OLAF/2002/05657-00-00-EN PRO MEMORIA EUROPEAN PUBLIC PROSECUTOR BRUSSELS, 16/17 September 2002 Paper by Italo Ormanni, Deputy Prosecutor in Rome and representative of the prosecution and investigation authority
ANSWERS TO QUESTIONS POSED BY THE COMMISSION IN ITS GREEN PAPER GENERAL QUESTION We concur with this, both in terms of the scope of action and powers of the structure and how this will interact with national systems of criminal law. QUESTION 1 We agree with the criterion for the internal organisation of the European Public Prosecutor s office and six-year non-renewable mandate. However, we wish we could say the same for the Deputy European Public Prosecutor: we cannot contemplate maintaining the national status of the Deputy Prosecutor when the European Public Prosecution Service is (quite rightly) given a hierarchical structure. A Deputy Public Prosecutor, whether a magistrate or civil servant, cannot report to two different structures without seriously undermining his independent status. This is especially true where the disciplinary system is left undecided, as in the case of the two hats rule. There are also the logistical problems inherent in the European and domestic working and investigative environments, difficulties which would result in the Deputy Prosecutor having to set priorities on a near-daily basis. In paragraph 4.2.1.1, which states that the Community interest should prevail in the event of a conflict of interests, this argument begins to wear thin. Who will oversee this and, more importantly, who will indemnify the Deputy European Prosecutor against any domestic comeback when he is charged with abandoning national interests that run counter to his professional duty? Neither can we advocate leaving the choice of options (exclusively European or the duality of functions) to the discretion of each Member State : once we attempt to establish a structure which stands alone from national regulations, do we then introduce the possibility of an alternative discipline as each Member State sees fit, to prevent any diversity of or conflict between these regulations? Finally, if the Deputy Public Prosecutors' role is to relate to each case that has been assigned to them (4.2.1.2), it can no longer be said that the remit of each Deputy Public Prosecutor should be set out by his or her Member State. QUESTION 2 We are in agreement with the offences covered by the Green Paper. Naturally, as the structure develops, as is the case with many other Community functions, the definitions of offences could eventually extend to other types of cross-border crime, such as terrorism, child pornography over the Internet and illegal immigration into Europe. 2
QUESTION 3 We agree that the establishment of the European Public Prosecutor should be accompanied by further common rules, particularly with respect to additional penalties, such as exclusion from European tendering procedures. As for the limitation period, this could be aligned with the longest term in force in any Member State for the offence in question. Finally, it is difficult to pin liability onto anyone exercising managerial authority within a body corporate when the fraud or corruption is committed by another individual. Therefore, liability due to lack of supervision or management should be excluded, without prejudice to the charge of complicity in the commission of the offence (NB: the Italian delegation has already expressed doubts over the application of this point, which corresponds to Article 13, Section 1 of the Corpus Juris). QUESTION 4 It would be worth making the referral of cases to the European Public Prosecutor mandatory for both national and Community authorities. QUESTION 5 We would opt for the principle whereby a case must be brought to trial when referral of the case to the European Public Prosecutor is mandatory. A value threshold could be set, below which cases do not need to be referred to the European Public Prosecutor. In terms of out-of-court settlements, these should have the effect of terminating the prosecution in progress, without prejudice to any future prosecution, as implied by paragraph 6.2.2.1. Evidently any attempt to try a suspect for the same crime would bring the double jeopardy principle into play. QUESTION 6 If we assume that certain interests and the protection of these interests are supranational and thus qualify for protection by a supranational European Public Prosecutor, we are forced to opt for the introduction of the principle of specialisation, whereby any case deemed as special would attract and be consolidated with other related cases. This principle is already enforced in many Member States, such as for acts of terrorism or certain types of organised crime. The possibility of appeal before the Court of Justice would not be affected however, subject to the determination of jurisdiction. QUESTION 7 The list of investigation measures is sufficient, at least as regards the preparatory phase. The applicable law and review should be that of the Member State in which the measure (or most of it) subsequently has to be executed. 3
QUESTION 8 We would prefer to see assistance made compulsory: this would eliminate problems undermining the Community principles of effectiveness and equivalence. QUESTION 9 The options outlined in paragraph 6.2.4 can be deemed exhaustive in the current climate. However, to ensure greater control over the work of the European Public Prosecutor, closure decisions would also need to be reviewed by a judge, who would then hand down a judgment after evaluating the request and explanations made by the European Public Prosecutor and any opposition by the other party, upon whom the decision would naturally be served. QUESTION 10 The Member State or Member States of trial should be chosen based on where the offence was committed; secondarily, it should be determined based on the nationality of the accused, without prejudice to the possibility of a conflict of interests at the Court of Justice. We cannot accept a discretionary choice of forum by the European Public Prosecutor. QUESTION 11 We concur. (N.B.: this concerns Article 33 of the Corpus Juris, on which the Italian delegation expressed a favourable opinion). QUESTION 12 We support the option outlined in the answer given to Question 10: the court entertaining jurisdiction will be situated in the Member State in which the offence was committed, or secondarily, in the Member State to which the accused belongs (Note: this is not one of the Commission's proposals). QUESTION 13 The national court (see answer to Question 12). 4
QUESTION 14 Yes. QUESTION 15 As things currently stand, it is impossible to codify exactly theoretical patterns of behaviour of the future European Public Prosecutor and those already involved in cooperation in criminal matters, which, by the time the European Prosecutor is established, will already have their own codes of conduct. There is some merit in the suggestion that basically it comes down to relations between people from similar institutional backgrounds and people on whom patterns of behaviour can be modelled. QUESTION 16 Definitely the requirement that the European Public Prosecutor be informed. However, the fact is that OLAF is an administrative body and, as such, is one of the bodies that will work together with the European Public Prosecutor. It will be this new office, which should assess the possibility of submitting any reports for further examination to ensure that, from a procedural point of view at least, they are fit for presentation before a third judge. QUESTION 17 Given the current state of affairs, relations can only be maintained if the European Public Prosecutor directs a Member State to approach a third country with a request for judicial assistance, with the ensuing duty for the Member State in which the European Public Prosecutor has an interest to oblige. QUESTION 18 Based on the answers already given to Questions 10, 11, 12, and 13, the appeal procedures should be those provided for by the legal system of the Member State of trial, based on fixed rules governing the point mentioned previously. (NB: this concerns Article 27, Section 1 of the Corpus Juris, on which the Italian delegation, together with delegations from eight other Member States, has expressed a favourable opinion). 5