Fundamental Rights and the European Public Prosecutor’s Office: an uncomfortable silence

 

 

Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma and Louis Middelkoop are members of the Meijers Committee (www.commissie-meijers.nl/en).

The EU’s proposal for the establishment of a European Public Prosecutor’s Office (EPPO) has created quite a stir in the Member States. The EPPO would be competent to investigate and prosecute fraud with EU money (e.g. the misuse of EU funds), although there is already talk about extending its competence to terrorism and other serious crime. So far, political negotiations over the draft regulation have focused on the question why the EU is in in need of this new supranational body in the first place, and on the extent of the EU’s influence on national affairs, particularly in such a sensitive area as criminal justice.

Supposing that in the near future the European Public Prosecutor’s Office will indeed be established, more attention to the substance of the current proposal needs to be paid without delay, particularly to the protection of fundamental rights. The current proposal raises serious concerns on this matter, as it is unclear who will supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing of procedural rights in transnational criminal law enforcement has already frequently been addressed by legislation. After all, Member States of the EU do cooperate intensively on a daily basis: think of the European arrest warrant mechanism, which enables the rapid surrender of suspects from one Member State to another. All such cooperation mechanisms contain provisions on legal protection.

The proposal to establish an EPPO takes criminal justice integration significantly further than any other instrument created thus far. The EPPO will be authorized to take intrusive coercive measures, such as ordering arrests, interceptions of telecommunication, or house searches, just as national prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO would be competent to apply these measures in all the territories of the participating Member States, without the restriction of national borders. It might therefore be expected that the ministers of justice, the European Parliament, and the European Commission would hold extensive debates on the precise conditions for searches, telephone interceptions, arrests, and pre-trial detention in supranational investigations. Surprisingly, they have not.  

On the contrary, in their efforts to prevent a further transfer of power to ‘Brussels’, most Member States oppose any further approximation of criminal procedure. And those who do support the establishment of an EPPO hold that citizens’ rights are already sufficiently protected, referring to the fundamental rights acquis laid down in treaties and the EU Charter. They also point out that the EPPO must respect the additional procedural guarantees provided in the domestic legal order of the Member State where it is conducting its operations.

 From national to transnational criminal procedure

Such safeguards are designed for the administration of criminal justice in a domestic system and will not always fit the new transnational setting of the EPPO. The potential consequences of this systemic flaw in EPPO’s design are highly problematic. Imagine that the EPPO conducts a house search without proper judicial authorization in Amsterdam, and then that the case is subsequently brought to trial before a Milanese criminal court. Should the Italian judge apply the complicated Dutch case-law on unlawful house searches? And should the EPPO be allowed to search someone’s personal computer online, from a distance, in order to evade the stricter rules of the Member State on whose territory the computer is located? After all, it is not only the mobility of criminals that is increasing, but also of witnesses, information, and evidence in the area of freedom, security and justice to which the EU aspires. Nonetheless, the proposal remains silent on these issues, with such potential consequence as forum shopping and a race to the bottom of the lowest level of safeguards.

The envisaged framework for the EPPO leaves an important question unanswered: Do discretionary margins for choosing the applicable national law with respect to investigatory powers, procedural safeguards, judicial supervision, admissibility of evidence, etcetera permit arbitrary interference with the fundamental rights of citizens involved in criminal proceedings?

Both the European Court of Human Rights and the European Court of Justice have consistently stressed the importance of the rule of law, as a vital mechanism defending against arbitrary interference with citizens’ fundamental rights. The law provides citizens with legal certainty as to the scope of their rights and duties; it helps to effectuate their defence rights; and it enables courts to prevent executive discretion from turning into arbitrariness. Under the proposed EPPO set-up, the problem is not that national laws are absent, unclear or ignored. The problem is rather that the EPPO is given more than twenty divergent national legal system to work with. This creates the risk that a legal avenue for a particular intrusive measure might be very easy to obtain. In certain cases, the EPPO is allowed to choose the most attractive rules from multiple codes of criminal procedure – and continuously to change the rules during the game, without its adversaries having any say on the matter, and without courts being able to exercise control. This leaves citizens without an adequate indication of which set of national rules will apply in a particular case. 

As a community based on the rule of law, the European Union should protect its citizens against arbitrary action by European law enforcement authorities. In order to guarantee that the rule of law will be upheld in the European Public Prosecutor’s Office, citizens must be offered legal certainty  as to which law will be applied. Moreover, the law must be adequately accessible to all citizens: they must be permitted to know their rights and duties, and invoke them in court.

 

Barnard & Peers: chapter 9, chapter 25