights culture, and EU law’s equivalency with the Convention’s human rights regime.

States are expected to share and promised to respect and promote when signing the Treaty of Lisbon. 2 The rule of law, democracy and fundamental rights are co-constitutive, and inherently interconnected. Once one of them is violated, the other cannot be left intact either. 3 The rule of law without democracy is a contradiction, while democracy without the rule of law may easily turn into the dictatorship of the majority. In addition, fundamental rights are closely interlinked with the other two values. 4 Take for example the relation between freedom of expression, the right to receive information and informed participation in a democracy. One can only make informed choices during elections, or meaningfully participate in public debates in the possession of knowledge about the facts. 5 One may wish to add academic freedom to show the interrelatedness of rights and democracy: " [o]ne of the things about a democracy that people forget is how important knowledge is [...] If you don't have knowledge then all you get to go on is tweets and Facebook, and rumors and fantasy and paranoia [...] You need knowledge in order to make choices. " 6 Finally let me mention an aspect of the correlation between values that is of direct relevance for this paper. Judicial independence, an integral part of the rule of law is one side of the coin, the other side of which is the suspect's right to a fair trial. Should the former be violated, the latter will not be guaranteed either.
Taking up on this latter point, from among Article 2 TEU values, the rule of law including judicial independence, or rather the lack of it, is of special importance for illiberal regimes. 7 Interpreting and applying EU law is the joint task of the Court of Justice of the European Union (hereinafter: CJEU) and domestic courts. Upholding EU law is only possible if judiciaries at the various levels of EU governance cooperate. A prime form of this cooperation is the procedure of preliminary references under Article 267 TFEU. Whenever the meaning of a piece of EU law is unclear, domestic courts must turn to the CJEU, which is the sole interpreter of EU law. Should national judges be subjected to disciplinary proceedings for inviting the CJEU to give an interpretation of EU law, as the Polish 'muzzle' law dictates, 8 and as it happens in Hungary on an ad hoc basis, 9 the application of EU law, and thus the whole EU legal system is fundamentally jeopardized. In other words, judicial independence is important for both guaranteeing human rights with an emphasis on the right to a fair trial in criminal cases, but also for the proper application of EU law.
In this chapter we will show the scale of rule of law decline and argue that the EU fails to respond to the phenomenon in a dissuasive and effective manner, even though it has the tools arsenal to tackle the problem. In chapter 2, the consequences of rule of law backsliding -normalised by EU institutions' passivity will be explained for mutual recognition-based laws in the field of judicial cooperation between the Member States in criminal matters, with special regard to surrender procedures. It will be argued that neither black letter law, nor the judicial tests developed by the CJEU take due account of fundamental rights threats resulting from rule of law decline. In chapter 3, the most immediate effects on the individual and individual rights will be shown, which have both external and intra-EU consequences. Member States may get into conflict with the European Convention on Human Rights (hereinafter: ECHR) when adhering to EU law, as a recent line of European Court of Human Rights (hereinafter: ECtHR or Strasbourg) case-law shows. At the same time, inside the EU, executing courts may fail to recognise judgments of captured courts and non-courts in order not to become complicit in individual rights violations and not to contradict the 7 In this paper we do not go into the various labels attached to such regimes in the political science literature, such as "hybrid regimes", or "competitive" or "electoral authoritarianisms", but will accept the self-proclaimed illiberal nature of government. ECHR, which in turn may go against their EU law obligations. In the concluding chapter a clear suggestion will be formulated to ease the tension between First Principles and a fundamental rights culture. It will be suggested that mutual trust is suspended with regard to Member States whose governments are the most notorious rule of law violators engaging in systemic dismantling of Article 2 TEU values, until these are restored.

THE SCALE OF THE PROBLEM
Even though the mentioned Article 2 TEU values including but not limited to the independence of the judiciary had been taken for granted for a long time in the EU, a solid decline started a decade ago in Hungary and other Member States are following suit. By now, the EU is harboring Member States that are no constitutional democracies anymore. Were they to apply for EU membership today, they would not be admitted to the European club. Poland and Hungary are undergoing Article 7(1) procedures designed to determine a clear risk of a serious breach of Article 2 TEU values. 10 According to think tanks, Hungary and Poland are among the top three autocratizing countries. 11 Whereas in 2009 both Member States were clustered as liberal democracies, by 2019 Hungary became an electoral autocracy and Poland an electoral democracy. 12 For the first time in the history of EU integration, in 2020 Freedom House stopped placing a Member State, Hungary among the "free countries". 13 In many states including Poland and Romania separation of powers has weakened, and international cooperation has decreased. 14 No state is immune to individual violations of Article 2 TEU values. However, we must distinguish between sporadic instances of rule of law violations from systemic rule of law decline, such as the well-documented cases of Hungary, and more recently Poland. The governments of these countries introduced processes "through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power entrenching the long-term rule of the dominant party. " 16

THE EURELEVANCE OF RULE OF LAW DECLINE IN A MEMBER STATE AND THE LACK OF DISSUASIVE RESPONSES
The value decline in the EU has manyfold consequences. It endangers the very essence of Europe as a community of values, based on democracy, the rule of law, fundamental rights. At the same time also so-called First principles 17 are endangered, which are based on the assumption that all Member States are based on the rule of law and protect fundamental rights and in all Member States independent courts will ensure the application of EU law. Should this not be the case, it will have an impact in many EU fields, but the most immediate effects on the individual and individual rights will be traced in the area of EU criminal justice. In EU criminal law a series of legal instruments are based on the principle of mutual recognition, which again are based on the presumption of mutual trust. Once trust is rebutted, Member States' judicial authorities will refuse to cooperate and recognise each other's judgments. As explained above, judicial independence, a significant element of the rule of law and fair trial rights of the individual are two sides of the same coin. Executing courts will fail to recognise judgments of captured courts in order not to become complicit in individual rights violations.
It is therefore existential for the EU to react to rule of law violations and other value deficiencies in the Member States. The EU also possesses a sufficient number of tools to counter these problems. The Copenhagen dilemma, having strong scrutiny before accession, but no dissuasive re-sponses after, exists on the one hand because these tools have a scattered and patchwork nature and on the other because the institutions and the Member States which are entitled to use the tools they have available are reluctant to do so. 18 Several authors argue that the trend of creating new tools of monitoring and discussion platforms only gives the false semblance that the EU takes steps against rule of law backsliding, whereas in reality they only let illiberal regimes get away with deconstructing any checks on governmental powers. 19 The wide variety of rule of law enforcement tools include Article 7(2)-(3) TEU, which might not be effective due to its high political threshold necessary for the respective procedure to lead to a determination of the existence of a serious and persistent breach of any Article 2 TEU value by a Member State, and to result in legal consequences. But the Commission could certainly make better use of infringement procedures, and rule of law conditionality tools.
Articles 258 and 260 TFEU provide for Commission-initiated infringement procedures. These are currently heavily underused in the enforcement of the rule of law. 20 As we have argued elsewhere, 21 for Article 258 infringement procedures to be truly effective, the European Commission shall frame rule of law problems as such; shall act promptly and not waste time during the first phase of the process, while a Member State openly violates the rule of law; interim measures should be used to put an 18  Tool creation however seems to be unjustified: "rather than acting decisively using existing tools in a mutually reinforcing and forceful way, there seems to always be a persistent temptation to blame the instruments available to either justify their non-inactivation, or their timid use". Pech, L., Wójcik, A., 2018, "A Bad Workman Always Blames His Tools": an Interview with Laurent Pech, VerfBlog, (https://verfassungsblog.de/a-bad-workman-always-blames-his-tools-an-interview-with-laurent-pech/, 28. 5. 2018). R. Daniel Kelemen also makes this point rather forcefully, when he compares the EU to "a home repair DIYer who constantly goes to the hardware store to buy new tools, rather than actually getting started on projects with the tools he has". He sees this phenomenon not only unnecessary, but as a cheap excuse for inaction. immediate halt to rule of law infringements that can culminate in serious and irreversible harm; and the CJEU shall automatically prioritize and accelerate infringement cases with a rule of law element. Also, the Commission could bundle cases, and point to the systemic nature of various problems. 22 Finally, in line with Article 260, once a violation of Article 2 TEU is determined by the CJEU, the Commission should closely scrutinise and carefully assess whether the Member State in question took the necessary measures to comply with the judgment, and if not, it should bring the case before the Court, specifying the amount of the lump sum or penalty payment to be paid by the Member State. Also, several studies show at the power of the purse vis-à-vis rulers that engage in rule of law backsliding. 23 In line with Regulation (EU) No 1303/2013, the Commission could suspend European Structural and Investment Funds where a Member State does not uphold the rule of law. 24 The institutions could have made a more frequent use of the above law, but for future cases, now there is a more comprehensive conditionality regulation in force: a Regulation on the protection of the Union's budget in case of generalized rule of law deficiencies in the Member States, which may lead to suspend or reduce payments to that country from the EU budget and may prohibit to enter into new legal commitments (hereinafter: Conditionality Regulation). 25 According to the text adopted, rule of 22  law breaches will be sanctioned if they affect or seriously risk affecting the Union budget or EU's financial interests in a sufficiently direct way. 26 Several compromises led to the final version of the Regulation, but even so, once it entered into force, two Member States attacked it in front of the CJEU. 27 The European Parliament in a Resolution 28 emphasized that it is the duty of the Commission to ensure the application of the Treaties and other pieces of EU laws including the Conditionality Regulation, and that the Commission must "abide by law, dura lex sed lex", and not wait for the outcome of the CJEU challenge before triggering the new instrument. 29,30 But the Commission failed to act, therefore the European Parliament ultimately filed an action against the Commission in line with Article 265 TFEU. 31 So again, even though the new instrument is promising in the medium turn, its failure of its timely use shows an openness to give in to rule of law violators, and an unwillingness on behalf of at least certain institutions to make prompt use of a new instrument that was allegedly more needed than ever.

. Mutual Trust, Mutual Recognition, and Judicial Tests to Suspend Them
Rule of law decline, including violations of judicial independence have a particular effect on the relation between judges at the various levels of the EU's system of multi-level constitutionalism, especially on the cooperation between domestic courts in the area of freedom, security and justice (hereinafter: AFSJ). The principle of mutual trust assumes that, however different criminal and criminal procedural laws across EU member states are, all persons will get a fair trial by an independent judiciary complying with minimum standards of fundamental rights and procedural 26  guarantees at all times, wherever they are in the EU. This optimistic starting point is backed up by the mentioned black-letter law of Article 2 TEU, the text of the Charter of Fundamental Rights, a series of secondary laws on criminal procedure, and standards on detention conditions. But it has also been reconfirmed by the CJEU on multiple occasions. 32 In Opinion 2/13 33 the CJEU reiterated how crucial mutual trust was; in fact it was deemed to be of such essential importance that it appeared as one of the reasons why EU accession to the ECHR was not warranted. The CJEU stated that EU Member States are required to presume that fundamental rights have been observed by other Member States, and trust may only be suspended in exceptional circumstances. This case-law is recurring in the CJEU's jurisprudence up to this day, as shown in the following.

Scene 1: Judicial "reform"
In a series of cases in relation to the framework decision on the European Arrest Warrant, 34 which foresees a simplified and expedited extradition within the AFSJ, the CJEU insisted that mutual trust as such must not be suspended, until the sanctioning prong of Article 7 TEU has not been applied -something which has never happened in EU history. It allowed domestic courts however, to deny surrender requests on fundamental rights grounds on a case-by-case basis. First in Aranyosi and Căldăraru with regard to prison conditions, 35 later in the LM case with regard to the right to a fair trial, 36 the CJEU developed a test on how to proceed in cases where the executing authority has doubts as to fundamental rights in the issuing country. Accordingly, as a first step, the executing judicial authority must assess whether the issuing state suffers from general deficiencies. When doing so, it must consider objective, reliable, specific and properly updated information. Once a systemic problem with regard to Article 2 TEU values is determined, judges have to move to the second, individual prong of the test, and the executing judicial authority must determine, specifically and precisely, whether there are substantial grounds to believe that the person concerned by a European Arrest Warrant, will be exposed to a real risk of a human rights violation. 37 This prong of the test is extremely burdensome for the individual, because it is close to impossible for them to prove how they would be affected by systemic problems in a Member State. We have long disagreed with the second prong of the test and suggested an alternative. "Once the first step of the test is satisfied, the onus should shift to the stronger party, i.e. the state accused of rule of law violations, in light of the bedrock of the principle of a fair trial [...]" 38 The insistence of the CJEU that the executing and issuing courts acquire engage in a 'dialogue' about the issuing state's human rights situation may make sense with regard to prison conditions. But it is absurd to make a court engage in a discussion about its own independence.

Scene 2: The muzzle law
In the meantime matters in Poland have gone from bad to worse since the judgment in LM had been rendered, even by the CJEU's own account. Luxembourg denounced various elements of the Polish judicial 'reforms' , from prematurely retiring judges to the muzzle law. In light of the latter, the International Legal Aid Chamber (IRK) of the Amsterdam District Court invited the CJEU to allow surrenders to be suspended in general, and not only on a case-by-case basis, given that the muzzle law is applicable to, and thus potentially has a chilling effect on every single judge in Poland. But 40 According to the CJEU, systemic or generalised deficiencies concerning the independence of the judiciary of the issuing state, "does not necessarily affect every decision that the courts of that Member State may be led to adopt in each particular case". 41 Even in light of LM and Openbaar Ministerie, in theory, national courts retain a room of maneuver to refuse surrenders, but it is extremely difficult to prove the individual concern, especially in light of the fact that the primary source for determining such an individual concern is the very court, whose independence is in doubt.

Scene 3: Questioning supremacy and an EU understanding of judicial independence 42
On 7 October 2021 the Polish Constitutional Court delivered its judgment in case K3/21, holding that the basic foundations of EU law, such as the principle of primacy of EU law over domestic laws, and the EU understanding of judicial independence, were contrary to the Polish Constitution. 43 On 24 November 2021 in case 6/21 it found Article 6(1) ECHR also incompatible with the Polish Constitution, at least "insofar as it comprises the European Court of Human Right's review of the legality of the process of electing judges to the Constitutional Tribunal". 44 The judgments can only be understood as an attempt to constitutionally rubber-stamp the restructuring of the Polish judiciary, which severely undermines judicial independence. One may wonder what legal consequences can be attached to judgments of a court, which -or at least a panel of gov.pl/en/hearings/judgments/art/11709-art-6-ust-1-zd-1-konwencji-o-ochroniepraw-czlowieka-i-podstawowych-wolnosci-w-zakresie-w-jakim-pojeciem-sad-obejmuje-trybunal-konstytucyjny).
which -had earlier been declared to be a non-court by the ECtHR. 45 But most importantly for our discussion, Polish Constitutional Court ruling made clearer than ever that the presumption of mutual trust vis-a-vis Poland is unjustified. Poland departed from the European understanding of the rule of law and judicial independence, and every single judge in the country is to follow this reading. The LM test is no longer viable; its second prong of checking whether an individual court or a specific judge was still independent in the anti-constitutional setting is meaningless. The era of case-by-case scrutiny of judicial independence in the individual cases should therefore be declared over. The CJEU will have ample opportunities to make this finding, as several domestic courts have pending preliminary references with regard to the LM test, by the Irish Supreme Court, 46 and the Amsterdam District Court. 47 . What Is at Stake?

CLASHES BETWEEN THE ECHR AND EU LAW
Thus far a scrupulous mutual respect characterised the relationship between the ECHR and EU law, dictated by the Strasbourg and Luxembourg courts. To give an objective picture, we should also highlight that the relation between the two courts was also burdened with envy about the jurisdictional divisions. As the judiciary of a relatively young organization in constant struggle with establishing legitimacy over its members having a much longer tradition and well-established sovereignty, the CJEU always insisted on autonomy of EU law and its self-proclaimed status as the final arbiter of this autonomous legal system. The EU system and its ultimate guardian, the CJEU are probably too recent creations and their sovereignty might be too weak to be subjected to external powers. What nation states can afford is seemingly not (yet) a tolerable external over- view for the EU. Or at least this is one reading of Opinion 2/13 essentially vetoing EU accession to the ECHR. Other than that, the CJEU has always followed the Convention and the attached case-law in order to strengthen its legitimacy, and especially its legitimacy in human rights matters. Formally, as a direct consequence of Opinion 2/13, the EU never acceded to the ECHR despite a legal obligation to do so enshrined in Article 6(2) TEU. 48 But Article 6(3) TEU states that the fundamental rights as they are enshrined in the ECHR are general principles of EU law. Article 52(3) of the Charter of Fundamental Rights also lays down relevant rules on the relation between the two legal systems: Charter rights that correspond to rights guaranteed under the ECHR shall be afforded at least the same meaning and scope as by the ECHR. The explanations to the Charter, extend this correspondence to the ECtHR case-law as well. 49 Even though the explanations are strictly speaking not binding, they must be given "due regard" by domestic and EU courts. 50 Simultaneously, the ECtHR did everything not to enter into an open conflict with EU law. The heightened sensitivity on the ECtHR's side can be explained by the soft enforcement mechanism of the Strasbourg system ultimately depending on the consensus of the contracting parties. The EU, i.e. the entity that was at least partially responsible for certain ECHR violations, is not a party to the Convention thus far and therefore could not be made directly liable for ECHR breaches. Instead, only Member States could be condemned, whereas in certain cases Member States find themselves between a rock and a hard place: being obliged to follow pieces of EU law and not having any room of manoeuvre to implement them. Had the Strasbourg court made Member States liable for complying with their EU law obligations, it would have engaged in a direct conflict with the Union. The Strasbourg court therefore instead, while ultimately upholding the theoretical possibility of making Member States liable for ECHR violations resulting exclusively from following their EU obligations, exercised deference in these instances. In order to justify that deference, the ECtHR came up with the Bosphorus-test. 51  rights afforded by the EU was in principle equivalent to that of the Convention system. 52 Certain conditions need to be satisfied for the Bosphorus-presumption to kick in. First, it applies, if the Member State had no discretionary power under EU law when applying EU law. Secondly, the full potential of the EU's supervisory mechanism must have been exhausted, so that in essence the CJEU was given an opportunity to have a say on the human rights element of an EU law related controversy, before it reaches Strasbourg.
The Bosphorus-presumption is rebuttable, even if the threshold is high. The equivalency in human rights protection is rebutted only in the case of manifest deficiency. Despite the difficulty in reaching the manifest deficiency test, it starts showing its teeth in mutual recognition cases. In other words, the CJEU insistence on automatic recognition not paying due regard to human rights so long that the ECtHR had to step in, and do away with its cautiously guarded deferential stance. 53 Avotiņš v. Latvia, 54 concerning the interpretation and application of the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, was the first case where the ECtHR laid down important principles with regard to the relation between mutual recognition and the right to a fair trial. The ECHR acknowledged the importance of the principle of mutual recognition for the EU legal order, and came to the conclusion that the conditions for the Bosphorus-presumption to apply were met, but at the same time, it made clear that mutual trust must have its limits. The ECtHR was "mindful of the importance of the mutual-recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require. [...] Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67 § 1 of the TFEU. " 55 The ECtHR at this point made a reference to Opinion 2/13, where the CJEU held that when implementing EU law, Member States may be required to presume that fundamental rights have been observed by all other Member States, meaning that "save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU". 56 Limiting fundamental rights review to exceptional cases, the ECtHR continued, "could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient. " 57 In Avotiņš the ECtHR thus made clear that the EU does not simply rubber-stamp Member States' review of other Member States' legal systems including a check of their fair trials guarantees. Instead Member States as contracting parties to the ECHR continue to be bound by Strasbourg standards and the ECtHR will review whether the fundamental rights review in intra-EU matters satisfied the expectations in the framework of the Council of Europe.
In later cases, albeit the ECtHR held that the mutual recognition mechanism should not be applied automatically and mechanically to the detriment of fundamental rights, 58 with regard to fair trial rights, the ECtHR was satisfied with an executing state checking only whether a flagrant denial of a fair trial in the requesting country may occur, which is a rather high test. 59 With regard to prison conditions, the ECtHR held -for the first time in history -that the Bosphorus-presumption was rebutted. In Bivolaru and Moldovan v. France 60 a Member State was condemned for not paying due regard to its ECHR obligations and violated Article 3 ECHR when surrendering the Applicant Moldovan to Romania, where there was a real risk of inadequate detention conditions. 61 Should the CJEU push for a test that does not sufficiently ensure fair trials rights, and we have argued above that the LM-test is not compat-ible with fundamental rights, more Strasbourg condemnations can be expected. Such a situation is even more likely to occur, since the Polish Constitutional Tribunal questions the supremacy principle, which will now have to be in theory followed by all ordinary courts. Placing member states between a rock and a hard place, where they are forced to choose between their EU law and ECHR obligations may lead to disregard and non-enforcement of Strasbourg judgments, which again -given the soft nature of the Strasbourg mechanism, which to a large extent depends on the voluntary compliance of states -may have devastating consequences for European human rights. Taking into consideration the potential damage done to the multi-layered European system of fundamental rights protection, mutual recognition-based laws must be suspended with regard to countries that are rule of law violators until values are restored.

EU FIRST PRINCIPLES VERSUS EU VALUES
In one way or another rule of law decline in one state destroys the very foundation of EU law. Some governments are packing their constitutional courts with judges loyal to the government, and at the same time cut back the powers of that very same court. In Hungary, institutional changes allow the violation of the independence of the judiciary, the nominating practices of the President of the Judicial Office, ad hominem legislation to fire and hire the Presidents of the Supreme Court, or the system of case allocation, which has a high risk of arbitrary assignment of cases. This will result in non-independent courts deciding cases including the ones with a cross-border element. 62 The threat of disciplinary proceedings will result in a climate of fear and self-censorship of judges who will not comply with their rights and sometimes even obligation to turn to the CJEU for clarification if the meaning of a certain piece of EU law is unclear, which will jeopardize "the effectiveness of the cooperation between the Court and the national court and tribunals established by the preliminary ruling mechanism. Once constitutional courts are captured, governments will make a strategic use of them so as to defend the autocratic constitutional order and any specific measure against any EU or national 'resistance' . Captured courts can become very helpful from the autocrats' viewpoint to fight off external criticism and intervention, especially that from the EU, and give a veneer of legality to any government policy destroying national checks and balances. 64 They may question the principle of primacy in general, like in the case of the Polish Constitutional Tribunal, or with regard to specific laws and CJEU judgments, as suggested by the Hungarian Minister of Justice in her motion to the Hungarian Constitutional Court. 65 Whatever technique is used to destroy judicial independence, and whichever path captured courts take to justify and rubber stamp violations of the rule of law, the value decline and especially judicial capture, dissolves the trust that is the basis of mutual recognition-based instruments, thus the underlying idea behind a whole set of EU laws will vanish. Once a Member State's judiciary suffers from systemic governmental attacks on judicial independence, mutual trust must be declared to be terminated, at least until the rule of law is restored. Such a declaration should preferably take place via political EU institutions. A negative assessment of the rule of law health status in a given member state (based for example of the Commission's Annual Rule of Law Reports 66 or any other monitoring tool) should lead not only to sanctions, but also to the suspension of legal instruments based on the presumption that EU member countries adhere to Article 2 TEU values. Revoking trust and suspending mutual recognition-based legal instruments in general, even temporarily, is a drastic step, and so far EU institutions are apparently not prepared to take it -although such academic suggestions 67 have been taken over by political actors as well. 68 So, the CJEU is forced into performing the job political institutions should take accountability for. It is apparent from the above analysis and the CJEU's insistence on the LM-test that Luxembourg is unwilling to take over the role of other EU institutions -not least because of a fear that a declaration of total judicial capture in Poland would mean that all Polish courts are non-courts for the sake of EU law, and thus they would be deprived of sending preliminary references to the CJEU. This in turn does not sufficiently consider the devastating consequences of a systemic rule of law decline for the individual. In the absence of EU institutions' willingness to generally suspend trust, such a general suspension of mutual trust could be declared by member states' courts. This would risk the fragmentation of EU law, which is suboptimal, but still better than forcing national courts to perform the LM test on a case-by-case basis and -because of the difficulty of satisfying its second prong -potentially become complicit in individual rights violations, beyond creating a direct conflict with the ECHR as explained in the preceding chapter. In order to avoid any similar future debate about executing courts' powers to sufficiently consider human rights exception to mutual recognition-based instruments, the Framework Decision on the European Arrest Warrant should preferably be amended and any mutual recognition-based law adopted in the future should incorporate human rights as a ground for refusal. The Framework Decision on the European Investigation Order, 69 enabling the exchange of evidence and mutual legal assistance between EU member states' authorities, serves as a good practice in this regard, and should be mainstreamed. The European Investigation Order provides irrefutable proof that "[m]utual recognition and fundamental rights/proportionality exceptions are not a contradiction in terms. They can go like hands holding one another in the EU legal system. [

. Conclusion
Rule of law is a value per se, and is thus worthy of protection. But beyond that, a state's departure from European consensus on rule of law standards will have additional detrimental consequences for EU law specifically. If Members of the European Parliament were voted in unfairly in a country where elections are not clean and where voters have no access to information to make informed choices, this will delegitimize the EU's decision-making mechanism and all legal instruments adopted. Another problem occurs when rule of law violations are becoming contagious, which will inevitably happen if EU institutions and democratic Member States fail to respond to backsliding. Furthermore, once the values of Article 2 TEU are not respected, the essential presumptions behind the core of the Union do not hold any more. The single market and an investment-friendly environment may equally be jeopardized. But as shown on the above pages, the effects of rule of law backsliding, attacks on judicial independence and the related decline in fundamental rights will most prominently result in negative consequences in the field of cross-border judicial cooperation in criminal matters. Criminal cases are canaries in the coal mine, 72 where the consequences of rule of law backsliding show first: rebuttal of the presumption of trust in criminal cases will have inevitable consequences for individual rights. Due to the nature of criminal law, recognition of judgments rendered by non-independent courts will automatically result in a Member State becoming complicit in fair trial rights violations of the suspect. This again will lead to condemnations by the Strasbourg court, not only of the state of the captured court trying someone, or the state not ensuring prison conditions in line with the prohibition of inhuman treatment and punishment, but also the executing state cooperating with human rights violators. In order to prevent Strasbourg judgments holding Member States responsible for violating the ECHR and in general becoming complicit in human rights violations, democratic states' courts may resist EU law obligations flowing from mutual recognition based laws, and thereby question not only mutual trust, but also the primacy of EU law on fundamental rights grounds. Therefore, it is of existential importance for the EU to reconcile values with First Principles, or in other words, attach consequences to values deficiencies for the domain of mutual recognition-based law, and openly acknowledge the end of the era of mutual trust and suspend mutual recognition-based laws vis-à-vis countries violating Article 2 TEU values, until the rule of law is restored. pretpostavke uzajamnog poverenja ne samo u pojedinačnim slučajevima, kao što se danas dešava u praksi, već uopšte kada su u pitanju države članice u kojim je urušen sistem vladavine prava, kako bi se dala podrška kulturi zaštite osnovnih prava EU i ekvivalentnosti prava EU sa režimom ljudskih prava iz navedene konvencije.