Association Européenne des Magistrats European Association of Judges Groupe Régional de l Union Internationale des Magistrats Regional Group of the International Association of Judges Günter Woratsch Hon. President of the International Association of Judges Chairman of the Working Group Ernest Markel Vize President of the International Association of Judges President of the European Association of Judges Enclosed please find the remarks to the Green Paper on the European Public Prosecutor worked out by a working group of EAJ and adopted in the EAJ-Meeting of 4 May 2002.
Remarks upon the GREEN PAPER on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor General Question: What do you think of the general outline proposed for the European Public Prosecutor, in particular as regards: - his scope of action (confined to the financial dimension Community interests)? The operation should be similar to that of the European warrant of arrest. Nevertheless it is also possible to discuss the proposal under the aspect of the protection of the financial interests of the Community. - his powers? The proposal of the Commission does not consider the European Public Prosecutor as an European Institution in the sense of the treaty but as an "organ", that means in no way dealing with the protection on development of the treaty. There is no reason to criticise this position. But a real legitimacy must be assured. - his relationship with national systems of criminal law? The proposal is based on the realisation of the principle of mutual recognition. The provided conditions seem to be sufficient to reach this goal. Also certain harmonisation in some questions like the definition of sanctions i. p. against legal persons, limitation etc is not excluded. Question 1: What are your views on the proposed structure and internal organisation of the European Public Prosecutor? Should the European function conferred on the Deputy European Public Prosecutor be an exclusive function or could it be combined with a national function? The structure and organisation is acceptable in principle. The most important point is a sufficient guarantee for the independence of the European Public 1
Prosecutor and the Deputy European Public Prosecutors as well. Therefore at least a participation of the judicial power in the procedure of appointment of these functionaries is necessary. Taking and respecting of proposals of existing (national) High Judicial Councils must be inevitable. The opinion and assessment by the Supreme Court of the concerned country also can be taken into account. On international (Community) level also an organ representing the members of the judiciary in the different countries of the Union should be heard. It is to stress that on a longer-term basis the installation of an adequate representation of the judicial power in the Community without doubt will be necessary to ensure a balanced system of separated powers also on this level. The European Association of Judges having well-trained experts in all Member States and applicant countries as well is prepared and willing for any collaboration in working out proposals. Another problem to be mentioned is that in contrary to the provided independence of the European Public Prosecutor the public prosecution authorities in some Member States are subject to the directions of the executive power mostly the Minister of Justice. Thus conflicts may arise when national public prosecutors are called to assist the European Public Prosecutor. In any case must be avoided that the work of the European Public Prosecutor is obstructed or unduly influenced by national authorities. Question 2: For what offences should the European Public Prosecutor have jurisdiction? Should the definitions of offences already provided for in the European Union be amplified? A definition of offences is inevitable like as fraud, bribery, money-laundering. That should not bring greater difficulties. The proposal of the Commission to amplify the definitions must be appreciated. The list of the offences governed by the European warrant of arrest could be taken into account. Question 3: Should the establishment of the European Public Prosecutor be accompanied by certain further common rules relating to penalties, liability, limitation, other matters? If so, to what extent? The definition of common sanctions in particular concerning legal persons is important. The suggestion of the Commission to increase the harmonisation in the interest of respecting the principle of legality and of equality of all justiciables in front of criminal law is to appreciate. It is up to the legislator of the Community to create the adequate rules. 2
Question 4: When and by whom should cases be referred to the European Public Prosecutor? In any case it should be obligatory for Community - authorities to refer cases to the European Public Prosecutor. Question 5: Should the European Public Prosecutor be guided by the mandatory prosecution principle, as proposed by the Commission, or by the discretionary prosecution principle? What exceptions should be provided for in each of these cases? According to the purpose of establishing a European Public Prosecutor, the principle of mandatory prosecutions should be applied, with the exceptions already proposed in the text. Question 6: Given the ideas put forward in this Green Paper, how should functions be distributed between the European Public Prosecutor and the national enforcement authorities, notably in order to see that hybrid cases are properly treated? "Hybrid cases", cases involving a Community offence and a national offence call for the (judicial) co-operation. The consultation between the European Public Prosecutor, Deputy European Public Prosecutors and the national prosecutors authorities should be the usual and normal way of work of the European Public Prosecutor. Possibilities that the work of the European Public Prosecutor can be influenced or even obstructed by national authorities must be excluded (see also Question 1). Question 7: Does the proposed list of investigation measures for the European Public Prosecutor seem to you to be adequate, particularly as a means of overcoming the fragmentation of the European criminal-law area? What framework (applicable law, review) should be envisaged for investigation measures? On the whole the proposed measures seem to be adequate. Of highest importance is the role and position of all (national) judges dealing with "European cases". In the appointment-procedure of these judges all undue influences must be excluded. At least the generally provided national rules for appointment are strictly to be respected and in no way substituted by 3
"weaker" methods. International recommendations on the independence of judges are to be respected as well. Question 8: What solutions should be envisaged to ensure the execution of investigation measures undertaken by the European Public Prosecutor? To describe the general point of view of the European Association of Judges more detailed remarks as already expressed are not necessary. Question 9: On what terms should the European Public Prosecutor be able to take a decision to close a case or commit it for trial? See Question 8 Question 10 : By what criteria should the Member State or States of trial be chosen? Should the European Public Prosecutor s choice be subject to review? If so, by whom? See Question 8 Question 11: Do you think that the principle that evidence lawfully obtained in a Member State should be admissible in the courts of all other Member States is such as to enable the European Public Prosecutor to overcome the barrier raised by the diversity of rules of evidence? See Question 8 Question 12: To whom should the function of reviewing acts of investigation executed under the authority of the European Public Prosecutor be entrusted? To only one judge of freedom, who would issue or authorise all the acts needed for the investigation, executable throughout the Communities on the basis of the mutual recognition principle. 4
Question 13: To whom should the committal review function be entrusted? The national court, designated by each member state for this purpose, should exercise the committal review function. Question 14: Do you feel that fundamental individual rights are adequately protected throughout the proposed procedure for the European Public Prosecutor? In particular, is the double jeopardy principle properly secured? On the whole the fundamental rights are adequately protected throughout the procedure of the preparatory stage. The principle "ne bis ne idem" should be applicable during the preparatory stage also. Question 15: How would the relationship between the European Public Prosecutor and those involved in co-operation in criminal matters in the European Union be best organised? The already existing institutions in particular EUROJUST can be used further on. As far EUROPOL is concerned the European Public Prosecutor will profit by the work of it. But the establishment of European Public Prosecutor also offers the possibility to installate a sufficient judicial control for the mentioned unit what is lacking until to day. Question 16: In the run-up to the Commission s evaluation of the rules governing OLAF, what factors related to the relationship between the Office and the European Public Prosecutor seem most meaningful to you? There are no objections against the Commission s ideas of the future role of OLAF. 5
Question 17: What type of relations should the European Public Prosecutor maintain with third countries, and in particular applicant countries, in order to improve efforts to combat activities, which damage the Community s financial interests? A collaboration of the European Public Prosecutor with third countries in particular applicant countries will be necessary and helpful. Question 18: What procedures should be available for judicial review of acts done by the European Public Prosecutor or under his authority in the exercise of his functions? A judicial review procedure should be available against any act by the European Public Prosecutor that restricts individual fundamental rights especially restriction or deprivation of personal liberty. The Community as victim should have standing to act against a closure decision taken by the European Public Prosecutor in judicial review in a national (Member State) court. Legal remedies never shall bring opportunity to delay or even obstruct procedure. Judicial control by the Court of Justice should be restricted to basic questions and "harmonising competencies". Conclusions: On the whole the present proposal must be assessed as an important step not only in order to fight efficiently against international criminality but also to gain more harmonisation and in particular legal unity and homogenousness of jurisdiction within the Community in the interest of its citizen. But it must be emphasized that a success in practice to a highest degree will be dependent of the real independence of the judicial authorities dealing with. 6