German Law Society. (Summary/extract) Statement by the German Law Society. Criminal Law Committee. on the. Green Paper

Transcription

1 OLAF EN German Law Society Berlin, May 2002 Statement no. 28/2002 (Summary/extract) Statement by the German Law Society Criminal Law Committee on the Green Paper of the Commission of the European Communities on the protection under criminal law of the financial interests of the European Communities and the creation of a European Public Prosecutor's Office (COM [2002] 715 final; ) Members of the Committee: Eberhard Kempf, Frankfurt am Main, Lawyer and Notary (Chairman) Prof. Dr. Rainer Hamm, Frankfurt am Main, Lawyer (Reporter) Günter Bandisch, Bremen, Lawyer and Notary Rüdiger Deckers, Düsseldorf, Lawyer Rainer Endriß, Freiburg, Lawyer Gabriele Jansen, Cologne, Lawyer Dr. Stefan König, Berlin, Lawyer Georg Prasser, Stuttgart, Lawyer Michael Rosenthal, Karlsruhe, Lawyer Prof. Franz Salditt, Neuwied, Lawyer Dr. Heide Sandkuhl, Potsdam, Lawyer Dr. Rainer Spatscheck, Munich, Lawyer Secretary of the German Law Society: Tanja Albert, Berlin, Lawyer Distribution:

2 EU Committee via DAV Office in Bremen Federal Ministry of the Interior Federal Ministry of Justice Legal and Domestic Affairs Committees of the Lower House of the Federal German Parliament Chairman of the Legal Committee of the Lower House of the Federal German Parliament, Prof. R Scholz Chairman of the Domestic Affairs Committee of the Lower House of the Federal German Parliament, Ute Vogt State Justice Administrations Federal Supreme Court General Federal Supreme Court Prosecutor s Office Executive Committee of the German Law Society State Associations of the German Law Society Chairmen of the Legislation Committees of the German Law Society Criminal Law Committee of the German Law Society Executive Committee of the Criminal Law Study Group of the German Law Society Criminal Law Committee of the Federal Chamber of Lawyers Chairman of the Criminal Law Committee of the KAV, BAV Chairman of the Young Lawyers Forum of the German Law Society German Defence Counsels, Mrs Regina Michalke Regional Associations of Defence Counsels Administrative Office of the Associations and Initiatives of Defence Counsels Law Study Group of Parties represented in the Lower House of the Federal German Parliament Association of the German Judiciary Defence Counsels Forum Neue Zeitschrift für Strafrecht (periodical) Defence Counsels Prof. Jürgen Wolter, University of Mannheim ÖTV, Justices Division Convention of German Jurists (President and Secretary) Prof. Schoch, LMU Munich 2

3 I. Statement by the German Law Society The German Law Society (Deutsche Anwaltverein DAV) is the professional association of Germany s lawyers, and represents the majority of Germany s 113,000 qualified lawyers. It represents the interests of the German legal profession at a national, European, and international level. To the extent that it was possible to examine this complex topic in the incomprehensibly short period of time available, the DAV endorses criticism of plans for an independent and largely unmonitored authority which is established centrally but has decentralised legal support. The system of flexible forms of evidence subject to mutual recognition and authority to exploit as proposed by the Commission is completely unacceptable and must be rejected. The 18 questions in the Green Paper are answered in outline below: Question 1: What do you think of the proposed structure and organisation of the European Public Prosecutor's Office? Should delegated European Public Prosecutors look solely to their European mandate, or can that mandate be combined with domestic office? Sub-paragraph provides for the principle of independence in respect of legal status and structure, by which an independence and autonomy comparable with the independence of the judiciary should manifestly be understood both vis-à-vis the parties to a civil action in the context of contentious proceedings and vis-à-vis the Member States, organs, institutions and offices and agencies of the Communities. The DAV draws attention to the fact that legal status of this nature would serve to create a prosecution authority whose actions were completely unmonitored. This alone would be incompatible with the German Constitution, and any examination of the remaining features or of the secondary questions in respect of the allocation of responsibilities would consequently be superfluous. Question 2: For which criminal offences should the European Public Prosecutor s Office be responsible? Do definitions of criminal offences established at the level of European Union require amplification? The very founding principle of the Green Paper to establish a prosecution authority at a European level and limit its authority to a single branch of criminal prosecution ( Public Prosecutor's Office for Economic Crime ) will inevitably encounter serious reservations in the absence of a harmonised or even uniform European code of criminal law. Even if Member States have already agreed on a proposal for a Directive (i.e. a first-pillar standardisation procedure) in their Brussels Agreement of 26 July 1995 on the protection of the financial interests of the European Communities and their supplementary protocol in the 3

4 context of the third pillar, German criminal law, for example is still a long way from treating fraud as a prejudicial offence or as a crime of negligence as is considered in the Green Paper (sub-paragraph , final paragraph). Even if such a thing already exists in other Member States or other judicial circumstances, the example shows the magnitude of the tasks involved in standardizing the law relating to economic crime. The creation of a uniform European code of criminal law could and should follow the establishment of a central and judicially monitored criminal prosecution authority. But it does not make much sense to proceed in the opposite direction and assign the prosecution of criminal offences to disparate sets of conditions and rules. Question 3: Should common supplementary rules be issued in parallel with the establishment of a European Public Prosecutor's Office in the following areas: - sanctions - criminal responsibility - statute of limitations - other areas? If so, on what scale? Answer: Question 4: Reference should be made to our reply to Question 2: standardization of the law in all of the areas specified in the question should precede the establishment of a central Public Prosecutor's Office. When and by whom must the European Public Prosecutor's Office be consulted? According to the Commission s proposal, the question of who (i.e. which national criminal prosecution authority) should or must deal with and/or inform the European Public Prosecutor, would be settled after institution in accordance with the procedure described in Art. 251 (i.e. in a joint decision with the European Parliament). Here too the correct sequence has been reversed: as the institution of a European Public Prosecutor's Office should be effected by means of an agreement in international law (amendment of the Treaty of Amsterdam) in the context of the third pillar, the accompanying procedure should be adjusted in the context of the first pillar, without previously including justice and therefore criminal prosecution among the functions of the first pillar on the basis of the situation as regards the European Treaty. The DAV declares itself in favour of the European Parliament creating the European pre-conditions for the creation of European justicial institutions (European Public Prosecutor's Office) and the expansion of the powers of the European Court of Justice to control of the same, and only establishing the attendant institutions on the basis of this democratically secured legal basis. 4

5 Question 6: Question 7: In view of the considerations in the Green Paper, how should responsibility be shared between the European Public Prosecutor and national criminal prosecution authorities, especially in hybrid cases? Precisely the prospect of hybrid cases as described in the draft version of the Green Paper (cases in which the criminal offences involved affect both the Community s financial interests and national interests) supports the establishment of a criminal prosecution authority in Europe only once its powers and the question of control have been settled legally, and it can be clearly distinguished from criminal prosecution authorities in Member States. In your opinion, is the list of investigatory measures proposed for the European Public Prosecutor sufficient to overcome the fragmentation of European jurisprudence in criminal cases? What arrangements (effective law, control etc.) should be made for such investigative cases? The German Law Society will comment separately on the European warrant of arrest. As regards other investigative measures which are associated with the infringement of fundamental rights, there must in any case be a guarantee that unambiguous and uniform rules apply and are guaranteed by a transparent and easily accessible appeal system. Question 8: What action is required to guarantee the implementation of investigative measures initiated by the European Public Prosecutor? The same applies as in the case of Question 7. Question 9: Subject to what conditions should the European Public Prosecutor make a decision to initiate proceedings or bring charges? Subject to the conditions of a previously created European law of criminal procedure. Question 10: On the basis of which criteria should a Member State or Member States be selected for bringing charges? Should the choice of jurisdiction be under the control of the European Public Prosecutor? In this event to whom should control be transferred? The question of the Member State in which the European Public Prosecutor should bring charges, i.e. the main hearing will be held, assumes that in this respect powers of discretion will remain with the European Public Prosecutor (as explicitly stated in sub-paragraph 6.3.1), and only certain criteria specified for the selection of the place of jurisdiction. Three models are under consideration: 5

6 1. Extensive sole responsibility of the European Public Prosecutor on the basis of Community-wide mutual recognition and the principle of ne bis in idem. 2. Introduction of judicial control by a national court, ideally the court before which charges are brought. 3. Establishment of a special court at Community level with the sole task of examining whether the choice of a Member State for the bringing of charges by the European Public Prosecutor is in accordance with the Commission s proposal. While the same objections can be once again raised against the first option as apply to the excessive independence and lack of control of the European Public Prosecutor (see above), the second and third options would once again require, from the viewpoint of constitutional law (of judges), the prior creation of a solid basis for legitimation within the first pillar of the European Communities, which is not yet in prospect. Question 11: In your opinion, is the principle by which evidence which is lawfully produced in one Member State should be admissible in the courts of the other Member States sufficient, with reference to the European Public Prosecutor's Office, to overcome the obstacles created by the differences in Member States rules on the admissibility of evidence? Like the German Professors of Criminal Law, the German Law Society strongly warns against a tendency to deformalize the processes for establishing the truth. Liberal achievements founded on the rule of law, such as the principles of immediacy and oral [evidence] must not be replaced with written procedures and the relinquishing or reducing of the effect of bans on producing evidence and on exploitation, especially as the fear must be that harmonisation would only take place at the very lowest level. Question 13: To whom should control of the bringing of charges be transferred? The same applies as in the case of Question 10. Question 14: In your opinion, are the basic rights of the individual adequately protected in the context of the procedure proposed for the European Public Prosecutor? Is there in particular an adequate guarantee of the right to avoid double jeopardy? In the reply to this question, a distinction must be made between on the one hand the aspect of the adequate protection of basic rights at a Community level (where sensibly because of the proposal for mutual recognition and the franchise which the Green Paper intends for the European Public Prosecutor's Office, the country with the lowest level of protection of basic rights would be invoked as a standard) and on the other the subsidiary question whether existing or proposed substantive procedural law provides adequate guarantees at a European 6

7 level that recourse to the law will in any case be available. This will depend on both the final wording and the interpretation of the European Charter on Fundamental Rights, and also on other procedural rules to be created at Community level. Question 15: Which rules should be provided to ensure that there is no friction in the relationship between the European Public Prosecutor's Office and parties cooperating on criminal cases in the context of the EU? The German Law Society recommends in this context that not only a lack of friction, but also the minimum standards of a liberal and formalised procedure based on the rule of law be required. After all, a lack of friction can also be encouraged by informal patterns of procedure. But this can also be associated with a loss of the rule of law if as a result of the renunciation of protective formulae transparency and control are also lost. Thus, for example, the reference to the supposedly positive experiences which have already characterised Europol, Eurojus, and the European Justice Network (EJN), is at best evidence of the fact that the removal of uncomfortable formalism can speed up and simplify procedures, without also saying something about the gain in compatibility with the rule of law on the part of the procedures in question. Question 16: What, with an eye on the assessment to be undertaken by the Commission of the position of OLAF, should be taken into account in respect of the points of connection between the European Public Prosecutor's Office and the European Anti-Fraud Office (OLAF)? The Green Paper fails to make adequately clear in the explanations in sub-paragraph why it will still be necessary to maintain the European Anti-Fraud Office (OLAF), once the European Public Prosecutor's Office can assume the powers and functions which the Green Paper assigns it. Hitherto OLAF has had a dual role: on the one hand as a committee with the task of preparing legislation, and on the other as an independent investigatory institution. The Green Paper recalls that that there are already plans to reform OLAF, and recommends that any definition of its relationship with the European Public Prosecutor be deferred until then. The Green Paper no more envisages a management or control function for the Public Prosecutor's Office visà-vis OLAF than it does a definition of the future relationship of the investigatory function. Should it be planned to give OLAF operational police tasks, the role of the Public Prosecutor's Offices (including where appropriate the European Public Prosecutor's Office) must be clearly defined. Question 17: How should relations between the European Public Prosecutor 7

8 and third countries, in particular acceding countries, be formulated, with a view to improving the prevention of acts disadvantageous to the Community s financial interests? The same applies as in the case of Question 16. Question 18: Which rights of appeal/legal remedies should be permissible against acts performed by the European Public Prosecutor in the execution of his office or performed at his direction? As regards the question of rights of appeal and legal remedies against judicial acts (performed by the European Public Prosecutor in the course of his activities) which the Green Paper concludes by raising again at sub-paragraph 8.2 (see question of control at Question 7 above), it is evident that the Commission wishes to confine itself expressly to the scope of regulation of the preliminary proceedings, while on the other hand it gives interesting consideration to the possible harmonization of the appeal system against decisions in the court proceedings. Consideration is thus being given to making it mandatory for Member States to provide an opportunity to appeal against any judgement by the court of first instance, or at least prohibit any deterioration [of circumstances] in cases where the convicted person lodges an appeal. It is disappointing that such positive approaches to an understanding founded on the rule of law should then immediately be abandoned on the basis that any such harmonisation of the appeal system is not absolutely essential to.. the smooth operation of the European Public Prosecutor's Office. For further information please contact: Deutscher Anwaltverein (DAV) Rechtsanwältin Tanja Albert Littenstraße 11, D Berlin Tel. 030 / (direkt) Fax: 030 / (Fax direkt) albert@anwaltverein.de Deutscher Anwaltverein, Büro Brüssel Rechtsanwalt Thomas Zerdick, LL.M. 1, Avenue de la Joyeuse Entrée / Blijde Inkomstlaan 1 B-1040 Bruxelles / Brussel Tel.: Fax: bruessel@anwaltverein.de 8