REPLIES TO THE QUESTIONNAIRE IN THE GREEN PAPER PRESENTED BY THE EUROPEAN COMMISSION. Replies to the general question

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1 REPLIES TO THE QUESTIONNAIRE IN THE GREEN PAPER PRESENTED BY THE EUROPEAN COMMISSION Replies to the general question 1) The general framework for creating the institution of European Public Prosecutor under Community law, with the right to investigate (and request seizures and arrests) and commit persons accused to trial, seems excellent. 2) We could accept confining the scope of action to the financial dimension of Community interests, however we would prefer to extend it to cover offences connected to those damaging the EU's financial interests. 3) We are in perfect agreement as regards the planned powers. 4) As regards the way it interacts with national criminal law systems, we believe that management should be centralised and operations decentralised. QUESTION 1 1) We take the second view. 2) We prefer the idea of the European function conferred on the Deputy European Public Prosecutor being combined with a national function. One reason is that this would make it easier to resolve the problem of powers with regard to offences damaging the Communities' financial interests committed together with other offences. -1-

2 QUESTION 2 It should be made clear at the outset that we firmly favour an approach that harmonises legislation. 1) The European Public Prosecutor must have jurisdiction for all the offences indicated. 2) We consider the definitions of the offences adequate. QUESTION 3 As in all these questions, we believe complete harmonisation to be indispensable, not just with regard to the description of the offences for which the European Public Prosecutor has jurisdiction but also regarding penalties, criteria for liability, limitation and mitigating and aggravating circumstances. With regard to other aspects, the criminal regulations that are most favourable to the accused in the individual States where the trial is to be held could be applied (for example: the rules on concurrence of offences or a repeated offences set out in section 81 of the Italian Code of Criminal Procedure; the rules for calculating increases or reductions on the basis of the circumstances, etc.). QUESTION 4 Offences falling under the jurisdiction of the European Public Prosecutor should all be referred to national or Community authorities. However, the European Public Prosecutor should also act on information from private individuals or other information in his possession. QUESTION 5 1) We favour the mandatory prosecution principle without any possibility of closing the case on the grounds of advisability. This principle does not exclude the possibility of plea bargaining, as provided for, in Italy for example, under section 444 of the Code of Criminal Procedure. 2) There should be no exception to the mandatory prosecution principle. QUESTION 6 It would be necessary to define the circumstances under which hybrid cases fall under the European Public Prosecutor's sphere of jurisdiction. We have already pointed out the need for harmonisation in the answer to question 3, but the harmonisation of criminal, material and trial law systems would resolve the problem of "hybrid cases". -2-

3 Where the European Public Prosecutor prosecutes offences and the national authorities deal with similar cases and the treatment differs, constitutional problems may arise that would hinder the work of the European Public Prosecutor and the courts. QUESTION 7 1) The list of measures seems adequate. 2) We believe that a uniform system should be employed, harmonising the similar types of institutions provided for in the EU Member States. QUESTION 8 We agree with the Commission. QUESTION 9 Cases should be closed only where it emerges that there is no well-founded cause for suspicion or where it has to be concluded that the evidence gathered will not suffice to demonstrate the guilt of the accused. In all other cases should be committed for trial, unless the accused enters into a plea-bargaining arrangement. However, the European Public Prosecutor should not order the closure of the case. He should be able only to lodge an application with an appointed judge, who would then take the decision. QUESTION 10 There should be rules to harmonise trial law defining territorial jurisdiction for offences falling under the "functional" jurisdiction of the European Public Prosecutor. The rules should establish that any judicial authority should have jurisdiction, if any action connected with the committing of the "special" offence occurred within its territorial jurisdiction. Within this framework, the European Public Prosecutor should decide between judicial authorities that would have jurisdiction, with the case submitted to a central jurisdictional authority only where the accused contests the decision. QUESTION 11 The notion expressed in the question does not seem to eliminate that it cannot be applied in systems (such as the Italian system) where it contradicts insuperable constitutional principles. This is another situation for harmonisation, on this occasion of the rules on the obtaining of evidence. -3-

4 QUESTION 12 If the European Public Prosecutor decentralises operations by delegating tasks to individual national public prosecutors, the only possible solution would be for each delegate to report to the judicial authority in his or her own country. But again, it must be stressed that the system can function only if the various procedures are harmonised, at least with regard to tasks delegated by the European Public Prosecutor involving obtaining evidence or applications for measures restricting people's fundamental freedoms. QUESTION 13 In view of the extremely disappointing results of trial reviews in Italy, we believe that no authority should review committal decisions taken by the European Public Prosecutor after he has carried out his investigations. QUESTION 14 1) Fundamental individual rights are more than adequately protected but certain measures need to be taken to incorporate this protection in the Italian constitution. 2) The double jeopardy principle is secured, but great attention needs to be paid to the words used. Saying that a person may not be tried twice "for the same act" is not the same as saying for the same offence. It needs to be clearly stated whether the act or the offence is being referred to. QUESTION 15 There should be regular meetings between representatives of the various bodies. Clearly, there should be regular contact between the people working on the ground. QUESTION 16 We believe that OLAF can provide very useful investigative support and supply information for the European Public Prosecutor, while remaining an administrative body and making use of its own resources and experience within this field. QUESTION 17 We believe that an agreement should be drawn up granting the European Union the possibility of interacting directly with third countries through the European Public Prosecutor. Thus the European Public Prosecutor, through delegated public prosecutors, -4-

5 would be able to interact directly with third countries in a faster and less bureaucratic way when conducting investigations. QUESTION 18 1) Part of the Community, any Member State or citizens should have the possibility of objecting to an application for closure of a case lodged by the European Public Prosecutor (see question 9). The procedure should be simple and result in a final decision. CONCLUSIONS Notwithstanding the comments set out above, the methods of creating a European Public Prosecutor suggested by the European Commission seem excellent. We believe that the institution of European Public Prosecutor may offer a crucial opportunity to move towards the creation of a European criminal, material and trial law that would put the seal on the great project of creating a Europe that exalts its unsuppressible national characteristics while offering a homogeneous expression of efficiency in the fundamental sector of justice: the bulwark of every civilised society and the guarantor of that society's progress. The idea of a European criminal law system was first expounded over seventy years ago, at the Conference for the Unification of Criminal Law, which was organised in Paris from December 1931 by the International Criminal Law Association that existed at the time. As we consider this an inevitable step in the future development of the European Union, the Como and Lecco Criminal Court has called on the leaders of the Italian Criminal Courts Association to urge the Government and Parliament to abandon projects aimed at reforming Italian criminal law and instead adopt measures aimed at setting up committees representing every Member State with the task of producing European criminal and trial law. We are forwarding a copy of this paper from the Como and Lecco Criminal Court to the board of the Italian Criminal Courts Association for information purposes and to underline our belief in Europe. Como, 7 February 2002 Chairman Renato Papa -5-