Abstract
In this paper we will discuss the presence of procedural safeguards in the specific context of EPPO cross-border investigation between participating Member States, non-participating Member States and third countries. The various sources of the safeguards will be identified in the EPPO Regulation, other European Instruments and mutual legal assistance international conventions. We will then probe the extent of these procedural safeguards and their efficacy by reviewing the state of play of other instruments of judicial cooperation used in the area of freedom, security and justice.
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Directive (EU) 2017/1371 of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, [2017] OJ L198/29.
Eurojust had 7804 cases ongoing at the end of 2019, 258 of them concerned PIF crimes. See 2019 Eurojust Annual Report available on Eurojust website. Eurojust 2017 Annual Reports accounts for 5608 cases of which 61 concerned PIF crimes.
Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office, [2017] OJ L 283.
Denmark, Hungary, Ireland, Poland and Sweden are not part of the EPPO. In 2019, Sweden through its Prime Minister expressed its intention to join the EPPO.
For a detailed approach of the relation between EPPO and third countries see Nicholas Franssen, “Judicial Cooperation Between the EPPO and Third Countries”, Eucrim, issue 3/2019 pp 198-205. For a concrete example of cooperation with a third country see Dr iur Maria Ludwiczak Glassey, “La Cooperation en matière pénale entre le Parquet européen et la Suisse comme Etat tiers », Eucrim, Issue 3/2019, pp. 205–209.
Charter of Fundamental Rights of the European Union [2012] OJ C326/392.
See Garlsson Real Estate and Others, C-537/16, EU:C:2018:193: “Art.50 of the Charter [non be in idem] confers on individuals a right which is directly applicable” (para. 68).
Art 52 para. 3 of the Charter provides that the meaning and scope of the rights enshrined by the European Convention on Human Rights shall be the same for corresponding rights contained in the Charter.
On 30 November 2009 the Council adopted the Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings ([2009] OJ C 295/1). Few weeks later in December 2009 the Roadmap was included in the Stockholm programme ([2009] OJ 115/2 see point 2.4 p. 10).
Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings ([2010] OJ L 280/1); Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings and access to case materials ([2012] OJ L142/1); Directive 2013/48/EU of 22 October 2013 on the right to access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third person and with consular authorities while deprived of liberty ([2013] OJ L294/1); Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings ([2016] OJ L65/1) and Directive (EU) 2016/1919 of the EU Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings ([2016] OJ L2297/1).
See report of the European Commission (the Commission) of 18 December 2018 on the implementation of the Directive on interpretation and translation (COM (2018) 857 final) and their report of 26 September 2019 on the implementation of the Direction on right to access to a lawyer (COM (2019) 560 final).
For another point of view see reports published by the European Union Agency for Fundamental Rights (FRA) on these two directives. Available at https://fra.europa.eu/en/themes/defendants-rights.
For concrete examples of implementation of the directive on interpretation and translation see p. 16 of TRAINAC report on Assessment, good practises and recommendations on the right to interpretation and translation, the right to information and the right to access to a lawyer in criminal proceedings by Jonathan Goldsmith published by the European lawyers Foundation in partnership with the Council of Bars and Law Societies of Europe, 2016. Available at https://elf-fae.eu/publications/.
See FRA reports fn 10 and TRAINAC report at fn 11.
See art. 2 para. 2 and art. 3 para. 1 of the Directive on interpretation and translation.
See TRAINAC report at fn 11.
See case C-612/15, Kolev, EU:C:2018:392 on the timely access to the file by the accused and the right to access to a lawyer.
Art. 6 Directive on right to information and access to the file.
FRA report “Rights of suspected and accused persons across the EU: translation, interpretation and information”, p. 63 onward; TRAINAC report p. 40 onward.
Art. 10 para. 1 and 4 of the Directive on access to a lawyer. Right reaffirmed by C-625/19 PPU, \(\mathit{XD}\), EU:C:2019:1078 para. 55.
Art. 4 para. 1 and 2 of the Directive on legal aid.
See for example Saunders v. UK, 17 December 1996, application No 19187/91 or Allan v. UK, 5 November 2002, application No 48539/99.
Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States [2002] OJ L190.
Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJL130.
Framework Decision 2009/829/JHA of 23 October 2009 on the application of the principle of mutual recognition to decisions on supervision measures as an alternative provisional detention [2009] OJ L294/1.
Ireland is still to implement the EIO and ESO Frameworks Decision. Denmark has not implemented the EIO Framework Decision.
EU Convention on Mutual assistance in criminal matters of 12 July 2000 [2000] OJ C197 and its protocol of 21 November 2001 [2001] OJ C326.
[2012] OJ C326/19.
Case C-216/18 PPU, \(\mathit{LM}\), EU:C:2018:586.
See art. 15 para. 1 (h) of the Framework Decision on supervision order.
See fn. 18.
See for example Case C-627/19 PPU, \(\mathit{ZB}\), EU:C:2019:1079, para. 31 and 38; or Joined Cases C-508/18 PPU and C-82/19 PPU, OG and PI, EU:C:2019:456 para. 71.
See OG and PI, fn. 31, para. 49–51.
See OG and PI, fn. 31, para. 90.
Case C-509/18 PPU, \(\mathit{PF}\), EU:C:2019:457 (Lithuanian prosecutor); Joined Cases C-566/19 PPU and C-626/19 PPU, JR and YC, EU:C:2019:1077 (French prosecutor) and Case C-627/19 PPU, \(\mathit{ZB}\), EU:C:2019:1079 (Belgium prosecutor).
Joined Cases C-508/18 PPU and C-82/19 PPU, OG and PI, EU:C:2019:456.
This is the current system used in Ireland for example.
See OG and PI, fn. 31, para. 67.
See \(\mathit{XD}\), fn. 20.
Art. 31 para. 6 of the Regulation.
See introduction of the EU CMLA fn. 25.
Convention of 20 April 1959.
Convention of 31 October 2003 (resolution 58/4).
Convention of 15 November 2000 (resolution 55/25) and its protocol of 31 May 2001 (resolution 55/255).
See art. 2 CoE Convention on mutual legal assistance.
See p. 2 of the UNCAC’s annex.
See art. 5 UNCAC for example.
See art. 6 and 18 UNTOC for example.
Art. 99 para. 3.
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Martin-Vignerte, E. Procedural safeguards in EPPO cross-border investigations. ERA Forum 21, 501–513 (2020). https://doi.org/10.1007/s12027-020-00626-6
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DOI: https://doi.org/10.1007/s12027-020-00626-6