Doctorate in Criminal procedure and rules of evidence at the University of Milan-Bicocca

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1 OLAF/05505/2002-EN Doctorate in Criminal procedure and rules of evidence at the University of Milan-Bicocca Professor Francesca Ruggieri Associate Professor of Criminal and Procedural Law Faculty of Law University of Insubria, Como Member of the European Lawyers Union (UAE) Green Paper Questions Andrea Paolo Casati, Barbara Coluccia, Ivan Frioni, Matteo Pellacani QUESTION 1 The organisation of the European Public Prosecutor appears to be well defined. The proposal that he be independent is admirable and indeed advisable, a necessary principle for avoiding any kind of political conditioning of his work. If nothing else, this conviction is now firmly rooted in the Italian legal tradition, which constitutionally sanctions the independence of the public prosecution service. In particular, the independence and autonomy of the European Public Prosecutor seems to be conclusively guaranteed when it comes to his appointment, since the Green Paper proposes that he be appointed by the Council acting by qualified majority on a proposal from the Commission and with the assent of Parliament. An appointment by degrees, then, alongside the representation of all the Member States, should ensure aside from the necessary dialectic contribution a legitimate control. Regarding the function of the Deputy Public Prosecutors, the second option whereby the possibility for the Deputy Public Prosecutors to have a European function as well as a national function would have significant advantages for hybrid cases. Nevertheless, the risk of nonconformity with the principle of independence of the European Prosecution Service might in certain Member States lead to essential powers effectively being curbed. This would tend to 1

2 favour the exclusive function. In the absence of constitutional harmonisation or a European Constitution that sanctions the independence of the European Public Prosecution Service from executive power, an exclusive function is the only way of preventing the Prosecution Service, when prosecuting offences to the detriment of the Community s financial interests, from being influenced by dual status. As for the powers of the Court of Justice, we agree that appraisal of the European Prosecutor s work and the power to remove him from office should be given to a non-political judicial body. QUESTION 2 The Green Paper s definition of the offences is appropriate and sufficiently tailored to protect the Community s financial interests, to which the European Prosecutor s jurisdiction should be confined, with at the very most, an extension to possible offences aimed at protecting monetary interests. Any attempt to range beyond this restriction should be seen as ill-advised, not so much for the difficulties inherent in adapting the various systems of criminal law, which might eventually harmonise the various legal systems, but because such adaptation seems likely and indeed desirable only if applied to offences which directly impact on the interests of all the Member States. Legislative harmonisation is thus required ahead of more sweeping changes in relation to financial or monetary crime (where the resultant damage has a Community-wide impact for citizens). At the same time, it seems less pressing and certainly more difficult to implement in relation to offences against various legal interests (such as environmental crimes), where the damage is occasionally harmful to the interests of a group of Member States, but not to those of the European supranation. However, it is only in relation to the European Communities as a whole that consolidating jurisdiction and overriding national autonomy are thought necessary. QUESTION 4 Referral to the European Public Prosecutor should be mandatory for all Community and national authorities with an administrative, financial or fiscal remit whenever they receive reports, in the context of their institutional functions, of a crime falling within the jurisdiction of the European Prosecutor. Individual citizens, including civil servants not working for these authorities, would continue to have the option of discretionary referral. 2

3 QUESTION 5 The mandatory prosecution principle, quite rightly promoted to the level of a guiding principle of European criminal prosecution, could be mitigated by the recommendations of the Green Paper which, while allowing that there was a need to reduce the risk of proceedings becoming engulfed by the excessive volume of referrals, would moreover not run counter to the duty to prosecute. The sustainability of the mandatory prosecution principle in complex societies where there is widespread conflict is an age-old dilemma in view of the difficulties all too present in our system that the prosecution officials face in following up the vast array of crime reports they receive each day. This is why the exceptions to this mandatory prosecution principle provided by the Green Paper are worthy of consideration, since it is through these that the practical problems associated with systems rigidly imposed on the mandatory prosecution principle can be avoided. In the first option, it is thought that abandoning cases of minor importance as regards the protection of the Community s financial interests in some ways reflects the provisions of Article 34 of Legislative Decree No 274/2000, which, for offences that come within a magistrate s jurisdiction, raises the tenuous nature of the case for prosecution, representing the first step towards a narrower interpretation of the mandatory prosecution principle. In addition, as specified in the report on the Decree, where charges are dropped due to the tenuous nature of a case, there is no violation of the mandatory prosecution principle, since Article 112 of the Constitution does not prohibit the legal system from making provision for cases in which the duty of the prosecution service to prosecute arises following the application by the legislator of fixed standards that are general and abstract in nature. The mandatory prosecution principle can thus coexist alongside cases that necessitate a departure from this principle. The most serious problem in the Green Paper proposal actually seems to be the absence of any measure making decisions to close a case subject to judicial review. Moving on to other exceptions to the mandatory prosecution principle, one might be made based on the potential impact of the proceedings on the outcome of the case. More specifically, the possibility of closure of a case being linked to compensation for damages is also commendable. This case can also be compared with that provided by Article 35 of the Decree on the criminal jurisdiction of the magistrate, which allows him to extinguish an offence when the accused shows that he has taken the necessary action prior to the trial hearing to make good the loss caused by the offence, through repayment or compensation. 3

4 Yet while the Italian legal system permits the extinction of an offence and so the charges dropped only by a judge, the Green Paper appears to allow a case to be closed where an out-ofcourt settlement is reached before the case goes to trial. If we intend to allow cases to be dropped before the investigation has ended, it might also be possible, indeed preferable, for the prosecution service to ascertain whether or not the accused would be prepared to make a voluntary settlement, and thus to anticipate the immediate termination of the prosecution, in order to lend more weight to out-of-court settlements serving as grounds for a closure decision, even before proceeding with any initial investigations. Moreover, it cannot be denied that the compensation paradigm, if used as a routine solution, would entail alternating the principle of penalty equals compensation with that of compensation equals penalty, with the risk of importing civil law standards into a criminal case. However, it is certain that the compensation criterion, together with other exceptions to the mandatory prosecution principle, would reduce the volume of cases referred to the European Public Prosecutor, whilst ensuring the effective realisation of the mandatory prosecution principle in all cases of major importance. The only problem that the organisation proposed by the Green Paper raises seems to be the lack of judicial review of the decision to close a case, which in the Italian legal system is deemed an indefeasible guarantee for the mandatory prosecution principle to operate. In the absence of judicial review, it is possible that beyond unequivocal exceptions the closure procedure would be open to abuse, anchored as it is to the unfathomable principles of convenience and opportunity, and ultimately disqualifying the mandatory prosecution principle, relegating this to being a mere principle on paper. Therefore, while endorsing the idea of a mandatory prosecution principle tempered by specific exceptions such as those outlined in the Green Paper, the decision to close a case should be subject to judicial review, which is the only way of ensuring that mandatory prosecution is a true principle. QUESTION 6 The approach adopted by the Green Paper towards the distribution of functions between the European Public Prosecutor and national enforcement authorities seems adequately defined. In the event of an offence being reported to national enforcement authorities, the obligation to instruct the European Prosecutor by immediate referral of the case is entirely in keeping with the need for the European Prosecutor to have exclusive jurisdiction over all cases of Community interest. Equally consistent with the principle whereby referral should be systematic wherever there 4

5 are factors linking an offence with the Community s financial interests, is the option given to the European Prosecutor to delegate certain cases to the national enforcement authorities, provided that this is based on predetermined and non-discretionary parameters. QUESTION 7 In our opinion, the list of investigation measures defined in the Green Paper is a sufficient safeguard for the common investigation and prosecution area. Since any future European Prosecutor will have the specific function of protecting the Community s financial interests, or Community funds, he must have access to the entire range of investigation measures available at national and Community level to effectively prosecute offences detrimental to the Community's financial interests. Naturally this is without prejudice to respect for individual freedoms and the fundamental right to a defence, sanctioned in the statutes of the most recently created international criminal courts. Vesting the European Prosecutor with a wide range of powers is also essential to safeguarding the independence of that office. Even more than impartiality, this independence represents an essential and inalienable characteristic of the future European Public Prosecution Service, a guarantee for the citizens of the European Union and its Member States. This independence would be seriously compromised, particularly during the operational stage, if the European Prosecutor had to request some acts from national authorities, particularly where these rely on executive power. As for the discipline applicable and review of investigation measures, the distinction made between investigation measures within the jurisdiction of the European Prosecutor (such as hearing witnesses) and measures that, affecting the individual's status libertatis, can be handed down only by a judicial body, is particularly fitting. The judicial review of measures that impact upon the individual belongs to the accusatory tradition of procedural law as set out in our own Constitution. Furthermore, procedural law systems with an inquisitorial tradition often uphold the idea of a judge of freedoms responsible for judicial review of lato sensu coercive measures. The presence of an independent and impartial judicial body, a natural court recognised by law and responsible for reviewing the acts of the European Prosecutor, is an inalienable guarantee both during the investigation, when fundamental freedoms are at stake, and at the end of the investigation, when there must be a form of committal review. To this end, our own preference would be for a European judicial body to be created (a European Examining Judge and Pre-Trial Judge), exercising control both during and at the end of the investigation (see answer to Questions 12 and 13 below). 5

6 QUESTION 8 The Green Paper's proposal to establish a European Public Prosecutor is not so much aimed at setting up a European judicial system as at engineering synergy and working relations between the future European Prosecutor and existing or future national investigation authorities comprised of police and judicial services (in this respect, the Green Paper recalls among other things the common investigation teams provided for by Article 13 of the Convention of 29 May 2000, on mutual judicial assistance in criminal matters between the Member States of the European Union). There are three possible bases for cooperation between the European Prosecutor and national investigation services. In the first option, the European Prosecutor would be authorised to issue directives or instructions directly to the national investigation services of the Member States. The second option would involve a general duty for national investigation services to assist the European Prosecutor. The third option would be for each Member State to comply with a system of relations between national prosecution authorities and national investigation authorities. The Commission s preferences seems to be for this third solution, even though due consideration would have to be given to the internal organisation of each Member State and, in our opinion, relations between the judicial authorities and the police. QUESTION 9 Regarding earlier statements (see Section 5), we need to take a closer look at the effects of the wholesale assignment of the closure decision to the public prosecution service, a decision governed solely by common sense in view of the potential negative impact on the mandatory prosecution principle. In borderline cases (where the offence or, in the words of the Green Paper 'the criminal act', is extinguished, or in the event of the perpetrator not being identified), the de plano closure of the case could be possible. Even though this kind of concession already seems strained in a system informed by the mandatory prosecution principle, it could however be possible to grant the European Public Prosecutor limited scope for autonomous assessment, provided that this was confined to offences which could not be prosecuted for reasons incidental to the merits of the case. Conversely, to allow the case to be dropped for lack of evidence would result in the risk of (practical) substitution of the discretionary prosecution principle with the (purely theoretical) mandatory prosecution principle, since on the grounds of opportunity and convenience, this might influence the judgement of the European Prosecutor in cases not subject to judicial review. 6

7 Under such circumstances, the decision to close the case ought to be subject to judicial review and the victim (the European Communities) should have the option of autonomously requesting judicial review of the lawfulness of the European Prosecutor s decision. The provision granting national prosecution authorities the right to prosecute cases that, although closed by the European Prosecutor, have national significance therefore seems to have merit. Alternatively, on completion of the investigation, the European Prosecutor could take a decision to commit for trial. This should take place when the European Prosecutor has acquired sufficient evidence to support an allegation that the accused has committed an offence within his jurisdiction. Having regard to the charges laid, conviction should be more probable than acquittal. If the prosecution was handled by the national authorities, it seems fitting both that the bill of indictment is referred to the national judicial authorities for review, and that the European Prosecutor exercising jurisdiction complies with the legislation in the country to which the case is sent for trial, as regards the formal requirements of the committal decision, the form, content and review of the committal and the entire trial stage. QUESTION 10 The choice of the Member State or States of trial is significant, particularly in complex cases where jurisdiction to try the offence against the Community s financial interests could be claimed by several Member States at once. The Green Paper seeks to unite two requirements: confining the committal to a single Member State in order to avoid conflicts of jurisdiction, and dismember a prosecution so as to send different components of a complex case for trial in as many different Member States as may be necessary. Yet the choice of Member State of trial, even in individual cases, is not simple, because the complex and inexorable requirement and implicit need to respect the principle of the court that has jurisdiction has a direct impact on the applicable national law. There are thus two essential questions to be considered: 1) identifying the criteria governing the choice of Member State or Member States of trial; 2) reviewing the choice of Member State of trial made by the European Prosecutor. The criteria laid down by the Green Paper range from the place where the offence was committed to the accused s nationality, from the accused s place of residence (natural persons) to the accused s headquarters (legal persons) and from the place where the evidence is found to the 7

8 place where the accused is held. The criteria should be weighted, as the same criterion might point to several different places. Therefore, since it is the responsibility of the European Prosecutor to choose the jurisdiction, based on these criteria, most able to offer a fair and efficient trial of reasonable length, and since the court chosen ought in principle to be related to the offence committed, the Green Paper outlines three options for review of the choice of Member State. In the first option, based on the principle of mutual recognition between national legal systems, the European Prosecutor could be made wholly responsible for the choice of Member State of trial. The principles of open and adversarial procedure are in fact recognised by all Member States and the fundamental rights of the individual (the accused, the victim and the witnesses) are guaranteed in all national systems. Nevertheless, this option could potentially be open to abuse by the European Prosecutor. The second option consists of reviewing the European Public Prosecutor s choice of Member State for trial and entrusting the review function to a national court. According to the third option, review of the European Prosecutor s choice of Member State for trial could be referred to a special Community court in order to avoid any positive or negative conflicts of jurisdiction. The third option would seem the most preferable. The first is hazardous, since it relies on the discretion of the European Prosecutor, while the second could seriously prejudice the efficiency of the investigation and resultant prosecution in the area of European Community jurisdiction. Only the creation of a Community court vested with the powers both of our examining judge (involved prior to the prosecution) and a pre-trial judge (responsible for verifying the grounds of the prosecution s case) seems a legitimate choice and, as such, an adequate guarantee for the direct review of acts of investigation and the activity or inactivity of the Public Prosecution Service (see answer to Questions 12 and 13 below). ANSWER 11 The wholesale application of the system of mutual admissibility enabling the barrier created by the diversity of rules on evidence to be overcome in the various Member States does not seem advisable. Even though it is essential that each Member State should compromise its own sovereignty somewhat to allow the European Prosecutor to be established, it is thought that the fundamental rules of evidence in the different Member States whereby only certain evidence is admissible should be respected. Thus, in Italian procedure, evidence lawfully obtained in one Member State is not considered in breach of Articles 62, 63, 191, 192 and 197 of the Code of Criminal Procedure. 8

9 In other words, we must find common ground between the principle of mutual recognition and the double jeopardy principle. As has been previously observed, in order to be circulated, evidence must be compatible not only with the laws of the country in which it is gathered, but also with the principles of the country in which the case is tried (AMODIO, Diritto di difesa e diritto alla prova nello spazio giudiziario europeo, in Il difensore e il pubblico ministero europeo, CEDAM 2002, p. 107). In our opinion, it follows that criteria governing the admissibility and usability of evidence common to all the Member States will have to be introduced. ANSWERS 12 AND 13 We believe there is a need to establish a special Community court that is, a European Examining Chamber and Pre-Trial Chamber with the consequent appointment of European judges to work in the various Member States. Nevertheless, it does not seem essential for a procedure to be established at Communitylevel. Instead, as with the European Prosecutor, general rules would simply have to be introduced for the examining and pre-trial stages, save any appropriate referrals to national systems of law for exact procedure. The European judges would have the task of both reviewing acts of investigation affecting fundamental freedoms and of reviewing investigations by the Deputy European Public Prosecutors in general (closure and committal decisions). ANSWER 14 1) In general, the fundamental rights would seem properly safeguarded. Nevertheless, both the Italian Constitution and Italian criminal procedure are more predisposed towards civil liberties than the proposals outlined in the Green Paper. Perhaps there is a call for solutions that are more in keeping with our own legal system, even though the need for a European Public Prosecutor must inevitably entail a surrender of our national system of law. 2) The ne bis in idem principle also seems adequately protected. ANSWER 15 In our opinion, the creation of a European Judicial Network is vital for promoting relations between the various European bodies in the context of their respective jurisdictions. 9

10 It would thus be worth identifying rules and procedures for defining the jurisdiction and scope of action of all those concerned. In this respect, permanent cooperation between the various bodies that is, the ongoing exchange of useful information and regular mutual consultation is of fundamental importance. Accordingly, it is our belief that the European Public Prosecutor must promote and coordinate the activities of all other relevant European bodies. ANSWER 17 In our opinion, it would seem more expedient and advantageous, although perhaps more complicated, to draw up special conventions with third countries, whether applying for accession or otherwise. These conventions would allow the European Public Prosecutor to work directly with the judicial authorities in these countries, speeding up and streamlining the prosecution of offences detrimental to the Community s financial interests. These conventions should not be drawn up by individual Member States, since, in this case, the work of the European Public Prosecution Service would [not?] depend on the content of individual agreements, but on the European Union, so as to create a uniform discipline allowing the European Public Prosecutor to exercise his powers of investigation in any situation falling within his jurisdiction. ANSWER 18 A distinction should be made first of all between measures resulting in the restriction or deprivation of personal freedom (preventive custody) and other acts of investigation (such as confiscation, interception of communications, searches, etc.) and closure decisions, which do not give rise to prosecution and committal for trial. As observed earlier, all these acts should be subject to judicial review by the European Examining Judge/Pre-Trial Judge (see Questions 12 and 13 above). Consequently, in the interests of efficiency and clarity, all of these judicial measures should desirably be capable of being challenged before a judge of freedoms (sitting at the Court of Justice). 10